J-S52013-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

MAHARAJI M. HEMINGWAY, 

 Appellant No. 1834 WDA 2014 

Appeal from the Judgment of Sentence June 23, 2014 

In the Court of Common Pleas of Clearfield County 

Criminal Division at No(s): CP-17-CR-0000043-2009 

BEFORE: SHOGAN, OLSON, and WECHT, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 27, 2015

 Appellant, Maharaji M. Hemingway, appeals from the judgment of 

sentence entered for his convictions of multiple drug-related offenses after 

this Court vacated his previous judgment of sentence and remanded for 

resentencing. We affirm. 

 The trial court summarized the protracted procedural history of this 

case as follows: 

 [Appellant] was convicted of twelve charges relating to 

drug distribution activities occurring between 2005 and 2007. At 

the start of 2005[, Appellant] was 2[6] years old, and did not 

turn 28 until January 30th, 2006. Criminal Complaint, CR000036-08. [Appellant] has a significant criminal history, 

including a juvenile record. On January 8th, 2009, as a result of 

a grand jury investigation commencing in 2006, drug related 

charges were filed against Clearfield County residents Michael 

Styers and Charles Gearhart as well as [Appellant], from 

Philadelphia, Pennsylvania. The Grand Jury determined that 

Styers was the head of a cocaine distribution network operating 
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primarily out of his garage/residence in Clearfield, Clearfield 

County with Gearhart being one of Styers’ principal cocaine 

dealers.1 [Appellant] was named as Styers’ main source of 

cocaine out of Philadelphia between 2005 and 2007. [Appellant] 

was alleged to have sold Styers and others cocaine in 

Philadelphia and in Clearfield County multiple times each month 

during the duration of their association. 

1

 The 26th Statewide Investigating Grand Jury based 

in Allegheny County, Pennsylvania[,] issued 

Presentment Number 32 on September 25, 2008. 

 As a result, a Criminal Complaint was filed against 

[Appellant] in the above captioned matter on January 16, 2009, 

charging [Appellant] with various counts of possession with 

intent to deliver and delivery of controlled substance, criminal 

conspiracy, criminal use of communication facility, dealing in 

proceeds of unlawful activity, and corrupt organizations. After 

lengthy pre-trial proceedings, including an appeal to the Superior 

Court by the Commonwealth, a consolidated trial for all three 

defendants was held before the Clearfield County Court of 

Common Pleas on January 23, 2012 through February 1, 2012. 

 During the course of this eight day trial, the 

Commonwealth presented the testimony of twenty-four

witnesses who were connected with or participated in the 

cocaine distribution ring alleged in this case. Of those, at least 

ten witnesses provided testimony directly regarding [Appellant] 

and/or his involvement in selling cocaine in Clearfield County. 

For example, Arianne Brocious testified that she first met 

[Appellant], known to her as “Bean,” through her cousin, Kara 

Butler, to purchase cocaine. Trial Tr. Day 3 of 8, Test. of 

Arianne Brocious, 9, Jan. 25, 2012. She testified that she then 

introduced Styers to [Appellant], and made multiple trips with 

Styers and/or with Gearhart to Philadelphia to purchase cocaine 

from [Appellant]. Id. at 11. In her testimony, Ms. Brocious 

estimated that four ounces of cocaine were purchased per trip, 

with the trips occurring regularly. Id. at 11, 13. She testified 

that she made around or more than fifteen trips with Styers 

and/or Gearhart, and that they would also make trips without 

her. Id. at 13-14. 

 Tara Swatsworth (Osborn) testified that she became

involved with the use of cocaine in March of 2006, buying from 
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Richard Smeal and Jacob Pittman. Trial Tr. Day 2 of 8, Test. of 

Tara Swatsworth, 4-5, Jan. 24, 2012. She first met [Appellant] 

when he came to her house in Curwensville, Clearfield County, 

Pennsylvania. Id. at 10. She testified that he arrived with a 

shoebox containing a half full half-gallon bag of loose cocaine. 

Id. at 11-12. Ms. Swatsworth then witnessed [Appellant] give 

Mr. Pittman ten one-gram bags of cocaine to sell, according to 

her testimony. Id. at 12. She then recalled that Mr. Pittman 

and herself went around selling the bags and then returned to 

her residence where they picked up twenty more one-gram bags 

of cocaine to sell and/or use. Id. at 13. She had further contact 

with [Appellant] through cell phone calls and a trip to 

Philadelphia, testifying that she took Mr. Smeal along to meet 

[Appellant] and obtain cocaine. Id. at 15-16. Ms. Swatsworth 

testified that she had sexual intercourse with [Appellant] and 

was given an “eightball”, approximately three grams of cocaine, 

and Mr. Smeal was fronted approximately an ounce of cocaine 

by [Appellant]. Id. at 17. 

 Kristen Wilsoncroft testified that she met [Appellant] in 

approximately 2005 through Styers at her father’s residence in 

Clearfield, and that she then drove [Appellant] back to 

Philadelphia. Trial Tr. Day 1 of 8, Test. of Kristin Wilsoncroft, 4, 

7, 18, Jan. 23, 2012. She apparently became [Appellant’s] 

pseudo-chauffeur, testifying that [Appellant] would call her on 

his cell phone, she would pick him up in Philadelphia, drive him 

to Clearfield, and then back home to Philadelphia in exchange for 

free cocaine. Id. 9-14. Ms. Wilsoncroft testified that she made 

approximately seven such trips with [Appellant] to and from 

Philadelphia in the spring/summer of 2005. Id. at 11. She also 

testified to having a sexual relationship with [Appellant] over the 

course of their association. Trial Tr. Day 2 of 8, Test. of Kristin 

Wilsoncroft, 23, Jan. 24, 2012. 

 Rick Wilkinson testified that he met [Appellant] in the 

summer of 2005 on a trip to Philadelphia with B.J. Kifer and his 

ex-wife, Jodi Wilkinson, where he purchased cocaine from 

[Appellant]. Trial Tr. Day 4 of 8, Test. of Rick Wilkinson, 20-23, 

Jan. 26, 2012. According to his testimony, Mr. Wilkinson lent his 

car to Styers, who used it to make trips to Philadelphia to obtain 

cocaine from [Appellant] throughout 2005. Id. at 23-25. He 

also testified that [Appellant] came to his (Wilkinson) residence 

in Clearfield County, and that [Appellant] contacted him in 2006 

and wanted him to sell cocaine. Id. at 27-29. 
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 Other witnesses who testified to events regarding 

[Appellant] included Charles Gearhart (through Grand Jury 

transcript), Brandon Kifer, Joseph Hunter, Danielle Gearhart, 

Richard Smeal, and Jacob Pitman. The testimony established 

that [Appellant] was a main supplier of cocaine to Styers and 

made numerous trips to Clearfield County to sell cocaine, staying 

in hotel rooms or Tara Swatswor[t]h’s house. Testimony was 

also provided that there were sightings of [Appellant] at the 

Styers residence, the Wilsoncroft residence, the Wilkinson 

residence, and the Gearhart residence during this time period. 

Witnesses testified to purchasing cocaine from [Appellant], being 

approached to sell for [Appellant], and that [Appellant] was seen 

in possession of a large amount of loose cocaine. Although 

many of the witnesses had prior criminal records and were coconspirators in the drug organization, these matters were fully 

explored on direct and cross-examination, along with any plea 

agreements with the Attorney General. 

 Following deliberations, the jury found [Appellant] guilty 

on all counts except on the charge of False Imprisonment. 

Styers and Gearhart were also convicted of multiple drug-related 

offenses. Sentencing occurred before this Court on May 24, 

2012, where all defendants received lengthy periods of state 

incarceration. 

 For his role in the crimes, [Appellant] was given an uneven 

sentence of 17 to 26 years of incarceration. See Sentencing 

Order, CP-17-CR-43-2009 (May 24, 2012). Notably, [Appellant] 

was sentenced to three to six years of incarceration for count 3, 

Delivery of a Controlled Substance (10 grams to less than 50 

grams/cocaine); seven to ten years of incarceration for count 1, 

Delivery of a Controlled Substance (100 grams to 1,000 

grams/cocaine); and seven to ten years of incarceration for 

count 2, Delivery of a Controlled Substance (100 grams to 1,000 

grams/cocaine). These sentences were imposed consecutively, 

for a combined sentence of 17 to 26 years of incarceration. The 

remaining charges (counts 4-12) for which [Appellant] was 

convicted were imposed concurrently to the sentences for counts 

3, 1, and 2. See Sentencing Order, CP-17-CR-43-2009 (May 24, 

2012). 

 [Appellant] appealed his conviction and sentence. While 

his convictions were upheld, his sentence was vacated by the 

Superior Court and remanded for resentencing. Upon remand, 
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[Appellant] was resentenced to 17 to 34 years of incarceration. 

Though this is largely the same sentence as that imposed at his 

original sentencing, [Appellant] claims that the trial court was 

vindictive against him for exercising his right to appeal. A 

review of the record reveals otherwise. 

 [Appellant’s] appeal from the original judgment of

sentence challenged, inter alia, “the sufficiency of the evidence 

supporting the application of a mandatory minimum sentence.” 

Commonwealth v. Hemingway, 1664 WDA 2012 (Pa. Super. 

2014) (unpublished). The Superior Court of Pennsylvania did 

not directly address [Appellant’s] challenge to the sufficiency of 

the evidence supporting his sentence but rather, concluded, sua 

sponte, that [Appellant’s] sentence was illegal under Alleyne v. 

United States, 133 S.Ct. 2151, 2156 (2013) because the trial 

court found the weight of the cocaine by a preponderance of the 

evidence rather than beyond a reasonable doubt. 

Commonwealth v. Hemingway, 1664 WDA 2012 (Pa. Super. 

2014) (unpublished). After conviction, the trial court held a 

hearing to determine the weight of the drugs as required for 

sentencing purposes pursuant to 18 PA. C. S. § 7508(a)(2). As 

a result of the weight determination, [Appellant] received 

mandatory fines collectively in excess of $145,000 and two 

mandatory sentences, each of seven to ten years. Importantly, 

the maximum of each of these mandatory sentences was less 

than twice the minimum sentence. This issue with the maximum 

sentence on these mandatory sentences is what has caused the 

difficulty with [Appellant’s] resentencing. 

 At resentencing [on June 18, 2014], the trial court was 

forced to disregard any evidence concerning the weight of the 

cocaine in question. Accordingly, when resentencing 

[Appellant], the trial court set the weight of the controlled 

substances for each conviction at the lowest guideline amount; 

less than 2.5 grams. Therefore, [Appellant] was sentenced to 

21-42 months for counts 1,2,3,4,5,6,7,9, and 11; and 15 to 30 

months for counts 8 and 18 to 36 months for count 12. All 

sentences were to be run consecutively, except count 12 was to 

be run concurrent to count 3. See Sentencing Order, CP-17-CR43-2009 (June 18, 2014). This resulted in a total sentence with 

a minimum of 17 years just as his original sentence, but now 

carried a possible maximum of 34 years of incarceration. These 

sentences were imposed within the standard sentencing 
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guideline range. See Sentencing Order, CP-17-CR-43-2009 

(June 18, 2012); accord 204 Pa. Code §§ 303.1 et seq. 

Trial Court Opinion, 11/3/14, at 1-6 (emphasis in original). 

 Appellant filed a timely post-sentence motion on June 24, 2014. The 

trial court held a hearing on September 9, 2014. On October 21, 2014, the 

trial court denied Appellant’s post-sentence motion. This timely appeal 

followed. Both Appellant and the trial court have complied with Pa.R.A.P. 

1925. 

 Appellant presents the following issues for our review: 

1. Did the trial court correctly calculate [Appellant’s] prior 

record score? 

2. Did the trial court overcome the presumption of

vindictiveness by imposing a harsher sentence of seventeen (17) 

to thirty-four (34) years after successfully appealing his original 

sentence of seventeen (17) to twenty-six (26) years? 

Appellant’s Brief at 10. 

 In his first issue, Appellant argues that the trial court improperly 

calculated his prior record score by including a juvenile adjudication that he 

claims lapsed from such calculation. This Court has long determined that 

the question regarding whether juvenile adjudications may properly be 

included in computing prior record scores implicates a discretionary aspect of 

sentencing and not the legality of one’s sentence. Commonwealth v. 

Krum, 533 A.2d 134 (Pa. Super. 1987) (en banc); Commonwealth v. 

Tilghman, 531 A.2d 441 (Pa. Super. 1987) (en banc). In his second issue, 

Appellant contends that the trial court acted in a presumptively vindictive 
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manner at the time of his resentencing. We have concluded that a claim 

that a sentence imposed by the trial court was “vindictive” also amounts to a 

challenge to the discretionary aspect of the sentence. Commonwealth v. 

Gould, 912 A.2d 869, 872 (Pa. Super. 2006). 

Thus, Appellant’s issues each challenge the discretionary aspects of his 

sentence. Our standard of review is one of abuse of discretion. Sentencing 

is a matter vested in the sound discretion of the sentencing judge, and a 

sentence will not be disturbed on appeal absent a manifest abuse of 

discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 

2006). 

Where an appellant challenges the discretionary aspects of a sentence, 

there is no automatic right to appeal, and an appellant’s appeal should be 

considered to be a petition for allowance of appeal. Commonwealth v. 

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in 

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): 

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test: 

We conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) whether the issue 

was properly preserved at sentencing or in a motion

to reconsider and modify sentence, see Pa.R.Crim.P. 

720; (3) whether appellant’s brief has a fatal defect, 

Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b). 
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). 

 Whether particular issues constitute a substantial question about the 

appropriateness of a sentence is a question to be evaluated on a case-bycase basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001). As to what constitutes a substantial question, this Court does not 

accept bald assertions of sentencing errors. Commonwealth v. Malovich, 

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the 

reasons the sentencing court’s actions violated the sentencing code. Id. “A 

substantial question will be found where the defendant advances a colorable 

argument that the sentence imposed is either inconsistent with a specific 

provision of the Sentencing Code or is contrary to the fundamental norms 

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d 

1128, 1133 (Pa. Super. 2009) (citations omitted). 

 Herein, the first three requirements of the four-part test are met: 

Appellant brought an appropriate appeal, raised both challenges in his postsentence motion, and included in his appellate brief the necessary separate 

concise statement of the reasons relied upon for allowance of appeal 

pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether 

Appellant has raised substantial questions requiring us to review the 

discretionary aspects of the sentence imposed by the trial court. 
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 In his first issue, Appellant contends that in calculating his prior record 

score the trial court improperly included a prior juvenile adjudication of 

burglary, which raised his prior record score from two to four. We have long 

held that a claim that a trial court’s improper consideration of a prior 

conviction, with a resulting improper prior record score, raises a substantial 

question that a fundamental norm underlying the sentencing process has 

been violated. See Commonwealth v. Anderson, 830 A.2d 1013, 1018 

(Pa. Super. 2003) (holding contention trial court miscalculated prior record 

score raises a substantial question); Commonwealth v. Medley, 725 A.2d 

1225, 1228 (Pa. Super. 1999) (finding substantial question was raised where 

the appellant alleged trial court miscalculated prior record score). Therefore, 

we will address this issue on appeal. 

 Again, sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal absent a 

manifest abuse of discretion. Shugars, 895 A.2d at 1275. An abuse of 

discretion is more than a mere error of judgment; thus, a sentencing court 

will not have abused its discretion unless the record discloses that the 

judgment exercised was manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill-will. Commonwealth v. Provenzano, 50 A.3d 148, 

154 (Pa. Super. 2012) (quoting Commonwealth v. Walls, 926 A.2d 957 

(Pa. 2007)). 
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 In addressing prior juvenile adjudications in calculating a prior record 

score we turn to the Sentencing Guidelines. We are mindful that the 

applicable sentencing guidelines are those in effect at the time that the 

offense was committed. Commonwealth v. Maneval, 688 A.2d 1198, 

1200 (Pa. Super. 1997). We observe that the 5th Edition of the Sentencing 

Guidelines became effective June 13, 1997, and were in effect until the 6th

Edition of the Sentencing Guidelines became effective June 3, 2005. The 6th

Edition of the Sentencing Guidelines was revised, effective December 5, 

2008. Therefore, because Appellant’s criminal activity was committed over a 

period from January 2005 through June 2007, we conclude that both the 5th

and the 6th Editions of the Sentencing Guidelines were applicable. 

Coincidentally, both the 5th Edition and the 6th Edition of the Sentencing 

Guidelines contain the following, identical language pertaining to prior 

juvenile adjudications in relation to the computation of a prior record score: 

§303.6. Prior Record Score - prior juvenile adjudications. 

(a) Juvenile adjudication criteria. Prior juvenile adjudications are 

counted in the Prior Record Score when the following criteria are 

met: 

(1) The juvenile offense occurred on or after the 

offender’s 14th birthday, and 

(2) There was an express finding by the juvenile 

court that the adjudication was for a felony or one of 

the Misdemeanor 1 offenses listed in §303.7(a)(4). 

(b) Only the most serious juvenile adjudication of each prior 

disposition is counted in the Prior Record Score. No other prior 

juvenile adjudication shall be counted in the Prior Record Score. 
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(c) Lapsing of juvenile adjudications. Prior juvenile 

adjudications for four point offenses listed in §303.7(a)(1) shall 

always be included in the Prior Record Score, provided the 

criteria in subsection (a) above are met: 

(1) All other juvenile adjudications not 

identified above in subsection (a) lapse and 

shall not be counted in the Prior Record Score if 

the offender was 28 years of age or older at the 

time the current offense was committed. 

(2) Nothing in this section shall prevent the 

court from considering lapsed prior 

adjudications at the time of sentencing. 

204 Pa. Code § 303.6 (emphasis added). Hence, pursuant to the 

emphasized language stated above, juvenile adjudications lapse and shall 

not be counted in a prior record score for crimes committed when the 

offender is twenty-eight years of age or older. 

 Appellant argues that, pursuant to §303.6(c)(1), because he turned 

twenty-eight years old on January 30, 2006, which was during the time 

frame encompassing his various offenses, his prior juvenile adjudication of 

burglary should have lapsed, and the trial court should not have added two 

points to Appellant’s prior record score. Appellant notes that he was over 

the age of twenty-eight for a significant portion of the period encompassing 

the crimes, and thus, his juvenile conviction of burglary should not have 

been included in his prior record score. 

 The trial court offered the following reasoning for determining that this 

issue lacked merit: 
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 [Appellant] argues that he was improperly sentenced 

because his juvenile record should not have been considered in 

calculating his [prior record score]. [Appellant] maintains that, 

under the applicable sentencing guidelines, his juvenile record 

lapsed for sentencing purposes. Therefore, he concludes that his 

[prior record score] should have been 2 rather than 4, as 

computed by the trial court. However, all applicable editions of 

the sentencing guidelines indicate that [Appellant] must be over 

the age of 28 at the time the crime was committed to avail 

himself of the juvenile lapsing provision. See 204 Pa. Code § 

303.6(c)(5th Edition); 204 Pa. Code § 303.6(c)(6th Edition); see 

also 204 Pa. Code § 303.6(c)(6th Edition Revised) (limiting 

lapsing provision to those defendants who have remained crime 

free for the previous 10 years). 

 [Appellant] is not eligible for the lapsing provision of the 

sentencing guidelines because he was under the age of 28 when 

the criminal activity for which he was convicted began. See Jury 

Verdict, Comm. v. Hemingway, No. CP-17-CR-43-2009. The 

record reveals that [Appellant] was merely 26 years old when he 

began committing the crimes for which he was convicted. Quite 

clearly, he is not eligible for the lapsing provision under any 

applicable edition of the sentencing guidelines. Thus, the trial 

court correctly calculated [Appellant’s] prior record score. 

Trial Court Opinion, 11/3/14, at 6-7. 

 Our review of the record reflects support for the trial court’s conclusion 

that the jury determined Appellant’s criminal conduct commenced before 

Appellant turned twenty-eight years-old. Specifically, the jury returned the 

following verdicts indicating that Appellant’s criminal activity began in 

January 2005, at the time when Appellant was under the age of twentyeight: 

1. DELIVERY OF CONTROLLED SUBSTANCE: 

 Cocaine to Michael Styers 

 January 2005 – June 2007 VERDICT Guilty 
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2. DELIVERY OF CONTROLLED SUBSTANCE: 

 Cocaine to Charles Gearhart 

 January 2005 – June 2007 VERDICT Guilty 

3. DELIVERY OF CONTROLLED SUBSTANCE: 

 Cocaine to Brandon Kifer 

 January 2005 – June 2007 VERDICT Guilty 

4. DELIVERY OF CONTROLLED SUBSTANCE: 

 Cocaine to Joseph Hunter 

 January 2005 – June 2007 VERDICT Guilty 

5. DELIVERY OF CONTROLLED SUBSTANCE: 

 Cocaine to Richard Smeal 

 January 2005 – June 2007 VERDICT Guilty 

6. DELIVERY OF CONTROLLED SUBSTANCE: 

 Cocaine to Kristin Wilsoncroft 

 January 2005 – June 2007 VERDICT Guilty 

7. CRIMINAL CONSPIRACY TO COMMIT POSSESSION 

W/INTENT TO DELIVER AND DELIVERY OF CONTROLLED 

SUBSTANCE: Cocaine 

 January 2005 – June 2007 VERDICT Guilty 

8. CRIMINAL USE OF COMMUNICATION FACILITY: 

 January 2005 – June 2007 VERDICT Guilty 

9. DEALING IN PROCEEDS OF UNLAWFUL ACTIVITIES: 

 January 2005 – June 2007 VERDICT Guilty 

10. FALSE IMPRISONMENT: Autumn Kifer 

 Summer 2007 VERDICT NOT Guilty 

11. CORRUPT ORGANIZATIONS: 

 January 2005 – June 2007 VERDICT Guilty 

12. CORRUPT ORGANIZATIONS: Conspiracy with other persons 

 January 2005 – June 2007 VERDICT Guilty 

Verdict Sheet, 2/1/12, at 1-2. 
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 Thus, as the verdict sheet indicates, the jury specifically found that 

Appellant’s criminal activity for each conviction began before Appellant’s 

twenty-eighth birthday, which was January 30, 2006. Accordingly, because 

the jury returned a verdict indicating that Appellant was under the age of 

twenty-eight when he began committing the current offenses, we cannot 

conclude that the trial court abused its discretion by including Appellant’s 

prior juvenile adjudication of burglary when it computed Appellant’s prior 

record score. Hence, Appellant’s contrary claim lacks merit. 

 We next address Appellant’s second issue wherein he argues that the 

trial court engaged in vindictive sentencing upon remand. As previously 

stated, an issue challenging the length of a sentence citing judicial 

vindictiveness raises a challenge to the discretionary aspects of sentencing. 

Gould, 912 A.2d at 872. This Court has recognized that such claims 

constitute a substantial question mandating appellate review. 

Commonwealth v. Robinson, 931 A.2d 15, 20-21 (Pa. Super. 2007) (en 

banc). 

 Appellant avers that upon remand, the trial court improperly increased 

his punishment for his convictions. Appellant observes that his initial 

aggregate sentence was a term of imprisonment of seventeen to twenty-six 

years. However, following remand, the trial court sentenced Appellant to an 

aggregate term of incarceration of seventeen to thirty-four years. 
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 The U.S. Supreme Court considered the issue of increased sentences 

in a line of cases beginning with North Carolina v. Pearce, 395 U.S. 711 

(1969), reversed in part, Alabama v. Smith, 490 U.S. 794 (1989).1 In 

Pearce, the Court determined that due process concerns are triggered 

whenever a court sentences a defendant to a higher term of imprisonment 

after a second trial or some manner of post-sentencing review.2 The Pearce

Court stated the following: 

 Due process of law, then, 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. And since the fear of such vindictiveness may 

unconstitutionally deter a defendant’s exercise of the right to 

appeal or collaterally attack his first conviction, due process also 

requires that a defendant be freed of apprehension of such 

retaliatory motivation on the part of the sentencing judge. 

 In order to assure the absence of such a motivation, we 

have concluded that whenever a judge imposes a more severe 

sentence upon a defendant after a new trial, the reasons for 

doing so must affirmatively appear. 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. And the factual data upon which 

the increased sentence is based must be made part of the 

____________________________________________ 

1

 The Smith Court reversed in part the holding in Simpson v. Rice, 395 

U.S. 711 (1969), which was a companion case to Pearce. However, the 

rule established in Pearce remained unaffected by the decision in Smith. 

2

 While Pearce dealt with an increased sentence following the grant of a 

new trial, this Court has held that the same rationale applies where the 

original sentence is vacated and the second sentence is imposed without an 

additional trial. Commonwealth v. Greer, 554 A.2d 980, 987 n.7 (Pa. 

Super. 1989). 
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record, so that constitutional legitimacy of the increased 

sentence may be fully revealed on appeal. 

Pearce, 395 U.S. at 725-726. 

 Subsequently, in Texas v. McCullough, 475 U.S. 134 (1986), the 

United States Supreme Court modified and expanded the Pearce Court’s 

approach to resentencing and due process and explained that judicial 

vindictiveness is the retaliation of a sentencing judge against a defendant for 

having successfully attacked a first conviction. Generally, it is “the judge 

who has been reversed” who potentially harbors a “motivation to engage in 

self-vindication.” Id. at 139 (citing Chaffin v. Stynchcombe, 412 U.S. 17 

(1973)). To ensure the absence of such motivation, the reasons for an 

enhanced sentence following retrial must affirmatively appear on the record. 

Id. at 138. The reasons must be based on objective information concerning 

(1) identifiable conduct on the part of the defendant occurring after the time 

of the original sentencing proceeding, or (2) legitimate sentencing concerns, 

or other new objective information, not previously available to the court. 

Id. 

 Where a subsequent sentence imposes a greater penalty than 

previously was imposed, a presumption of vindictiveness attaches. 

Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999) 

(citing Commonwealth v. Campion, 672 A.2d 1328 (Pa. Super. 1996)). 

Therefore, we first consider whether a presumption of vindictiveness arises 

in the instant case. Here, Appellant was tried by a jury, convicted, and 
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sentenced to an aggregate term of incarceration of seventeen to twenty-six 

years. Appellant then filed a direct appeal, and this Court vacated his 

judgment of sentence and remanded for resentencing after sua sponte

determining that the sentence was illegal due to the application of 

mandatory minimum sentences set forth in 18 Pa.C.S. § 7508(a)(2). Upon 

remand, the original sentencing judge then presided over Appellant’s 

resentencing hearing and imposed a harsher sentence, that being an 

aggregate term of incarceration of seventeen to thirty-four years. Based 

upon these facts, we are left to conclude that a presumption of 

vindictiveness is present in this matter. 

 We next consider whether the trial court rebutted the presumption of 

vindictiveness. As previously stated, the Pearce Court held that the 

presumption was controlling unless the new sentence was based upon 

“objective information concerning identifiable conduct on the part of the 

defendant occurring after the time of the original sentencing proceeding.” 

Pearce, 395 U.S. at 726. Again, in McCullough, the Court modified this 

rule and held that the presumption could also be overcome by other forms of 

objective information or legitimate sentencing concerns that were not 

presented to or considered by the trial court at the original sentencing 

hearing. McCullough, 475 U.S. at 138. 
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 In this case, the trial court expressly disavowed any vindictive purpose 

in resentencing Appellant and stated the following in its written opinion of 

November 3, 2014: 

Given [Appellant’s] role in the cocaine trafficking scheme which 

underlies this case, a minimum sentence of 17 years of 

incarceration is entirely appropriate. Further, when resentencing 

[Appellant] on remand, the trial court was constrained to impose 

a “balanced” sentence which resulted in [Appellant’s] maximum 

period of incarceration increasing from 26 years to 34 years. 

This was clearly and objectively the result of application of the 

Pennsylvania Sentencing Guidelines, and not the result of 

vindictiveness on the part of the trial court. 

Trial Court Opinion, 11/3/14, at 8. 

 The reasons for Appellant’s enhanced maximum sentence following 

remand affirmatively appear on the record. Those reasons are based upon 

the legitimate sentencing concerns of imposing a balanced sentence. Thus, 

we are satisfied that the trial court has rebutted any presumption of 

vindictiveness that may have attached to its sentence imposed upon 

remand. Therefore, Appellant’s claim that the trial court was vindictive and 

violated his due process rights by sentencing him to a harsher maximum 

sentence upon remand fails. Accordingly, Appellant’s claim does not warrant 

relief. 

 Judgment of sentence affirmed. 
J-S52013-15 

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/27/2015