J-E03001-16

2017 PA Super 215

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KWAME LAMAR BARNES

Appellant No. 947 MDA 2014

Appeal from the Judgment of Sentence Entered January 30, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0000426-2011

BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE, 

DUBOW, MOULTON, and RANSOM, JJ.

OPINION BY STABILE, J.: FILED JULY 10, 2017

Appellant Kwame Lamar Barnes appeals from the January 30, 2014 

judgment of sentence entered in the Common Pleas Court of Dauphin 

County (“trial court”), following his jury convictions for criminal attempthomicide, aggravated assault, kidnapping, and recklessly endangering 

another person (“REAP”).1 Upon review, we vacate and remand for 

resentencing. 

The facts and procedural history underlying this appeal are 

undisputed. On December 19, 2010, the victim, who was sixteen at the 

time of trial, was sleeping alone at her mother’s home in Steelton when she 

received a text message from Appellant, her ex-boyfriend. N.T. Trial, 

____________________________________________

1 18 Pa.C.S.A. §§ 901 (a), 2702(a)(1), 2901(a)(3), and 2705, respectively.
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2/28/12, at 136-39. Although they were no longer dating, the victim and 

Appellant still had an amicable relationship. Id. at 139. Appellant indicated 

in the text message that he was at the back door of the residence and the 

victim allowed Appellant to enter the home. Id. at 140. The victim and 

Appellant went upstairs to the victim’s bedroom where they talked, engaged 

in sexual intercourse, and then talked again. Id. at 140-41. They then had 

an argument. The victim asked Appellant to leave and she escorted him 

downstairs to the back door. Id. at 141-42. Prior to leaving, Appellant 

threatened to hit the victim with a vacuum. Id. at 143-44. Subsequently, 

Appellant strangled the victim from behind by using his arm. Id. at 144-45. 

She lost consciousness. Id. at 145. When she regained consciousness, 

Appellant said to the victim, “you’re gonna die today,” and proceeded to 

strangle her again until she lost consciousness a second time. Id. at 145-

47. When the victim finally regained consciousness, she was wrapped in a 

blanket and lying head-first in a recycling dumpster under the State Street 

Bridge. Id. at 147-50. She eventually freed herself and managed to get to 

the side of a roadway, where the driver of a passing vehicle stopped and 

took her to the hospital. Id. at 149. The victim suffered a broken vertebra 

in her neck, various facial injuries, a lacerated and swollen tongue, a large 

contusion to her right eye, and hypothermia. Id. at 16-21.
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On December 20, 2010, Appellant was charged with criminal attempt 

to commit homicide (“attempted murder”), aggravated assault, kidnapping, 

REAP, terroristic threats, and theft by unlawful taking.2 On February 28, 

2012, at the conclusion of a jury trial, Appellant was found guilty of 

attempted murder, aggravated assault, kidnapping, and REAP. The jury 

found Appellant not guilty for the charge of terroristic threats. On May 18, 

2012, Appellant was sentenced to a term of incarceration of 20 to 40 years 

for the conviction of attempted murder, a consecutive term of incarceration 

of 21⁄2 to 5 years for his conviction of aggravated assault, and a consecutive 

term of incarceration of 21⁄2 to 5 years for his conviction of kidnapping. The 

trial court imposed no additional sentence for the conviction of REAP. 

Appellant timely appealed to this Court.

On December 3, 2013, a panel of this Court (“2013 decision”) 

determined that the convictions of aggravated assault and attempted 

homicide should have merged because the crimes arose from a single set of 

facts, i.e., Appellant choked the victim to unconsciousness. Accordingly, the 

panel vacated the judgment of sentence, and remanded for resentencing. 

Commonwealth v. Barnes, No. 691 MDA 2013, unpublished 

memorandum, at 2-3 (Pa. Super. filed December 3, 2013). On January 30, 

2014, upon remand, the trial court resentenced Appellant to 20 to 40 years’ 

____________________________________________

2 The charge of theft by unlawful taking was subsequently dismissed at 

preliminary hearing. 
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imprisonment for attempted murder and a consecutive term of incarceration 

of 5 to 10 years for the conviction of kidnapping. On February 5, 2014, 

Appellant filed a post-sentence motion, which the trial court denied on May 

12, 2014. The instant appeal followed.3 

Appellant raises four issues on appeal:

[I.] Apprendi doctrine. The United States Constitution 

mandates that juries should decide all facts that increase a 

crime’s statutory maximum sentence. Here, a jury convicted 

[Appellant] of attempted murder, generally—a 20 year maximum 

sentence. If the trial court submits the crime of attempted 

murder resulting in serious bodily injury to the jury, the 

maximum sentence increases to 40 years. But [the trial] court 

didn’t submit this element. Is [Appellant’s] legal attempted 

murder maximum sentence 20 years?

[II.] Substantial questions. To appeal the discretionary 

aspects of a sentence, an appellant must present a “substantial 

question” why the sentencing court’s actions are inconsistent 

with the Sentencing Code or contrary to the fundamental norms 

underlying the sentencing process. This sentencing court: (1) 

increased a crime’s sentence where the only changed fact was 

the exercise of appellate rights; and (2) failed to provide reasons 

for its new sentence on the record. Does [Appellant] raise 

substantial questions?

[III.] Judicial Vindictiveness. A presumption of vindictiveness 

arises where a sentencing court imposes a more severe sentence 

absent objective evidence justifying an increased sentence. This 

trial court doubled [Appellant’s] kidnapping sentence at his 

resentencing. It based the increased sentence on the same facts 

____________________________________________

3 The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal. Appellant complied. In response, the trial 

court issued a memorandum opinion, noting that its May 12, 2014 

memorandum opinion set forth the reasons for concluding Appellant was not 

entitled to post-sentence relief. Pa.R.A.P. 1925(a) Opinion, 6/13/14, at 1. 
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and information as at the time of the original sentence. Is 

[Appellant’s] new kidnapping sentence void?

[IV.] Record reasons for an imposed sentence. On 

resentencing, following remand, the court shall make as a part of 

the record, and disclose in open court at the time of sentence, a 

statement of reason or reasons for the imposed sentence. In 

[Appellant’s] five-minute resentencing this record does not make 

such a statement. Should this Court vacate [Appellant’s] current 

sentence and resentence him to provide a reasoned statement?

Appellant’s Brief at 8-9.4

This Court certified this case for en banc review to address the 

following issues: (1) Whether, under Apprendi v. New Jersey, 530 U.S. 

466 (2000), the jury was required to render a separate finding of serious 

bodily injury for the crime of attempted murder to subject Appellant to the 

40-year maximum sentence for such crime? (2) Whether the law of the case 

doctrine applies here based on the 2013 decision issued by a panel of this 

Court? 

Appellant first argues that the trial court erred in applying Section 

1102(c) of the Crimes Code, 18 Pa.C.S.A. § 1102(c), when it imposed a 

maximum term of imprisonment of 40 years for the offense of attempted 

murder in the absence of a jury finding of serious bodily injury arising from 

such offense. As a result, Appellant argues that his sentence for attempted 

murder violates the United States Supreme Court’s decision in Apprendi, 

____________________________________________

4 We decline to address Appellant’s second issue as a standalone issue 

because it is subsumed by his third and fourth issues on appeal. 
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wherein the Court held that “[o]ther than the fact of a prior conviction, any 

fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Apprendi, 530 U.S. at 490; accord Commonwealth v. Gordon, 

942 A.2d 174, 175 n.1 (Pa. 2007), cert. denied, 553 U.S. 1028 (2008); 

Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super. 2014), 

appeal denied, 118 A.3d 1107 (Pa. 2015). We agree.

At the outset, we note that Appellant’s claim implicates the legality of 

a sentence. Commonwealth v. Aponte, 855 A.2d 800, 802 n.1 (Pa. 

2004). “Issues relating to the legality of a sentence are questions of law . . . 

. Our standard of review over such questions is de novo and our scope of 

review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. 

Super. 2009) (citation omitted). 

Section 1102(c) of the Crimes Code provides, “a person who has been 

convicted of attempt . . . to commit murder . . . where serious bodily 

injury[5]results may be sentenced to a term of imprisonment which shall be 

fixed by the court at no more than 40 years.” 18 Pa.C.S.A. § 1102(c) 

(emphasis added). “Where serious bodily injury does not result, the person 

may be sentenced to a term of imprisonment which shall be fixed by the 

____________________________________________

5 The Crimes Code defines “serious bodily injury” as [b]odily injury which 

creates a substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function of a bodily 

member or organ.” 18 Pa.C.S.A. § 2301.
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court at not more than 20 years.” Id. Indeed, in Commonwealth v. 

Johnson, 910 A.2d 60 (Pa. Super. 2006), appeal denied, 923 A.2d 1173 

(Pa. 2007), we explained that Section 1102(c) “imposes a condition 

precedent to the imposition of a maximum term of imprisonment of up to 40 

years, specifically, that ‘serious bodily injury’ must have resulted from the 

attempted murder. Otherwise, the sentence shall be not more than 20 

years.” Johnson, 910 A.2d at 66. Serious bodily injury is “a fact that must 

be proven before a maximum sentence of [40] years may be imposed for 

attempted homicide.” Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa. 

Super. 2005), appeal denied, 890 A.2d 1058 (Pa. 2005). Moreover, a 

defendant must be put on notice when the Commonwealth is seeking a 40-

year maximum sentence for attempted murder. See id. at 1284 

In Johnson, the Commonwealth charged and the jury convicted the 

defendant of, inter alia, attempted murder and aggravated assault arising 

from the defendant’s ambush and shooting of the victim who previously had 

testified for the Commonwealth against the defendant’s brother in an 

unrelated first-degree murder case. During the attack in question on the 

victim, the defendant pointed a handgun at the victim’s head and fired but 

missed. The defendant then pursued the victim and fired several more 

rounds at her, striking the victim in the heel of her foot. At sentencing, the 

trial court imposed upon the defendant a term of imprisonment of 171⁄2 to 40 

years for attempted murder.
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Among other issues, the defendant challenged on appeal the 

attempted murder sentence based on insufficient evidence of serious bodily 

injury. The trial court reasoned that serious bodily injury had been 

established because the jury found the defendant guilty of the companion 

offense of aggravated assault. Relying, however, on the precepts of 

Apprendi, this Court explained:

[I]t was not the prerogative of the trial court, but solely the 

responsibility of the jury in this case to find, beyond a 

reasonable doubt, whether a serious bodily injury resulted from 

the instant attempted murder.

 . . . .

Here, however, (1) [the defendant] was not charged with 

attempted murder resulting in serious bodily injury, (2) [the 

defendant] was not on notice that the Commonwealth sought 

either to prove that a serious bodily injury resulted from the 

attempted murder or to invoke the greater maximum sentence,

and (3) the jury was never presented with, nor rendered a 

decision on, the question of whether a serious bodily injury 

resulted from the attempted murder. Thus, the jury verdict 

here was limited to a finding of guilt on the crime of 

attempted murder generally, for which the maximum 

sentence is [20] years.

Johnson, 910 A.2d at 67-68 (emphasis added) (footnote omitted).

Instantly, our review of the record reveals that the docket sheet does 

not show that Appellant was charged with attempted murder resulting in 

serious bodily injury. Specifically, both the complaint and the information 

sub judice do not allege that Appellant caused serious bodily injury to the 

victim when he attempted to kill her. The verdict sheet in this case also is 

bereft of any mention of serious bodily injury with respect to the attempted 
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murder charge. Additionally, the jury here was not instructed to render a 

finding on whether serious bodily injury resulted from the criminal attempt. 

Particularly, the trial court instructed the jury as follows:

[Appellant] has been charged with criminal attempt, 

murder. To find [Appellant] guilty of this offense you must find 

that the following three elements have been proven beyond a 

reasonable doubt:

First, that [Appellant] did a certain act; that is, he 

physically assaulted and strangled [the victim].

Second, that at the time of this alleged act, [Appellant] 

had the specific intent to kill [the victim]; that is, he had the 

fully formed intent to kill and was conscious of his own intention.

And, third, that the act constituted a substantial step 

toward the commission of the killing [Appellant] intended to 

bring about. 

The meaning of substantial step: A person cannot be 

guilty of an attempt to commit a crime unless he or she does an 

act that constitutes a substantial step toward the commission of 

that crime. 

An act is a substantial step if it is a major step toward 

commission of the crime and also – and also strongly 

corroborates the jury’s belief that the person at the time he did 

the act had a firm intent to commit the crime.

I’ll read that again, because they use the same words to 

define what you’re supposed to understand.

An act is a substantial step if it is a major step toward 

commission of the crime and also strongly corroborates the 

jury’s belief that the person at the time he did the act had a firm 

intent to commit the crime.

An act can be a substantial step even though other steps 

would have been taken before the crime could be carried out.

If you are satisfied that the three elements of attempted 

murder have been proven beyond a reasonable doubt, you 
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should find [Appellant] guilty. Otherwise, you must find 

[Appellant] not guilty of this crime.

N.T. Trial, 2/28/12, at 214-15. The trial court repeated to the jury the same 

instructions for attempted murder three more times. See id. at 235-37, 

244-47, and 260-63. As the foregoing indicates, the Commonwealth did not 

charge Appellant with attempted murder resulting in serious bodily injury. 

Appellant also was not on notice that the Commonwealth sought either to 

prove that a serious bodily injury resulted from the attempted murder or to 

invoke the greater maximum sentence.6 Finally, and most importantly for 

purposes of Apprendi, the jury was never presented with, nor rendered a 

decision on, the question of whether a serious bodily injury resulted from the 

attempted murder. Differently put, the issue of serious bodily injury 

resulting from the attempted murder was never submitted to the jury as an 

____________________________________________

6 Even if the Commonwealth had put Appellant on notice that it sought to 

prove serious bodily injury resulted from the attempted murder, Appellant’s 

sentence still would have violated Apprendi if the jury did not find serious 

bodily injury in connection with attempted murder. Also, to the extent the 

Commonwealth relies on Reid to compel a different outcome here, such 

reliance is misplaced because Reid is procedurally and factually 

distinguishable. In Reid, the defendant entered into a plea of nolo 

contendere, agreeing with the Commonwealth’s recitation of the facts 

underlying the charge of attempted murder. The facts with which the 

defendant agreed detailed the magnitude of the victim’s injuries. See Reid, 

867 A.2d at 1285 (noting that “[the defendant] admitted at his nolo plea 

colloquy that the victim suffered serious bodily injury in that he admitted she 

sustained eleven stab wounds and that her neck was slashed.”). 

Accordingly, we concluded that the defendant sufficiently was on notice that 

the Commonwealth sought the maximum sentence of 40 years for 

attempted murder resulting in serious bodily injury. Id. 
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element of the crime or as a special interrogatory. Accordingly, consistent 

with Johnson and Apprendi, supra, we conclude that the trial court erred 

in sentencing Appellant to the maximum term of imprisonment of 40 years 

for attempted murder because the jury did not determine that serious bodily 

injury occurred relative to the attempted murder charge. 

Nonetheless, the Commonwealth contends that the jury’s finding with 

respect to the aggravated assault charge was sufficient to prove that the 

attempted murder charge involved a serious bodily injury. It is beyond 

dispute that the jury was instructed on, and subsequently found Appellant 

guilty of, aggravated assault causing serious bodily injury. At trial, the trial 

court specifically instructed the jury:

The next crime is aggravated assault, causing serious 

bodily injury.

The defendant has been charged with aggravated assault. 

To find the defendant guilty of this offense, you must find that 

each of the following elements has been proven beyond a 

reasonable doubt.

First, the defendant caused serious bodily injury to [the 

victim].

Serious bodily injury is bodily injury that creates a 

substantial risk of death or that causes serious permanent 

disfigurement, or protracted loss or impairment of the function 

of any bodily member or organ.

And, second, that the defendant acted intentionally, 

knowingly, or recklessly under circumstances manifesting 

extreme indifference to the value of human life.

N.T. Trial, 2/28/12, at 215-16 (emphasis added). 
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We, however, reject the Commonwealth’s argument for two reasons. 

First, as we determined in Johnson, any finding by the jury of serious bodily 

injury for aggravated assault could not be used to infer that the jury found 

serious bodily injury for the attempted murder charge. See Johnson, 910 

A.2d at 68 n.10; accord Commonwealth v. Watley, 81 A.3d 108, 119 

(Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014). 

Specifically, we reasoned in Johnson:

The fact that the jury may have considered the question of 

serious bodily injury when they were evaluating the 

Commonwealth’s evidence supporting the charge of aggravated 

assault is not relevant to a sufficiency analysis on the separate 

charge of attempted murder “where serious bodily injury 

results.” The Courts of Pennsylvania have consistently respected 

the authority of a jury to find, or to decline to find, the existence 

of each element of each criminal offense. Nor is there authority 

for a trial court to reason to a verdict of guilt by tacking the 

finding of culpability of one element of a companion offense on 

to a separate criminal offense upon which the jury had also 

rendered a verdict.

Johnson, 910 A.2d at 68 n.10 (citation omitted).7 Thus, a jury’s 

consideration of serious bodily injury for the aggravated assault count is not 

relevant to the attempted murder conviction. Attempted murder and 

aggravated assault are two distinct offenses—one inchoate and the other 

____________________________________________

7

Like the Johnson Court, we too emphasize that it is of no moment 

whether sufficient evidence existed to conclude that the attempted murder 

caused serious bodily injury. Rather, what is important is whether the jury 

rendered a factual finding on serious bodily injury in accord with Apprendi

and related decisions affecting the law in this Commonwealth. 
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choate. Here, Appellant was charged with aggravated assault causing

serious bodily injury. As noted, the jury was instructed on this offense and 

found beyond a reasonable doubt that Appellant caused serious bodily injury 

when he committed aggravated assault against the victim. In contrast, as 

we stated earlier, Appellant was charged only with attempted murder 

generally and the jury was never presented with, nor rendered a decision 

on, the question of whether a serious bodily injury resulted from the 

attempted murder. Thus, consistent with Johnson, we cannot infer from 

the jury’s finding of serious bodily injury relating to aggravated assault that 

the jury also found serious bodily injury relating to attempted murder. 

Second, it is well-settled that inconsistent verdicts are permissible in 

this Commonwealth. See Commonwealth v. States, 938 A.2d 1016, 1025 

(Pa. 2007). As we explained in Commonwealth v. Petteway, 847 A.2d 

713 (Pa. Super. 2004): 

We note first that inconsistent verdicts, while often perplexing, 

are not considered mistakes and do not constitute a basis for 

reversal. Consistency in verdicts in criminal cases is not 

necessary. When an acquittal on one count in an indictment is 

inconsistent with a conviction on a second count, the court looks 

upon the acquittal as no more than the jury’s assumption of a 

power which they had no right to exercise, but to which they 

were disposed through lenity. Thus, this Court will not disturb 

guilty verdicts on the basis of apparent inconsistencies as long 

as there is evidence to support the verdict. The rule that 

inconsistent verdicts do not constitute reversible error applies 

even where the acquitted offense is a lesser included offense of 

the charge for which a defendant is found guilty.
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Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004) 

(citations and quotation marks omitted). Because juries are permitted to 

render inconsistent verdicts in this Commonwealth,8it was perfectly 

acceptable for the jury here to find serious bodily injury with respect to 

aggravated assault but not attempted murder. Moreover, as we detailed 

above, the jury here actually was never instructed nor asked to make a 

determination on serious bodily injury resulting from attempted murder. 

Based on these reasons, it would be improper for us to infer from the jury’s 

finding of serious bodily injury relating to aggravated assault that the jury 

also found serious bodily injury relating to attempted murder. 

Finally, the Commonwealth argues that the law of the case doctrine 

applies sub judice. Specifically, the Commonwealth argues that our 2013 

decision in the instant matter precludes us from determining that the jury 

did not render a finding on serious bodily injury relating to attempted 

murder. We disagree.

As this Court explained in Commonwealth v. Gacobano, 65 A.3d 

416 (Pa. Super. 2013):

The law of the case doctrine refers to a family of rules which 

embody the concept that a court involved in the later phases of 

a litigated matter should not reopen questions decided by 

another judge of that same court or by a higher court in the 

____________________________________________

8 The parties here do not dispute that aggravated assault is a lesser-included 

offense of attempted murder. Commonwealth v. Anderson, 650 A.2d 20, 

24 (Pa. 1994).
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earlier phases of the matter. . . . The various rules which make 

up the law of the case doctrine serve not only to promote the 

goal of judicial economy . . . but also operate (1) to protect the 

settled expectations of the parties; (2) to insure uniformity of 

decisions; (3) to maintain consistency during the course of a 

single case; (4) to effectuate the proper and streamlined 

administration of justice; and (5) to bring litigation to an end.

Gacobano, 65 A.3d at 419-20 (quoting Commonwealth v. McCandless, 

880 A.2d 1262, 1267 (Pa. Super. 2005) (en banc) (additional citation 

omitted)). Therefore, under the law of the case doctrine,

when an appellate court has considered and decided a question 

submitted to it upon appeal, it will not, upon a subsequent 

appeal on another phase of the case, reverse its previous ruling 

even though convinced it was erroneous. This rule has been 

adopted and frequently applied in our own State. It is not, 

however, inflexible. It does not have the finality of the doctrine 

of res judicata. “The prior ruling may have been followed as the 

law of the case but there is a difference between such adherence 

and res judicata; one directs discretion, and the other 

supercedes (sic) it and compels judgment. In other words, in 

one it is a question of power, in the other of submission.” The 

rule of the “law of the case” is one largely of convenience and 

public policy, both of which are served by stability in judicial 

decisions, and it must be accommodated to the needs of justice 

by the discriminating exercise of judicial power.

Id. at 420 (quoting McCandless, 880 A.2d at 1268 (additional citation 

omitted)).

In the 2013 decision, a prior panel of this Court stated:

Appellant argues that his convictions for Aggravated 

Assault and Attempted Homicide arise from a single set of facts 

and, therefore, these offenses merge for sentencing 

purposes. Commonwealth v. Rovinski, 704 A.2d 1068, 1075 

(Pa. Super. 2007). We note that the Commonwealth does not 

dispute Appellant’s contention.
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Upon review of the record, we are constrained to agree. 

The convictions in question arise from a single set of facts; 

namely, that Appellant choked the victim to unconsciousness. 

As such, the sentences for these offenses merge for 

sentencing purposes, and we are compelled to vacate 

Appellant’s sentence.

Barnes, No. 691 MDA 2013, unpublished memorandum, at 2-3 (Pa. Super. 

filed December 3, 2013) (emphasis added). 

As the foregoing excerpt from our 2013 decision demonstrates, the 

prior panel of this Court was not asked to address, nor did it address, the 

issue of whether the jury here rendered a serious bodily injury finding with 

respect to attempted murder. The prior panel likewise did not determine 

whether the jury’s serious bodily injury finding relating to aggravated assault 

was sufficient to infer that the jury also found serious bodily injury for the 

attempted murder charge. In other words, no determination was made by 

the prior panel as to whether the jury found beyond a reasonable doubt that 

Appellant’s choking of the victim constituted serious bodily injury for 

purposes of attempted murder. The prior panel, however, considered and 

addressed only a very narrow issue, i.e., whether aggravated assault 

merged with attempted murder for purposes of sentencing. As stated, the 

prior panel determined that the two offenses merged because they arose 

from a single set of facts, i.e., Appellant’s choking of the victim to 

unconsciousness. 

In sum, here as in Johnson, “the jury was never presented with, nor 

rendered a decision on, the question of whether a serious bodily injury 

resulted from the attempted murder.” Johnson, supra at 67 (footnote 
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omitted). Accordingly, we are constrained to vacate Appellant’s sentence for 

attempted murder and remand for resentencing. 

Next, Appellant argues that the trial court abused its discretion in 

imposing upon him a more severe sentence for kidnapping on remand than 

it did on his original sentence.9 Consequently, he claims that his sentence 

on remand invites a presumption of vindictiveness. 

Because Appellant’s issues implicate only the discretionary aspects of 

his sentence, we note it is well-settled that “[t]he right to appeal a 

discretionary aspect of sentence is not absolute.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an 

appellant challenges the discretionary aspects of a sentence, an appellant’s 

appeal should be considered as a petition for allowance of appeal. 

____________________________________________

9 When reviewing a challenge to the trial court’s discretion, our standard of 

review is as follows:

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. An abuse of discretion is 

more than just an error in judgment and, on appeal, the trial 

court will not be found to have abused its discretion unless the 

record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) 

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002)), appeal denied, 64 A.3d 630 (Pa. 2013). 
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Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we 

stated 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:

[W]e 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

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

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, Appellant has satisfied the first three requirements of the fourpart Moury test. Appellant filed a timely appeal to this Court, preserved the 

issue on appeal through his post-sentence motions, and included a Pa.R.A.P. 

2119(f) statement in his brief.10 We, therefore, must determine only if 

Appellant’s sentencing issues raise a substantial question.

____________________________________________

10 Rule 2119(f) provides that “[a]n appellant who challenges the 

discretionary aspects of a sentence in a criminal matter shall set forth in his 

brief a concise statement of the reasons relied upon for allowance of appeal 

with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 

825, 828 (Pa. Super. 2007). We have found that a substantial question 

exists “when the appellant advances a colorable argument that the 

sentencing judge’s actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.” Commonwealth v. Phillips, 946 

A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964 

A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions 

presented and the prefatory [Rule] 2119(f) statement to determine whether 

a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10 

(Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015). Indeed, it is settled that 

Appellant’s claim that his sentence on remand was a product of 

vindictiveness presents a substantial question for our review. See 

Commonwealth v. Tapp, 997 A.2d 1201, 1202-03 (Pa. Super. 2010) 

(noting that “alleging judicial vindictiveness . . . constitute[s] a substantial 

question mandating appellate review”), appeal denied, 12 A.3d 752 (Pa. 

2010). Accordingly, we address the merits of Appellant’s vindictiveness 

claim.

When a due process violation is raised regarding resentencing, this 

court must satisfy itself that an increase in a sentence is not the result of 

judicial vindictiveness. See Commonwealth v. Walker, 568 A.2d 201 (Pa. 

Super. 1989), disapproved of on other grounds by Commonwealth v. 
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Robinson, 931 A.2d 15, 20-22 (Pa. Super. 2007) (en banc).11 In North 

Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds 

by Alabama v. Smith, 490 U.S. 794 (1989), the United States Supreme 

Court remarked:

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 a 

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 

his 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 

record, so that the constitutional legitimacy of the increased 

sentence may be fully reviewed on appeal.

Pearce, 395 U.S. at 725-26 (footnote omitted) (emphasis added). Although 

Pearce dealt with an increased sentence following the grant of a new trial, 

we have held that Pearce’s rationale for providing reasons on the record 

____________________________________________

11 Walker and prior cases held that a claim of judicial vindictiveness in 

resentencing was a “non-waivable challenge to the legality of sentence.” 

Robinson, 931 A.2d at 22. In Robinson, however, an en banc panel of this 

Court overruled Walker and other cases on this issue by holding that claims 

of judicial vindictiveness, and any due process concerns arising therefrom, 

implicate only discretionary aspects of sentence. Robinson, 931 A.2d at 22. 
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applies also when the original sentence is vacated and a second sentence is 

imposed without an additional trial. See Commonwealth v. Greer, 554 

A.2d 980, 987 n.7 (Pa. Super. 1983) (noting that Pearce applies to harsher 

sentence imposed by trial court after trial court granted post-trial request for 

resentencing).12 Thus, under Pearce, whenever a trial court imposes upon 

a defendant a more severe sentence following resentencing, the reasons for 

such sentence must be made a part of the record. “Absent evidence [that] a 

sentencing increase is justified due to objective information concerning a 

defendant’s case, the presumption of vindictiveness cannot be rebutted.” 

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

Here, the trial court originally sentenced Appellant on the kidnapping 

conviction to a consecutive term of 21⁄2 to 5 years of incarceration. On 

remand, however, the trial court was obligated to merge the offenses of 

aggravated assault with attempted homicide. In so doing, the trial court 

doubled the kidnapping sentence to a consecutive term of 5 to 10 years’ 

imprisonment. In its opinion, the trial court explained that it “merely 

maintained its original sentencing structure by increasing the kidnapping 

[sentence] when the aggravated assault charge merged into the criminal 

____________________________________________

12 Consistent with Greer, we must disagree with the trial court’s conclusion 

that the instant case is distinguishable from Pearce based on the fact that 

Appellant did not proceed to a new trial, but rather was resentenced after 

this Court found a sentencing error. See Trial Court Opinion, 5/12/14, at 4. 
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attempt charge. In doing so, the [trial] court was able to maintain the 

original sentence.” Trial Court Opinion, 5/12/14 at 4.

We find Appellant’s argument that he received an enhanced sentence 

to be wanting. Appellant’s argument requires us to look only at one part of 

his new sentence and compare it to one part of his old sentence without 

examining the overall sentencing scheme of both the new and old sentences. 

Appellant fails to note the trial court’s overall sentencing scheme. Before his 

successful appeal in 2013, his aggregate sentence was 25 to 50 years’ 

imprisonment. Thereafter, on remand, the trial court resentenced him to 

the same aggregate sentence. We have held that preserving the integrity of 

a prior sentencing scheme is a legitimate sentencing concern. See Walker, 

568 A.2d at 205 (“Upon resentencing, a court has a valid interest in 

preserving the integrity of a prior sentencing scheme.”) (citation omitted). 

Indeed, a trial court properly may resentence a defendant to the same 

aggregate sentence to preserve its original sentencing scheme. See 

Commonwealth v. Bartug, 732 A.2d 1287 (Pa. Super. 1999) (noting a 

resentence of 71⁄2 to 15 years for burglary was lawful after not receiving a 

sentence for burglary and having been given previously the same sentence 

for theft by unlawful taking), appeal denied, 747 A.2d 896 (Pa. 1999). 

“[I]n most circumstances, a judge can duplicate the effect of the original 

sentencing plan by adjusting the sentences on various counts so that the 

aggregate punishment remains the same.” Walker, 568 A.2d at 206. 

However, “[i]f a judge could have imposed the same aggregate sentence he 
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handed down at the original sentencing hearing, and . . . instead imposes a 

harsher aggregate sentence, the presumption of vindictiveness could not be 

rebutted by invoking the need to preserve the original sentencing plan.” Id. 

In Commonwealth v. McHale, 924 A.2d 664, 667 (Pa. Super. 2007), 

overruled in part on other grounds as stated in Commonwealth v. 

Robinson, 931 A.2d 15 (Pa. Super. 2007), we upheld the trial court’s 

resentencing of the defendant when his conviction on the most serious 

charges, two counts of aggravated assault, previously had been reversed 

based on insufficient evidence. McHale, 924 A.2d at 673-74. After remand, 

to maintain the same total aggregate sentence as originally imposed, the 

trial court increased the overall sentence on the surviving counts. Id. at 

667. Noting that the aggregate sentence remained unchanged, we upheld 

the new sentence. Id. at 674. In so doing, we noted:

[O]ur conclusion is not altered by the fact that remand and 

resentencing were prompted by reversal of two of [the 

defendant’s] convictions. . . . Whether remand is the result of 

reversal of one or more convictions or vacation of an illegal 

sentence, we conclude that the trial court has the same 

discretion and responsibilities in resentencing.

Id. at 673-74. 

Appellant here was not the victim of a vindictive sentence on the part 

of the trial court, as his aggregate sentence after remand remained the 

same. Put differently, consistent with Greer, Walker, and McHale, the trial 

court’s resentencing did not rise to vindictiveness because the trial court 

here sought to preserve the integrity of the original sentencing scheme by 
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imposing the same aggregate sentence. See Commonwealth v. 

Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (recognizing authority of 

the trial court, after reducing sentence on one count to accord with the law, 

to impose greater sentence on another count in order to insure appellant 

remained in prison for a certain length of time); Commonwealth v. 

Grispino, 521 A.2d 950, 954 (Pa. Super. 1987) (noting that trial court does 

not violate double jeopardy principles by increasing sentence on remand 

where aggregate term is not increased), appeal denied, 531 A.2d 1119 

(Pa. 1987). Accordingly, Appellant is not entitled to relief on his due process 

claim under Pearce.

13

 

____________________________________________

13 Based upon our disposition of Appellant’s first issue, we need not address 

his fourth issue. However, we remind the trial court that “[r]eimposing a 

judgment of sentence should not be a mechanical exercise.” 

Commonwealth v. Losch, 535 A.2d 115 (Pa. Super. 1987). When a 

sentence is vacated and the case remanded for resentencing, the sentencing 

judge should start afresh; the requirement to state reasons for the 

imposition of sentence applies both to the original sentencing hearing and to 

all subsequent resentencing hearings. Id. at 123 n.9.
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Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge 

Lazarus, Judge Ott, Judge Dubow, and Judge Moulton join this Opinion.

Judge Ransom files a Concurring Statement in which Judge Dubow 

joins. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2017