J-A18035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK ALLEN PRINKEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1380 WDA 2018

Appeal from the PCRA Order Entered August 28, 2018

In the Court of Common Pleas of Bedford County Criminal Division at 

No(s): CP-05-CR-0000242-2007

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

MEMORANDUM BY BOWES, J.: FILED: February 14, 2023

Mark Allen Prinkey appeals from the August 28, 2018 order denying his 

petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”). This 

Court’s original adjudication of this appeal concluded, inter alia, that 

Appellant’s claims of prosecutorial vindictiveness constituted a challenge to 

the discretionary aspects of his sentence pursuant to Commonwealth v. 

Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc), which is not cognizable 

pursuant to the PCRA. See Commonwealth v. Prinkey, 237 A.3d 1083 

(Pa.Super. 2020) (“Prinkey IV”) (non-precedential decision at 4).

Appellant petitioned our Supreme Court for allowance of appeal and it 

granted review limited to a determination of the nature of Appellant’s

vindictiveness claim. Ultimately, the High Court concluded this argument

implicated the sentencing court’s “authority to impose a greater sentence on 

remand” and, consequently, constituted a challenge to the legality of 
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Appellant’s sentence. Commonwealth v. Prinkey, 277 A.3d 554, 568 (Pa. 

2022) (“Prinkey V”). Thus, the High Court found Appellant’s claim of

vindictiveness was properly raised in a PCRA petition, overruling Robinson. 

On remand, the Supreme Court has directed us to consider the merits of 

Appellant’s claim.

1 After careful review, we affirm.

The factual history of this case has been well-summarized, as follows:

In 2007, Appellant placed his hands upon the shoulders of his 

seven-year-old stepdaughter and asked her if she had ever kissed 

a boy. The girl ran away and told her mother, Appellant’s wife, 

that he had attempted to kiss her. Appellant’s wife relayed her 

daughter’s account to law enforcement authorities, prompting an 

investigation. When interrogated by police officers, Appellant

stated that, although he made no actual attempt to do so, other 

sexual acts, such as fellatio, might have followed. Based upon 

these statements, the officers arrested Appellant and charged him 

with attempted involuntary deviate sexual intercourse (“IDSI”)

with a child, attempted indecent assault with a person less than 

thirteen years of age, and corruption of the morals of a minor.

Prinkey V, supra at 556 (cleaned up). Appellant proceeded to a jury trial

before the Honorable Daniel Lee Howsare, wherein he was convicted on all 

charges. 

On September 2, 2008, Appellant’s sentencing took place. During these 

proceedings, Judge Howsare sua sponte questioned the Commonwealth 

concerning its failure to provide notice pursuant to 42 Pa.C.S. § 9718.2(a)(1) 

and (b) (providing for “a minimum sentence of at least twenty-five years of 

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1

 The High Court expressed no opinion on the merits of Appellant’s arguments. 

See Commonwealth v. Prinkey, 277 A.3d 554, 566 (Pa. 2022) (“[O]ur only 

task is identifying the character of [Appellant’s] claim[.]”).
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total confinement” and a maximum sentence of fifty years upon a second 

conviction for certain enumerated sexual crimes).2 See N.T. Sentencing, 

9/2/08, at 59. The Commonwealth confirmed that notice had not been 

provided.3 Id. at 61. Instead, the Commonwealth requested the imposition 

of a sentence of ten and one-half to forty years of incarceration. Id. at 68. 

Ultimately, Judge Howsare imposed ten to twenty-five years of imprisonment

in connection with attempted IDSI and a concurrent term of eighteen to thirtysix months with respect to corruption of a minor. Appellant’s conviction for 

attempted indecent assault merged with attempted IDSI. Thus, Appellant’s 

original sentence was set at ten to twenty-five years of imprisonment.

Appellant filed a direct appeal, wherein this Court found his claims were

waived due to counsel’s failure to comply with Pa.R.A.P. 1925(b). See 

Commonwealth v. Prinkey, 15 A.3d 529 (Pa.Super. 2010) (unpublished 

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2

 In 1998, Appellant was convicted of IDSI in a separate, unrelated case.

3 Specifically, the district attorney for Bedford County averred that it was his 

belief that Appellant’s attempt convictions were not predicate offenses 

pursuant to 42 Pa.C.S. § 9718.2. See N.T. Sentencing, 9/2/08, at 59-61. A 

review of Pennsylvania law, however, reveals that both attempted IDSI and 

attempted indecent assault were (and are) predicate offenses. See 42 Pa.C.S. 

§ 9795.1(a)(2) (expired as of December 20, 2012); 42 Pa.C.S. 

§ 9799.14(b)(6), (b)(22), (d)(4), (d)(14) (effective from December 20, 

2012); see also Commonwealth v. Helsel, 53 A.3d 906 (Pa.Super. 2012) 

(non-precedential decision at 2) (directing the trial court to apply § 9718.2 

following a defendant’s conviction for an attempted predicate sexual offense). 

Indeed, the district attorney expressed he would have pursued § 9718.2 but 

for his erroneous belief concerning attempt crimes. See N.T. Sentencing, 

9/2/08, at 61 (“I mean, I’d love to put this guy in jail for twenty-five years.”). 

The Commonwealth did not repeat or revisit this position in later proceedings.
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memorandum) (“Prinkey I”). Thereafter, Appellant submitted a timely PCRA 

petition arguing, inter alia, that prior counsel was ineffective in failing to 

preserve a challenge to the sufficiency of the Commonwealth’s evidence as to

attempted IDSI. The case was reassigned to the Honorable Thomas S. Ling

for disposition, who concluded the claim lacked merit. On appeal, however,

this Court held there was insufficient evidence presented to demonstrate that 

Appellant took a “substantial step toward engaging in sexual intercourse per 

os or per anus” with the victim. See Commonwealth v. Prinkey, 83 A.3d 

1080 (Pa.Super. 2013) (unpublished memorandum at 5) (“Prinkey II”). 

Thus, we reversed the PCRA court’s order in part, discharged Appellant’s 

attempted IDSI conviction, and remanded for resentencing.

Prior to resentencing, the Commonwealth submitted notice of its intent 

to seek the imposition of the mandatory twenty-five-year minimum sentence 

and fifty-year maximum sentence pursuant to § 9718.2(a)(1) and (b), which 

Appellant challenged. Judge Ling held a hearing, wherein the Commonwealth 

explained it was pursuing the mandatory sentence in light of the reduced 

overall sentence that Appellant could legally receive following the discharge of 

his attempted IDSI conviction. See N.T. Hearing, 2/18/14, at 7-9 (cleaned 

up). Specifically, the Commonwealth expressed its belief that a lengthy

mandatory sentence was necessary due to the nature of Appellant’s 

underlying actions. Id. at 8 (“[T]here’s only one way to keep society safe 

from him and that’s to keep him behind bars.”).
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Ultimately, Judge Ling concluded that he was without discretion to 

refuse to impose § 9718.2 and, thus, he sentenced Appellant to an aggregate 

term of twenty-six and one-half to fifty-three years of imprisonment, i.e., 

more than double Appellant’s original sentence. Id. at 23 (“I believe the law 

says if the Commonwealth serves that mandatory, I am without discretion to 

avoid it.”). Following resentencing, Appellant filed a second direct appeal and 

challenged the Commonwealth’s invocation of § 9718.2 on numerous 

grounds. This Court upheld his judgment of sentence and the imposition of 

§ 9718.2 despite the undisputed fact that the Commonwealth had not sought 

the mandatory sentence at Appellant’s first sentencing. See Commonwealth 

v. Prinkey, 125 A.3d 463 (Pa.Super. 2015) (“Prinkey III”) (unpublished 

memorandum at 3-8), appeal denied, 131 A.3d 491 (Pa. 2016).

On September 28, 2016, Appellant filed a timely pro se PCRA petition. 

Counsel filed an amended petition on Appellant’s behalf asserting, inter alia, 

that his sentence was the product of per se vindictiveness. See Amended 

PCRA Petition, 2/14/17, at ¶ 26 (citing North Carolina v. Pearce, 395 U.S. 

711, 725 (1969)). Ultimately, the PCRA court found this argument lacked 

merit since the Commonwealth’s justification did “not reflect any 

vindictiveness on the part of the Commonwealth[.]” See Memorandum 

Opinion, 8/28/18, at 9. Thus, the PCRA court denied Appellant’s claim due to 

a lack of affirmative evidence of vindictiveness.

On September 24, 2018, Appellant filed a timely notice of appeal. As 

noted above, this Court initially affirmed the PCRA court’s denial of this claim 
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on procedural grounds pursuant to Robinson. See Prinkey IV, supra at 3-

4. However, as noted above, our Supreme Court abrogated this aspect of our

holding and remanded for consideration of the merits of Appellant’s claim of 

per se prosecutorial vindictiveness. See Prinkey V, supra at 568-69.

On remand to this Court, Appellant has framed his argument as follows: 

“Whether the Commonwealth’s decision to seek a mandatory sentence 

pursuant to 42 Pa.C.S. § 9718.2 constituted vindictiveness in resentencing in 

this case for the purposes of [Pearce] and its progeny, and therefore a 

violation of [Appellant’s] constitutional rights?”

4

 Appellant’s brief at 5.

In the context of PCRA appeals, our standard of review is well-settled:

When reviewing the denial of a PCRA petition, an appellate court 

must determine whether the PCRA court’s order is supported by 

the record and free of legal error. Generally, a reviewing court is 

bound by a PCRA court’s credibility determinations and its factfinding, so long as those conclusions are supported by the record. 

However, with regard to a court’s legal conclusions, appellate 

courts apply a de novo standard.

Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (cleaned up).

As noted above, Appellant’s claim for relief in this case concerns Pearce, 

wherein the Supreme Court of the United States held as follows: 

Due process of law . . . requires that vindictiveness against a 

defendant for having successfully attacked his first conviction 

must play no part in the sentence he receives after a new trial. 

And since the fear of such vindictiveness may unconstitutionally 

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4

 The Commonwealth declined to file a brief in this matter on remand. We 

have relied upon the arguments presented in the Commonwealth’s original 

brief, which discussed the applicability of North Carolina v. Pearce, 395 U.S. 

711 (1969) in adequate detail. See Commonwealth’s brief at 12-16.
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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, supra at 725-26. 

At the most basic level, our Supreme Court has distilled the holding in 

Pearce as requiring that “[a] court may not punish an appellant for exercising 

appellate rights.” Commonwealth v. Speight, 854 A.2d 450, 455 (Pa. 

2004). This requirement “has been read to create ‘a presumption of 

vindictiveness, which may be overcome only by objective information in the 

record justifying the increased sentence.” Commonwealth v. Martorano, 

634 A.2d 1063, 1072 (Pa. 1993) (quoting U.S. v. Goodwin, 457 U.S. 368, 

374 (1982)). This Court has also concluded that Pearce applies with equal 

force where, as here, “the original sentence is vacated and a second sentence 

is imposed without an additional trial.” Commonwealth v. Barnes, 167 A.3d 

110, 123 (Pa.Super. 2017) (en banc).

While Pearce dealt with allegations of vindictiveness by a sentencing

court, subsequent holdings have also extended its application to cases of 
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alleged prosecutorial misconduct where, inter alia, “the accused is treated 

more harshly because he has successfully exercised a lawful right[.]” 

Commonwealth v. Rocco, 544 A.2d 496, 498 (Pa.Super. 1988) (citing 

Blackledge v. Perry, 417 U.S. 21, 27 (1974) (“[H]ere the central figure is 

not the judge or the jury, but the prosecutor.”)). Thus, Pennsylvania courts 

have applied the various aspects of Pearce interchangeably with reference to 

allegations of both judicial and prosecutorial vindictiveness. See Barnes, 

supra at 123; Rocco, supra at 498.

However, the Supreme Court of the United States has explained that

“[t]he Pearce requirements . . . do not apply in every case where a convicted 

defendant receives a higher sentence on retrial.” Texas v. McCullough, 457 

U.S. 134, 138 (1986) (emphasis added). In particular, “[w]here, as here, the 

defendant is sentenced . . . by a judge different from the one who imposed 

sentence after the first trial, the presumption of vindictiveness established by 

Pearce does not apply.” Commonwealth v. Tapp, 997 A.2d 1201, 1205 

(Pa.Super. 2010) (citing Commonwealth v. Mikesell, 537 A.2d 1372, 1380-

81, overruled on other grounds, Robinson, supra at 21-22); see also 

Martorano, supra at 1072 (“[T]he presumption is inapposite so long as 

different sentencers assessed the varying punishments.”). In summary:

If the trial court grants a retrial and later a different sentencing 

authority imposes a higher sentence following reconviction, no 

probability of vindictiveness would arise as a legitimate (nonvindictive) explanation is apparent, i.e., different sentencing 

authorities viewed the sentencing factors differently, and the 
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second sentencing authority had no direct relationship to the prior 

sentence which had been set aside.

Rocco, supra at 500 (citing McCullough, supra at 138-39).

Instantly, there is no question that different jurists were responsible for 

the imposition of Appellant’s respective sentences in this case: Judge Howsare 

presided at Appellant’s initial sentencing, while Judge Ling was responsible for 

Appellant’s resentencing. Accordingly, we conclude that the presumption of 

vindictiveness established by Pearce is not applicable here. See, e.g.,

Barnes, supra at 123 (indicating that the principles of Pearce apply with 

equal vigor in the context of either prosecutorial or judicial vindictiveness); 

Rocco, supra at 499 (noting in the context of a claim of prosecutorial 

vindictiveness that the exception noted in McCullough applies and mandates 

a finding of “no probability of vindictiveness” under Pearce when applicable).

In the absence of a presumption of vindictiveness, Appellant “‘must 

affirmatively prove actual vindictiveness.’” Mikesell, supra at 1380 (quoting 

Wasman v. U.S., 468 U.S. 559, 569 (1984)). Under these circumstances, 

he bears “the burdens of production and persuasion on that issue and must 

prove vindictiveness as a matter of fact.” Tapp, supra at 1205.

However, Appellant has advanced no affirmative evidence to establish 

the existence of actual vindictiveness of the Commonwealth in this case and, 

instead, largely relies upon the existence of the Pearce presumption to 

buttress his claim. See Appellant’s brief at 15 (“The circumstances in Pearce 

categorically define the case currently before this Honorable Court.”). Indeed, 
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Appellant eschewed the opportunity to even attempt to cross-examine the

district attorney during the PCRA hearing concerning his motivations for 

seeking the mandatory minimum and, instead, chose to invoke the concept of 

“ipso facto” vindictiveness. See N.T. PCRA Hearing, 4/21/17, at 41-42. Thus, 

Appellant’s arguments rest entirely upon a false assumption that the 

presumption of vindictiveness pursuant to Pearce applies in this case.

Furthermore, we take exception to Appellant’s erroneous suggestion

that the Commonwealth’s pursuit of a mandatory sentence was undertaken 

“without any justification[.]” Appellant’s brief at 11. To the contrary, the 

Commonwealth’s rationale for seeking the imposition of § 9718.2 at 

resentencing is an undisputed matter of record and provides as follows:

[T]he 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, where the judge 

could have sentenced him up to 52 years. . . .

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 
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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. Hearing, 2/19/14, at 6-8. We discern no vindictiveness on the part of 

the Commonwealth. To the contrary, the Commonwealth’s motivations seem 

perfectly in line with the underlying purpose of mandatory sentencing statutes 

like § 9718.2, which are a response to undisputed recidivist offenders like 

Appellant. See Commonwealth v. Helsel, 53 A.3d 906, 913 (Pa.Super. 

2012) (“The generally recognized purpose of such graduated sentencing laws 

[as § 9718.2] is to punish offenses more severely when the defendant has 

exhibited an unwillingness to reform his miscreant ways and to conform his 

life according to the law.”). 

Overall, Appellant has failed to offer any affirmative evidence of 

prosecutorial vindictiveness in this matter. Thus, his claim necessarily fails. 

See Tapp, supra at 1205; Mikesell, supra at 1380-81.

Based on the foregoing, we find no error of law or abuse of discretion in

the PCRA court’s conclusion that Appellant’s claim of vindictiveness lacked 

merit, which is supported by the record and free of legal error. Thus, we 

affirm the PCRA court’s denial of Appellant’s vindictiveness claim.

Order affirmed.

Judge Musmanno did not participate in the consideration or decision of 

this case.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/14/2023