J-S21025-26 2026 PA Super 224
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAVAR RAHEEM WIRFEL :
:
Appellant : No. 1458 MDA 2025
Appeal from the Judgment of Sentence Entered August 19, 2025
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004491-2023
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
OPINION BY OLSON, J.: FILED OCTOBER 05, 2026
Appellant, Javar Raheem Wirfel, appeals from the August 19, 2025
amended judgment of sentence entered in the Court of Common Pleas of York
County after a jury convicted him of manufacture, delivery, or possession with
the intent to manufacture or deliver a controlled substance - cocaine
(Count 3) and knowingly or intentionally possessing a controlled
substance - cocaine (Count 4).1 On August 19, 2025, as discussed in greater
detail infra, the trial court amended Appellant’s original judgment of sentence
and imposed a term of three to six years’ incarceration for his conviction of
Count 3 and no further penalty for his conviction of Court 4. We affirm the
1 35 P.S. §§ 780-113(a)(30) and (a)(16), respectively. Appellant was found not guilty of two counts of persons not to possess, use, manufacture, control, sell, or transfer firearms. 18 Pa.C.S.A. § 6105(a)(1).
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amended judgment of sentence imposed on Count 3 and vacate the amended
judgment of sentence imposed on Count 4.
The record reveals that, on March 11, 2025, a jury convicted Appellant
of the aforementioned criminal charges. On July 21, 2025, the trial court
sentenced Appellant on Count 3 to two to four years’ incarceration and
imposed no further penalty for Appellant’s conviction of Count 4.2 On July 29,
2025, the Commonwealth filed a motion that sought reconsideration of
Appellant’s judgment of sentence based on a letter Appellant sent to the chief
deputy prosecutor after his July 21, 2025 sentencing hearing.3 In the letter,
Appellant “use[d] vile, disturbing language to describe [the chief deputy
prosecutor’s] physical appearance [and attacked] her character, integrity, and
ethics as a prosecutor.” Commonwealth Motion for Reconsideration of
Sentence, 7/29/25, at ¶ 8. In his letter, Appellant also stated that he knew
what type of vehicle the chief deputy prosecutor drove and that he had “a
2 On Count 3, the trial court awarded Appellant 655 days credit for time served. Appellant was found not to be eligible for boot camp, the recidivism risk reduction incentive program, and a state drug treatment program. Sentencing Order, 7/21/25.
The notes of testimony from Appellant’s July 2025 sentencing hearing confirm that the trial court failed to state on the record whether Appellant was advised of the time in which to file a post-sentence motion or a notice of appeal. See N.T. 7/21/25, at 1-4; see also Pa.R.Crim.P. 704(C)((3)(a).
3 As discussed infra, Pennsylvania Rule of Criminal Procedure 721 permits the
Commonwealth to challenge a sentence by filing a motion for modification of sentence “no later than 10 days after the imposition of sentence.”
Pa.R.Crim.P. 721(A)(1) and (B)(1).
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private investigator ‘watching’ her” and knew the chief deputy prosecutor had
a daughter. Id. at ¶ 9. The trial court scheduled a hearing on the
Commonwealth’s motion for August 19, 2025. At the conclusion of the August
19, 2025 hearing, the trial court granted the Commonwealth’s motion to
modify Appellant’s sentence, imposed an amended sentence of three to six
years’ incarceration on Count 3, and imposed no further penalty for
Appellant’s conviction of Count 4.4
Earlier that same day, August 19, 2025, Appellant filed pro se a petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. In his petition, Appellant asserted claims of ineffective
assistance of trial counsel and a violation of his constitutional right to a fair
and speedy trial. Pro Se PCRA Petition, 8/19/25, at 2-3. On September 12,
2025, the PCRA court appointed La Tasha C. Williams, Esquire (“Attorney
Williams”) as PCRA counsel to represent Appellant.
On September 15, 2025, Appellant filed a motion to withdraw the PCRA
petition, explaining that his judgment of sentence had not yet become final
and, as such, the PCRA court lacked jurisdiction to adjudicate his claims.
Motion to Withdraw PCRA Petition, 9/15/25, at ¶¶ 9, 12.5 In the same filing, ____________________________________________
4 In the amended sentence, the trial court awarded the same credit for time
served (655 days) and adopted the same restrictions on rehabilitative programing. Amended Sentencing Order, 8/19/25.
5 Appellant’s amended sentence was imposed on August 19, 2025. At this stage in the proceedings, Appellant’s judgment of sentence was set to become
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Appellant moved for leave to file a post-sentence motion nunc pro tunc and
requested the appointment of post-sentence/direct appeal counsel. Appellant
requested permission to file a post-sentence motion nunc pro tunc because
the trial court failed, inter alia, to advise Appellant, at the August 19, 2025
sentence modification hearing, of his right to file a post-sentence motion or a
notice of appeal and the time period within which to act upon those rights.
Id. at ¶ 17.
On September 16, 2025, the PCRA court granted Appellant’s request to
withdraw the PCRA petition, and the trial court expressly granted Appellant
permission to file a post-sentence motion nunc pro tunc.6 In its order, the
final on September 18, 2025, upon expiration of the time in which to file a timely post-sentence motion or a direct appeal. Pa.R.Crim.P. 720(A)(1) (stating, a post-sentence motion must be filed “no later than 10 days after the imposition of sentence”); see also Pa.R.A.P. 903(a) (stating, a notice of appeal must be filed “within 30 days after the entry of the order from which the appeal is taken”); 42 Pa.C.S.A. § 9545(b)(1) (stating, a PCRA petition “shall be filed within one year of the date the judgment of sentence becomes final”); 42 Pa.C.S.A. § 9545(b)(3) (stating, a judgment of sentence “becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review”). As such, Appellant’s PCRA petition, filed on August 19, 2025, was premature because it was filed before his judgment of sentence became final. The premature PCRA petition was a legal nullity, and the PCRA court lacked jurisdiction to consider the filing. Commonwealth v. Ramsey, ___ A.3d ___, 2026 WL 2209742, at *3
(Pa. Super. filed Jul. 31, 2026) (en banc) (slip opinion).
6 Pursuant to Section 5505 of the Judicial Code, “if no appeal has 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, 1127 (Pa. Super. 2003) (en
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trial court acknowledged its “failure, at the August 19, 2025 resentencing
hearing, to advise [Appellant] of his post-sentence rights” and offered this
oversight as grounds for granting Appellant’s request to file a post-sentence
motion nunc pro tunc.7 Trial Court Order, 9/16/25, at 2; see also N.T.,
8/19/25, at 5-6. In that same order, the trial court appointed Attorney
Williams as counsel for the purpose of pursuing Appellant’s post-sentence and
direct appeal rights. Trial Court Order, 9/16/25, at 2.
Ultimately, Appellant did not file a post-sentence motion nunc pro tunc.
Instead, Appellant filed a notice of appeal on October 16, 2025, within 30 days
of entry of the order that granted nunc pro tunc relief. In the notice of appeal,
Attorney Williams stated, “following review of the record, [Appellant] (through
the undersigned), declined to file a post-sentence motion and now files the
instant notice of appeal for direct review of his judgment of sentence[.]”
Notice of Appeal, 10/16/25, at 1 n.1. On October 23, 2025, the trial court
banc); see also 42 Pa.C.S.A. § 5505 (stating, “[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed”). The decision to grant nunc pro tunc relief must be rendered within 30 days of the imposition of sentence. Dreves, 839 at 1128 n.6. The granting of nunc pro tunc relief permits the trial court to retain jurisdiction over the matter beyond the 30-day period following the imposition of sentence.
7 As explained supra, the trial court did not advise Appellant of his post-sentence and direct appeal rights, or of the time within which to exercise those rights, at the conclusion of the July 21, 2025 sentencing hearing. See N.T., 7/21/25, at 1-4.
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ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) within 21 days.
Appellant filed a Rule 1925(b) statement on December 6, 2025.8 The trial
court filed its Rule 1925(a) opinion on January 23, 2026.
Appellant raises the following issue for our review: “Whether the trial
court erred in increasing [Appellant’s] sentence for apparent vindictive
reasons[?]” Appellant’s Brief at 5.
Preliminarily, we address the procedural posture of the case sub judice
as it implicates our jurisdiction. Commonwealth v. Crawford, 17 A.3d
1279, 1281 (Pa. Super. 2011) (stating, “the timeliness of an appeal implicates
our jurisdiction and may be considered sua sponte”). In a criminal proceeding,
a direct appeal lies from the judgment of sentence. Commonwealth v.
Patterson, 940 A.2d 493, 497 (Pa. Super. 2007), appeal denied, 960 A.2d
838 (Pa. 2008). A notice of appeal “shall be filed within 30 days after the
entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a).
Therefore, in a criminal proceeding, a notice of appeal challenging a judgment
of sentence must be filed within 30 days of imposition of sentence unless the ____________________________________________
8 Although Appellant filed his Rule 1925(b) statement beyond the 21-day period, the trial court accepted Appellant’s late filing and subsequently issued its Rule 1925(a) opinion addressing the issues raised by Appellant in his concise statement.
On December 15, 2025, Attorney Williams filed a petition for the appointment of new counsel due to her election, in November 2025, to serve on the Court of Common Pleas of Dauphin County. That same day, the trial court appointed Kristen Weisenberger, Esquire to represent Appellant on direct appeal.
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defendant files a timely post-sentence motion or the Commonwealth files a
motion to modify the sentence. Commonwealth v. Green, 862 A.2d 613,
618 (Pa. Super. 2004) (en banc) (stating, “[o]rdinarily, if a defendant does
not file a post-sentence motion, the defendant’s notice of appeal shall be filed
within 30 days of imposition of sentence”), appeal denied, 882 A.2d 477 (Pa.
2005); see also Pa.R.Crim.P. 720(A)(3) and (4) (stating, “[i]f the defendant
does not file a timely post-sentence motion, the defendant’s notice of appeal
shall be filed within 30 days of imposition of sentence, except [when] the
Commonwealth files a timely motion to modify sentence[. If the
Commonwealth files a timely motion to modify the sentence, then] the
defendant's notice of appeal shall be filed within 30 days of the entry of the
order disposing of the Commonwealth’s motion.”).
Pursuant to Pennsylvania Rule of Criminal Procedure 720(A)(1), a
written post-sentence motion must be filed “no later than 10 days after
imposition of sentence.” Pa.R.Crim.P. 720(A)(1). If the defendant files a
timely post-sentence motion, then a notice of appeal must be filed “within 30
days of the entry of the order deciding the motion[,]” “within 30 days of the
entry of the order denying the motion by operation of law in cases in which
the [trial court] fails to decide the motion[ within 120 days,]” or “within 30
days of the entry of the order memorializing the withdrawal in cases in which
the defendant withdraws the motion.” Pa.R.Crim.P. 720(A)(2); see also
Green, 862 A.2d at 618 (explaining that, the filing of a timely post-sentence
motion will toll the time in which to file a direct appeal).
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Pursuant to Rule 721, the Commonwealth may challenge a sentence by,
inter alia, filing a motion to modify the sentence. Pa.R.Crim.P. 721(A)(1).
The Commonwealth must file a motion to modify the sentence “no later than
10 days after imposition of sentence.” Pa.R.Crim.P. 721(B)(1). As discussed
supra, if the Commonwealth files a timely motion to modify the sentence, then
the defendant may file a notice of appeal “within 30 days of the entry of the
order disposing of the Commonwealth’s motion” to modify the sentence.
Pa.R.Crim.P. 720(A)(4); see also Commonwealth v. Capaldi, 112 A.3d
1242, 1244 (Pa. Super. 2015).
For a 30-day period following the imposition of sentence, Section 5505
of the Judicial Code permits a trial court, in its discretion, to, inter alia, grant
a request by a defendant to file a post-sentence motion nunc pro tunc if no
appeal has been taken. Dreves, 839 A.2d at 1128; see also 42 Pa.C.S.A.
§ 5505. To be entitled to file a post-sentence motion nunc pro tunc, a
defendant must, within 30 days after the imposition of sentence, request
permission from the trial court to file a post-sentence motion nunc pro tunc
and demonstrate sufficient cause to excuse the late filing. Dreves, 839 A.2d
at 1128 (stating, “[m]erely designating a motion as ‘post-sentence motion
nunc pro tunc’ is not enough”). If the trial court is satisfied that the defendant
demonstrated sufficient cause, then the trial court must expressly grant the
request to file a post-sentence motion nunc pro tunc and the order granting
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the request must be entered within 30 days after the imposition of sentence.9
Id.; see also 42 Pa.C.S.A. § 5505. If “the trial court grants a request to file
a post-sentence motion nunc pro tunc, the post-sentence motion filed as a
result must be treated as though it were filed within the 10-day period
following the imposition of sentence.” Dreves, 839 A.2d at 1129. In other
words, the filing of a post-sentence motion nunc pro tunc upon express leave
to proceed under Section 5505 will, inter alia, toll the time in which to file a
direct appeal.
Once the trial court expressly grants a defendant permission to file a
post-sentence motion nunc pro tunc (in other words, once the trial court
restores a defendant’s post-sentence rights), the defendant has 10 days from
the date the order is entered on the record in which to file a timely
post-sentence motion nunc pro tunc. This 10-day deadline in which to file a
post-sentence motion nunc pro tunc stems from the requirement, under Rule
720(A)(1), that a post-sentence motion “shall be filed no later than 10 days
9 If the trial court does not enter an order expressly granting nunc pro tunc
relief within 30 days of the imposition of sentence, the trial court cannot act, pursuant to Section 5505, on a defendant’s request. 42 Pa.C.S.A. § 5505; see also Dreves, 839 A.2d at 1128-1129. A trial court’s resolution of the merits of an untimely post-sentence motion “is no substitute for an order expressly granting nunc pro tunc relief.” Dreves, 839 A.2d at 1129.
If no appeal has been filed and the trial court has taken no action pursuant to Section 5505 within 30 days of the imposition of sentence, then the defendant’s judgment of sentence becomes final and all remedies pertaining to the reinstatement of post-sentence and direct appeal rights must be pursued through the PCRA.
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after imposition of sentence.” See Pa.R.Crim.P. 720(A)(1). Although we find
no rule of criminal procedure that specifically states the deadline by which a
post-sentence motion must be filed once nunc pro tunc relief has been
granted, we find case law support for a 10-day requirement.10 As this Court
explained in Commonwealth v. Wright, 846 A.2d 730 (Pa. Super. 2004),
the term nunc pro tunc means “now for then.” See Black’s Law
Dictionary, at 1069, (Sixth Edition 1990). It is “a phrase applied
to acts allowed to be done after the time when they should be
done, with a retroactive effect, i.e., with the same effect as
if regularly done.” Id. Thus, reinstatement of direct appeal
rights nunc pro tunc denotes that the [defendant] now has the
same direct appeal rights as he [or she] would have had in the
beginning. Since in the beginning [a defendant] ordinarily must
file his [or her] direct appeal within thirty days of the date of
imposition of sentence (or the date of entry of the order disposing
post-sentence motions), it is logical and fair to apply the same
thirty-day rule when [a defendant’s] direct appeal rights are
restored nunc pro tunc.
Id. at 735 (footnote omitted; emphasis added). If we apply the reasoning in
Wright to the nunc pro tunc restoration of post-sentence motion rights, it
10 We note that the official comments to Rule 720 state that “[i]n those cases
in which a petitioner under the [PCRA] has been granted leave to file a post-sentence motion or to appeal nunc pro tunc, the filing of the
post-sentence motion or the notice of appeal must comply with the timing requirements contained in paragraph (A) of this rule.” Pa.R.Crim.P. 720 at Comments – Optional Post-Sentence Motion. In other words, a petitioner, who has been granted such collateral relief, is required to file his or her post-sentence motion nunc pro tunc within 10 days of the order granting relief.
Our approach clarifies that nunc pro tunc filing of a post-sentence motion pursuant to Section 5505 now aligns with the filing of a post-sentence motion where the right has been restored under the PCRA.
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logically follows that a defendant, upon restoration of his or her post-sentence
rights nunc pro tunc, would be required to file a post-sentence motion nunc
pro tunc within 10 days of the date the order granting nunc pro tunc relief is
entered on the record. See id.; see also Commonwealth v. Taylor, 277
A.3d 577, 584 n.2 (Pa. Super. 2022) (finding a post-sentence motion filed
within 10 days of being granted nunc pro tunc relief to be timely);
Commonwealth v. Mitchell, 311 A.3d 567, 2023 WL 8471596, at *3 n.5
(stating, pursuant to the reasoning set forth in Wright, supra, “when a
petitioner’s post-sentence and appeal rights are both reinstated, the [] time
limit requirements [found in Rule 720(A)] apply: a post-sentence motion must
be filed within 10 days of the order reinstating post-sentence rights, and a
notice of appeal must be filed either within 30 days of the order reinstating
appeal rights, or within 30 days of the order denying the post-sentence
motion”).
Applying Rule 720’s 10-day time limit within which to file a
post-sentence motion upon the entry of an order granting nunc pro tunc relief
is further supported by our decision in Dreves, supra. In Dreves, this Court
explained that “when the trial court [expressly] grants a request to file a
post-sentence motion nunc pro tunc, the post-sentence motion filed as a result
must be treated as though it were filed within the 10-day period
following the imposition of sentence.” Dreves, 839 A.2d at 1129. From
Wright, Dreves, and their progeny, we are able to glean that an order
granting nunc pro tunc relief “winds back” the procedural timeclock to the
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point of sentencing and from there a defendant must adhere to the time limits
prescribed by the post-sentence procedures set forth in Rule 720. In other
words, once an order granting nunc pro tunc relief has been entered, the
procedural timetables in Rule 720 should be followed.
With these principles in mind, we turn now to the procedural posture of
the case sub judice. On July 21, 2025, the trial court sentenced Appellant. At
the time of sentencing, the trial court did not inform Appellant of his
post-sentence or direct appeal rights. N.T., 7/21/25, at 1-4. On July 29,
2025, the Commonwealth filed a timely motion to modify the sentence
pursuant to Rule 721. On August 19, 2025, the trial court granted the
Commonwealth’s motion and amended Appellant’s sentence. Again, the trial
court did not inform Appellant of his post-sentence or direct appeal rights.
N.T., 9/19/25, at 6. On September 15, 2025, Appellant filed a timely motion
seeking permission to file a post-sentence motion nunc pro tunc. Within the
30-day period following the imposition of Appellant’s amended sentence, the
trial court, on September 16, 2025, expressly granted Appellant’s request to
file a post-sentence motion nunc pro tunc. In its order granting nunc pro tunc
relief, the trial court did not inform Appellant of the deadline by which the
post-sentence motion must be filed. Ultimately, Appellant choose not to file
a post-sentence motion nunc pro tunc but, instead, filed a notice of appeal on
October 16, 2025, within 30 days of the order expressly granting nunc pro
tunc relief.
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As discussed supra, a post-sentence motion nunc pro tunc filed pursuant
to the requirements under Dreves, supra, will be treated as though it were
filed within 10 days of the imposition of sentence, thereby tolling the time in
which to file a notice of appeal. Dreves, 839 A.2d at 1129. Appellant did
not, however, file a post-sentence motion nunc pro tunc. As such, no
post-sentence motion tolled the 30-day period in which to file a timely notice
of appeal challenging Appellant’s August 19, 2025 amended sentence. Id. at
1126 (explaining that, “if a defendant does not file a post-sentence motion,
the notice of appeal shall be filed within 30 days of imposition of sentence”);
see also Pa.R.Crim.P. 720(A)(3) (stating, “[i]f the defendant does not file a
timely post-sentence motion, the defendant’s notice of appeal shall be filed
within 30 days of imposition of sentence”); Pa.R.A.P. 903(c)(3) (stating, “[i]n
a criminal case in which no post-sentence motion has been filed, the notice of
appeal shall be filed within 30 days”).
From the foregoing discussion, it logically follows that once a trial court
restores the post-sentence rights of a defendant and the defendant files a
timely post-sentence motion nunc pro tunc, the defendant has 30 days after
the resolution of the post-sentence motion to file a notice of appeal challenging
the judgment of sentence. As we stated supra, it is the filing of a timely
post-sentence motion that tolls the appeal period. Without such a timely
filing, the appeal period is not tolled. Thus, when Appellant failed to file a
timely post-sentence motion after securing nunc pro tunc relief, the deadline
for his notice of appeal remained 30 days after the imposition of his amended
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sentence and his appeal was untimely in this case. Dreves, 839 A.2d at 1127
(stating, “the time for filing an appeal can be extended beyond 30 days after
the imposition of sentence only if the defendant files a timely post-sentence
motion”); see also Pa.R.A.P. 903. The record, however, demonstrates that
when the trial court initially sentenced Appellant on July 21, 2025, and then
again when it amended Appellant’s sentence on August 19, 2025, it failed to
provide Appellant with accurate and specific information regarding, inter alia,
the right to file a post-sentence motion and an appeal, together with
information about the time period within which to exercise those rights. Based
upon the long-standing requirement that a trial court must provide a
defendant, at the time of sentencing, with accurate and specific information
regarding post-sentence and appeal rights, we are troubled by the trial court’s
failure to do so in this case. Therefore, we conclude that the failure of the
trial court to provide notice of the 10-day deadline by which to file a
post-sentence motion and the 30-day time limit by which to take an appeal
constituted a breakdown in the judicial system. See Patterson, 940 A.2d at
498 (stating, a breakdown in the judicial system occurs when a trial court, at
the time of sentencing, “either failed to advise [a defendant] of his [or her]
post-sentence or appellate rights or misadvised him [or her]”).
Typically, an appellate court may not enlarge the time for filing a notice
of appeal. Pa.R.A.P. 105(b); see also Patterson, 940 A.2d at 498. An
appellate court, however, may grant relief “in the case of fraud or breakdown
in the processes of the court.” Patterson, 940 A.2d at 498. In the case sub
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judice, the trial court twice failed to advise Appellant of his post-sentence and
appeal rights after imposing a sentence upon Appellant. Therefore a
breakdown in the judicial system occurred. Consequently, under the
circumstances of the case sub judice, we deem Appellant’s notice of appeal
filed on October 16, 2025, to be timely and proceed to entertain the merits of
this appeal.
Appellant contends that the trial court violated his due process rights
when it resentenced him to an increased term of incarceration after he
expressed his frustration with the prosecution of his case. Appellant’s Brief at
9. Appellant asserts that his expression of frustration, namely a letter he
directed to the chief deputy prosecutor, did not amount to objective
information regarding his case that permitted the trial court to impose an
amended sentence after the Commonwealth filed a motion for reconsideration
of the original sentence. Id. at 9-10. As such, Appellant challenges the trial
court’s authority to impose an amended sentence and, therefore, raises a
legality of sentence claim. Commonwealth v. Prinkey, 277 A.3d 554,
567-568 (Pa. 2022) (stating, a claim that “the resentencing court lacked
authority to extend [the] term of incarceration beyond the length of [the]
original sentence because[] no event occurred between the two sentencing
hearings that could (or would) have justified the imposition of a lengthier
sentence” raises an illegal sentencing claim); see also Commonwealth v.
McFarland, 311 A.3d 560, 2023 WL 8370237, at *4 (Pa. Super. filed Dec. 4,
2023) (unpublished memorandum) (explaining that, more recent decisions
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consider a claim asserting judicial vindictiveness in resentencing to challenge
the legality of sentencing). “Challenges to the legality of a sentence present
pure questions of law. Our standard of review, therefore, is de novo and our
scope of review is plenary.” Commonwealth v. Asbury, 299 A.3d 996, 998
(Pa. Super. 2023).
In Prinkey, supra, our Supreme Court reiterated that “the existence of
retaliatory motivation[, i.e., vindictiveness,] would, of course, be extremely
difficult to prove in any individual case[.]” Prinkey, 277 A.3d at 564 (original
brackets omitted), citing North Carolina v. Pearce, 395 U.S. 711, 725 n.20
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794
(1989). As such, a presumption that the lengthier sentence is unconstitutional
arises “in the absence of an on-the-record statement [by the trial court] that
the increased term of incarceration was the product of objective information
concerning identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding.” Prinkey, 277 A.3d at 565
(original quotation marks omitted), citing Pearce, 395 U.S. at 726. “This
legal paradigm emanates from the protections safeguarded to individuals by
the Due Process Clause. The Pearce presumption creates a constitutional
barrier to the [trial] court’s authority to impose a sentence found in a facially
constitutional statute.” Prinkey, 277 A.3d at 565.
The Pearce presumption, the Prinkey Court explained, “does not apply
in every case where a convicted defendant receives a higher sentence on
[resentencing].” Prinkey, 277 A.3d at 565, citing Smith, 490 U.S. at 799.
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Rather, the Pearce presumption “applies only in circumstances in which there
is a reasonable likelihood that the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority. Where there is no
reasonable likelihood of vindictiveness, the burden remains upon the
defendant to prove actual vindictiveness.” Prinkey, 277 A.3d at 565
(citations, original quotation marks, and ellipses omitted). In other words,
the Pearce presumption does not apply when there is objective evidence
presented that an event occurred post-original sentencing that “makes it likely
that the [trial] court obtained new details about the defendant’s moral
character and suitability for rehabilitation.” Id. (original quotation marks and
citation omitted).
As discussed supra, Appellant was sentenced on July 21, 2025. Shortly
after his sentencing, the district attorney’s office for York County received a
letter written by Appellant and directed to the chief deputy prosecutor. As the
Commonwealth explained, the letter did not exist at the time of the July 21,
2025 sentencing hearing. N.T., 8/19/25, at 3. Appellant acknowledged that
he wrote the letter. Id. at 2-3; see also Appellant’s Brief at 11. The trial
court summarized the content of the letter as follows:
[Appellant] referred to [the chief deputy prosecutor] - a respected
prosecuting attorney of this Commonwealth, as a miserable pig of
a woman and a white devil. And he said - and I quote, I have a
private investigator watching you. [How do] you think that I knew
you had a daughter and drive - and then I am not going to say,
but a specific type of car, which is the type of car this prosecutor
drives.
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[Appellant] refers to [the chief deputy prosecutor] as Ms. Piggy,
which is highly inappropriate, especially because she had nothing
to do with the case except for she was in the courtroom at the
time of sentencing.
N.T., 8/19/25, at 4; see also Commonwealth’s Motion for Reconsideration of
Sentence, 7/29/25, at Exhibit B. The trial court characterized Appellant’s
letter as “a veiled threat” against the chief deputy prosecutor. N.T., 8/19/25,
at 4 (stating, I don’t know how you want me to take that as anything other
than a veiled threat. There is no other way to take that.”); see also
Commonwealth’s Motion for Reconsideration of Sentence, 7/29/25, at Exhibit
B (stating, “You [(referring to the chief deputy prosecutor)] or no other
[district attorney] puts fear in my heart. I will go to war with each and every
one of you.”).
Upon review, we find that the trial court, prior to amending Appellant’s
sentence, received objective evidence of an event, namely the sending of a
letter by Appellant to the chief deputy prosecutor, that occurred after the trial
court sentenced Appellant on July 21, 2025. The content of this letter
provided the trial court with new details about Appellant’s moral character and
his suitability for rehabilitation. Under these circumstances, the Pearce
presumption of vindictiveness did not exist, and the burden fell on Appellant
to demonstrate that the trial court acted in a vindictive manner when it
resentenced him on August 19, 2025.
At the August 19, 2025 sentencing hearing, Appellant offered the
following explanation for his action,
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I was just frustrated, honestly. I didn’t - like, I was upset about
the whole thing. It was a mistake. I wasn’t really meaning, like,
to threaten anybody. I was just frustrated because I had a whole
different plan in my head and it just - it was just out of frustration.
N.T., 8/19/25, at 2-3. Appellant asserts that his statement of frustration was
ignored by the trial court when it fashioned the amended sentence. Appellant
contends that the only rationale to explain the imposition of what he describes
as an “excessive sentence” is that the trial court acted out of vindictiveness
towards him. We disagree.
The trial court aptly found, and the record supports, that Appellant’s
letter was a veiled threat to bring harm to the chief deputy prosecutor for
what Appellant believed was her role in ttrial court fashioning the terms of his
original sentence. This letter, which was written after Appellant’s original
sentencing hearing on July 21, 2025, resonates as to his moral character and
the length to which he will “wage war” on the chief deputy prosecutor.
Appellant asks this Court to find that the trial court acted with pure
vindictiveness when it resentenced him simply because he believed his
declaration of frustration presented a viable excuse for his actions and
required no further punishment for his actions. We cannot agree, nor does
the record support, that Appellant satisfied his burden of showing
vindictiveness on the part of the trial court in fashioning its amended sentence.
The trial court received objective evidence after Appellant’s original sentencing
that supports its decision to impose an amended and enhanced sentence.
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We are constrained, however, to vacate that portion of Appellant’s
amended sentence that imposed no further penalty for his conviction of
Count 4 - intentionally possessing a controlled substance - cocaine because
this portion of the amended sentence constitutes an illegal sentence.11 See
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (stating
that, “[a]s long as the reviewing court has jurisdiction, a challenge to the
legality of the sentence is non-waivable and the court can even raise and
address it sua sponte”).
The Commonwealth proceeded to a verdict on the drug charges
(Count 3 - manufacture, delivery, or possession with the intent to
manufacture or deliver a controlled substance – cocaine and
Count 4 - intentionally possessing a controlled substance – cocaine) based
upon Appellant’s possession of, and use of, cocaine on August 11, 2023. N.T.,
3/11/25, at 183-184, 220-221 (instructing the jury that Appellant “is charged
with unlawfully possessing cocaine” and “is charged with unlawfully
possessing cocaine with the intent to deliver”). In its amended sentence, the
trial court imposed a term of incarceration of three to six years on Count 3
and no further punishment on Count 4. Appellant’s conviction of
Count 4 - intentionally possessing a controlled substance – cocaine merged
for sentencing purposes with his conviction of Count 3 - manufacture, ____________________________________________
11 We review the legality of a sentence de novo.Commonwealth v. Prinkey, 277 A.3d 554, 564 (Pa. 2022) (stating, “all legality challenges implicate a question of law, which is reviewed by appellate courts de novo”).
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delivery, or possession with the intent to manufacture or deliver a controlled
substance – cocaine since both charges stemmed from the same act of
possession, namely cocaine. See Commonwealth v. Murphy, 592 A.2d
750, 753 (Pa. Super. 1991) (stating, the trial court imposed an illegal
sentence when it failed to merge “for sentencing purposes the crimes of
possession of controlled substances and possession with intent to deliver since
both charges stemmed from the same act of possession”); see also 42
Pa.C.S.A. § 9765 (explaining, “No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the [trial] court may
sentence the defendant only on the higher graded offense.”). Because the
trial court imposed an amended sentence of no further punishment on
Count 4, there is no need to remand this case for resentencing since our
finding that the sentence imposed on Count 4 was illegal does not disturb the
trial court’s overall sentencing scheme, namely the sentence imposed on
Count 3.12
12 Our Supreme Court, as well as this Court, has held that a sentence of “no
further penalty” is a sentence, and it must be vacated when imposed on a conviction that merges with another offense for which a defendant is also sentenced. See Commonwealth v. Hill, 238 A.3d 399, 411 (Pa. 2020); see also Commonwealth v. Westlake, 295 A.3d 1281, 1289 (Pa. Super. 2023) (stating that, because the defendant’s sentences for DUI offenses merged for the purpose of sentencing, the sentence of no further penalty must be vacated).
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Amended judgment of sentence on Count 3 affirmed. Amended
judgment of sentence on Count 4 vacated. Jurisdiction relinquished.
Judge Kunselman joins this Opinion.
Judge Bowes concurs in the result.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/05/2026
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