If you handle probation revocation hearings in Pennsylvania, you already know that Act 44 of 2023 changed the game. Effective June 11, 2024, the legislature rewrote 42 Pa.C.S. § 9771 to impose statutorily defined limits on when a court can revoke probation and impose total confinement for technical violations. The new statute starts with a presumption against incarceration for technical violations and then walks the court through a structured set of preconditions and time limits before the door to total confinement opens.
The Superior Court has now been working through what those preconditions actually require. Commonwealth v. Potoczny, 2026 PA Super 82, is the latest installment, and it tightens the screws considerably on what trial courts have to do — and what the Commonwealth has to prove — before a technical violator can be sent to a state correctional institution.
The short version: a defendant’s admission that he tested positive for drugs three times is not, by itself, enough to support incarceration under Section 9771(c)(1)(iii)(F). The Commonwealth has to put on evidence — actual evidence, not just the petition — that the defendant cannot be safely diverted from total confinement through less restrictive means. The trial court has to find that as a matter of preponderance. Without those steps, any sentence of total confinement is illegal.
The Statutory Architecture After Act 44
Before getting to Potoczny‘s facts, it helps to understand the framework. Section 9771(c) now does two things in sequence.
First, subsection (c)(1) sets out the prerequisites a court must find before it has any authority at all to impose total confinement. There are three pathways. First, the defendant has been convicted of another crime. Second, the court finds by clear and convincing evidence that the technical violation involves an identifiable threat to public safety and the defendant cannot be safely diverted through less restrictive means. Or, third, the court finds by a preponderance of the evidence that the defendant committed a technical violation and one of six specific aggravating factors applies: (1) the violation was sexual in nature, (2) involved assault or threatened bodily injury, (3) involved a weapon, (4) involved the manufacture or distribution of controlled substances, (5) the defendant absconded and cannot be safely diverted, or — the provision at issue here — (6) the violation involved an intentional and unexcused failure to adhere to recommended programming or conditions on three or more separate occasions and the defendant cannot be safely diverted from total confinement through less restrictive means.
If the court clears the (c)(1) hurdle, subsection (c)(2) imposes graduated time limits: 14 days maximum for a first technical violation, 30 days maximum for a second, and only on a third or subsequent technical violation may the court impose any sentencing alternative available at the original sentencing.
Two things about the structure are worth pausing on. The first is that subsection (c)(1) and (c)(2) are independent. You don’t get to (c)(2) unless you clear (c)(1). The second is that the (c)(1)(iii)(F) pathway — the multiple-violations pathway — has a built-in counting rule: “multiple technical violations stemming from the same episode of events shall not constitute separate technical violations.” That’s important.
What Happened to Mr. Potoczny
Joseph Potoczny was on probation for a recklessly endangering another person conviction stemming from a 2020 incident in which he had drugs within reach of a child. His probation began in July 2024. By September, he had tested positive for methamphetamine and marijuana. By December, he had two more positive tests for methamphetamine. The Commonwealth filed an amended petition alleging three positive screens.
The revocation hearing — and I use the word “hearing” generously here, because the Superior Court itself notes it was “highly informal” — produced an admission from Potoczny, through counsel, that he had in fact tested positive on the three dates alleged. No witness was sworn. No evidence was offered. A probation officer made statements that weren’t under oath. The trial court added an allegation about Potoczny being kicked out of rehab that wasn’t in the petition. There was a brief argument about whether the three positive screens constituted one “episode” — counsel argued they did, because they all stemmed from the same relapse — but the trial court disagreed without really explaining why.
The trial court then revoked probation and sentenced Potoczny to 12 to 24 months — the statutory maximum for the underlying second-degree misdemeanor — to be served in a state correctional institution. The court’s stated reasoning: county supervision had not worked, Potoczny had a long history of theft and drug use, and the state had the “best potential resources” for him.
The Superior Court vacated.
The Less-Restrictive-Means Finding the Trial Court Never Made
The decision turns on a piece of statutory text the trial court essentially ignored. Subsection (c)(1)(iii)(F) doesn’t just require three or more separate occasions of intentional, unexcused noncompliance. It also requires that the defendant “cannot be safely diverted from total confinement through less restrictive means.”
The trial court’s written opinion — which the Superior Court fairly characterizes as having focused “exclusively” on the three-occasions question — never made the less-restrictive-means finding. It didn’t even mention the requirement, beyond quoting the statutory text. And the record contained nothing the court could have based such a finding on, because no evidence was presented at the hearing.
The Superior Court was careful. The court doesn’t pretend that drug use can never support incarceration. It simply holds that the Commonwealth has a burden to produce evidence and the trial court has a duty to make a finding. Counsel’s representation that the defendant tested positive three times is, at most, an admission that the violations occurred. It is not an admission that no less restrictive means could divert the defendant from incarceration. It is not an admission to every element of the statute.
The Commonwealth’s argument on appeal — that the trial court’s general comments about Potoczny’s drug history and prior failures on supervision constituted an implicit finding — got rejected. The court declined to “equate these offhand statements, without record support, made at the conclusion of the hearing with a specific finding that Potoczny cannot be safely diverted from total confinement through less restrictive means.” Worse, the record was “devoid of any indication that the court even considered means of punishment and rehabilitation less restrictive than total confinement.”
This is the part of the opinion that is important. Under Act 44, generalized concerns about the defendant’s history are not enough. The court has to actually consider less restrictive alternatives, on the record, and explain why they won’t work.
A Useful Contrast: Goodwin
The opinion’s footnote 12 points to a contemporaneous decision, Commonwealth v. Goodwin, that’s worth reading alongside Potoczny. In Goodwin, the Superior Court affirmed a finding of no less restrictive means based on the defendant’s admission combined with the probation officer’s sworn testimony showing that the probationer “deliberately chose not to comply with any conditions and obligations of his probation early on” and had repeatedly absconded even when given chances to start fresh. That kind of record — sworn testimony, specific facts about the defendant’s pattern of noncompliance, evidence that prior interventions had failed — supported the inference that nothing short of imprisonment would work.
The contrast tells you something about what the Superior Court is doing. It’s not requiring magic words. It’s not making revocation impossible. It’s requiring an evidentiary hearing where the Commonwealth puts on its case, the defendant has an opportunity to respond, and the court makes findings tied to specific facts in the record.
The Issue the Court Didn’t Reach — but Hinted at Heavily
Because the court vacated under subsection (c)(1), it didn’t have to reach Potoczny’s third issue: whether his three positive drug screens, alleged in a single revocation petition, properly counted as three technical violations under subsection (c)(2)(iii) — putting him in the “third or subsequent” category and exposing him to the full statutory maximum. The court signaled in footnote 12, however, that under Goodwin, “if the Commonwealth files a first petition seeking revocation of probation for technical violations — even if alleging the defendant committed multiple, independent and separate violations — the defendant can only be sentenced therefor as a first technical violator pursuant to section 9771(c)(2)(i).”
If that’s right — and Goodwin says it is — then Potoczny’s 12-to-24-month sentence is doubly illegal. Even if the trial court had made the less-restrictive-means finding, this was Potoczny’s first revocation petition, which means he was a first technical violator under (c)(2)(i), which caps incarceration at 14 days. The Commonwealth’s theory at the hearing — “each drug screen is a technical violation” — is exactly the theory Goodwin rejects.
The recidivist philosophy embedded in subsections (c)(2)(i) through (iii) is a real legislative choice. The legislature didn’t say “courts may treat each violative act as a separate violation.” It built a graduated structure that gives probationers a chance to reform after a first petition, escalates after a second, and only on a third or subsequent petition opens up the full sentencing menu. Stacking violations within a single petition collapses that graduated structure into a single proceeding — and Goodwin won’t allow it.
Where This Leaves Probation Revocation Practice
Potoczny is not a sea change. It’s a careful, methodical application of Act 44’s statutory text to a record that didn’t support the sentence imposed. But its practical implications are substantial.
Trial courts can no longer treat revocation hearings as informal proceedings where counsel admits to violations and the court moves directly to resentencing. Each prerequisite under subsection (c)(1) — including the less-restrictive-means component, where it applies — needs to be supported by record evidence and addressed by specific findings. Generic recitations of the defendant’s criminal history won’t carry the day.
The Commonwealth, for its part, needs to come prepared. If it wants to incarcerate a technical violator under (c)(1)(iii)(F), it needs to put on evidence — i.e. sworn testimony — about the defendant’s pattern of noncompliance, the alternatives that have been tried, and why the defendant cannot be safely diverted from confinement. The petition is not the evidence. The probation officer’s unsworn statements are not the evidence.
The structural limits on Pennsylvania’s probation revocation power are stacking. Each new case fills in the contours of Act 44, but the direction is clear: the Superior Court is holding the trial courts to the reforms that Act 44 implemented.