Com. v. Brown, F.

J-S19006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK BROWN :
:
Appellant : No. 3234 EDA 2018

Appeal from the Judgment of Sentence Entered October 9, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009516-2008

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED AUGUST 07, 2020

Frank Brown appeals from his aggregate judgment of sentence of twelve

to thirty-five years of incarceration imposed after his original sentence was

overturned by this Court. Concluding that the resentencing court abused its

discretion, we are constrained to vacate Appellant’s judgment of sentence and

remand for resentencing consistent with this memorandum.

This Court offered the following summary of the underlying facts of this

case on Appellant’s direct appeal.

On December 18, 2007, Kathleen Kirchner (victim) and
Barbara Kirchner (victim, 91 years-old) were returning to
Barbara’s home around 10 p.m.; Kathleen double-parked to allow
Barbara to easily enter her home. As Kathleen began to escort
Barbara up the front steps, [Appellant] came up from behind and
held a gun to Kathleen’s neck and demanded cash. With the gun
embedded in her neck, Kathleen managed to turn over her wallet
filled with cash to [Appellant]. Kathleen also went into Barbara’s
purse and retrieved $500.00 in cash and handed it to [Appellant].
After taking the money, [Appellant] ordered both to lie down in
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[the] street or they would be shot. When Kathleen refused,
[Appellant] fled the scene and ran down the street.

At trial, [Appellant] testified on his own behalf and offered
an alibi defense. He stated he was working in South Carolina at a
satellite television company on the date the crimes took place in
Philadelphia. Although [Appellant] established his employment
through pay stubs and time sheets, the company indicated that
[Appellant] was not working at the company from December 14,
2007 through December 22, 2007. [Appellant] also had two
family members offer testimony that he was employed with the
same company in South Carolina, but neither could rule out the
possibility that [Appellant] was present in Philadelphia on the day
in question.

Commonwealth v. Brown (“Brown I”), 118 A.3d 441 (Pa.Super. 2015)

(unpublished memorandum at 1-2) (cleaned up), appeal denied, 118 A.3d

1107 (Pa. 2015).

On February 1, 2010, the [Honorable Peter F. Rodgers]
found [Appellant] guilty of two counts each of the following
crimes: aggravated assault, robbery, firearms not to be carried
without a license, unlawful restraint, theft by unlawful taking,
receiving stolen property, terroristic threats, simple assault,
recklessly endangering another person, and false imprisonment.
He was also found guilty of one count each of carrying firearms on
public streets or public property in Philadelphia and possession of
an instrument of crime. On March 18, 2010, the trial court
sentenced [Appellant] to an aggregate term of seven to 14 years’
incarceration, followed by 15 years’ reporting probation. The
court imposed sentence on the charges of robbery and aggravated
assault pursuant to the mandatory minimum sentence for
possession or control of a firearm at the time of the offense.

Commonwealth v. Brown (“Brown II”), 193 A.3d 1054 (Pa.Super. 2018)

(unpublished memorandum at 2-3) (citations and footnotes omitted).

Appellant’s direct appeal afforded him no relief. See Brown I, supra.

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On August 18, 2015, Appellant filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”), in which he claimed that trial counsel had

been ineffective in establishing his alibi defense. With no action having been

taken on his petition in nearly a year, Appellant filed on July 13, 2016, an

amended pro se petition averring, inter alia, an additional claim that his

sentence, which included a mandatory minimum, was illegal pursuant to

Alleyne v. United States, 570 U.S. 99 (2013). See Amended PCRA Petition,

7/13/16, at 19-21.

Since Judge Rodgers had retired, Appellant’s case was reassigned to the

Honorable Anne Marie B. Coyle in October 2016, and counsel was appointed.

Counsel filed a motion to withdraw and no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), which neither

acknowledged the amended pro se PCRA petition nor addressed the issues

raised therein. Nor did counsel independently note that Appellant’s sentence

was illegal. The PCRA court issued a form letter indicating its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, stating

generically that Appellant’s petition lacked merit on the basis of counsel’s

Turner/Finley no-merit letter. The PCRA court thereafter dismissed

Appellant’s petition and granted counsel’s motion to withdraw without

addressing Appellant’s illegal sentencing claim or indicating that the court had

independently reviewed the record.

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In Appellant’s pro se appeal, he maintained, inter alia, that his sentence

was illegal under Alleyne. This Court noted the failure of PCRA counsel and

the PCRA court to address the issue,1 but, observing that a court has the

power to correct an illegal sentence sua sponte, vacated the judgment of

sentence and remanded for resentencing. See Brown II, supra

(unpublished memorandum at 9). Upon remand, Judge Coyle appointed

counsel, ordered a presentence investigation (“PSI”) report and mental health

evaluation, and scheduled a resentencing hearing.

Judge Coyle first resentenced Appellant on August 29, 2018. The

hearing began with Appellant’s counsel reciting that Appellant, who was

eighteen years old when he was arrested, had a prior record score of zero,

and the offense gravity scores were ten, such that the guidelines called for a

sentence on each of the robbery and aggravated assault convictions of forty

to fifty-four months, as was agreed at Appellant’s prior sentencing. See N.T.

Sentencing, 8/29/18, at 7-8, 15. Counsel also cited mitigating factors, such

as the fact that Appellant had been adjudicated dependent as a minor, but

nonetheless obtained a high school diploma, went to trade school, and had

been gainfully employed. Id. at 8. Counsel noted that, although Appellant’s

____________________________________________

1 This Court held that Appellant waived his claims of ineffective assistance of
PCRA counsel by not responding to the court’s Rule 907 notice. See
Commonwealth v. Brown (“Brown II”), 193 A.3d 1054 (Pa.Super. 2018)
(unpublished memorandum at 5-6).

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family had not been supportive in his youth, his father, mother, grandmother,

and siblings were present for him at the hearing. Id. at 12-14. Counsel

offered testimony from Appellant’s mother, who despite being instructed by

counsel not to get into the merits of the underlying case, persisted in

contending that Appellant was innocent. Id. at 9-10.

The Commonwealth provided some alternative guideline calculations,

offering ranges of forty-eight to sixty months “if” the robbery conviction

involved inflicting serious bodily injury, or sixty to seventy-eight months “if

we did a deadly weapon enhancement” and used an offense gravity score of

twelve. Id. at 17-18. However, the Commonwealth opined that the higher

ranges, if calculated, “wouldn’t necessarily even be relevant” because

Appellant had already served well over seventy-eight months, and it was

requesting a standard-range sentence “and also putting in place the proper

things that when [Appellant] comes home, he is able to land on his feet and

be productive in society and not relapse into the behavior that he was having

before, which was very serious.” Id. at 18.

The trial court indicated that it did not agree with Appellant’s calculations

of the guideline ranges. See N.T. Sentencing, 8/29/18, at 15-16 (“I don’t

dispute that that was what was agreed to back in the day. I do dispute as to

whether or not that is correct. . . . I’ll leave it alone in terms of your

assessment, sir.”). However, at no point did the trial court state on the record

its finding as to what the proper guidelines calculations were.

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Appellant was then offered the opportunity to exercise his right to

allocution. The trial court’s failure to accurately hear Appellant’s initial

remarks resulted in the following exchange:

[APPELLANT]: I want to first start off, even though I know you
just kind of told my mom not to do it --

THE COURT: Throw your mom out the door? Hold up a minute.

[APPELLANT]: Throw my mom out the door? What?

[APPELLANT’S COUNSEL]: I think he’s a little confused, Your
Honor.

THE COURT: No. He’s not confused. Counsel, have a seat.

[APPELLANT’S COUNSEL]: Yes, ma’am.

THE COURT: [Appellant], starting off with a comment like that is
not a good idea because your mom was not thrown out the
door. What you are I think referring to is it was asked not
to debate the original case itself but to confine her
responses to the sentencing. Now, correct that perception.

[APPELLANT]: Okay.

THE COURT: So I will hear you in its entirely [sic], but do not state
on this record what is not true. Go.

Id. at 18-19.

Although it appears that it was Judge Coyle whose perception needed

correcting, Appellant proceeded to allocute, and Judge Coyle interacted with

him, as follows:

[APPELLANT]: Okay. I want to start off, I know this is not going
to help me at all, which I had a lot of experience talking to
lot of guys that went through the same thing I’m going
through right now. I know this is not going to help me at
all. I feel like I have to say it because it’s the truth.

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THE COURT: Say what you want to say.

[APPELLANT]: I know you’re not going to like this. I’m going to
say the truth.

THE COURT: Say what you want to say, sir.

[APPELLANT]: I’ve been sitting in jail for 11 years for something I
had absolutely nothing to do with. I wasn’t even in the city.
I sent you guys work records that show I was in a whole
other state at the time. Work records that was supposed to
be subpoenaed during my trial. When the subpoena records
came back, there was a whole week missing. The week now
is there and now I got Dish Network ignoring me now
because they know they messed up.

I can’t get no type of rhythm. Like I said, I know this
is going to completely inconvenience me because I’m not
showing remorse for these people that got robbed and all of
this other stuff that happened to them. That was crazy. It
was two women. It was crazy to me that that even
happened to those woman. But I can’t show remorse, a
personal sense of remorse, because I had nothing to do with
it. I know it’s not going to help me, I know it ain’t. I only
can ask God that somehow you don’t -- I’m not showing
remorse.

I’m completely ready to go back to society. . . .

....

I’m ready, Your Honor. I’m ready, Your Honor. This
jail stuff is not for me at all, at all.

THE COURT: Okay. All right. Well, [Appellant], as I said in the
beginning, I examined in great detail every single bit of
information that I could about you. I am aware of your
arguments with respect to Dish Network. The documents to
which you are referring, do not cover the time period of the
robbery. They did not. They do not. And that’s what we
have. Okay.

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In terms of you, sir, however, when you say the time
in custody is not for you, I’m inclined to note that you’ve
had extreme difficulties and have not been rehabilitated,
despite the fact that you were given this sentence, which in
my opinion was generous. While remaining in the
Pennsylvania Department of Corrections, your behavior was
remarkably poor, startlingly so. Thus far, you have incurred
22 guilty misconducts, 30 of which resulted in 450 days of
disciplinary custody, 150 total days of cell restriction, 50
days of los[s] of privileges. These misconducts range from
refusing to obey an order, threatening employees and their
families and so on.

When I looked at the dates of those respective
misconducts, going back to at least 2011 and incurring until,
the last one was July of this year, April of this year, another
one in April.

[APPELLANT]: Your Honor --

THE COURT: I’m talking now. You’re going to listen.

THE COURT: In 2017, a couple there. In 2015, a whole slew of
them in 2015. There’s some in 2014, 2013, 2012, and
2011. There has not been a single year you haven’t failed
to obey simple orders while in custody. That tells me, sir,
that you are still at the age of 29, in great need of
rehabilitation and attention. I’m going to give it to you.

....

[APPELLANT]: Those are infractions for sleeping through count. I
was diagnosed with anxiety. I stay up late times at night.
That’s refusing to obey orders, as you see. I haven’t had a
major [write] up in about two or three years since 2015.

THE COURT: Well, maybe you don’t think it’s major but they differ
because you had write-ups and misconducts and findings of
guilt within the prison institution every single year including
this one. In fact, last month, one month before you’re
coming before me.

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If you wanted to prove that you’re rehabilitated and
that you’ve learned your lessons in life in which you needed
to do, that’s the last way that you can do that. That tells
me that instead of being further along in your development
sir, you’re worse. I have to think about the community, sir.
When I see conducts, threatening an employee and their
family, possessing contraband, refusing to obey orders,
using obscene and inappropriate language. I mean, even
refusal to stand up when they tell you to.

[APPELLANT]: That’s sleeping through count.

THE COURT: You need to understand, sir, you’re not here by
invitation. It is not your will upon those that are in charge
of controlling the jail, sir.

[APPELLANT]: I’m not trying to give you an attitude, Judge.

THE COURT: The reasons for my sentence are going to reflect my
concern for the safety of our community with you, in view
of the guidelines, in view of the very serious nature of these
charges, in view of your apparent refusal to be rehabilitated,
despite efforts all the way going back to when you’re a
young lad.

You know, I read Judge Rogers comments to you. It
was his hope when he sentenced you in the lenient fashion
that he did, that with those conditions that he placed, that
you would improve. Sad to say, I think the opposite has
happened. I can’t ignore that. So my reasons for the
sentence include all those factors, positive and negative
about you, sir, including your lack of remorse to this day.
All right.

[APPELLANT]: God bless you, you hear me? God bless you, Judge.

THE COURT: Thank you.

[APPELLANT]: I hope he reveals to you because one day it’s going
to come.

THE COURT: What’s that?

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[APPELLANT]: I hope he reveals the truth to you because one day
it’s going to come out no matter what. The truth is going to
come out. That’s a fact. I’ve been sitting in jail for all this
time. But you hear this so much, I can’t even blame you for
doing what you’re doing. I know you hear this all the time.
I know it. I can’t even blame you.

Id. at 20-24, 27-30.

Thereupon, Judge Coyle sentenced Appellant. Appellant did not respond

with an abundance of equanimity to an increase from the original term of

seven to fourteen years, followed by fifteen years of probation, to a term of

twelve to thirty-five years of imprisonment, followed by fifteen years of

probation. Rather, the record reflects that the following took place upon the

announcement of Appellant’s increased sentence:

THE COURT: . . . Do you understand your sentence?

[APPELLANT]: What’s my total sentence, if you don’t mind me
asking, complied?

THE COURT: 12 to 30, plus 10. Wait –

[COMMONWEALTH]: It’s 12 to 35, plus 15 years of probation.

[APPELLANT’S COUNSEL]: You said 12 to 35, plus 15 years
probation?

THE COURT: Plus 15, yeah.

[APPELLANT’S COUNSEL]: If the probations are consecutive to
each other, which is what I think you said –

THE COURT: They’re all consecutive, so it’s 15, right?

[APPELLANT’S COUNSEL]: Yes.

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THE COURT: So credit for time served while on this case. It’s
calculated by the prison authorities. I’m forgetting
something.

[APPELLANT]: I’m not going to get out of here without a lawyer or
private investigator.

THE SHERIFF: You’re going to have to stop talking. I’m not going
to tell you anymore.

[APPELLANT’S COUNSEL]: Sir, do you understand the sentence
that the Honorable Anne Marie Coyle just handed down to
you?

[APPELLANT]: I got more time than I already had, right?

[APPELLANT’S COUNSEL]: I want to advise you that you have
certain post-sentence rights. Within 10 days of today’s
date, you can file a motion to reconsider sentence, which
must be in writing. As your court appointed counsel, I will
absolutely do that for you. Okay?

[APPELLANT]: Excuse me. Help me to understand one more thing.
The way I was just sentenced was considered to be
aggregate or mitigated, like conditions based on stuff other
than the actual thing that I was sentenced illegally the first
time? I don’t know how I ended up with more time. It’s
just blowing my mind.

[APPELLANT’S COUNSEL]: I can explain that to you.

[APPELLANT]: You just asked me if I understand the sentence.
I’m just asking you.

[APPELLANT’S COUNSEL]: You don’t understand it? Okay.

THE COURT: Sir, this sentence is my reflection of what I think you
need based upon all the information that I have gleaned
about you.

[APPELLANT]: Okay.

THE COURT: Primary in my forethought, is that because you have
not been rehabilitated in the fashion that you should have

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and for the lack of remorse and for the seriousness of the
cases at issue and the information gleaned from your
background and the application of the guidelines at issue,
this is what I believe is appropriate.

You have the ability, sir, to request reconsideration of
this sentence, as counsel has just told you. And if you wish,
you can file an appeal on the basis of whatever you desire
in reference to this sentence. That is my sentence.

The conditions that I have placed upon you are a
direct reflection of what I think you need to help you further
along. Because I don’t think you have moved any further
along in your rehabilitation, in fact, I think you’re worse.

You have 10 days within which to file a petition for
reconsideration. You have 30 days within which to file an
appeal. It must be in writing. If you wish for your counsel
to do so, he will file that on your behalf and will remain as
your counsel until and unless otherwise ordered.

[APPELLANT]: I do wish him to do so.

THE COURT: Understood.

[APPELLANT]: I just wanted that to be on the record.

[APPELLANT’S COUNSEL]: I will.

THE COURT: Understood. Thank you.

[APPELLANT]: May God bless you. It’s going to come out. It’s
going to be the biggest news in Philadelphia history. You
hear me? I love y’all.

THE COURT: All right.

THE CRIER: That conclude [sic] your list. May I adjourn court?

THE COURT: Yes.

UNSWORN PERSON: You’re just as bad as he is.

THE COURT: Ma’am, this is the problem. Out.

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UNSWORN PERSON: You’re just as bad.

THE COURT: Out.

THE SHERIFF: I’m not going to be disrespected by your son or
anybody. Just letting you know.

THE COURT: Sheriff, take a breathe [sic].

UNSWORN PERSON: Why are we still in here?

THE COURT: You can stay or go as you wish. I will not have
misconduct in this room. That’s why I sentenced him in the
first place.

---

(Pause.)

---

THE COURT: I want him back out. I’m resentencing him.

[APPELLANT’S COUNSEL]: Your Honor, maybe I can –

THE COURT: Get additional sheriffs. Do you want him out? Yes
or no? Is it easier for you if I don’t?

THE SHERIFF: No, it’s fine. We’re going to take care of this. Just
give me one second.

THE COURT: Take your time.

[APPELLANT’S COUNSEL]: Your Honor, maybe I should speak to
him before he comes out.

THE COURT: No. I think you should have a seat. I’ll put a seat
between him and you.

[APPELLANT’S COUNSEL]: That’s a good idea.

THE COURT: Sir, I’m going to need you to testify. Have the other
sheriffs bring him out.

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---

(Pause.)

---

THE COURT: All right. We are back on the record in reference to
Commonwealth of Pennsylvania vs. Frank Brown, CP ending
in 9516-2008. After I sentenced [Appellant] and he was
given his post-verdict rights, [Appellant], I heard yelling
from you language that I cannot repeat in good company
and in the manner that you were addressing the sheriff as
you exited the room. I am sua sponte reconsidering my
sentence.

I’m going to ask the sheriff to whom [sic] you were
addressing, sir, could you please step over and be sworn.
While we’re waiting for him to be sworn in, I would also note
that the defendant’s mother also had a disruption in my
room and had to leave due to her bad behavior. His family
was not much better.

....

THE COURT: Sheriff, what did the defendant say to you on exit,
please.

THE WITNESS: He was very upset from his sentencing. He stated
he was going to physically hurt me, which I understand
because he’s upset, but still, his respectful level should be
better.

THE COURT: Thank you, sir. Any questions by anybody?

[COMMONWEALTH]: I don’t have any questions.

THE COURT: Do you have any questions?

[APPELLANT’S COUNSEL]: Just one. Good morning, sheriff.

THE WITNESS: Good morning.

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[APPELLANT’S COUNSEL]: . . . Was my client agitated when he
said that to you?

THE WITNESS: Yes, he was.

[APPELLANT’S COUNSEL]: Okay. He didn’t say it in a calm
demeanor, right?

THE WITNESS: No.

[APPELLANT’S COUNSEL]: And it was immediately after
sentencing, right?

THE WITNESS: That’s correct.

[APPELLANT’S COUNSEL]: Okay. Nothing further, Your Honor.

[APPELLANT]: I tried to apologize right afterwards. I knew it was
crazy. He said he was doing stuff.

THE COURT: All right. Sir, you don’t have to speak. It’s up to you
if you speak. Is there something you want to tell me?

[APPELLANT]: I didn’t have no ill will for him. This is a crazy
situation. I don’t know what’s going on. It’s like, it throwing
me for a loop. My response after my sentencing, in regards
to me and the sheriff, it was just like, I don’t know. It was
just like --

THE COURT: Okay. But you know, here’s the thing.

[APPELLANT]: Yes.

THE COURT: The reason I gave you that sentence, sir --

[APPELLANT]: Yes.

THE COURT: Was precisely because of the behavior that you just
exhibited while you’re in jail. I have not had many people
with 22 misconducts, many of which for threatening people.
Rules just do not apply to you. That’s why I think you’re
violent and potentially a danger to this community. You do
not control yourself. The level of voice that I heard coming
out of your mouth was most disrespectful and violent and

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that man there was simply escorting you from the
courtroom and you took it out on him.

I’m reconsidering my sentencing, sir, because I don’t
think it’s enough.

[APPELLANT]: Do what you want. I’m going to beat it anyway.
Do what you want. I’m going to beat it.

THE COURT: Well, yeah? Good luck to you.

[APPELLANT]: You sentenced me when you wasn’t suppose to.

THE COURT: You’re going to beat it. All right.

[APPELLANT]: I’m going to beat it. That’s my promise to you.
And God bless all of y’all. You all heard?

THE COURT: Yeah. God bless you, too. God has nothing to do
with this right now.

[Whereupon, amidst further back-and-forth with Appellant,
the trial court changed two of Appellant’s concurrent
sentences to consecutive.]

. . . So your sentence is now 19 years of 59 years state
time incarceration, followed by 15 years of reporting
probation. . . .

....

[APPELLANT]: You know, I was threatened first by your cop, right?
That’s why I told him he could come in there. Oh, I don’t
think we got that out the way. You didn’t ask him if he said
something to me. He did. I got a little loud. He was like,
You want me to come in there? I said, Come in here and I’ll
twist you up. Yeah. That’s what happened.

THE COURT: So you told a sheriff that you would twist him up?

[APPELLANT]: Yeah. I was threatened first.

THE SHERIFF: Sir, just --

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[APPELLANT]: I hear what you’re saying. I just wanted this to be
on the record, that I was threatened first. Nah, I hear what
you’re saying. It can’t get any worse.

THE COURT: Actually, it can. There are other counts here that I
ran concurrent. So I would strongly advise that you listen
to your counsel at this moment in time. He can give you
your post-verdict rights and we will proceed accordingly.

Id. at 33-45.

On September 10, 2018, Judge Coyle again sua sponte resentenced

Appellant, “to correct a minor discrepancy,” this time resulting in an aggregate

term of fourteen to forty years of incarceration, followed by fifteen years of

probation. Trial Court Opinion, 6/24/19, at 4. Appellant filed a timely post-

sentence motion in which he argued that the September 10, 2018 sentence

was manifestly excessive in light of the original sentence and the mitigating

evidence, and that it was the product of vindictiveness. See Post-Sentence

Motion, 9/20/18, at ¶¶ 6-9.

At the hearing on Appellant’s motion for reconsideration, after

Appellant’s counsel, the Commonwealth, and Appellant addressed the court,

the trial court stated as follows:

Well, sir, I do have to state that your presentation before
this court is quite different today than when you were before me
on the state of the sentence when you appeared live. Sir, I
entered into my sentence and will enter into my sentence and
ruling today the following information:

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Number one, all the information that was gleaned from the
presentence investigative report[2] and mental health assessment
that was conducted pursuant to order of this court.[3] I cannot
ignore nor should I the facts gleaned from therein which includes
among other things at least 22 misconducts while in custody.
Indeed the reason that you have not been paroled even under the
previous sentence imposed by the issuing prior court is directly
related to your inability to comply with the treatment program
while in confinement.

I note that many of your misconducts stem from your
abusive language and inappropriate refusals to obey orders. Your
threatening behavior to staff while in custody. Those bits of
information while not conclusive certainly to any sentence, are
legitimate factors to be reviewed by this court. Not the least of
which the prior judge that sentenced you did not have as I do the
amount of information about you that has been supplied upon
which to rely.

I took special note as to the inherent violence that was
committed by you during the underlying offenses. That there
were not one but two victims in this matter. One of which was a
senior person who was forced to lie down in the street as she was
being robbed by you at point of firearm. I note the victim impact
to both of those individuals.

I reviewed in addition to the nature of the current offenses,
the prior efforts, although not computed in your record score
pursuant to prior commitments that you had back in the day,
attempts to rehabilitate you and several difficulties encountered
during those attempts. I did take note, sir, of some of your

____________________________________________

2 The presentence investigation ordered by Judge Coyle is not included in the
certified record. We note that, at no point during any of Appellant’s
resentencing hearings did the trial court resolve the question noted at the
original resentencing hearing concerning exactly what sentences were
recommended by the guidelines based upon Appellant’s prior record score of
zero.
3 As noted above, the mental health assessment was ordered, but was not

conducted prior to the initial resentencing and was waived by Appellant.
Nothing in the certified record before us indicates that the assessment was
conducted prior to the additional resentencings.

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successes which you correctly identified as the certification in
carpentry and the like.

I note that you had a rough upbringing. In fact, your
parents displayed their lack of respect for any court when they
were in the court with you at the time of sentencing to the point
that they almost had themselves arrested due to their bad
behavior before this judge in a courtroom. So I took that into
account that you certainly did not have correct direction in life.
But there were many people within your life; your grandmom,
most importantly, attempted to help you. She’s the only one who
exercised any sense before me in this courtroom.

I also take into account, sir, your behavior before me. Sir,
when you were before me, you exhibited behavior that indicated
quite clearly that you do pose a danger to the Commonwealth’s
safety. Your speeches before me included repeated blessings
upon this court. Now, I come from folks that are quite adept at
blessing people when they mean the exact opposite.

....

And your repetition of words of blessing in a manner that
suggested cursing and disrespect for this court were duly noted.
It was also duly noted, sir, that you admitted on the record after
your fray with the sheriff upon exiting the door of my courtroom,
that you had threatened that sheriff. [4]

....

Sir, I’m going to amend the order of sentence to make it a
little bit more streamlined and consistent and understandable for
everybody. But I took all the information into account. Most
particularly, the person that I have before me as he presented
himself to be. And as you presented yourself to be before this
court, sir, I have major concerns.
____________________________________________

4 Appellant indicated that he did not understand why the court never
addressed his contention that the sheriff was the first to make a threat. See
N.T. Sentencing, 10/9/18, at 12-13. However, a speaker identified on the
record as “Prison Officer” indicated that another hearing was due to begin in
five minutes, and Appellant’s questions were not answered. See id. at 13.

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N.T. Sentencing, 10/9/18, at 9-13.

Thereupon, Judge Coyle imposed a sentence of twelve to thirty-five

years of incarceration with no probationary tail, but placed numerous

conditions on Appellant’s incarceration and parole, as well as on his now non-

existent probation. See id. at 13-15 (providing, inter alia, that Appellant shall

be subject to drug screening and that his “first positive test will result in a

violation before the parole board while on probation”).

Appellant filed a timely notice of appeal from the October 9, 2018

judgment of sentence. The trial court issued a deficient order pursuant to

Pa.R.A.P. 19255 with which Appellant complied. Thereafter, the trial court

authored a Rule 1925(a) opinion. Appellant presents the following question

for this Court’s determination: “Did the trial court err when it sentenced

Appellant . . . to a term of incarcerat[i]on which was manifestly excessive, as

well as vindictive?” Appellant’s brief at 2 (unnecessary capitalization omitted).

We begin with a review of the applicable law.

An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
____________________________________________

5 The trial court’s order merely directed Appellant to “provide this [c]ourt” with
his statement within twenty-one days. Order, 2/19/19. Contrary to the
mandates of Pa.R.A.P. 1925(b)(3), the order did not advise Appellant that
that the statement had to both be filed with the court and served on the judge,
and that waiver would result from failure to comply. Hence, it is deficient and
unenforceable. See Commonwealth v. Bush, 197 A.3d 285, 287 (Pa.Super.
2018).

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appellant has invoked our jurisdiction by considering the following
four factors:

(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

Appellant filed a timely notice of appeal and preserved the issue in a

timely post-sentence motion seeking reconsideration of his sentence.6

Appellant’s brief contains a statement of reasons relied upon for his challenge

to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).

Thus, we consider whether Appellant has raised a substantial question.

____________________________________________

6 The Commonwealth argues that Appellant did not satisfy the post-sentence
motion requirement because he did not file a new motion raising an
excessiveness challenge to the sentence that resulted from the partial grant
of his first motion. See Commonwealth’s brief at 13. Appellant counters that
a new motion was unnecessary pursuant to Pa.R.Crim.P. 720. See Appellant’s
brief at 14-15. We agree with Appellant. Appellant’s position was clear from
his first post-sentence motion, and the court’s final sentence did not satisfy
his complaints. As such, a second post-sentence motion was unnecessary.
See Pa.R.Crim.P. 720, Comment (“Once a sentence has been modified or
reimposed pursuant to a motion to modify sentence . . ., a party wishing to
challenge the decision on the motion does not have to file an additional motion
to modify sentence in order to preserve an issue for appeal, as long as the
issue was properly preserved at the time sentence was modified or
reimposed.”).

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J-S19006-20

Appellant avers that the aggregate sentence is manifestly excessive and

vindictive, as it was in the aggravated range 7 despite the presentation of

mitigating evidence, and it lacked an objective justification for the significant

increase from his original sentence. See Appellant’s brief at 12. We conclude

that Appellant has raised substantial questions that the sentence is not

appropriate under the sentencing code. See, e.g., Commonwealth v.

Bullock, 170 A.3d 1109, 1122 (Pa.Super. 2017) (holding claims that the

sentence is manifestly excessive and the product of vindictiveness raise

substantial questions. See also Commonwealth v. Barnes, 167 A.3d 110,

123 (Pa.Super. 2017) (en banc).8 Therefore, we proceed to address the

merits of Appellant’s claim.

“When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Edwards, 194

A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the

____________________________________________

7 It is not clear whether the trial court viewed the sentence as standard-range
or aggravated-range because there was no finding as to the guideline ranges
placed on the record. We discuss the import of this absence infra.
8 Noting Appellant’s reliance upon Commonwealth v. Barnes, 167 A.3d 110

(Pa.Super. 2017) (en banc), the trial court indicated that the decision was
“apparently an unreported memorandum opinion and thus of no precedential
value[.]” Trial Court Opinion, 6/24/19, at 17. While Appellant failed to
provide the full citation for the case, the Barnes decision that Appellant cited
and quoted is indeed a published en banc opinion, not an unpublished
memorandum.

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J-S19006-20

sentencing factors and impose our judgment in the place of the sentencing

court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).

Hence, we review the sentencing court’s sentencing determination for an

abuse of discretion.

In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

While its discretion is broad, “the trial court’s discretion is not

unfettered.” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super.

2011). “When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant. In

considering these factors, the court should refer to the defendant’s prior

criminal record, age, personal characteristics and potential for rehabilitation.”

Antidormi, supra at 761 (citations and quotation marks omitted). “And, of

course, the court must consider the sentencing guidelines.” Coulverson,

supra at 144 (cleaned up). The sentence “should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b).

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J-S19006-20

Where, as here, “a sentence is vacated and the case remanded for

resentencing, the sentencing judge should start afresh[.]” Barnes, supra at

125 n.13.

Due process of law requires that vindictiveness against a
defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.
To assure the absence of a vindictive motivation, whenever a
judge imposes a more severe sentence upon a defendant after a
new trial, the reasons for his doing so must affirmatively appear.
This requirement has been read to create a presumption of
vindictiveness, which may be overcome only by objective
information in the record justifying the increased sentence.

Commonwealth v. Speight, 854 A.2d 450, 455 (Pa. 2004) (cleaned up).

The same applies “when the original sentence is vacated and a second

sentence is imposed without an additional trial.” Barnes, supra at 123.

Therefore, when a defendant is given a harsher sentence following an

appeal, “the reasons for doing so must affirmatively appear.”

Commonwealth v. Greer, 554 A.2d 980, 988 (Pa.Super. 1989) (internal

quotation marks omitted). “Those reasons must be based upon objective

information concerning identifiable conduct on the part of the defendant

occurring after the time of the original sentencing proceeding. Id. “Absent

evidence that a sentencing increase is justified due to objective information

concerning a defendant’s case, the presumption of vindictiveness cannot be

rebutted.” Barnes, supra at 124 (internal quotation marks omitted).

However, the presumption of vindictiveness does not apply each time a

defendant receives a higher sentence upon resentencing. See Texas v.

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J-S19006-20

McCullough, 475 U.S. 134, 138 (1986). Rather, “in each case, we look to

the need, under the circumstances, to guard against vindictiveness in the

resentencing process.” Id. (cleaned up). Specifically, when the resentencing

is conducted by a different judge than the one who imposed the original

sentence, the presumption of prejudice does not automatically attach.

Commonwealth v. Tapp, 997 A.2d 1201, 1204 (Pa.Super. 2010). This is

because “the sentencer imposing the second sentence has no personal stake

in the prior conviction and no motivation to engage in self-vindication,

rendering the threat of vindictiveness far more speculative than real.” Id.

(cleaned up). Therefore, to succeed on a vindictiveness claim when a different

judge performs the resentencing, the defendant bears the burden of

production and persuasion in establishing actual vindictiveness. Id. at 1205.

With these principles in mind, we turn to Appellant’s arguments. As to

both his vindictiveness and excessiveness contentions, Appellant’s position is

the same:

the resentencing court’s only reason for giving [Appellant] a
considerably longer sentence was that he had numerous
misconducts while serving his sentence at SCI-Forest. These
misconducts, however, had nothing to do with the original incident
in the instant matter and took place after [Appellant] was already
sentenced and incarcerated in this matter. It is also notable, that
[Appellant] had already received punishment for these
misconducts from SCI-Forest, in the form of disciplinary custody,
cell restriction and lost privileges. In sum, these misconducts had
nothing to do with [Appellant]’s case and should not have been
used as a justification for a longer sentence.

Appellant’s brief at 22.

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J-S19006-20

We first address Appellant’s burden to establish vindictiveness. Judge

Coyle was not the judge who imposed Appellant’s initial sentence. However,

Judge Coyle was the judge who failed to acknowledge or address Appellant’s

PCRA claim that that sentence was illegal, although her role in the face of

PCRA counsel’s request to withdraw was to ensure that counsel addressed all

of the issues Appellant wished to raise and to independently review the record

and agree with counsel that none had merit. See, e.g., Commonwealth v.

Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012). Hence, it was Judge Coyle

whose PCRA order was reversed by this Court when we granted Appellant

relief and remanded for sentencing. With this connection to the decision that

was reversed upon Appellant’s exercise of his appellate rights, Judge Coyle

arguably had the type of personal stake in the prior sentence to warrant the

attachment of the presumption of vindictiveness.

Nonetheless, even if Judge Coyle did not have a sufficient personal stake

in the original sentence to trigger the presumption of vindictiveness by virtue

of her prior ruling in the case, as detailed in our analysis infra, the record

shows that Judge Coyle exhibited a personal interest in the resentencing

sufficient to invalidate the proceedings based upon an impermissible

appearance of partiality and ill will.

The trial court opinion indicates that any presumption of vindictiveness

in this case was overcome by the objective information of Appellant’s conduct

between the original sentencing and the resentencing which warranted the

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J-S19006-20

increased sentence: his prison misconducts and his comportment at the initial

resentencing hearing. See Trial Court Opinion, 6/24/19, at 19-22. Regarding

the latter, the trial court opinion refers repeatedly to disparaging remarks

made by Appellant, which it deemed indicative of Appellant’s need for

lengthier confinement to protect the public and rehabilitate Appellant. See

id. at 19 (“[Appellant]’s allocution consisted, at first, of an apparently

disparaging remark about the court’s directions to his mother . . . .”); id. at

21-22 (stating that Appellant “had no basis to complain that the court did not

have adequate reasons” to increase his sentence after reiterating that

Appellant’s mother “made a disparaging remark to the judge” and Appellant

was heard “loudly disparaging and threatening the sheriffs who were escorting

him from the courtroom”). As for Appellant’s extensive record of prison

misconducts that did not result in any additional criminal charges, the trial

court stated, without offering any legal authority in support, that “[p]rison

misconducts are given the same weight in resentencing as would be given to

the commission of subsequent crimes when considering a defendant’s

potential for rehabilitation.” Id. at 22.

We discern several problems with the trial court’s analysis. First, we

have found no case law to support the statement that prison misconducts are

equal to new crimes in resentencing a defendant. If an inmate’s actions

constitute a crime, new charges may be filed against him. Rather, prison

misconducts arising from the failure to follow orders, are akin to technical

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J-S19006-20

violations of probation. While the commission of a new crime is sufficient to

revoke probation and sentence the defendant to total confinement, technical

violations only merit revocation and confinement if they indicate that the

defendant is likely to commit another crime unless he is confined, or

confinement is necessary to vindicate the authority of the court. See, e.g.,

Commonwealth v. Cottle, 426 A.2d 598, 601-02 (Pa. 1981). Nothing in the

record before us suggests that Appellant’s prison misconducts were of

sufficient seriousness to rise to the level of a crime. Further, the trial court

does not indicate why Appellant’s prison misconducts suggest that a lengthier

period of confinement is necessary to prevent Appellant from committing

additional crimes.

Instead, the desire to vindicate the trial court’s authority is suggested

by its reliance upon Appellant’s demeanor at the sentencing hearing to

increase, then further increase, his sentence. As noted above, the transcript

from the August 29, 2018 resentencing hearing does not support the trial

court’s indication that Appellant began his allocution by disparaging the court.

Rather, the transcript clearly establishes that the trial court misheard

Appellant, who merely sought to acknowledge his awareness that the trial

court would not be receptive to his maintaining his innocence.9 The trial

____________________________________________

9 To reiterate , in pertinent part, the transcript reveals the following exchange:

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court’s persistence in reliance upon “disparagement,” both real and imagined,

further suggests that personal vindication of the court’s authority in the face

of insufficient respect from Appellant motivated the trial court’s sentencing

decisions as much as, if not more than, Appellant’s failure to respect prison

authorities.

Indeed, the trial court’s comportment and impulsive alterations to

Appellant’s sentence based upon personal affront to what it perceived to be

disparaging statements directed at it are similar to those at issue in

Commonwealth v. Lucky, ___ A.3d ___, 2020 WL 727983 (Pa.Super.

February 13, 2020). In that case, we held that the appellant was entitled to

resentencing based upon the appearance of bias where Judge Coyle similarly

suddenly increased the defendant’s sentence without explanation after

expressing frustration with the defendant and her belief that he had been

disrespectful. Id. at *9 (“There is nothing in the record to indicate that the

judge’s reason for abruptly re-imposing the increased statutory maximum

sentence was for any reason other than her frustration with [the a]ppellant or

____________________________________________

[APPELLANT]: I want to first start off, even though I know you
just kind of told my mom not to do it --

THE COURT: Throw your mom out the door? Hold up a minute.

[APPELLANT]: Throw my mom out the door? What?

N.T. Sentencing, 8/29/18, at 18-19.

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J-S19006-20

her belief that [he] was being disrespectful.”). The Lucky Court also found it

significant that rather than utilizing her Pa.R.A.P.1925(a) opinion to deny the

appellant’s claims of bias and ill will, Judge Coyle “quoted a portion of the

notes of transcript from the . . . resentencing hearing where she rebuked [the

a]ppellant as disrespectful when he sought clarification of his sentence.” Id.

In the instant case, the trial court likewise imposed a sentence lengthier

than Appellant’s original sentence or that requested by the Commonwealth

after interpreting Appellant’s allocution as disparaging, then sua sponte

increased the sentence further immediately after feeling disparaged by

Appellant’s reaction to the first sentence. While the trial court opted to retract

one portion of the impulsively-increased sentence, part of it remains. See

Trial Court Opinion, 6/24/19, at 21-22 (detailing how the court changed two

sentences from concurrent to consecutive at the sua sponte August 29, 2018

sentencing hearing, but “did change one of those back to concurrent” at the

hearing on Appellant’s motion to reconsider the September 10, 2018 sua

sponte resentencing). The trial court also utilized the Pa.R.A.P. 1925(a)

opinion to reproduce from the transcript the disparaging comments and her

rebuke of Appellant for making them, and not to disclaim ill will or

vindictiveness.

Most concerningly, the trial court repeatedly expressed the belief that

the appellate decisions concerning vindictiveness in resentencing proceedings

stand for the proposition that, to be successful on his vindictiveness claim,

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J-S19006-20

Appellant had to prove that the longer new sentence was solely motivated by

vindictiveness. See Trial Court Opinion, 6/24/19, at 17 (“[T]he defendant is

required to prove that the court exercised vindictiveness as the sole

motive[.]”). See also id. (indicating that a defendant’s burden is to establish

that “his sentence as being exclusively vindictive and not based upon any

legitimate considerations”); id. at 23 (“[Appellant] has pointed to no

indication whatsoever, either on or off the record, that the resentence was

excessive or based solely upon vindictiveness.”).

That is not the law. As we indicated above, our Supreme Court has

made it clear that, in the resentencing of a criminal defendant after he

successfully exercised his rights, vindictiveness “must play no part” in the

new sentence. Speight, supra at 455 (emphasis added). Rather than

ensuring that sentences are not merely based in part on judicial

vindictiveness, due process requires “the absence of a vindictive

motivation[.]” Id. Notably, in opining about the appropriateness of the

sentences, the trial court never disclaimed vindictiveness as one of the

motivating factors. Rather than professing a lack of vindictive motive as a

basis to deny Appellant relief, the trial court cited Appellant’s failure to meet

the burden of proving that it was the sole motivation for the new sentence.

See Trial Court Opinion, 6/24/19, at 17. Hence, the trial court committed an

error of law in resentencing Appellant four times over the course of three

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hearings while operating under the impression that some amount of

vindictiveness was permissible so long as there were also other motivations.

Although Appellant does not argue the following points in pursuing his

claim that the trial court’s sentence results from an abuse of discretion, we

find our conclusion that his claims merit relief bolstered by additional errors.

First, it is axiomatic that, “[w]hen imposing a sentence, the sentencing court

must consider the sentencing guidelines adopted by the Pennsylvania

Commission on Sentencing[.]” Bullock, supra at 1126 (cleaned up,

emphasis added). “A sentencing judge must demonstrate an awareness of

the guideline sentencing ranges so that the appellate court can analyze

whether the reasons for a departure from the guideline ranges are adequate.”

Commonwealth v. Scassera, 965 A.2d 247, 250 (Pa. Super. 2009). Accord

Commonwealth v. Dotzman, 588 A.2d 1312, 1317 (Pa.Super. 1991) (“The

court’s discretion comes into play in imposing sentence, only after it has

determined the proper sentencing guideline range.”).

Here, Appellant presented his interpretation of the guideline ranges, the

Commonwealth offered several others, and, while the trial court expressed its

disagreement with Appellant’s calculations, it never stated which ranges it

deemed applicable. By the Commonwealth’s calculations, Appellant’s five-to-

ten-year sentences appear to be within the standard range, at least for some

counts. Under Appellant’s calculations, the trial court’s sentences are in the

aggravated range. The trial court, having given no indication of its

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understanding of the appropriate ranges, has failed to indicate any awareness

of whether Appellant’s sentences are within the guidelines, and, if not, explain

the reasons for the deviations. If the trial court believed it was sentencing

Appellant within the guidelines but actually applied them erroneously, we

would be required to vacate the sentence for that reason alone. See 42

Pa.C.S. § 9781(c)(1).

The trial court further ventured outside of the scope of lawful sentencing

procedures when, in the final resentencing proceeding, it imposed ultra vires

conditions upon the terms of Appellant’s state incarceration and parole.10 It

____________________________________________

10 Specifically, Judge Coyle imposed the following conditions “to all counts”:

You must maintain a misconduct-free period of confinement
before being considered for parole.

Upon eligibility for parole, sir, it shall initially be only to a
halfway house that’s approved by state supervision. You are to
comply with any recommended dual diagnosis treatment following
evaluation. You are to engage in anger management counseling
because you need it. A minimum of 30 hours each year while
under this court’s supervision. You will submit to drug and alcohol
screening. The first positive test will result in a violation before
the parole board while on probation.

. . . When you are released, sir, you will be submitted to
random home and vehicle checks for drugs and/or weapons. You
are prohibited from being in any vehicle with drugs and/or
weapons. You are to do your leveled [sic] best to seek and
maintain legitimate employment. You are to have no contact,
whatsoever, in any way, shape or form with any of the victims or
Commonwealth witnesses. You will submit to random drug
screening as I indicated.

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has long been the law of this Commonwealth that a trial judge lacks the

authority to impose conditions of parole on a defendant serving a sentence of

state incarceration. Rather, the judge may make only advisory

recommendations. See 61 Pa.C.S. § 6134(b)(2). Thus, to the extent that

the trial court purported to impose conditions of Appellant’s parole, “those

conditions and the order exceed the bounds of the court’s authority and are

subject to vacatur[.]” Coulverson, supra at 142 (vacating no-contact

condition of sentencing order). Hence, even were we not vacating the other

portions of Appellant’s sentence, we would be obligated to strike the trial

court’s conditions of parole. See, e.g., Commonwealth v. Mears, 972 A.2d

1210, 1212 (Pa.Super. 2009) (vacating portion of sentencing order providing

for random searches of the defendant’s residence upon parole).

To conclude, we stress that we do not act lightly in granting Appellant

relief. To be sure, Appellant’s prison record and comportment at sentencing

are inexcusable. Moreover, it very well may be that vindictiveness in fact

played a negligible role in determining Appellant’s sentence. We fully

appreciate that it is a rare case in which this Court finds an abuse of discretion

warranting the disturbance of a trial court’s sentence. However, this Court

has observed that the breadth of a trial court’s discretion in sentencing

requires that the proceedings lack even the appearance of bias or ill will:

____________________________________________

N.T. Sentencing, 10/9/18, at 14-15.

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J-S19006-20

The sentencing decision is of paramount importance in our
criminal justice system, and must be adjudicated by a fair and
unbiased judge. This means, a jurist who assess[es] the case in
an impartial manner, free of personal bias or interest in the
outcome. Because of the tremendous discretion a judge has when
sentencing, a defendant is entitled to sentencing by a judge whose
impartiality cannot reasonably be questioned. A tribunal is either
fair or unfair. There is no need to find actual prejudice, but rather,
the appearance of prejudice is sufficient to warrant the grant of
new proceedings.

Commonwealth v. Watson, ___ A.3d ___, 2020 PA Super 28 (Pa.Super.

Feb. 10, 2020).

The record of the multiple sentencing hearings in this case is

extraordinary. In addition to the errors of law noted above, the record is rife

with personal interactions, perceived slights, and sua sponte reconsiderations

of sentence that, at the very least, create the appearance of personal bias.

Accordingly, we are compelled to hold that Appellant’s sentence is the product

of an abuse of the trial court’s considerable, but not unfettered, discretion.

Consequently, we vacate Appellant’s judgment of sentence in its entirety, and

remand for resentencing not inconsistent with this memorandum.11

Judgment of sentence vacated. Case remanded for resentencing not

inconsistent with this memorandum. Jurisdiction relinquished.

____________________________________________

11 This Court lacks the authority to order sua sponte that Appellant’s
resentencing be conducted by a different jurist. See Commonwealth v.
Lucky, ___ A.3d ___, 2020 WL 727983 (Pa.Super. February 13, 2020) (citing
Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006) (providing that
recusal must first be sought and ruled upon by the trial court)). However,
Appellant may file a motion to recuse on remand.

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J-S19006-20

Judge Musmanno joins the memorandum.

Judge McCaffery concurs in result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/20

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