Com. v. Washington, M.
CourtSuperior Court of Pennsylvania
Date FiledNovember 3, 2026
Docket103 WDM 2026
JudgeStevens
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
J-M05003-26
2026 PA Super 249
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN WASHINGTON :
:
Petitioner : No. 103 WDM 2026
Appeal from the Order Entered August 21, 2026
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-MD-0010568-2026
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: November 3, 2026
Petitioner Marvin Washington filed a “Petition for Specialized Review
Pursuant to Pa.R.A.P. 1610” (hereinafter “PFSR”), seeking review of the order
of the Court of Common Pleas of Allegheny County which denied Petitioner’s
motion for modification of bail. See Pa.R.A.P. 1610 (providing for review of
an order modifying conditions of release before sentence via petition for
specialized review); Pa.R.A.P. 1762(b)(2) (providing that an order relating to
bail when no appeal is pending shall be subject to review pursuant to Chapter
16 of Rules of Appellate Procedure); Interest of N.E.M., 311 A.3d 1088 (Pa.
2024) (holding review of a petition for specialized review involving juvenile
out-of-home placement order is mandatory); Commonwealth v. Miller, 319
A.3d 575 (Pa. Super. 2024) (applying rationale in N.E.M. to petitions for
specialized review of bail under Rule 1610). As the trial court’s denial of
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-M05003-26
Petitioner’s request for bail modification was erroneous, we vacate the trial
court’s order and remand for the trial court to determine whether to impose
monetary or nonmonetary bail and to assess what bail conditions are
necessary, if any.
On July 21, 2026, Petitioner was charged with Drug Delivery Resulting
in Death, Criminal Use of a Communication Facility, Possession of a Controlled
Substance, and Delivery of a Controlled Substance.1 These charges were
based on allegations that Petitioner had provided a controlled substance to a
woman (hereinafter “the victim”), which led to her fatal overdose.2
On July 24, 2026, at Petitioner’s arraignment, the magistrate court
denied Petitioner bail. Although the preliminary hearing was scheduled for
August 6, 2026, it was continued due to the unavailability of Commonwealth
witnesses. On August 3, 2026, the trial court again denied Petitioner bail.
On August 5, 2026, Petitioner filed a motion to modify bail, requesting
nonmonetary bail with electronic home monitoring. On August 20, 2026, the
trial court held a hearing on the motion. At the beginning of the hearing,
Taylor Hackett, a representative of Pretrial Services, informed the trial court
that Petitioner’s criminal record included twelve arrests, one felony conviction,
two misdemeanor convictions, and no failures to appear. Notes of Testimony
(N.T.), 9/10/26, at 3. Ms. Hackett confirmed Petitioner’s felony conviction
____________________________________________
1 18 Pa.C.S.A. §§ 2506(a), 7512(a); 35 P.S. § 780-113(a)(16), (30),
respectively. The docket shows that while this appeal was pending, the
Commonwealth filed its criminal information on October 9, 2026.
2 The victim’s full name was not included in the record provided to this Court.
-2-
J-M05003-26
was from the 1980s. Id. Ultimately, Ms. Hackett indicated that Pretrial
Services recommended no release and no contact with the victim’s family. Id.
Defense counsel argued that Petitioner should be granted bail as he was
neither a flight risk nor a danger to the community. Defense counsel provided
the trial court with the street address where Petitioner lives with his son. Id.
at 3-4. Defense counsel noted Petitioner had to renew his housing that month
or risk losing it. Id. at 4. With respect to the instant case, defense counsel
highlighted that Petitioner voluntarily submitted to a police interview and
surrendered to police. Id.
While defense counsel acknowledged Petitioner’s criminal history, she
emphasized Petitioner had no failures to appear in any prosecution, his felony
conviction for receiving stolen property was from approximately forty years
ago, and Petitioner’s most recent conviction was in 2017 for a misdemeanor
possession charge. Id. Defense counsel also noted that Petitioner, a sixty-
one-year-old man, did not have any history of drug dealing and no drugs were
recovered from his residence. Id.
Further, defense counsel raised evidentiary concerns, claiming the
victim’s autopsy revealed that other drugs were present in her system that
did not match the substance that Petitioner allegedly provided her. Id. at 4-
5. Lastly, defense counsel emphasized that while the underlying incident
occurred in September 2024, Petitioner remained within the community for
two years without any incident or police contact, showing the Commonwealth
itself did not consider Petitioner to be a danger to the community. Id. at 5.
-3-
J-M05003-26
The trial court asked the prosecutor why there was such a long delay in
the filing of the instant charges. Id. at 8. The prosecutor acknowledged that
he did not know the actual basis for the delay as he had not been involved
with the investigation of the case. Id. However, the prosecutor noted that
delays are often associated with the prosecution of the charge of Drug Delivery
Resulting in Death as such cases require extensive review of medical records
and consultation with medical experts to assess causation. Id.
The sole witness presented by the Commonwealth was the victim’s
mother, Hope Sullivan, who indicated that the victim’s ten-year-old son had
found the victim lying on the bathroom floor on the night of her overdose. Id.
at 7. Ms. Sullivan indicated that she cried every day as she missed her
daughter. Id. Characterizing Petitioner as a “danger to society,” Ms. Sullivan
asked that Petitioner be denied bail so that “he can’t do this to anyone else’s
child.” Id. Defense counsel had no questions on cross-examination. Id.
The trial court then asked Ms. Sullivan whether the victim had a history
of drug use; Ms. Sullivan responded in the negative, explaining that the victim
had undergone brain surgery a year before the incident. Id. at 7-8. When
the trial court asked about the nature of her daughter’s relationship with
Petitioner, Ms. Sullivan stated that she did not know. Id. at 8.
Thereafter, the trial court stated it would look over the matter and issue
a ruling. Id. The Commonwealth did not admit any further evidence. Defense
counsel asked to clarify for the record that the victim’s autopsy reported she
had a history of drug use. Id. The trial court concluded the hearing.
-4-
J-M05003-26
On August 21, 2026, the trial court entered an order denying Petitioner’s
motion for modification of bail. On September 2, 2026, Petitioner timely filed
the PFSR. On September 16, 2026, the Commonwealth filed its response.
In its September 10, 2026 statement of reasons in support of the bail
order pursuant to Pa.R.A.P. 1762(e), the trial court set forth several reasons
for denying Petitioner bail. First, although the trial court acknowledged the
charges against Petitioner, including Drug Delivery Resulting in Death, did not
automatically render Petitioner ineligible for bail under 42 Pa.C.S.A. § 5701,3
the trial court emphasized Petitioner’s alleged conduct was a significant factor
in causing the victim’s death. The trial court highlighted that in recent years,
Allegheny County has averaged more than four hundred drug overdose deaths
annually. The trial court also noted both the Pretrial Services department and
the magisterial district judge recommended no release.
Further, the trial court noted that during the August 20, 2026 bond
hearing, defense counsel had referenced factual information that was likely
gleaned from the affidavit of probable cause. In order to provide context for
such allegations, the trial court sua sponte reviewed the affidavit of probable
cause which had not been presented at the bond hearing. The trial court noted
that the affidavit of probable cause had stated that the prosecution had
retrieved text messages between Petitioner and the victim in which Petitioner
____________________________________________
3 Section 5701 of the Judicial Code, which governs a prisoner’s right to bail, is
derived from Article 1, Sections 13 and 14 of the Pennsylvania Constitution,
which we discuss infra.
-5-
J-M05003-26
agreed to provide the victim with drugs, but clarified that he does not do
bundles, but rather “only do[e]s bricks.” Statement of Reasons, 9/10/26, at
2. Thus, the trial court concluded that Petitioner “presents a danger to the
community” and accordingly, bond was denied. Id.
We are guided by the following standard of review: “[t]his Court reviews
bail orders for an abuse of discretion, reversing only where the trial court
misapplies the law, its judgment is manifestly unreasonable, or the evidence
of record shows that its decision is a result of partiality, prejudice, bias, or ill
will.” Commonwealth v. Younger, 363 A.3d 359, 361-62 (Pa. Super. 2026)
(citing Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003)).
Our scope of review is limited to the record evidence presented at the bail
hearing and the trial court’s findings, reviewed in the light most favorable to
the prevailing party. Commonwealth v. Talley, 670 Pa. 671, 265 A.3d 485,
527 (2021). We will affirm the trial court's order “if [the court's] factual
findings are supported by competent evidence of record, and [its] legal
conclusions drawn therefrom are correct.” Id.
Article I, Section 14 of the Pennsylvania Constitution, which protects a
defendant’s right to bail with certain exceptions, provides in relevant part:
All prisoners shall be bailable by sufficient sureties, unless for
capital offenses or for offenses for which the maximum sentence
is life imprisonment or unless no condition or combination of
conditions other than imprisonment will reasonably assure the
safety of any person and the community when the proof is evident
or presumption great[.]
Pa. Const. art. I, § 14.
-6-
J-M05003-26
In Talley, our Supreme Court analyzed the constitutional right to bail
pursuant to Article I, Section 14, concluding as follows:
[A] trial court may deny bail under Article I[,] Section 14 when
the Commonwealth's proffered evidence makes it substantially
more likely than not that the accused: (1) committed a capital
offense, (2) committed an offense that carries a maximum
sentence of life imprisonment, or (3) presents a danger to any
person and the community, which cannot be abated using
any available bail conditions. That determination requires a
qualitative assessment of the Commonwealth's case. If the
balance of the evidence is rife with uncertainty, legally is
incompetent, requires excessive inferential leaps, or lacks any
indicia of credibility, it simply is not evident proof, nor can it give
rise to a great presumption, that the accused is not entitled to
bail.
Talley, 670 Pa. at 738–39, 265 A.3d at 525-26 (emphasis added). “If the
Commonwealth fails to satisfy its burden of proof, the trial court cannot deny
bail.” Id. at 719, 265 A.3d at 513 (citing Commonwealth v. Truesdale,
449 Pa. 325, 296 A.2d 829, 836 (1972)).
More specifically, the Supreme Court provided that when the
Commonwealth seeks to deny bail on the basis of danger the accused poses
“to any person and the community,” the Commonwealth must demonstrate
that “it is substantially more likely than not that (1) the accused will harm
someone if he is released and that (2) there is no condition of bail within the
court's power that reasonably can prevent the defendant from inflicting that
harm.” Talley, 670 Pa. at 736–37, 265 A.3d at 524–25 (bold in original).
The Supreme Court set forth a non-exhaustive list of factors a trial court
should consider in denying bail on the basis that the defendant presents a
-7-
J-M05003-26
danger to any person or the community, including “the defendant's character,
relevant behavioral history or past patterns of conduct; the gravity of the
charged offense; the conditions of bail reasonably available to the court; and
any evidence that tends to show that those conditions would be inadequate to
ensure the protection of any person or the community.”4 Id. at 525.
The Talley Court clarified the standard of proof required in Article I,
Section 14, “‘proof is evident or presumption great,’ calls for a substantial
quantity of legally competent evidence, meaning evidence that is admissible
____________________________________________
4 Pennsylvania Rule of Criminal Procedure 523, which sets forth criteria for a
bail authority to consider in determining whether to release a defendant and
what conditions, if any, to impose, contains similar factors, including:
(1) the nature of the offense charged and any mitigating or
aggravating factors that may bear upon the likelihood of
conviction and possible penalty;
(2) the defendant's employment status and history, and financial
condition;
(3) the nature of the defendant's family relationships;
(4) the length and nature of the defendant's residence in the
community, and any past residences;
(5) the defendant's age, character, reputation, mental condition,
and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail, whether
he or she appeared as required and complied with the conditions
of the bail bond;
(7) whether the defendant has any record of flight to avoid arrest
or prosecution, or of escape or attempted escape;
(8) the defendant's prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant will
appear as required and comply with the conditions of the bail
bond.
Pa.R.Crim.P. 523.
-8-
J-M05003-26
under either the evidentiary rules, or that is encompassed in the criminal rules
addressing release criteria.” Id. at 736, 265 A.3d at 524 (citation omitted).
The Supreme Court cautioned that “the Commonwealth cannot satisfy the
burden of persuasion solely by stacking inference upon inference. Nor can the
connection between the evidence and what it seeks to prove be conjectural.
The combination of the evidence and inferences must be “reasonable, credible,
and of solid value.” Id. at 737, 265 A.3d at 525 (citation and internal quotation
marks omitted).
With the foregoing standard in mind, we evaluate Petitioner’s claim that
the trial court erred in denying Petitioner bail as the Commonwealth did not
present sufficient evidence that it is “substantially more likely than not that
(1) the accused will harm someone if he is released and that (2) there is no
condition of bail within the court’s power that reasonable can prevent the
defendant from inflicting that harm.” PFSR, at ¶ 6 (quoting Talley, supra).
Petitioner claims that the Commonwealth’s sole offering – the testimony
of the victim’s mother – was legally insufficient because she was not present
at the time of the alleged offenses, she admitted that she did not know the
nature of her daughter’s relationship with Petitioner, and she offered nothing
probative that Petitioner was a danger to the community or a flight risk.
Petitioner argues that because the Commonwealth did not present competent
evidence, the trial court was unable to consider the release criteria
enumerated in Pa.R.Crim.P. 523(a), as Talley requires.
-9-
J-M05003-26
Petitioner reiterates his claim that his personal history militates in favor
of release. Petitioner asserts that he has no violent criminal convictions, his
sole felony conviction dates back to the 1980s, and his most recent conviction
is a misdemeanor from 2017, nearly a decade ago. Petitioner also notes that
he is sixty-one years old and has had no history of drug dealing. Given that
the underlying incident occurred in September 2024 and he remained at
liberty for nearly two years without issue or police contact before the charges
were filed, Petitioner argues that these circumstances show that even the
Commonwealth did not view Petitioner as a danger to the community.
Accordingly, Petitioner asks for release on non-monetary bail, either with a
no-contact condition as to the victim’s family, or alternatively, with electronic
home monitoring at his residence with the same no-contact condition.
We find the facts of Talley are analogous to the case at bar. In Talley,
the Supreme Court found that the trial court erred in determining that the
Commonwealth met the requisite burden of proof for the denial of bail under
Article I, Section 14 when the prosecution solely relied on allegations in the
affidavit of probable cause attached to the criminal complaint and did not offer
any evidence or testimony to establish that no condition or combination of
conditions of bail could protect the community from Petitioner. The Supreme
Court found that the trial court did not perform the qualitative assessment
required by Article I, Section 14, as it did not consider testimony, exhibits, or
other competent evidence; the Supreme Court noted that “[a]n affidavit of
probable cause simply is not conducive to assessing the persuasiveness of the
- 10 -
J-M05003-26
Commonwealth’s case” as it contains layered hearsay statements that do not
constitute legally competent evidence. Id. at 741, 265 A.3d at 527-28. As
such, the Supreme Court found that the trial court’s decision to deny bail was
erroneous.
Likewise, in this case, the trial court failed to perform the qualitative
analysis under the standards set forth in Talley by considering sufficient
competent evidence in order to justify its decision to deny Petitioner bail. The
trial court made no attempt to make any findings with respect to whether the
Commonwealth had proven that it is substantially more likely than not that
(1) Petitioner would harm someone upon his release and (2) there is no
condition of bail within the trial court’s power that reasonably can prevent
Petitioner from inflicting that harm. Talley, supra.
We acknowledge that the trial court considered the gravity of the
offense, the fact that Petitioner has been accused of conduct that was a
significant factor in the victim’s death, and the statistic that Allegheny County
has consistently averaged over four hundred drug overdose deaths annually.
The trial court also relied on the fact that the magistrate and Pretrial Services
Department recommended no release. The trial court’s finding that Petitioner
posed a danger to the community was also based on its sua sponte review of
the affidavit of probable cause in which it noted that the Commonwealth had
alleged that it discovered text messages between Petitioner and the victim in
which Petitioner agreed to provide the victim with drugs, but indicated that he
only did “bricks.”
- 11 -
J-M05003-26
However, pursuant to Talley, the trial court was not permitted to base
its finding of Petitioner’s dangerousness solely on the hearsay statements set
forth in the affidavit of probable cause, which did not constitute competent
evidence.5 The Commonwealth did not refer to the affidavit of probable cause
at the bail hearing or attempt to present any documentary evidence or
testimony to verify the averments in the probable cause.
In addition, while the trial court focused on the nature of Petitioner’s
offense and its perception of the strength of the Commonwealth’s case against
Petitioner on the instant charges, the trial court did not appear to consider the
remaining Rule 423(A) factors, including but not limited to, Petitioner’s age,
character, reputation, mental condition, drug use, and any other evidence
relevant to whether Petitioner would appear as required and comply with his
bail conditions. We note that the Commonwealth did not attempt to present
evidence on the majority of these factors.
Although the trial court heard the recitation of Petitioner’s criminal
record, the trial court made no attempt to explain how this criminal history
factored into his decision that bail should be denied. The trial court did not ask
the prosecution to respond to defense counsel’s argument that Petitioner was
not a flight risk. While the prosecutor presented the testimony of the Ms.
Sullivan, the victim’s mother, who indicated how distraught she was over the
____________________________________________
5 The trial court in this case noted that it was “compelled to review” the
affidavit of probable cause even though it acknowledged that the reliance on
allegations in such affidavit was “frowned upon” by the Supreme Court in
Talley. T.C.O. at ¶ 5.
- 12 -
J-M05003-26
victim’s death, Ms. Sullivan admitted she did not have any knowledge about
how Petitioner knew her daughter and did not offer any testimony about
Petitioner’s character or any other factor upon which the trial court could find
that Petitioner presented a danger to others if released.
Even assuming arguendo that the trial court relied on sufficient
competent evidence to conclude it was substantially more likely than not that
Petitioner would harm someone upon his release, there is no indication in the
record that the trial court made any attempt whatsoever to consider whether
there is any condition of bail within the trial court’s power that reasonably can
prevent Petitioner from inflicting that harm. Talley, supra. The trial court
did not evaluate whether the conditions of release suggested by defense
counsel (nonmonetary bail with electronic home monitoring) would have been
inadequate to abate any potential harm presented by Petitioner. The
Commonwealth did not offer any commentary on the feasibility of allowing
Petitioner on bail through electronic home monitoring, but simply asked
defense counsel at what residential address did Petitioner propose that
electronic home monitoring be implemented. N.T. at 5-6.
Thus, the trial court failed to adequately assess whether Petitioner
presents a danger to any person or the community which cannot be abated
using any available bail conditions. The trial court’s failure to conduct an
assessment compliant with Talley was largely influenced by the
Commonwealth’s failure to present adequate competent evidence to allow the
trial court to properly evaluate the bail request. As noted above, “[i]f the
- 13 -
J-M05003-26
Commonwealth fails to satisfy its burden of proof, the trial court cannot deny
bail.” Talley, supra. Accordingly, we conclude that the trial court abused its
discretion in denying Petitioner’s motion for bail modification.
In Talley, the Supreme Court stated that “[w]hen a trial court errs in
denying bail to a defendant, the defendant's remedy is limited to an immediate
appeal seeking an order for his release pending trial.” Talley, 670 Pa. at 743,
265 A.3d at 529 (citing Commonwealth v. Abdullah, 539 Pa. 351, 652 A.2d
811, 813 (1995)).
For the foregoing reasons, we vacate the trial court’s order denying
Petitioner’s motion for bail modification; we remand for the trial court to
determine whether to impose monetary or nonmonetary bail and to assess
what bail conditions are necessary, if any.6
Order vacated. Remanded for further proceedings. Jurisdiction
relinquished.
11/3/2026
____________________________________________
6 Petitioner shall remain without bail until the trial judge determines which
type of bail to impose and whether any bail conditions are necessary.
- 14 -
J-M05003-26
- 15 -