J-S55045-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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CHARLES W. SMITH,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 826 WDA 2015

Appeal from the Judgment of Sentence Entered May 14, 2015, 

in the Court of Common Pleas of Fayette County, 

Criminal Division, at No.: CP-26-CR-0000045-2012

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2015

Charles W. Smith (Appellant) appeals from the judgment of sentence 

entered following his convictions for two counts of persons not to possess 

firearms and one count each of criminal conspiracy, possession with intent to 

deliver (PWID), simple possession, possession of drug paraphernalia, and 

contempt of court. Upon review, we affirm.

Appellant was convicted of the aforementioned crimes on November 6, 

2012.1 On that same date, Appellant was sentenced to a flat six-month 

term of incarceration for the contempt conviction. On December 6, 2012, he 

was sentenced on the remaining convictions to an aggregate term of 7 to 14 

 

1 A jury convicted Appellant of all the above crimes except contempt of 

court. The trial court found Appellant in contempt based on an outburst he 

had in the courtroom after the jury returned its verdicts.
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years of incarceration, to be served consecutively to his sentence for the 

contempt conviction. 

Appellant appealed to this Court, arguing that the trial court erred in 

denying his request for a missing witness instruction after the 

Commonwealth failed to call its confidential informant as a witness. On June 

16, 2014, this Court rejected Appellant’s argument, concluding that the 

confidential informant’s testimony would have been immaterial and 

cumulative and that Appellant had failed to establish prejudice. 

Commonwealth v. Smith, 105 A.3d 33 (Pa. Super. 2014) (unpublished 

memorandum at 5-6). Notwithstanding this conclusion, we vacated 

Appellant’s judgment of sentence with respect to all of his convictions and 

remanded for resentencing on the basis that the flat six-month sentence 

Appellant received for his contempt conviction was illegal. Id. at 6-7.

Upon being resentenced, Appellant filed another appeal to this Court, 

reasserting his argument that the trial court erred in denying Appellant’s 

request for a missing witness instruction. On February 19, 2015, this Court 

again rejected Appellant’s claim, explaining that it was outside the scope of 

this Court’s previous limited remand order and that we would not alter this 

Court’s prior decision on the issue pursuant to the law of the case doctrine. 

Commonwealth v. Smith, 1259 WDA 2014 (Pa. Super. filed February 19, 

2015) (unpublished memorandum at 11-15). Nevertheless, we again 
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vacated Appellant’s judgment of sentence in its entirety and remanded for 

resentencing, concluding that, inter alia, the trial court had failed to comply 

with the “remand instructions to resentence Appellant on all of his 

convictions.” Id. at 7-8, 15 (emphasis in original).

Appellant has since been resentenced,2and he has timely filed a third 

appeal — the one currently before us — challenging the trial court’s denial of 

his request for a missing witness instruction. For the same reasons 

discussed in our February 19, 2015 decision, Appellant is not entitled to 

relief. See Commonwealth v. Smith, 1259 WDA 2014 (Pa. Super. filed 

February 19, 2015) (unpublished memorandum at 11-15). That is, 

Appellant’s issue is outside the scope of both of the previous remand orders 

from this Court, and our June 16, 2014 decision rejecting Appellant’s claim 

remains the law of the case.3 Accordingly, we affirm Appellant’s judgment 

of sentence.

Judgment of sentence affirmed.

 

2 The trial court resentenced Appellant to three to six months of 

incarceration for the contempt conviction and an aggregate 5 1⁄2 to 11 years 

of incarceration for the remaining convictions, to be served concurrently with 

the sentence for the contempt conviction.

3 Again, Appellant has failed to provide any exceptional circumstances 

precluding application of the law of the case doctrine. See Commonwealth 

v. McCandless, 880 A.2d 1262, 1268-69 (Pa. Super. 2005) (en banc) 

(explaining that “the law of the case doctrine might not apply under 

exceptional circumstances”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2015