Photo: Shutterstock.com

The Pennsylvania Supreme Court has agreed to hear arguments over whether probation can be revoked because of offensive social media posts even if no specific condition of probation was violated.

In Commonwealth v. Foster, the state Superior Court ruled in January to uphold an 11.5-to-23-month jail sentence, plus seven years’ probation, imposed by a Philadelphia trial judge on defendant Darnell Foster for violating his probation.

The trial court had determined that eight photos Foster posted to Instagram and Facebook—depicting, among other things, guns, wads of cash and drugs—constituted a probation violation.

In January, a three-judge panel of the Superior Court agreed.

“We find that: 1) the commonwealth’s burden of proof in establishing a probation violation is a preponderance of the evidence; and 2) that a probation violation can be established whenever it is shown that the conduct of the probationer indicates the probation is an ineffective vehicle to accomplish rehabilitation and is not sufficient to deter against future antisocial conduct,” Judge Correale Stevens wrote for the panel, which also included Judges Jack Panella and Judith Ference Olson.

According to Stevens’ opinion, Foster was arrested in May 2015 and charged with possession with intent to deliver and simple possession of a controlled substance. In July 2015, he entered into a guilty plea to possession with intent to deliver in exchange for a sentence of four years’ probation.

But Foster was detained in August 2016 based on eight photos he posted to Instagram and Faceook, depicting: a nine millimeter gun and $100 bills; a large wad of $100 and $50 bills; the words “fuck you” spelled out in Percocets; a bag of marijuana; another large amount of pills; Foster wearing his house arrest ankle bracelet while fanning several $100 and $50 bills; and Foster’s sentencing sheet noting that he had been placed on “youth violence reduction probation.” In October 2016, Foster was found in violation of his probation and re-sentenced to 11.5-to-23 months’ incarceration, followed by seven years’ probation.

Foster argued to the Superior Court that he downloaded the images of guns and drugs from the internet in attempt to glorify “gangsta” culture and that revocation of his probation based on social media photos violated his due process and free speech rights under the First Amendment and Article I, Section 7 of the Pennsylvania Constitution.

But Stevens said that argument “proceeds from the flawed assumption that his act of posting the images constitutes protected free speech under the United States and Pennsylvania constitutions and that a violation of a specific probationary term directing that he refrain from possessing illegal drugs, when he was on probation for PWID, and/or that he refrain from using social media was necessary to sustain the trial court’s decision.”

“Clearly, while a probationer has certain constitutional rights, those rights are restricted and as such, there is no violation of those rights in the instant case,” Stevens said.

Stevens said it was “irrelevant” whether most of the photos Foster posted were taken from the internet.

“By his own admission, the images appellant posted on his social media accounts illustrate his association of himself with contraband, a propensity for violence, and the glorification of drugs as well as show his lack of rehabilitation and his antisocial conduct,” Stevens said. ”This is especially so since he pled guilty to possession with intent to deliver heroin, a dangerous and addictive opioid.”

Stevens added, “Assuming, arguendo, that when he posted the photographs appellant intended nothing more than to ‘show off to people,’ the fact remains that the commonwealth presented unrefuted evidence that the images of illegal drugs, firearms, and large amounts of currency, coupled with the photograph of his sentencing sheet and commentary thereon, actively suggest appellant’s continued involvement with these items.”

But on June 25, the Supreme Court granted Foster’s petition for allowance of appeal, limited to a single, two-part question: ”Did not the Superior Court err by ignoring the governing statute and due process protections that permit revocation only for a violation of specified conditions of probation, and by holding that [petitioner's] inappropriate offensive social media posting, that violated no condition of probation, warranted revocation?”

Foster’s attorney, Leonard Sosnov of the Defender Association of Philadelphia, said the case “raises an important issue as to circumstances when you can revoke somebody’s probation or parole.”

“In this case, the Superior Court held you could revoke somebody’s probation even if there was no condition of probation that was violated,” Sosnov said, calling that a “vague, ambiguous standard.”

A spokesman for the Philadelphia District Attorney’s Office could not be reached.