[J-31-2022] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

MARK ALLEN PRINKEY,

Appellant

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No. 23 WAP 2021

Appeal from the Order of the 

Superior Court entered June 25, 

2020 at No. 1380 WDA 2018, 

affirming the Order of the Court of 

Common Pleas of Bedford County 

entered August 28, 2018 at No. CP05-CR-0000242-2007.

SUBMITTED: February 23, 2022

DISSENTING OPINION

JUSTICE MUNDY DECIDED: JUNE 30, 2022

The second time Appellant was sentenced, the set of convictions had changed, 

and the entity alleged to have acted vindictively – here, the prosecution – had to choose 

between a substantially lower sentence or a substantially higher one. In my view, the 

cases in which the Supreme Court has endorsed a presumption of vindictiveness do not 

encompass this situation. And without that presumption, Appellant’s claim – which, 

throughout this litigation, has been that the sentence was per se vindictive1 – cannot be 

deemed an attack on the legality of his sentence so as to avoid the PCRA’s waiver rule. 

See 42 Pa.C.S. §9544(b) (providing an issue is waived if the PCRA petitioner could have 

raised it on direct appeal but failed to do so).

 

1 See Brief in Support of the Defendant’s Petition for Post-Conviction Collateral Relief, at 

4 (filed Aug. 24, 2018); Concise Statement of Matters Complained of on Appeal Pursuant 

to Rule 1925, at Issue 1 (filed Oct. 9, 2018); Commonwealth v. Prinkey, No. CP-05-CR0000242-2007, slip op. at 4 (C.P. Bedford Aug. 28, 2018); Commonwealth v. Prinkey, 

2020 WL 3469698, at *2 (Pa. Super. June 25, 2020).
[J-31-2022] [MO: Wecht, J.] - 2

Prior to the underlying events in this matter, Appellant was convicted in 1998 of 

involuntary deviate sexual intercourse (“IDSI”) as a first-degree felony, see 18 Pa.C.S. 

§ 3123, and he was sentenced to seven-to-twenty years in prison. Shortly after his 

release on parole, Appellant took the seven-year-old victim of the present offense into a 

barn against her will and asked if she had ever kissed a boy. When she answered “no,” 

Appellant got down on his knees and placed his hands on her shoulders. At that point, 

the victim fled the barn and told her sister and mother. Appellant made certain admissions 

to law enforcement concerning his intended actions with the young girl, see Majority 

Opinion, slip op. at 2, and he was ultimately convicted of attempted IDSI with a child, see

18 Pa.C.S. § 3123(b), attempted indecent assault of a person less than 13 years of age, 

see id. § 3126(a)(7), and corruption of minors. See id. § 6301; see also id. §901 (relating 

to criminal attempt).

At Appellant’s first sentencing, as now, the repeat-sex-offender statute directed 

that a person convicted of a Megan’s Law predicate crime for the second time was to be 

sentenced to at least 25-to-50 years in prison. See 42 Pa.C.S. § 9718.2(a) (2006).2 

These offenses included indecent assault and attempted indecent assault, see 42 

Pa.C.S. §9795.1(a)(1), (2) (superseded), as well as IDSI. See id. § 9795.1(b)(2), (3)

(superseded). Because Appellant had previously been convicted of IDSI, he was a twostrike sex offender, thus potentially triggering the mandatory minimum:

Any person who is convicted in any court of this Commonwealth of an 

offense set forth in section 9799.14 (relating to sexual offenses and tier 

system) shall, if at the time of the commission of the current offense the 

person had previously been convicted of an offense set forth in section 

9799.14 . . ., be sentenced to a minimum sentence of at least 25 years of 

total confinement, notwithstanding any other provision of this title or other 

statute to the contrary.

 

2 At that time, the predicate crimes were listed in Section 9751.1 of the Judicial Code, 

which has since been replaced by Section 9799.14.
[J-31-2022] [MO: Wecht, J.] - 3

42 Pa.C.S. §9718.2(a)(1). The “potentially” qualifier is important because, although the 

above provision appears to make the sentence mandatory in all cases, other language 

within Section 9718.2 suggests it is only applicable if the Commonwealth gives notice of 

its intent to proceed under that provision:

(c) Proof at sentencing.--The provisions of this section shall not be an 

element of the crime, and notice thereof to the defendant shall not be 

required prior to conviction, but reasonable notice of the Commonwealth's 

intention to proceed under this section shall be provided after conviction and 

before sentencing. The applicability of this section shall be determined at 

sentencing.

Id. § 9718.2(c) (emphasis added). As this case shows, the emphasized language above 

has been understood to mean that the Commonwealth has discretion whether to invoke 

the provision between conviction and sentencing – and if the Commonwealth does not do 

so, the provision does not apply.

3 Where the Commonwealth does provide such notice, 

however, the sentencing court lacks discretion not to apply it. See id. § 9718.2(d) (“There 

shall be no authority in any court to impose on an offender to which this section is 

applicable any lesser sentence than provided for in subsections (a) and (b) or to place 

the offender on probation or to suspend sentence.”).4

As the majority relates, when Appellant initially proceeded to sentencing on the 

above convictions, the Commonwealth had not provided notice, and thus, the common 

pleas court imposed an aggregate prison sentence of 10-to-25 years. After the most 

serious conviction, attempted IDSI with a child (a first-degree felony), was reversed on 

appeal, two convictions remained: attempted indecent assault, a third-degree felony, and 

corruption of minors, a first-degree misdemeanor. Because the attempted IDSI conviction 

 

3 The Commonwealth does not presently challenge that understanding.

4 Subsection (b) indicates that the defendant is to be sentenced to a maximum of twice 

the mandatory minimum. See id. § 9718.2(b).
[J-31-2022] [MO: Wecht, J.] - 4

was nullified based on evidentiary inadequacy, double-jeopardy principles prevented 

retrial on that count; thus, the Commonwealth recognized it had to proceed to sentencing 

knowing that, absent the mandatory minimum, Appellant would receive a lower sentence 

than before. The Commonwealth perceived the maximum possible sentence at that 

juncture to be seven-to-fourteen years in prison, which was lower than it preferred. Before 

resentencing occurred, therefore, it filed notice of its intent to proceed under Section 

9718.2 so as to invoke the mandatory minimum.

At the resentencing hearing, Appellant expressed his view that imposition of the 

mandatory minimum at that juncture would violate due process because it was not 

imposed the first time and it would result in a longer sentence. The Commonwealth’s

attorney responded by explaining his reasoning as follows:

Your Honor, mandatories are one of those issues that the legislature often 

debates, judges debate them. And I think they’re actually in a lot of circles 

frowned upon, because they take the discretion away from a judge. And 

prosecutors are often chastised for abusing the use of mandatories. So, if 

a prosecutor exercises discretion to not seek a mandatory in a case, and 

then the – because, because the guidelines and the charges seem to

adequately address the defendant’s conduct and history, should the 

prosecutor then be prohibited from seeking that mandatory later on, if the 

sentencing scheme has been disturbed?

In other words, the defendant when he was originally convicted was facing

52 years in prison. Judge Howsare could have sentenced him to 26 to 52 

years in prison. And the Commonwealth made a recommendation close to 

that at the time of the original sentencing. However, we left the discretion 

to the Court to sentence whatever seemed appropriate. And the judge 

sentenced him to 10 years to 25 years . . .. If we’re supposed to exercise 

these mandatories with discretion, and I believe that we do in my office . . . 

– should we then be penalized for not seeking them in the first instance, 

when the circumstances have changed, and changed drastically?

This defendant who was once facing 52 years in jail for the same exact

conduct, is now only facing 14 years in jail for that conduct. In other words, 

the mandatory is so much more necessary than it was in the first instance, 
[J-31-2022] [MO: Wecht, J.] - 5

where the judge could have sentenced him up to 52 years. Quite frankly, 

your Honor, I wish the mandatory was worded so that you had the discretion 

to sentence up to 25 years, but you don’t . . . You either sentence the 50 

years or you don’t, because of the mandatory. . . . To tell you the truth if 

the defendant could be sentenced to the ten to twenty years that he was 

originally sentenced, I think that would be a good sentence. But I can’t 

make that recommendation when the Court can’t impose that sentence[.]

This is a man, who . . . was out of jail for a couple months, a couple months 

before he re-offended. He’s a pedophile. He’s a sexually violent predator. 

. . . He has a sincere interest in having sex with children. That’s what he is 

and there’s only one way to keep society safe from him and that’s to keep 

him behind bars. And that’s why this mandatory is there. So, we had the 

discretion in the instant case to not seek the mandatory and we didn’t. But 

now we think it’s appropriate. It’s all the more important now that the 

offenses are lesser.

N.T., 2/19/14, at 6-8 (some paragraph breaks altered). The court, lacking discretion, 

imposed the mandatory minimum.

At the hearing on the current PCRA petition, the above was incorporated as 

representing the Commonwealth’s reasons for seeking the mandatory minimum. See

N.T., 4/21/17, at 30-31. A different attorney was representing the Commonwealth at that 

time, and the PCRA court offered to continue the hearing so Appellant could call the 

prosecutor who made the above remarks as a witness and examine him further as to his 

reasoning. See id. at 41. This opportunity may have been of assistance to Appellant 

because, even where no presumption of vindictiveness is found to exist, a defendant can 

obtain relief by showing actual vindictiveness in his resentencing. See Texas v. 

McCullough, 475 U.S. 134, 139 (1976). However, Appellant declined the court’s offer, 

opting instead to rely on presumed vindictiveness arising from the increased sentence, 

which he referred to as “ipso facto” vindictiveness. N.T., 4/21/17, at 42.

After denying the PCRA petition, the common pleas court issued an explanatory 

opinion in which it quoted the February 2014 reasoning of the prosecutor (above) and 
[J-31-2022] [MO: Wecht, J.] - 6

concluded it did not reflect vindictiveness. See Commonwealth v. Prinkey, No. CP-05-

CR-0000242-2007, slip op. at 9 (C.P. Bedford Aug. 28, 2018).

As the majority recognizes, North Carolina v. Pearce, 395 U.S. 711 (1969), dealt 

with a situation where a defendant was granted a new trial on appeal, was reconvicted

on the same offense, and was then resentenced to a longer term of incarceration after 

the second conviction. The Supreme Court recognized that the trial judge

is not constitutionally precluded . . . from imposing a new sentence, whether 

greater or less than the original sentence, in the light of events subsequent 

to the first trial that may have thrown new light upon the defendant’s life, 

health, habits, conduct, and mental and moral propensities. Such 

information may come to the judge’s attention from evidence adduced at 

the second trial itself, from a new presentence investigation, from the 

defendant's prison record, or possibly from other sources.

Id. at 723 (internal quotation marks and citation omitted). Nevertheless, the Court 

observed the Fourteenth Amendment’s Due Process Clause bars imposition of a harsher 

sentence if its purpose is to punish the defendant for exercising his appellate rights or to 

deter other defendants from doing so. See id. at 725 (“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.”). As a 

prophylactic rule “to assure the absence of such a motivation,” the Court held 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.

Id. at 726.

This holding was subsequently limited in Alabama v. Smith, 490 U.S. 794 (1989), 

where the Court ruled that no presumption of vindictiveness arises from a longer sentence 

imposed after a trial than after a guilty plea that has been vacated on appeal. The Court 
[J-31-2022] [MO: Wecht, J.] - 7

articulated several reasons, including that a trial can bring to light new information about 

the defendant’s conduct in committing the crime that was not available in the context of a 

plea hearing. See id. at 801. The Court contrasted that situation with the one in Pearce, 

where the sentencing judge ordinarily “operate[s] in the context of roughly the same 

sentencing considerations after the second trial as he does after the first,” and hence, an 

unexplained increase in the sentence is presumed to be vindictive. Id. at 802.

Post-Pearce, the Supreme Court has never expanded upon the circumstances in 

which a presumption of vindictiveness will arise. See generally Plumley v. Austin, 574 

U.S. 1127 (2015) (Thomas, J., dissenting from denial of certiorari) (describing the Pearce

presumption as “an anomaly in our law”). It has, however, clarified such a presumption 

does not come about by virtue of a longer sentence alone, but only in scenarios where 

there is a “reasonable likelihood that the increase in sentence is the product of actual 

vindictiveness by the sentencing authority.” Smith, 490 U.S. at 799 (internal quotation 

marks and citation omitted). Thus, in Colten v. Kentucky, 407 U.S. 104, 116-19 (1972), 

the Court determined there is no presumption of vindictiveness when a defendant 

receives a longer sentence after a trial de novo in a general criminal court after appealing 

a conviction from an inferior court; Chaffin v. Stynchcombe, 412 U.S. 17 (1973), held no 

such presumption arose where a second jury, which was not aware of the 15-year 

sentence meted out by the first jury, imposed a life sentence after a trial eliciting roughly 

the same facts; and in Texas v. McCullough, 475 U.S. 134, 138-39 (1986), the Court 

found no presumption of vindictiveness where initially the jury sentenced the defendant 

to 20 years, his request for a new trial was granted, and the judge after the retrial 

sentenced him to 50 years. In that matter, the sentencing judge expressed that the 

harsher sentence was based on new information which came to light at the second trial 

about the defendant’s role in the crime and his then-recent release from prison.
[J-31-2022] [MO: Wecht, J.] - 8

These cases all involved assertions of vindictiveness in sentencing as opposed to 

prosecutorial vindictiveness, which was claimed in Bordenkircher v. Hayes, 434 U.S. 357 

(1978), where the defendant argued (unsuccessfully) that his due process rights were 

violated when the prosecutor filed additional, more serious, charges after he refused to 

plead guilty to a lower charge.5 And ordinarily, challenges to longer sentences on the 

same or fewer charges are couched in terms of “vindictive sentencing” or “judicial

vindictiveness.” See, e.g., McCullough, 475 U.S. 134 at 139; id. at 144 (Brennan, J., 

concurring); Colten, 407 U.S. at 116. Here, however, although we are dealing with 

sentencing, the focus is on prosecutorial vindictiveness because the prosecution invoked 

its statutory authority to eliminate the court’s sentencing discretion by filing notice of its 

intent to proceed under the mandatory-minimum provision. See Majority Opinion, slip op. 

at 18 (expressing that the Commonwealth “stripped the sentencing court of its traditional 

discretionary power over sentencing”). Regardless, the two topics – prosecutorial and 

judicial vindictiveness – have been addressed almost interchangeably by the Supreme 

Court insofar as due process is concerned. Accordingly, the contours of the Court’s 

vindictiveness jurisprudence as it has developed in the context of judicial sentencing 

applies equally to the present prosecutorial sentencing decision.

Notably, the Supreme Court’s decisions do not directly address a situation in which 

the defendant is sentenced, at the second hearing, on a different set of offenses than at 

the first hearing. Here, as the majority develops, one of several convictions was vacated 

on appeal and Appellant was resentenced on the remaining counts.

 

5 See also United States v. Goodwin, 457 U.S. 368 (1982) (finding no presumption of 

vindictive charging arose where additional indictments were sought after the defendant 

exercised his right to a jury trial instead of pleading guilty). But cf. Blackledge v. Perry, 

417 U.S. 21 (1974) (finding vindictiveness likely where a convicted misdemeanant asserts 

his right to a trial de novo and the prosecutor responds by increasing the charges against 

him).
[J-31-2022] [MO: Wecht, J.] - 9

There has been debate among appellate tribunals about whether the same

sentence is permissible on remand on the theory that the resentencing court has 

discretion to increase the sentence for some of the individual remaining counts. Most 

reviewing courts have determined this may occur without raising a presumption of 

vindictiveness under the “aggregate package” theory. The concept is that the original 

sentencing structure has been disrupted and the resentencing judge has discretion to 

enlarge some of the individual sentences in light of that new reality. Under the aggregate 

package approach, “the trial court may reconstruct the sentence in any way necessary to 

ensure that the punishment fits both the crime and the defendant, as long as the final 

sentence does not exceed the original sentence.” State v. Wade, 998 A.2d 1114, 1121 

(Conn. 2010) (internal quotation marks and brackets omitted)).

[W]hen a defendant is found guilty on a multicount indictment, there is a 

strong likelihood that the . . . court will craft a disposition in which the 

sentences on the various counts form part of an overall plan. When the 

conviction on one or more of the component counts is vacated, common 

sense dictates that the judge should be free to review the efficacy of what 

remains in light of the original plan, and to reconstruct the sentencing 

architecture . . . within applicable constitutional and statutory limits, if that 

appears necessary in order to ensure that the punishment still fits both 

crime and criminal.

State v. Johnson, 111 A.3d 447, 451 (Conn. 2014) (cleaned up).

United States v. Fowler, 749 F.3d 1010 (11th Cir. 2014), illustrates the point. The 

defendant was convicted of witness tampering and using a firearm during a crime of 

violence – both charges stemming from his murder of a police officer – and he was 

originally sentenced to life imprisonment on the witness-tampering conviction with a 

consecutive ten-year sentence on the firearm charge. After he successfully challenged 

the witness tampering conviction on direct appeal, he was resentenced to life 

imprisonment on the firearm count. The sentencing court explained its original sentence 
[J-31-2022] [MO: Wecht, J.] - 10

“was obviously a package” and it never would have imposed a ten-year sentence on the 

firearm charge alone. The appellate court held, under the aggregate package theory, that

no presumption of vindictiveness arose because the guidelines range recommended a 

life sentence under the circumstances and the sentencing court’s package-sentence 

explanation adequately supported the penalty.

6

Johnson and Fowler demonstrate that, per the aggregate package theory, a 

greater penalty on resentencing for a given individual count does not necessarily lead to 

a presumption of vindictiveness. As I read the present record, the logic underlying the 

aggregate package theory explains how the new sentence in this case came about. The 

Commonwealth was concerned about the overall sentencing “package” as a legitimate 

response to Appellant’s criminal conduct. If the Commonwealth could have obtained the 

same or a similar sentence as it did originally, it would have been satisfied with that. See

N.T., 2/19/14, at 7 (reflecting the prosecutor’s statement to the court that “I wish the 

mandatory was worded so that you had the discretion to sentence up to 25 years, but you 

don’t . . . if the defendant could be sentenced to the ten to twenty years that he was 

originally sentenced, I think that would be a good sentence”). The Commonwealth was 

unable to obtain that sentence, and hence, unlike in Pearce and Blackledge, the 

government was put to a choice between a much lower or much higher sentence. This 

does not strike me as the type of scenario in which it is so likely that the prosecution’s 

 

6

In addition to most federal appellate courts, a number of state courts have adopted the 

aggregate package approach. See State v. Wade, 998 A.2d 1114, 1127 (Conn. 2010); 

State v. Febuary, 396 P.3d 894, 905-06 (Ore. 2017); see also Twigg v. State, 133 A.3d 

1125, 1142 (Md. 2016) (listing reported state appellate court decisions, as well as federal 

decisions). But see, e.g., United States v. Weingarten, 713 F.3d 704, 711 (2d Cir. 2013)

(using the “remainder aggregate” or “count-by-count” approach, under which appellate 

courts compare the original aggregate sentence on the non-reversed counts on appeal 

with the original sentence on those same counts before appeal). See generally States v. 

Campbell, 106 F.3d 64, 67-68 (5th Cir. 1997) (surveying cases and describing the two 

approaches).
[J-31-2022] [MO: Wecht, J.] - 11

selection of the higher of the two available sentences is motivated by a vindictive purpose 

that a presumption must be imputed by operation of law. It may be observed that the 

Supreme Court’s jurisprudence in this arena has been developed based on whether the 

scenario at hand is one that, as a general matter, lends itself to a likelihood that 

vindictiveness is at the base of the government’s actions:

Motives are complex and difficult to prove. As a result, in certain cases in 

which action detrimental to the defendant has been taken after the exercise 

of a legal right, the Court has found it necessary to “presume” an improper 

vindictive motive. Given the severity of such a presumption, however –

which may operate in the absence of any proof of an improper motive and 

thus may block a legitimate response to criminal conduct – the Court has 

done so only in cases in which a reasonable likelihood of vindictiveness 

exists.

Goodwin, 457 U.S. at 373. As noted, I do not see the present scenario as one “in which 

a reasonable likelihood of vindictiveness exists.” I would therefore find that Appellant’s 

claim is not governed by Pearce – and, as such, that his contention does not sound in 

sentence illegality so as to avoid the PCRA’s waiver directive.

Alternatively, to the extent an explanation is needed to rebut a presumption of 

vindictiveness, see McCullough, 475 U.S. at 980 (observing that, even where such a 

presumption applies, a rational explanation stated on the record can overcome it); 

Wasman v. United States, 468 U.S. 559, 569-70 (1984) (finding the Pearce presumption 

applied but the judge’s explanation rebutted it), the Commonwealth expressed at the time 

of resentencing that it wanted to avoid a result it found unpalatable, namely, that Appellant 

would be given a sentence significantly lower than that which, in the Commonwealth’s 

judgment, was needed to protect the public.

7

 That being the case, the Commonwealth’s 

reasons do “affirmatively appear” as required by Pearce. I agree with the PCRA court’s 

 

7 Whether we agree with the Commonwealth’s judgment in this respect is immaterial. The 

question under the Pearce rule concerns the Commonwealth’s reasons for seeking a 

higher sentence, not whether that sentence was actually necessary to protect the public.
[J-31-2022] [MO: Wecht, J.] - 12

conclusion that the Commonwealth’s reasoning did not reflect vindictiveness, as there is 

no suggestion the Commonwealth was motivated by a desire to penalize Appellant for 

exercising his appellate rights or to chill others from doing so – which is all the Due 

Process Clause forbids in this context. See Goodwin, 457 U.S. at 372 n.4; Smith, 490 

U.S. at 798. As noted, moreover, Appellant declined the opportunity the court gave him 

to cross-examine the original prosecuting attorney further on the topic. See supra note 

1.

The majority criticizes the above analysis, stating it is beyond the scope of this 

appeal to determine whether the illegal-sentencing claim is meritorious. See Majority Op. 

at 22 n.24. I would note, however, this Court has never held that a mere allegation that 

one’s sentence is illegal is alone sufficient to avoid waiver. Rather, the illegal-sentence 

claim must at least be potentially meritorious. As previously explained, because there is 

no evidence in the record of actual vindictiveness, Appellant’s claim must fall within the 

scope of the Pearce line of cases to raise a presumption of vindictiveness. Without that 

presumption, Appellant’s proposition that his sentence was illegal does not even have 

potential merit, a circumstance that distinguishes this case from those in which this Court 

has indicated that, if the PCRA petitioner’s claim is correct, then the sentence was illegal. 

See id. (citing, inter alia, Commonwealth v. Moore, 247 A.3d 990, 997 (Pa. 2021)). Thus, 

my position is based on the claim’s classification, not its ultimate merit.

If, for example, a PCRA petitioner stated, without any proof, that a lower sentence 

imposed at resentencing was motivated by vindictiveness (which if true would render the 

sentence illegal),

8

that type of claim would likewise fail to trigger Pearce’s prophylactic 

rule. As such, it would not escape waiver. The only way to understand the distinction 

between that scenario and the present one is that the majority is effectively holding that 

 

8 This could occur if the defendant believed the second sentence, although lower than the 

original, was not sufficiently lower.
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the present claim either (a) falls within the scope of the existing Pearce rule, or (b) falls 

within the scope of an expansion of the Pearce presumption beyond the limits thus far 

recognized by the Supreme Court.

9

 I have already explained why I believe the first of 

these options is false. As for the second, I acknowledge this Court has concurrent 

jurisdiction with the federal courts to interpret federal law in new situations. However, if 

the Court is indeed rendering an independent interpretation of the Due Process Clause

of the Fourteenth Amendment, first, I believe it should say so, and second, I would refrain 

from expanding the Pearce rule absent an issue framed for our review which is more 

closely tailored to that question, together with advocacy directly targeted to it.

Finally, even accepting the majority’s conclusion the Pearce presumption applies 

in the current scenario, it is worth asking the purpose of the remand. As developed above, 

the prosecutor stated on the record his reasons for seeking a mandatory minimum 

 

9 From my perspective, the only alternative to these two possibilities is that the majority’s 

holding is that a bare allegation of vindictiveness is sufficient in all circumstances to 

overcome waiver and invoke merits review. However, that would make application of the 

PCRA’s waiver directive depend on the use of “magic words,” which is generally 

disfavored in our jurisprudence. See, e.g., Commonwealth v. Collins, 957 A.2d 237, 259 

(Pa. 2008) (observing that the “mere incantation of magic words of counsel 

ineffectiveness is insufficient to overcome waiver”) (quoting Commonwealth v. 

Washington, 927 A.2d 586, 609 (Pa. 2007)).

By way of rejoinder, the majority clarifies it agrees this situation falls outside those 

previously recognized by the Supreme Court as giving rise to a presumption of 

vindictiveness. It indicates Appellant is nonetheless entitled to merits review because, 

“[u]nder the law that binds us,” he “presents a colorable argument that he is entitled to the 

presumption of vindictiveness,” Majority Op. at 22 n.24, that is, a colorable argument the 

Pearce rule should be extended to this situation. But if an extension of that rule is 

necessary for a presumption of vindictiveness to apply, it is difficult to see how the claim 

can have potential merit under the law that currently binds us. And if we do not know

whether Appellant’s vindictiveness claim is valid, see id. (“We are not tasked with 

assessing the accuracy of [Appellant’s] vindictiveness claim at this juncture.”), it is difficult 

to discern a basis on which to direct the Superior Court to overlook waiver, see id. 

(remanding for the Superior Court to consider the merits of Appellant’s Pearce claim).
[J-31-2022] [MO: Wecht, J.] - 14

sentence, Appellant declined the opportunity to expand the factual record associated with 

his resentencing, and the PCRA court determined the new sentence was not motivated 

by vindictiveness. Although the question this Court accepted for review was limited in 

scope, we need not ignore the record in deciding how to rule. The majority’s mandate 

expressly leaves open the possibility of an evidentiary hearing on remand. See Majority 

Op. at 22-23 (“If the Superior Court concludes that the PCRA court’s factual 

determinations are insufficient to permit a decision on the merits, the Superior Court shall 

remand the matter to the PCRA court to address further Prinkey’s challenge to the legality 

of his sentence under Pearce.”). If the PCRA court had denied an evidentiary hearing on 

the factual issue of whether Appellant’s higher sentence was motivated by vindictiveness 

based on the view that that fact was immaterial to Appellant’s entitlement to relief, a new 

evidentiary hearing might be appropriate. But that did not happen. Approving a potential 

hearing in the PCRA court at this juncture improperly gives Appellant a second bite at the 

evidentiary apple.

As I would affirm the order of the Superior Court, I respectfully dissent.

Justice Brobson joins this dissenting opinion.