J-S05032-26
2026 PA Super 172
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHABNAM MCALLISTER :
:
Appellant : No. 622 EDA 2025
Appeal from the Judgment of Sentence Entered January 29, 2025
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000692-2023
BEFORE: PANELLA, P.J.E., KING, J., and FORD ELLIOTT, P.J.E. *
OPINION BY FORD ELLIOTT, P.J.E.: FILED AUGUST 3, 2026
Appellant, Shabnam McAllister, appeals from the judgment of sentence
imposed by the Court of Common Pleas of Montgomery County after the court
found her guilty of theft by deception through false impression and financial
exploitation of older adult or care-dependent person. 1 Appellant challenges
the sufficiency of the evidence supporting her convictions and the trial court’s
application of the sentencing statute at 42 Pa.C.S. § 9717. Upon careful
review, we affirm the judgment of sentence.
The victim, Usha Gulati, testified at trial that Appellant was employed to
do things for her such as cooking, shopping, and taking care of her laundry,
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3922(a)(1) and 3922.1(a), respectively. The financial exploitation of older adult or care-dependent person statute became effective on August 30, 2021, and the Commonwealth’s charge pursuant to that statute only pertained to Appellant’s conduct after that date. See N.T. Trial, 7/11/24, 5.
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but that she considered Appellant to be like a family member. See N.T.
7/11/24, 28-29. Appellant acted as a caretaker for Ms. Gulati, seven days a
week, between the hours of 8:00 a.m. or 9:00 a.m. until 3:00 p.m. or 4:00
p.m., at Ms. Gulati’s home in North Wales, Pennsylvania. See id. at 30; N.T.
Trial, 9/30/24, 5. Appellant’s employment with Ms. Gulati started in 2017, at
which point Ms. Gulati was about eighty years old, and ended on December
15, 2021. See N.T. 7/11/24, 27-28, 32; N.T. Trial, 9/30/24, 30-31.
In August of 2021, Ms. Gulati’s son, Rajeev Gulati, who lived out-ofstate, visited his mother to help her return items to her home that had been
put into storage when Ms. Gulati’s basement had flooded. See N.T. Trial,
9/30/24, 5, 8. With a power of attorney and his mother’s request, Mr. Gulati
reviewed his mother’s bank statements. See id. at 9-10. He noticed that
there was a number of checks to Appellant “that shouldn’t have been there,”
in excess of the weekly payments that Appellant was supposed to have been
paid. Id. at 9. Around the same time, Mr. Gulati also noticed examples of his
mother’s home falling into disrepair, that the home was “pretty filthy” and
“dirty,” and his mother looked “a little bit more emaciated than she had in the
past.” Id. at 14-15.
On December 15, 2021, Ms. Gulati’s son informed Appellant that she
was relieved of her employment duties to his mother. See N.T. Trial, 9/30/24,
25. In their text message exchanges at that time, Appellant encouraged Mr.
Gulati to move his mother to an apartment closer to Appellant so she and her
family could “take care of her more.” Id. Mr. Gulati instead decided to move
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his mother to Texas near his residence, after an interim period during which
an aunt, who was a retired nurse, cared for Ms. Gulati. See id. at 26, 30.
To follow up on Mr. Gulati’s initial review of his mother’s financial
records, Detective Michael Cantrell of the Lower Gwynedd Township Police
Department in Montgomery County reviewed every check drawn from Ms.
Gulati’s Wells Fargo bank account from 2018 through 2021. See N.T. Trial,
7/11/24, 38-39. Appellant’s agreed-upon pay rate with Ms. Gulati, during the
relevant period, starting in 2018, was $2,520.00 each week. See id. at 39-41, 43-44. For the years 2019 through 2021, Detective Cantrell “saw that
there were more than 52 checks written for” Appellant’s weekly pay rate in
each year. Id. at 39.
Detective Cantrell could see in the payment records that Ms. Gulati paid
Appellant on “a loosely weekly basis.” N.T. Trial, 7/11/24, 38-39, 42.
Payments made to Appellant at the weekly rate of $2,520.00 “were coming as
frequently [as] at least once a week” but “oftentimes, checks were written out
to [Appellant] multiple times a week,” including a notable one-week span
when three such checks were written out to Appellant. Id. at 80.
During the detective’s interview with Appellant, she claimed that Ms.
Gulati agreed to a give her a raise in pay during the COVID pandemic, but,
upon review of Ms. Gulati’s bank records, Detective Cantrell “never saw a
consistent increase in wages on a weekly basis.” N.T. Trial, 7/11/24, 44.
“Occasionally, there would be a check around [$2,700.00 or $2,790.00]
sprinkled in … but [he] never saw evidence to support” Appellant’s pay raise
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claim. Id. In the course of his investigation, Detective Cantrell asked Ms.
Gulati about a possible increase in pay to Appellant and Ms. Gulati responded,
“I don’t think so. I don’t really remember, because fifteen [per hour] was
quite a lot for me.” Id. at 79. Ms. Gulati also confirmed that Appellant’s pay
rate was fifteen dollars per hour for the entire time she worked directly for
her. See id. at 80.
Ms. Gulati’s payment records also included payments made to persons
and entities other than Appellant, such as an electric utility company (PECO),
landscapers, family members, and other persons, and “it appeared that [Ms.]
Gulati would pay whoever she needed to via check.” N.T. Trial, 7/11/24, 45-46. Detective Cantrell made a table of all the checks written to Appellant from
Ms. Gulati’s Wells Fargo bank account for the years 2019 to 2021. See id. at
47-48. For 2019, he found fifty-eight checks that were drawn from the
account that were addressed to Appellant in her weekly pay rate or more
which resulted in an aggregate transfer of $145,240.00 from Ms. Gulati to
Appellant for that year. See id. at 49. Appellant’s combined yearly pay for
that 52-week period should have been $131,040.00. See id. at 50.
Ms. Gulati informed Detective Cantrell that Appellant would also do her
grocery shopping for her and she would give Appellant a check to cover the
cost, but she never paid much attention to the amount of those checks. See
N.T. Trial, 7/11/24, 53. She suggested that the usual amount for those
grocery purchases was $300.00 per check. See id. For 2019, Detective
Cantrell confirmed there were fifty-four miscellaneous payments, aside from
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the identified “weekly” pay checks, made out to Appellant, many of which
were in the amount of $390.00. See id. at 54. The total amount of those
checks was $24,205.00. See id. at 54-55. Assuming that Ms. Gulati wrote a
check for $300.00 per week for groceries as she asserted, the total amount
for groceries for that period should have been $15,600.00, an amount that
was $8,605.00 less than the amount Ms. Gulati had reimbursed Appellant.
See id. at 54.
For 2020, seventy-seven “wage checks,” i.e., checks amounting to or
greater than Appellant’s weekly pay rate, were drawn from Ms. Gulati’s bank
account to pay Appellant. See N.T. Trial, 7/11/24, 55. The total amount paid
to Appellant in those checks was $193,291.00, reflecting an overpayment of
$62,251.00, based on Appellant’s agreed-upon yearly income of $131,040.00.
See id. at 50, 55-56. In addition to that overpayment amount, there was
also $29,999.00 in unexplained funds paid to Appellant in “miscellaneous
checks” drawn in 2020. Id. at 56.
For 2021, there were seventy-six “wage checks” drawn from Ms. Gulati’s
bank account to pay Appellant, reflecting a total aggregate payment of
$195,750.00 to Appellant. N.T. Trial, 7/11/24, 56. Consistent with
Appellant’s agreed-upon yearly income, those wage checks reflected an
overpayment of $64,710.00. See id. at 57. For that time period, there also
was $5,830.00 in unexplained funds paid to Appellant in smaller
“miscellaneous checks.” See id.
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At Appellant’s preliminary hearing, Ms. Gulati acknowledged that
additional checks and credit card payments were made to contractors and
members of Appellant’s family. See N.T. Trial, 7/11/24, 57-58. She also
remembered that they had a “handyman” at her home. Id. at 59. When
asked if she would write checks to the handyman or whether she would
reimburse Appellant for payments made to this handyman, Ms. Gulati testified
that “it could go either way.” Id. She remembered a “significant kitchen
project,” the use of a tree removal service, a “sidewalk repair project,” and a
sump pump repair at her home, but she was unable to specifically recall
whether she paid for those services directly by check or reimbursed Appellant.
Id. at 60-62. Detective Cantrell confirmed that there were some checks from
Ms. Gulati’s bank account made payable directly to contractors. See id.
With respect to the checks written on her account during the relevant
period, Ms. Gulati told Detective Cantrell that Appellant “would fill out the
check for her, meaning all fields except for the signature line. Per [Ms. Gulati],
it was hard [for her] to write, [and] hard [for her] to see. So[, Ms. Gulati’s]
job, in this role, is she would just sign her name.” N.T. Trial, 7/14/24, 66.
At trial, Detective Cantrell testified to Appellant’s statement admitting
some overpayments, as follows:
[Appellant] admitted that she wrote herself more checks than she
deserved. She would not agree [at] that moment [with] the
number that I alleged. She felt that the number that I was
alleging in overpayments was way too high. She felt that she
could justify them. So[,] she said that she would need at least a
week, that we could meet up again, she was going to look through
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some records, and then we would meet back up, and then she
would give me a more accurate number.
N.T. Trial, 7/14/24, 81. Appellant did not “follow up” with Detective Cantrell
with respect to this admission. Id.
Appellant proceeded to be tried at a bifurcated non-jury trial held on
July 11 and September 30, 2024. At trial, the then eighty-eight-year-old
victim testified by two-way, audio/visual communication from an assisted
living facility in which she was residing in California. See N.T. Trial, 7/11/24,
15-16. Her ability to testify in person was hindered by her Parkinson’s
disease, and thus Appellant’s counsel agreed to permit Ms. Gulati to testify
remotely. See id. at 15. In addition to Ms. Gulati, the Commonwealth
presented testimony from Ms. Gulati’s son and Detective Cantrell. Counsel
also agreed to the admission of Ms. Gulati’s preliminary hearing testimony by
stipulation and further stipulated to the authenticity of the financial records of
the victim regarding her Wells Fargo bank account that were obtained
pursuant to a search warrant. See id. at 16, 18.
Appellant also testified. She maintained that, while her pay rate when
she started working directly for Ms. Gulati was $15.00 per hour, she entered
into a verbal agreement for a raise to $20.00 per hour at the end of 2019.
See N.T. Trial, 7/11/24, 35-36, 44, 54-55. She agreed that Ms. Gulati gave
her $300.00 checks for groceries, but that amount was not enough for
groceries after the start of the COVID pandemic. See id. at 45-46. She
claimed that various checks to her were meant to cover things she paid for
with cash on behalf of Ms. Gulati, like hair care, pedicures, housekeeping, and
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other expenses such as the services of the handyman and larger repairs with
respect to the kitchen, bathroom, sidewalk, and tree removal. See id. at 38-42, 47-48, 57. Appellant agreed that Ms. Gulati’s house was “falling apart,”
but that Ms. Gulati’s “[f]amily was away.” Id. at 41, 48. She alleged that Ms.
Gulati knew “what she[ was] doing” with the checks made out to her: “She
write the check. She read and then she signed. And then, when the statement
come at the end of the month, she check all the checks.” Id. at 36-37.
Appellant claimed on cross-examination that Ms. Gulati let her borrow
money from her. See N.T. Trial, 7/11/24, 55. Even though she maintained
that Ms. Gulati would “write the check,” in her direct examination testimony,
she noted, on cross-examination, that Ms. Gulati could not “sign too many
checks [because of] her Parkinson’s Disease.” Id. at 55-56.
Appellant also presented her husband, Charles McAllister, Jr., to attest
to her reputation in the community for being a law abiding and truthful person.
See N.T. 7/11/24, 59-60. After the defense rested, the Commonwealth
recalled Ms. Gulati’s son on rebuttal to address the fact that his mother would
typically give checks as gifts to family members rather than cash, as Appellant
had suggested in her testimony. See id. at 61-64, compare with id. at 38-39.
The trial court found Appellant guilty of the above-referenced offenses
and found her not guilty of theft by unlawful taking, forgery, and access device
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fraud.2 See N.T. Trial, 7/11/24, 77; Trial/Plea/Sentence Form, 1. Sentencing
was deferred for the preparation of a presentence investigation report. See
N.T. Trial, 7/11/24, 77. On January 29, 2025, the court sentenced Appellant
to fourteen months to ten years’ imprisonment for theft by deception through
false impression with a concurrent term of seven years’ probation for financial
exploitation of older adult or care-dependent person, with an order of
restitution in the amount of $113,400.00.3 See Trial/Plea/Sentence Form, 2;
Restitution Order, 1/29/25, 1; N.T. Sentencing Hearing, 1/29/25, 33-34, 37.
The court also ordered Appellant to undergo one hundred hours of community
service, to have no contact with the victim and her family, and to not “work
with older or care dependent individuals of any sort.” Id. at 34, 37.
2 18 Pa.C.S. §§ 3921(a), 4101(a)(2), and 4106(a)(1)(iv), respectively.
3 The imprisonment term was within the standard range recommended by the
Sentencing Guidelines for the theft conviction: six to fourteen months’ imprisonment, plus or minus six months for aggravating or mitigating circumstances. See Guideline Sentencing Form, 1/29/25, 1 (stating applicable guideline range and identifying that Appellant had a prior record score of zero); 204 Pa. Code § 303.15 (7th ed., amend. 6) (indicating an offense gravity score of seven for theft by deception involving a false impression with a taking between $100,000.00 and $500,000.00); 204 Pa. Code § 303.16(a) (7th ed., amend. 6) (applicable basic sentencing matrix). At sentencing, the parties agreed that that there was an applicable mandatory minimum imprisonment statute requiring a minimum of twelve months’ imprisonment pursuant to 42 Pa.C.S. § 9717. See N.T. Sentencing Hearing, 1/29/25, 6 (Prosecutor: “There is a mandatory minimum of twelve months, because the victim is over 60 years old pursuant to Title 42, Section 9717.”); id. at 7 (Appellant’s counsel agreeing to the “application of the mandatory”). Based on the agreed-upon application of Section 9717, the Commonwealth identified the applicable standard sentencing guideline range as “twelve to fourteen months.” See id. at 6.
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The trial court explained at the sentencing hearing that its verdict and
the restitution amount were based on the evidence of excess wage checks
drawn by Appellant and not based on the miscellaneous checks for smaller
amounts:
I think it’s important to bring some clarity, and I believe that I put
this on the record at the time I imposed the verdict, but I want to
make sure that I did. The [c]ourt found that the total theft was
$113,400[.00]. And that was broken down with specific checks.
In the year 2019, this [c]ourt found that [Appellant] paid herself
four extra checks in the amount of $10,080[.00].
In the year 2020, this [c]ourt found that she paid herself twenty
extra checks. So, instead of paying herself [for] 52[ weeks], she
paid herself 72 checks. And the amount of the theft was
$50,400[.00].
And in the calendar year 2021, instead of paying herself for 52
weeks of pay, she took it upon herself to pay herself 73 weeks of
pay, 21 extra pay periods, [for] a total amount of $52,920[.00].
That was the amount of the theft.
This [c]ourt did not find [Appellant] guilty of thousands of other
dollars that she paid herself, recognizing that there was some
evidence that those thousands of dollars might have been paid for
[Ms.] Gulati’s expenses. And there was certainly not evidence to
establish theft beyond a reasonable doubt. And certainly, this
[c]ourt gave [Appellant] the benefit of the doubt and credit and
did not find her guilty of those thefts, because there was a
question as to whether that was money that was taken or used
for the victim’s expenses.
So, this [c]ourt was certainly aware, throughout the entire trial,
that some funds were taken from Ms. Gulati for her expenses.
N.T. Sentencing, 1/29/25, 28-29.
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On February 28, 2025, present counsel entered his appearance as
counsel for Appellant and filed a motion for permission to file post-sentence
motions nunc pro tunc and a notice of appeal. See Entry of Appearance,
2/28/25, 1; Application to File Post-Sentence Motions Nunc Pro Tunc, 2/28/25,
1-3; Notice of Appeal, 2/28/25, 1. On March 4, 2025, the trial court granted
the motion seeking nunc pro tunc consideration of post-sentence motions.
See Order on Motion to File Post Sentence Motions Nunc Pro Tunc, 3/4/25, 1.
Appellant thereafter filed counseled post-sentence motions nunc pro tunc, in
which she raised challenges to the sufficiency and weight of the trial evidence,
sought reconsideration of her sentence, and requested modified bail pending
appeal. See Post-Sentence Motions Nunc Pro Tunc. With the exception of
granting the modified bail request pending appeal, the trial court denied
Appellant’s post-sentence motions nunc pro tunc. See Order on Post
Sentence Motions, 5/6/25, 1-2.
With respect to the instant appeal, Appellant and the trial court have
satisfied their obligations under Pennsylvania Rule of Appellate Procedure
1925. See Order for Concise Statement, 5/6/25, 1; Rule 1925(b) Statement
(“Statement of Errors”), 5/27/25, 1-4; Trial Court Opinion, 7/3/25, 1-30.
On June 25, 2025, our Court ordered Appellant to show cause within ten
days as to why the trial court’s order granting her request to file post-sentence
motions nunc pro tunc and her subsequent post-sentence motions should not
be considered legal nullities where those documents were not filed until more
than thirty days after the imposition of the judgment of sentence on appeal.
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See Rule to Show Cause Order, 6/25/25, 1 (citing Commonwealth v.
Dreves, 839 A.2d 1122 (Pa. Super. 2003) (trial court’s decision on request to
file otherwise untimely post-sentence motion nunc pro tunc must be rendered
within 30 days of the imposition of sentence)). Appellant filed a response,
arguing that her instant appeal was timely filed but asking this Court to defer
any ruling as to waiver caused by the timeliness of her post-sentence motions
to the merits panel assigned to this appeal. See Appellant’s Response to Rule
to Show Cause, 6/26/25, ¶¶ 7-8, 16-17. On July 2, 2025, we discharged the
rule to show cause order without prejudice for the panel assigned to decide
the merits of this appeal to revisit the issue raised in the order. See Superior
Court Order, 7/2/25, 1.
Appellant presents the following questions for our review:
I. Whether the trial court erred in finding sufficient evidence
to convict Appellant of theft by deception and financial
exploitation of an elderly person where the Commonwealth
failed to prove beyond a reasonable doubt that Appellant
unlawfully obtained money from the complainant given that
the complainant testified she knowingly signed and issued
checks as either agreed-upon compensation or
reimbursement for expenses, was no longer competent at
the time of trial to establish that any theft or overpayment
occurred, and the Commonwealth presented no
independent evidence of a crime apart from Appellant’s
vague statement, which should have been excluded from
consideration under the corpus delicti rule[?]
II. Did the trial court err in sentencing Appellant to a state
sentence at least in part based on its incorrect belief that a
mandatory minimum applied to her conviction for financial
exploitation of an elderly person?
Appellant’s Brief, 5 (suggested answers omitted).
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Before addressing Appellant’s substantive claims, we will address the
issue raised by our rule to show cause order. In this case, Appellant filed a
notice of appeal and a motion for permission to file post-sentence motions
nunc pro tunc on the last day of the thirty-day period for filing an appeal,
twenty days after the deadline for filing timely post-sentence motions elapsed.
See Pa.R.A.P. 903(a) (general rule requiring a notice of appeal to be filed
“within 30 days after the entry of the order from which the appeal is taken”);
Pa.R.Crim.P. 720(A)(1) (providing, with exceptions that do not apply here,
that written post-sentence motions “shall be filed no later than 10 days after
imposition of sentence”). The trial court thereafter granted Appellant’s motion
for permission to file post-sentence motions nunc pro tunc beyond the thirtyday appeal period. See Order on Motion to File Post Sentence Motions Nunc
Pro Tunc, 3/4/25, 1. The court subsequently denied, with the exception of a
grant of a request for modified bail pending appeal, Appellant’s post-sentence
motions nunc pro tunc while the instant appeal was pending. See Order on
Post Sentence Motions, 5/6/25, 1-2.
When Appellant filed her motion for permission to file post-sentence
motions nunc pro tunc at 11:47 a.m. on February 28, 2025, the trial court still
had the discretion to grant it. This Court has recognized “that under 42
Pa.C.S.[] § 5505, if no appeal had been taken, within 30 days after the
imposition of sentence, the trial court has the discretion to grant a request to
file a post-sentence motion nunc pro tunc.” Commonwealth v. Dreves, 839
A.2d 1122, 1128 (Pa. Super. 2003) (en banc). When Appellant filed her notice
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of appeal later that day at 3:25 p.m., however, she divested the trial court of
its jurisdiction to rule on her motion for nunc pro tunc consideration of postsentence motions. See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed
by these rules, after an appeal is taken … the trial court … may no longer
proceed further in the matter.”); Pa.R.A.P. 1701(b)(3)(ii) (exception to the
general rule in subsection (a) for a trial court to grant reconsideration of the
order on appeal where “an order expressly granting reconsideration of such
prior order is filed in the trial court … within the time prescribed by [the Rules
of Appellate Procedure] for the filing of a notice of appeal”); see also
Commonwealth v. Gordon, 477 A.2d 1342, 1345 (Pa. Super. 1984) (noting
“[i]f an appeal has been taken, then the general rule is that the trial court has
no jurisdiction to modify its sentence”).
Given the timing of the filing of Appellant’s motion for permission to file
post-sentence motions nunc pro tunc and her notice appeal, the trial court’s
orders granting the former motion, Appellant’s subsequently filed postsentence motions (with the exception of her request for modified bail), and
the trial court’s order denying the untimely post-sentence motions (with the
exception of the court’s grant of modified bail) were legal nullities for our
purposes.4 See, e.g., Commonwealth v. Ailey, 350 A.3d 1034, 1041 (Pa.
4 Appellant’s post-sentence request for modified bail and the trial court’s May
6, 2025 order granting modified bail pending appeal were reviewable by the trial court consistent with our rules of appellate procedure. See Pa.R.A.P. 1762(a) (“Applications relating to bail when an appeal is pending shall (Footnote Continued Next Page)
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Super. 2025) (trial court’s grant of a Commonwealth’s motion to file an
amended notice of appeal nunc pro tunc while appeal was already pending
treated as a legal nullity). We agree with Appellant that her notice of appeal
was timely filed and thus we have jurisdiction for this appeal, however, we
conclude that her post-sentence motions were legal nullities, incapable of
preserving any claims for our review. See, e.g., Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (concluding, in part, that a
represented defendant’s pro se post-sentence motion was a nullity and did
not preserve a challenge to the discretionary aspects of a sentence).
In her first issue, Appellant challenges the sufficiency of the evidence
supporting both of her convictions which is cognizable on appeal. See
Appellant’s Brief, 15-23. In particular, she asserts that: (1) “the
Commonwealth failed to prove beyond a reasonable doubt that [she] stole
money from the complainant,” id. at 15; (2) Ms. Gulati “did not testify that
the payments were not either agreed upon salary or reimbursements for
expenses she had incurred,” id. at 19; (3) Ms. Gulati’s son and Detective
Cantrell could not offer personal knowledge of any exploitation of Ms. Gulati
by Appellant and “only [Ms. Gulati] could have properly testified that the ____________________________________________
ordinarily first be presented to the trial court…”); see also Pa.R.A.P. 1701(b)(1) (noting that, after an appeal is taken, the trial court may “take action” with respect to matters that are “ancillary to the appeal”); see, e.g., Commonwealth v. Becher, 2024 WL 4040484, *3 (Pa. Super., filed Sept. 4, 2024) (“our Rules expressly provide that a trial court retains jurisdiction to make decisions about a criminal defendant’s bail status despite the pendency of an appeal in a criminal case”) (unpublished per curiam memorandum cited for persuasive value pursuant to Pa.R.A.P. 126(b)(2)) (28 WDM 2024).
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money was in fact stolen and not used for an agreed upon raise or
reimbursements for expenses,” id. at 20; and (4) her statement to the
detective “was vague and did not include an admission that she took any
particular amount in excess of what she was owed, and it also should not have
been admitted or considered as part of [the trial] evidence under the corpus
delicti doctrine.” id. at 20.
We apply the following well-settled standard of review when analyzing
challenges to the sufficiency of the evidence:
the standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proof of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier of fact, while
passing upon the credibility of witnesses and the weight of the
evidence presented, is free to believe all, part, or none of the
evidence.
Commonwealth v. Marberger, 344 A.3d 403, 410-11 (Pa. Super. 2025)
(citation and internal brackets omitted). “Because evidentiary sufficiency is a
question of law, our standard of review is de novo, and our scope of review is
plenary.” Id. (citation and internal brackets omitted).
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Theft by deception, as charged under 18 Pa.C.S. § 3922(a)(1), is
defined, in relevant part, as follows:
(a) Offense defined.--A person is guilty of theft if [s]he
intentionally obtains or withholds property of another by
deception. A person deceives if [s]he intentionally:
(1) creates or reinforces a false impression, including
false impressions as to law, value, intention or other
state of mind; but deception as to a person’s intention
to perform a promise shall not be inferred from the
fact alone that [s]he did not subsequently perform the
promise[.]
[…]
(b) Exception.-- The term “deceive” does not, however,
include falsity as to matters having no pecuniary
significance, or puffing by statements unlikely to deceive
ordinary persons in the group addressed.
18 Pa.C.S. § 3922(a)(1), (b) (emphasis in original).
The financial exploitation of older adult or care-dependent person
statute provides that: “A person in a position of trust who commits the offense
of financial exploitation of an older adult or care-dependent person shall be
subject to criminal penalties specified under subsection (b).” 18 Pa.C.S. §
3922.1(a).5
For purposes of 18 Pa.C.S. § 3922.1, an “older adult” is defined as “[a]
person who is at least 60 years of age” and a “care-dependent person” is
defined as “[a]n adult who, due to physical or cognitive disability or ____________________________________________
5 The subparts under subsection (b) establish separate sentencing gradings
for the offense based on “the amount involved.” 18 Pa.C.S. § 3922.1(b).
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impairment, requires assistance to meet needs for food, shelter, clothing,
personal care or health care.” 18 Pa.C.S. § 3922.1(f). The statute defines a
person in a “position of trust” as including, inter alia, a “person [who] receives
monetary or other value consideration for providing care for an older adult or
care-dependent person.” Id. “Financial exploitation” is:
The wrongful or unauthorized taking or attempt to take by
withholding, appropriating, concealing or using the money, assets
or property of an older adult or care-dependent person, including
any act or omission taken by a person, including through the use
of a power of attorney, guardian, custodian, trustee, personal
representative or conservator of an older adult or care-dependent
person by an individual who stands in a position of trust and
confidence with an older adult or care-dependent person,
including business transactions to:
(1) obtain or attempt to control, through deception,
intimidation or undue influence, over the older adult’s
or care-dependent person’s money, assets or property
to deprive the older adult or care-dependent person
of the ownership, use, benefit or possession of the
older adult’s or care-dependent person’s money,
assets or property; or
(2) convert or attempt to convert money, assets or
property of the older adult or care-dependent person
to deprive the older adult or care-dependent person
of the ownership, use, benefit or possession of the
older adult’s or care-dependent person’s money,
assets or property.
18 Pa.C.S. § 3922.1(f).
We will address the last part of Appellant’s argument involving the
application of the corpus delicti rule first because, in making that argument,
Appellant encourages us to not consider her statement to Detective Cantrell
in conducting our sufficiency review, and that may bear on our ultimate
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determination as to whether the evidence proved that Appellant committed
unlawful takings from Ms. Gulati.
With respect to claims involving the corpus delicti rule, we recently
noted the following:
Corpus delicti, or the “body of the crime,” requires the
Commonwealth “to establish that a crime had actually occurred
before a confession or admission of the accused connecting [her]
to the crime can be admitted.” [Commonwealth v. Murray, 174
A.3d 1147, 1154 (Pa. Super. 2017)] (citation omitted). “This rule
is rooted in the hesitancy to convict a person of a crime solely on
the basis of that person’s statements.” [Commonwealth v.
Bullock, 170 A.3d 1109, 1117 (Pa. Super. 2017)] (citation
omitted). “The corpus delicti may be established by circumstantial
evidence.” Commonwealth v. Young, 904 A.2d 947, 956 (Pa.
Super. 2006) (citation omitted).
Application of the corpus delicti rule is a two-step process, where
the first step concerns the trial court’s admission of the
statements, and the second step concerns the fact-finder’s
consideration of those statements:
(1) In the first phase, the court determines whether
the Commonwealth has proven the corpus delicti of
the crimes charged by a preponderance of the
evidence. If so, the confession or extrajudicial
statement of the defendant is admissible;
(2) In the second phase, the rule requires that the
Commonwealth prove the corpus delicti to the fact[-]finder’s satisfaction beyond a reasonable doubt
before the fact[-]finder is permitted to consider the
confession or extrajudicial statement in assessing the
defendant’s innocence or guilt.
Bullock, 170 A.3d at 1118 (citations and internal quotation marks
omitted).
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Commonwealth v. Lassends, --- A.3d ----, 2026 WL 571902, *2 (Pa.
Super., filed Mar. 2, 2026).
Appellant acknowledges that her trial counsel did not object to the
admission of her statement on corpus delicti grounds, but she alleges that,
under the second part of the two-part corpus delicti test, the trial court could
not have considered her statement to Detective Cantrell “until the
Commonwealth established corpus delicti beyond a reasonable doubt.”
Appellant’s Brief, 21. She cites our opinion in Commonwealth v.
Chambliss, 847 A.2d 115, 120-21 (Pa. Super. 2004), for the proposition that
“failure to object to admissibility on corpus delicti grounds does not prevent
argument on the second prong of the two-part test,” and argues that her claim
based on the second part of the corpus delicti test was not waived by a lack
of an objection below. See Appellant’s Brief, 21. Appellant misconstrues
Chambliss in these regards.
In Chambliss, the defendant’s counsel did not object to the admission
of Chambliss’s statement at issue and thus we found that Chambliss did not
preserve “a challenge to the admissibility of the confession.” See Chambliss,
847 A.2d at 120. Chambliss’s counsel however, “notified the trial court,”
during closing argument, “that the admission of [the statement] required a
consideration of the corpus delicti rule.” Id. at 121. The trial court rejected
that claim due to the lack of a prior objection and, on appeal, we concluded
that the lack of a prior objection only waived a challenge to the application of
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the first prong of the corpus delicti test but did not effect a waiver as to the
second-prong:
We do not find that counsel’s failure to raise a timely corpus delicti
challenge to the admissibility of the confession prevents counsel
from invoking the rule prior to the fact[-]finder’s deliberations. As
the courts of this Commonwealth have routinely stated, the corpus
delicti rule places two distinct burdens on the Commonwealth.
The first arises during the Commonwealth’s presentation of the
evidence and concerns the admissibility of the evidence, while the
second arises before the fact[-]finder’s deliberations and concerns
the quantum of evidence necessary before a fact[-]finder may
consider a defendant’s extrajudicial confession. While we
recognize that counsel did not specify, during argument, whether
he sought to challenge the first, the second or both prongs of the
rule, we find that the trial court did not afford counsel the
opportunity to develop this argument. By identifying “a corpus
issue” prior to the fact[-]finder’s deliberations, we find that
counsel has sufficiently preserved a challenge to the trial court’s
application of the second prong.
Id. (citations omitted).
Chambliss did not relieve Appellant of all issue preservation obligations
for purposes of raising a direct review claim of trial court error with respect to
the second prong of the corpus delicti test as Appellant suggests. It merely
held that such a claim concerning the second prong of that test may be
preserved prior to deliberations by a fact-finder and, in Chambliss’s case, the
trial court erroneously deprived Chambliss of the opportunity to preserve such
a claim at that point by rejecting the assertion of a “corpus delicti issue” based
on a lack of a prior objection.
Here, our review of the record fails to uncover any discussion of the
corpus delicti rule at trial or any issue raised about that rule by Appellant prior
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to the trial court’s deliberation, and Appellant fails to direct us to any part of
the record where any claim based on the corpus delicti rule was preserved
before the trial court. In the absence of any related objection prior to the trial
court’s deliberation, Appellant waived her argument that the trial court should
have disregarded her statement to the detective in the course of its
deliberations because the Commonwealth had not proven the corpus of the
crime beyond a reasonable doubt. See Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”).
To the extent that Appellant asserts that “sufficiency challenges may be
raised for the first time on appeal,” see Appellant’s Brief, 22, we note that,
based on our recent opinion in Lassends, that an unpreserved corpus delicti
claim cannot be presented as a basis for limiting the scope of review for an
appellate challenge to the sufficiency of the evidence:
We decline to interpret the second phase of the corpus delicti
analysis as a limit on the scope of our review of a sufficiency
challenge. In Commonwealth v. Reyes, our Supreme Court
separately analyzed the issue of sufficiency and the issue of
whether the Commonwealth proved the corpus delicti of the crime
beyond a reasonable doubt. 681 A.2d 724 ([Pa.] 1996). The
[Supreme] Court commenced its review by addressing the
sufficiency of the evidence, and, in so doing, considered Reyes’s
confession to the crime. Id. at 726-27. After finding the evidence
sufficient to support Reyes’s conviction, the [Supreme C]ourt
separately addressed the corpus issue. Id. at 727. The
[Supreme] Court restated the two steps of the corpus delicti
analysis and agreed with Reyes that the trial court had applied the
incorrect standard for considering his out-of-court statements.
Id. at 730.
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In sum, the corpus delicti “analysis aligns with an evidentiary
issue, for which the remedy is a new trial [and] does not comport
with a sufficiency claim, which results in discharge if successful.”
Commonwealth v. Torner, 2025 WL 1905486 at *5 (Pa.
Super.[, filed] July 10, 2025) (unpublished memorandum
opinion), pet. for allowance of appeal filed, 398 MAL 2025.[ 6]
Notably, the Supreme Court in Reyes considered all evidence
from trial when it reviewed the sufficiency of the evidence[.]
Lassends, 2026 WL 571902 at *4 (footnotes and parallel citation omitted;
emphasis in original). Accordingly, we will review Appellant’s sufficiency claim
by considering all the evidence received at trial, including Appellant’s
statement to Detective Cantrell.
Appellant’s remaining sufficiency arguments fail outright, because she
does not review the evidence presented consistent with our controlling
6 After Lassends was decided, our Supreme Court vacated the cited unpublished memorandum in Torner, upon a grant of a petition for allowance of appeal in that case in light of Commonwealth v. Walker, 350 A.3d 54 (Pa. 2026) (holding, inter alia, that, when the admissibility of a defendant’s other bad acts evidence is premised upon the “common plan, scheme and design” exception to Pennsylvania Rule of Evidence 404(b)’s general rule precluding the admission of propensity evidence, the Commonwealth must establish either: “(1) the offenses constitute ‘signature crimes’ – that is, they are so unique and distinctive that they must have been committed by the same perpetrator – or; (2) the offenses were linked to achieve a common goal”). See Commonwealth v. Torner, 2026 WL 468792 (Pa., filed Feb. 19, 2026) (table) (398 MAL 2025). As the section of Torner cited by Lassends only pertained to Torner’s sufficiency claim, addressing the corpus delicti doctrine, and not Torner’s separate evidence admission challenge involving the “common plan, scheme and design” exception to Rule 404(b), the vacation of the unpublished memorandum in Torner based on Walker does not implicate the Lassends panel’s reliance on the vacated memorandum as persuasive authority. See Commonwealth v. Torner, 2026 WL 892927, *3 (Pa. Super., filed Apr. 1, 2026) (“Our analysis of Torner’s other issue, regarding the sufficiency of the evidence did not implicate Torner’s statement to DeStefano. We thus determine it to be unaffected by the new rule of Walker.”) (unpublished memorandum) (citation omitted).
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standard of review. Her arguments that the evidence was insufficient because
Ms. Gulati could not “rule out that Appellant had written checks to herself to
reimburse herself for authorized expenses she had incurred” or that that Ms.
Gulati’s son and Detective Cantrell’s testimony should be discounted on the
basis of their lack of “personal knowledge” as to the nature of the payments
made to Appellant amount to assertions that only direct evidence of financial
exploitation could suffice to prove her guilt. These arguments run counter to
the well-established rule that “[t]he Commonwealth may sustain its burden of
proving every element of the crimes[s] beyond a reasonable doubt by means
of wholly circumstantial evidence.” Commonwealth v. Quel, 27 A.3d 1033,
1037-38 (Pa. Super. 2011) (citation omitted).
Here, even before we turn to the fact that Appellant admitted to
Detective Cantrell that “she wrote herself more checks than she deserved,”
see N.T. Trial, 7/14/24, 81, the evidence presented below – when reviewed
in the light most favorable to the Commonwealth – provided ample
circumstantial evidence from which the trial court could reasonably infer that
Appellant used her position as a caregiver to Ms. Gulati to improperly obtain
funds from the victim through the use of deception.
The trial court – as the fact-finder at trial – aptly reviewed that evidence
as follows:
The evidence demonstrated that Appellant received an
overpayment for wages. Appellant was in charge of all of Ms.
Gulati’s checks. Appellant was in control of Ms. Gulati’s finances.
Appellant filled out each field of the check. Appellant knew that
Ms. Gulati’s health was declining and she had trouble with her
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eyesight. Appellant knew that Ms. Gulati trusted Appellant and
treated her like family. The evidence shows that Appellant took
matters into her own hands and paid herself more than the
agreed-upon wage rate. She intentionally obtained extra money
for herself from Ms. Gulati without her knowledge.
The court determined that the total amount of the theft was
$113,400[.00]. The court thoroughly examined the bank records
and calculated this amount of theft based upon the testimony and
exhibits presented at trial. In the year 2019, the court determined
that Appellant paid herself four extra checks in the amount of
$10,080[.00]. In the year 2020, the court determined that
Appellant paid herself twenty extra checks, amounting to 72
checks rather than the 52 she was entitled to. The amount of
theft for 2020 was $50,400[.00]. In the year 2021, instead of
paying herself for 52 weeks, she paid herself 73 weeks of pay.
The total amount of theft for 2021 was $52,920[.00]. The court
did not find Appellant guilty of thousands of other dollars that she
paid herself, recognizing that there was some evidence that the
money might have been used to pay for Ms. Gulati’s expenses.
The overpayment of $113,400[.00] that Appellant obtained from
Ms. Gulati was a theft. In essence, Appellant wrote herself
additional checks as she saw fit, cashed them[,] and kept the
money.
For the crime of theft by deception, the Commonwealth
established beyond a reasonable doubt that Appellant
intentionally obtained property from Ms. Gulati by deception. The
evidence demonstrated that Appellant intentionally obtained
money from Ms. Gulati, deceiving her into believing she was
signing checks for funds that were owed to Appellant, when in fact
they were overpayment of wages that Ms. Gulati never agreed to
pay. The court’s finding that Appellant intentionally obtained
$113,400[.00] for herself from the elderly victim is supported by
the evidence presented in this case.
The evidence showed that Appellant stole from Ms. Gulati in a
method that was devious and deceitful. Appellant knew what she
was doing, took it upon herself to take money from Ms. Gulati[,]
and admitted that she took more than what was due to her for a
period of at least three years. It was reasonable for the court to
believe that the calculated overpayments were in fact
overpayments constituting theft and not reimbursements for other
expenses. The evidence showed there was additional money paid
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to Appellant to cover expenses. These amounts were testified to
by the detective and were categorized as miscellaneous amounts.
In addition, the evidence showed that there were various checks
paid to the landscapers and plumbers to cover those expenses.
The evidence in this case was sufficient to convict Appellant of
theft by deception.
For the crime of financial exploitation of an older adult or care
dependent person, the Commonwealth established beyond a
reasonable doubt that Appellant was in a position of trust with
respect to Ms. Gulati in being her caretaker and providing care for
her 24 hours a day, 7 days a week. It was Appellant’s
responsibility to either provide care Ms. Gulati needed or employ
associates to provide care when Appellant was not working. Ms.
Gulati trusted Appellant not only for her physical care, but also to
handle her financial matters. The Commonwealth established
beyond a reasonable doubt that Appellant carried out the wrongful
or unauthorized taking by withholding, appropriating, concealing,
or using the money, assets, or property of an older adult or care
dependent person. The evidence showed that Appellant took
advantage of a vulnerable elderly woman for whom she was the
caregiver. The evidence showed beyond a reasonable doubt that
Appellant exercised a violation of the trust placed in her by the
elderly victim. Ms. Gulati trusted Appellant and depended on
Appellant. Appellant betrayed her.
Trial Court Opinion, 7/3/25, 19-22 (record citations omitted).
We agree with the trial court’s review of the sufficiency of the evidence
presented and adopt it as our own analysis. We additionally note that the lack
of a regular demonstrated increase in Appellant’s apparent wage checks
undermined the credibility of Appellant’s claim that she had received a raise
in pay from Ms. Gulati during the relevant time period. The detective’s review
of the checks paid to Appellant circumstantially proved Ms. Gulati’s assertion
that there was no increase in pay from Appellant’s original agreed-upon wage
rate. See N.T. Trial, 7/11/24, 44 (Detective Cantrell: “I never saw a
consistent increase in the wages on a weekly basis). Cf. Commonwealth v.
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Stetler, 95 A.3d 864, 887 (Pa. Super. 2014) (“The Commonwealth can
establish the existence of an agreement by circumstantial evidence, and need
not rely on direct evidence.”). In any event, the difference in the pay raise
Appellant claimed would not have remotely explained the disparity in wage
overpayments found by the trial court.
Moreover, the detective’s observation of the checks paid directly to
contractors, see N.T. Trial, 7/11/24, 62, undermined Appellant’s suggestion
that poor accounting of reimbursements alone explained the substantial
overpayments. The trial court’s interpretation of 211 weekly wage checks to
Appellant, in a span of time that, at most, included 156 weeks, easily gave
rise to a reasonable inference that Appellant was systematically stealing
money from Ms. Gulati by deceptively presenting her with excessive numbers
of wage checks to sign. That some of the payments made to Appellant were
in fact for proper reimbursements of expenses for Ms. Gulati did not render
the evidence as whole insufficient because “[t]he evidence established at trial
need not preclude every possibility of innocence and the fact-finder [wa]s free
to believe all, part, or none of the evidence presented.” Commonwealth v.
N.M.C., 172 A.3d 1146, 1149 (Pa. Super. 2017).
Properly reviewing the trial evidence consistent with our standard of
review, we find that the bank documents showing apparent overpayments to
Appellant, methodically distributed over a three-year span and contrary to the
testimony reflecting Ms. Gulati’s unchanging salary agreement with Appellant,
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proved the necessary elements of theft by deception and financial exploitation
of older adult or care-dependent person.7
In her second issue, Appellant challenges the legality of her sentence,
alleging that the trial court “improperly applied” the “mandatory minimum”
sentencing statute at 42 Pa.C.S. § 9717, which she describes as “not really
mandatory.” Appellant’s Brief, 23. She asserts that improper application of
this statute caused the trial court to erroneously accept an incorrect standard
guideline range for her theft charge of twelve to fourteen months’
imprisonment with no possible mitigated range consideration due to the
parties’ understanding below that Section 9717 set a mandatory minimum
term of at least twelve months’ imprisonment. See Appellant’s Brief, 23-24.
While Appellant characterizes her claim as a challenge to the legality of her
sentence, for which no preservation is required below, see Appellant’s Brief,
23-27, the Commonwealth argues that the claim is a meritless challenge to
the discretionary aspects of the sentence imposed. See Appellee’s Brief, 20-30.
As a preliminary matter, we must review the statute at 42 Pa.C.S. §
9717 to assess the proper nature of Appellant’s claim and the appropriate
standard of review. The statute provides, in relevant part:
(a) Mandatory sentence.--A person under 60 years of age
convicted of one of the following offenses when the victim is over
7 Based on this conclusion, a preserved corpus delicti claim, as addressed above, would not have changed the outcome of Appellant’s trial.
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60 years of age and not a police officer shall be sentenced to a
mandatory term of imprisonment as follows:
[…]
18 Pa.C.S. § 3922 (relating to theft by deception)--not less
than 12 months, but the imposition of the minimum
sentence shall be discretionary with the court where the
court finds justifiable cause and that finding is written in the
opinion.
(b) Eligibility for parole.--Parole shall not be granted until the
minimum term of imprisonment has been served.
42 Pa.C.S § 9717(a)-(b).
We have only addressed the portion of Section 9717 discussing a
sentence for a conviction of theft by deception in a single precedential opinion,
Commonwealth v. Littlehales, 915 A.2d 662 (Pa. Super. 2007), which
neither party here has discussed in their briefs. In Littlehales, this Court
concluded that a challenge to the application of Section 9717 to a theft by
deception conviction raised a challenge to the discretionary aspects of a
sentence:
Section 9717(a), as it applies specifically to theft by deception, is
different. This provision explicitly states that the imposition of the
“mandatory” minimum is, in fact, discretionary with the court.
Moreover, it is imposed not upon any specific finding of fact, but
rather upon a generalized, discretionary finding of “justifiable
cause.” Thus, we hold that [Littlehales] raises a challenge to the
discretionary aspects of the sentence. We will now examine the
sentence in that light.
Littlehales, 915 A.2d at 664 (footnote omitted; emphasis in original).
While the panel in Littlehales unanimously concluded that a claim
addressing the application of Section 9717 to a theft by deception conviction
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raised a challenge to the discretionary aspects of the sentence, the panel was
divided on the interpretation of the sentencing statute. The majority of the
panel interpreted Section 9717(a) as providing that, before a trial court could
impose a mandatory one-year sentence for theft by deception, it was required
to find “justifiable cause and that finding is written in the opinion.”
Littlehales, 915 A.2d at 665, quoting 42 Pa.C.S. § 9717(a). The dissenting
opinion, however, interpreted Section 9717(a) “to require the imposition of a
minimum sentence of 12 months unless the court finds justifiable cause to
impose a lesser sentence, and explains that finding in a written opinion.” Id.
at 667 (dissenting opinion; Joyce, J.) (emphasis in original). 8
Upon reaching the merits of Littlehales’s claim, after concluding that his
claim was preserved in post-sentence motions and raised a substantial
question, the panel majority concluded that the trial court erroneously
believed that the mandatory minimum addressed in Section 9717(a) was the
“default option” and “the record d[id] not reflect that the court stated any
contemporaneous reasons on the record supporting a finding of ‘justifiable
cause.’” Littlehales, 915 A.2d at 666. Accordingly, the majority found that
the trial court abused its discretion by misapplying Section 9717 and
remanded for further proceedings where the trial court would be free to
8 In the nineteen years since Littlehales was decided, our Legislature has not
acted on the dissenting opinion’s urging it to revisit Section 9717(a) and clarify how it should be applied. See Littlehales, 915 A.2d at 667-68 (dissenting opinion; Joyce, J.).
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impose, or not impose, the “enhanced minimum,” so long as the court did so
consistent with the majority’s opinion. Id.
Littlehales dictates that we construe Appellant’s present claim as a
discretionary sentencing claim. There may be reasons for distinguishing
Littlehales’s conclusion that a claim addressing the application of Section
9717 to a theft by deception conviction implicates the discretionary aspects of
a sentence based on more recent developments in our law concerning legality
of sentence claims, however, we will not sua sponte step into the role of
advocate for Appellant in those regards where she completely fails to
acknowledge the existence of the Littlehales opinion, much less address its
relevance to her claim. See Commonwealth v. Hardy, 918 A.2d 766, 771
(Pa. Super. 2007) (“This Court will not act as counsel and will not develop
arguments on behalf of an appellant.”).
In any event, under controlling precedent, Appellant’s claim is a
discretionary sentencing claim. Primarily, it faults the trial court for accepting
an incorrect applicable sentencing guideline range due to its application of
Section 9717. See Appellant’s Brief, 26 (“Appellant should receive a new
sentencing hearing because the guidelines were not properly calculated and
there was no actual mandatory minimum.”). Claims alleging an erroneous
calculation of the applicable guidelines implicate the discretionary aspects of
a sentence. See Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.
Super. 2000) (a “challenge to the calculation of the Sentencing Guidelines
raises a question of the discretionary aspects of a defendant’s sentence”).
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Moreover, all of the cases Appellant cites in support of her claim address
discretionary sentencing challenges, involving sentencing courts’ failures to
state reasons for sentences outside the Sentencing Guidelines’
recommendations, rather than the legality of the sentences imposed:
Commonwealth v. Beatty, 227 A.3d 1277, 1290-91 (Pa. Super. 2020)
(vacating sentence and remanding for resentencing based on a trial court’s
failure provide to reasons for Beatty’s sentence that was outside the range
recommended by the Sentencing Guidelines); and Commonwealth v. Byrd,
657 A.2d 961, 964 (Pa. Super. 1995) (vacating and remanding for
resentencing where sentencing court failed to “set forth in [Byrd’s] presence
the permissible range of sentences under the guidelines” and did not indicate
that it was sentencing Bryd “outside of the guidelines and provide a
contemporaneous statement of its reason for such deviation”). Based on the
focus of Appellant’s claim and the fact that Littlehales remains binding on us
in the absence of cogent argument to distinguish it in the present
circumstances, we find that we must review Appellant’s claim as a
discretionary sentencing challenge.
While the Littlehales majority ruled on the merits of the discretionary
sentencing claim before it, it only reached the merits after it found that the
claim had been properly preserved consistent with the requirements for review
of discretionary sentencing claims. See Littlehales, 915 A.2d at 664-65 (“In
order to challenge a discretionary aspect of a sentence the defendant must
first raise the claim at the sentencing hearing or in post-sentence motions.
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The record reflects that [Littlehales] raised this issue in post-sentence
motions. Thus, the issue is preserved on appeal.”) (citations omitted).
With respect to Appellant’s claim, we find that it was not properly
preserved for review. At sentencing, Appellant’s counsel did not raise any
objection to the application of Section 9717. Instead, counsel agreed to the
“application of the mandatory,” N.T. Sentencing Hearing, 1/29/25, 7, and
simultaneously asked the court to impose a probationary or restrictive
conditions sentence, alone, if the court was “inclined to depart from the
mandatory.”9 Id. at 23-24. Appellant included a claim about the application
of Section 9717 in her post-sentence motions filed on March 13, 2025, but
those post-sentence motions would only preserve the instant claim if they had
been timely filed. See Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa.
Super. 2007) (“An untimely post-sentence motion does not preserve issues
for appeal.”). As we addressed above, however, those post-sentence motions
were not timely filed and were legal nullities because they were not considered
by and ruled on by the trial court prior to Appellant divesting the trial court of
its jurisdiction with her filing of a notice of appeal. See Commonwealth v.
Santone, 757 A.2d 963, 966 (Pa. Super. 2000) (order issued beyond the time
period set forth in what is now Pa.R.Crim.P. 720 was a legal nullity because
9 The latter assertion reinforces our determination that Appellant’s claim is a
discretionary sentencing challenge because it suggests that Appellant’s counsel grasped at the time, consistent with Littlehales’ treatment of Section 9717 statute, that the statute at issue was a “discretionary mandatory minimum” sentencing statute.
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the court no longer had jurisdiction to issue the order); see also
Commonwealth v. Martinez, 141 A.3d 485, 490-91 (Pa. Super. 2016)
(“[w]here there is no jurisdiction, there is no authority to pronounce
judgment”). Appellant’s untimely post-sentence motions could not preserve
any discretionary sentence challenge for purposes of this direct appeal. See
Nischan, supra, 928 A.2d at 355; see also Commonwealth v. Cartrette,
83 A.3d 1030, 1043 (Pa. Super. 2013) (en banc) (discretionary sentencing
claim is waived where it is not preserved in a post-sentence motion or at
sentencing).
We conclude that the evidence was sufficient to support Appellant’s
convictions and that Appellant waived her challenge to the trial court’s
application of the sentencing statute at 42 Pa.C.S. § 9717. 10 We thus affirm
the judgment of sentence.
Judgment of sentence affirmed.
10 While we were unable to reach the merits of Appellant’s sentencing claim,
we will take this opportunity to renew Judge Joyce’s suggestion to our Legislature in the dissenting opinion in Littlehales to revisit Section 9717(a) with respect to the crime of theft by deception. See Littlehales, 915 A.2d at 668 (dissenting opinion; J. Joyce). The apparent ambiguity in this “discretionary mandatory minimum” sentencing statute appear to remain unresolved nineteen years after the issuance of the opinions of our divided panel in Littlehales.
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Date: 8/3/2026
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