J-S01017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONALD ANTHONY BURKHART JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 810 MDA 2021

Appeal from the PCRA Order Entered May 20, 2021

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

No(s): CP-36-CR-0007022-2018

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 29, 2022

Appellant Donald Anthony Burkhart Jr. appeals pro se from the order 

dismissing his timely first Post Conviction Relief Act1 (PCRA) petition. 

Appellant raises numerous claims of ineffective assistance of trial, direct 

appeal, and PCRA counsel. Appellant also challenges the constitutionality of 

the terroristic threats statute, the weight and sufficiency of the evidence, and 

the legality of his sentence. Additionally, Appellant has filed three applications 

for relief. We affirm the PCRA court’s order and deny Appellant’s applications 

for relief. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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A previous panel of this Court summarized the underlying facts of this 

matter as follows:

On June 7, 2019, [Appellant] was found guilty of one count each 

of terroristic threats graded as a felony of the third degree and 

terroristic threats graded as a misdemeanor of the first degree. 

The convictions relate to multiple threats [Appellant] made to 

certain staff at UPMC [Pinnacle] Lititz hospital throughout the day 

on November 20, 2018. [Appellant] was at the hospital that day 

with his partner for the delivery of his child by means of a 

scheduled cesarean section. [Appellant] first manifested his anger 

to Dr. Jill Satorie and to his partner in the operating room when 

he claimed a male anesthesiologist saw his partner’s “butt crack.” 

After the delivery, [Appellant’s] agitated demeanor continued to 

escalate[,] with [Appellant] and his partner continually arguing 

with each other, [Appellant] discouraging an examination of his 

partner that was recommended, threatening Dr. Satorie that his 

partner might kick her and hurt her if the examination were 

performed, [Appellant’s] asking Nurse Dana Mastromatteo when 

they could perform a paternity test on the baby, explaining that 

he wanted to know if the baby was a miracle or “something else” 

because [Appellant] had a vasectomy[,] and [Appellant’s] 

becoming agitated [and] confrontational about wanting to bring 

his pit bull into the hospital room.

Later, when a decision was made to move the baby to the NICU 

due to respiratory issues and the atmosphere in the room, 

[Appellant] became particularly agitated and stated that he felt 

like the hospital was kidnapping the baby. When a clinical nurse 

manager, Eliza Zeidman, came to speak with [Appellant] about 

the transfer of the baby, [Appellant] pointedly told her that he had 

previously done time in jail and was not going to go back and then 

he asked if she understood what he was saying. Nurse Zeidman 

reported the threat to her boss who she believe[d] reported it to 

security. [Appellant] was overheard on two other occasions 

making similar statements about his time in jail over his temper 

to a visitor and then a house supervisor.

[Appellant’s] anger seemed to peak over hospital staff refusing to 

permit his partner to smoke in the room or to go outside to smoke. 

He threatened Dr. Satorie that if anyone laid a hand on his partner 

when she attempted to go outside to smoke he would become 

angry, punch the wall in and hurt somebody. He informed both 
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Dr. Satorie and Nurse Mastromatteo separately when discussing 

the smoking issue that he was the president of a motorcycle gang 

and that he would have that gang come to the hospital and make 

things ugly[,] like he did on a prior occasion at a hospital in 

Williamsport. In response to this final, specific threat, Dr. Satorie 

and Nurse Mastromatteo contacted hospital administration[,] 

which resulted in security and police being contacted and

responding. Due to the nature of the threats concerning the 

motorcycle gang, a decision was made to put the hospital into a 

lockdown situation. [Appellant] was arrested and the hospital 

remained in lockdown from approximately 6:00 p.m. on 

November 20, 201[8,] until sometime between 6:30 a.m. and 

8:00 a.m. on November 21, 201[8].

[Following a three day jury trial, Appellant was convicted of two 

counts of terroristic threats, one graded as a felony of the third 

degree and the other graded as a misdemeanor of the second 

degree.] After completion of a [pre-sentence investigation 

report], [Appellant] was sentenced on August 26, 2019 to three 

to seven years of incarceration [in a state correctional institution] 

on the felony count of terroristic threats and a concurrent one to 

five years of incarceration on the misdemeanor count of terroristic 

threats. Appellant] filed a post[-]sentence motion on September 

4, 2019, which was denied by Order dated October 25, 2019. 

[Appellant] filed a [timely] notice of appeal on November 22, 

2019.

Commonwealth v. Burkhart, 1916 MDA 2019, 2020 WL 6778766, at *1-2 

(Pa. Super. filed Nov. 18, 2020) (unpublished mem.) (citation and footnote 

omitted). We add that the trial court found that Appellant was ineligible for 

the Recidivism Risk Reduction Incentive2 (RRRI) program based on his prior 

convictions. See N.T. Sentencing Hr’g, 8/26/19, at 18. 

On direct appeal, this Court affirmed Appellant’s judgment of sentence 

in part, and reversed it in part. Specifically, this Court vacated Appellant’s 

____________________________________________

2 61 Pa.C.S. §§ 4501-4512.
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sentence for the misdemeanor count of terroristic threats, concluding that it 

should have merged with Appellant’s concurrent sentence for the felony 

count.

3

 Burkhart, 2020 WL 6778766 at *7. Appellant did not file a petition 

for allowance of appeal with our Supreme Court. 

On February 8, 2021, Appellant filed a timely pro se PCRA petition, 

asserting that both his trial and appellate counsel had been ineffective, and 

raising other claims of trial court error. Pro Se PCRA Pet., 2/8/21, at 1-5. The 

PCRA court subsequently appointed Christopher P. Lyden, Esq. (PCRA counsel) 

to represent Appellant.4 On April 28, 2021, PCRA counsel filed a 

Turner/Finley5 no-merit letter and a motion for leave to withdraw. 

Subsequently, on April 30, 2021, the PCRA court filed its notice of intent to 

dismiss Appellant’s PCRA petition without hearing pursuant to Pa.R.Crim.P. 

907 and granted PCRA counsel’s motion to withdraw. Appellant filed, among 

____________________________________________

3 This Court also vacated the conditions of Appellant’s sentence insofar as the 

trial court was ordering mandatory conditions on Appellant’s state parole

instead of making recommendations to the Pennsylvania Board of Probation 

and Parole (Parole Board). See Burkhart, 2020 WL 6778766 at *8. 

4 After PCRA counsel was appointed, Appellant filed multiple pro se pleadings 

with the PCRA court. The clerk of court accepted these pleadings for filing, 

time stamped them, docketed them with the date of receipt, placed them in 

the record, and forwarded copies to PCRA counsel and the Commonwealth. 

See Pa.R.Crim.P. 576(A)(4). 

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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others, a pro se motion to proceed pro se on May 6, 2021, and a pro se

response to the Rule 907 notice on May 19, 2021. 

On May 20, 2021, the PCRA court dismissed Appellant’s PCRA petition. 

Appellant filed a timely notice of appeal and a timely court-ordered Pa.R.A.P. 

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing 

Appellant’s issues. 

On November 29, 2021, Appellant filed an application for relief with this 

Court seeking immediate parole if this Court were to grant Appellant a new 

trial. App. for Relief, 11/29/21, at 2. This Court denied that application 

without prejudice to Appellant’s ability to seek relief in the appropriate forum 

on December 9, 2021. Subsequently, on December 13, 2021, Appellant filed 

a second application for relief, in which he requested that this Court vacate

his judgment of sentence, hold PCRA counsel in contempt, hold a 

Commonwealth witness in contempt, and admonish the trial court and the 

Commonwealth for purportedly violating the Rules of Criminal Procedure and 

Evidence during Appellant’s trial. App. for Relief, 12/13/21, at 1-3. On 

December 14, 2021, this Court denied Appellant’s second application for relief 

without prejudice to raise any properly preserved issues with the merits panel. 

On December 28, 2021, Appellant filed a third application for relief, in 

which he requested that this Court grant his November 29, 2021 and 

December 13, 2021 applications. App. for Relief, 12/28/21. On January 19, 

2022, Appellant filed a fourth application for relief. Therein, Appellant 

requested that this Court reverse his judgment of sentence and grant him a 
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new trial, order his immediate parole, hold PCRA counsel in contempt, and 

hold the Commonwealth’s witnesses in contempt. App. for Relief, 1/19/22, at 

1-11. Appellant filed his fifth application for relief on March 4, 2022. In that 

application, Appellant summarized the arguments raised in his brief and 

requested that this Court grant him a new trial, or in the alternative, vacate 

his judgment of sentence. App. for Relief, 3/4/22, at 1a-13. 

Appellant raises numerous issues on appeal,6including (1) ineffective 

assistance by trial, appellate, and PCRA counsel; (2) violations of his due 

process rights; (3) prosecutorial misconduct by the Commonwealth; (4) the 

weight and the sufficiency of the evidence; (5) the constitutionality of the 

terroristic threats statute, and (6) his eligibility for a RRRI sentence. See

Appellant’s Brief at 1-22. 

As a preliminary matter, we consider whether Appellant’s brief 

substantially complies with the briefing requirements set forth in the 

Pennsylvania Rules of Appellate Procedure, which we may address sua sponte. 

See Pa.R.A.P. 2114-2119 (explaining the specific requirements for each 

section of an appellate brief); see also Commonwealth v. Wholaver, 903 

____________________________________________

6 As explained below, Appellant’s brief does not include a statement of 

questions involved. Therefore, we have summarized Appellant’s issues as 

they are presented in the argument section of his brief. We have combined 

Appellant’s tenth, eleventh, and twelfth claims regarding sufficiency of the 

evidence regarding the intent to terrorize another. See Appellant’s Brief at 

14-22. 
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A.2d 1178, 1184 (Pa. 2006) (holding that an appellate court may find waiver

sua sponte). 

When briefing the various issues that have been preserved, it is 

an appellant’s duty to present arguments that are sufficiently 

developed for our review. The brief must support the claims with 

pertinent discussion, with references to the record and with 

citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c). 

Citations to authorities must articulate the principles for which 

they are cited. Pa.R.A.P. 2119(b). 

This Court will not act as counsel and will not develop arguments 

on behalf of an appellant. Moreover, when defects in a brief 

impede our ability to conduct meaningful appellate review, we 

may dismiss the appeal entirely or find certain issues to be 

waived. Pa.R.A.P. 2101.

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2012) (some 

citations omitted); see also Commonwealth v. Dowling, 778 A.2d 683, 686 

(Pa. Super. 2001) (stating that “[w]hen a court has to guess what issues an 

appellant is appealing, that is not enough for meaningful review” (citations

omitted)). 

Further, “our appellate rules do not allow incorporation by reference of 

arguments contained in briefs filed with other tribunals, or briefs attached as 

appendices, as a substitute for the proper presentation of arguments in the 

body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343 

(Pa. 2011). Our Supreme Court has held that when an appellant attempts to 

present issues by incorporating by reference another document into his brief, 

those issues are waived. Id. 
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“Although this Court is willing to liberally construe materials filed by a 

pro se litigant, pro se status confers no special benefit upon the appellant.” 

Commonwealth v. Vurimindi, 200 A.3d 1031, 1037-38 (Pa. Super. 2018) 

(citation omitted). Also, this Court has explained that “it is not the 

responsibility of this Court to scour the record to prove that an appellant has 

raised an issue before the [PCRA] court, thereby preserving it for appellate 

review.” Commonwealth v. Baker, 963 A.2d 495, 502 n.6 (Pa. Super. 

2008) (citations omitted). Lastly, “boilerplate allegations and bald assertions 

. . . cannot satisfy [an appellant’s] burden to prove that counsel was 

ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011). 

Here, Appellant’s brief does not contain a statement of questions 

presented or a statement of the case indicating where Appellant raised his 

instant claims before the PCRA court. See Pa.R.A.P. 2116, 2117(c). Likewise, 

the argument section of Appellant’s brief does not specifically state where he 

preserved his issues before the PCRA court. See Pa.R.A.P. 2119(e). Instead, 

Appellant broadly asserts that he raised his issues in his various pro se

pleadings, which does not substantially comply with our Rules of Appellate 

Procedure. See Pa.R.A.P. 2117(c), 2119(e); see also Baker, 963 A.2d at 

502 n.6 (explaining that “it is not the responsibility of this Court to scour the 

record” to determine if an appellant has preserved an issue for appellate 

review (citations omitted)). 

In the argument section of his brief, Appellant presents bald assertions 

concerning ineffective assistance of counsel and errors by both the trial court 
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and PCRA court. See Paddy, 15 A.3d at 443 (stating that “boilerplate 

allegations and bald assertions . . . cannot satisfy a petitioner’s burden to 

prove that counsel was ineffective”). Although Appellant has cited legal 

authorities, he has failed to develop his claims with pertinent discussion of 

those authorities. See Pa.R.A.P. 2119(a); Hardy, 918 A.2d at 771. 

Additionally, while Appellant describes alleged errors that occurred at trial, he 

does not provide any citations to the record. See Pa.R.A.P. 2119(c); Hardy, 

918 A.2d at 771. 

Finally, we note that Appellant has filed eight addendums to his brief, 

some of which contain additional argument, copies of the pro se pleadings he 

filed with the PCRA court, or exhibits. Several times in his brief, Appellant 

refers this Court to these addendums for a further discussion of the issues

presented in his brief. See, e.g., Appellant’s Brief at 1 (explaining that 

Appellant’s claims of ineffective assistance of counsel are “raised briefly here, 

but with more detail within the attached ‘Addendum A’, please review”). 

Appellant’s use of these addendums to supplement his brief violates our 

Supreme Court’s prohibition against incorporating by reference additional 

documents into an appellate brief. See Briggs, 12 A.3d at 343.

Under these circumstances, we must conclude that Appellant has waived 

his challenges to the trial court’s evidentiary rulings, the weight and 

sufficiency of the evidence, the constitutionality of the terroristic threats 

statute, and his claims of ineffective assistance of counsel. Therefore, he is 
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not entitled to relief on these issues.7 See Pa.R.A.P. 2116, 2117, 2119; 

Briggs, 12 A.3d at 343; Hardy, 918 A.2d at 771. 

However, to the extent Appellant argues that the PCRA court 

erroneously found him ineligible for the RRRI program, see Appellant’s Brief 

at 5, that claim goes to the legality of Appellant’s sentence. See 

Commonwealth v. Finnecy, 249 A.3d 903, 912 (Pa. 2021) (stating that a 

claim that the trial court failed to impose a RRRI sentence on an eligible 

defendant implicates the legality of the sentence); see also Commonwealth 

v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017)). Therefore, we will address the 

merits of that issue on appeal. See Finnecy, 249 A.3d at 908 (explaining 

that a challenge to the legality of an RRRI sentence cannot be waived). 

____________________________________________

7 The PCRA court suggested that remand may be necessary for the PCRA court 

to consider Appellant’s claims of ineffectiveness by PCRA counsel. See PCRA 

Ct. Op., 7/21/21, at 1-2, 6-7 (citing Commonwealth v. Betts, 240 A.3d 616 

(Pa. Super. 2020)). However, our review of Appellant’s pro se motion to 

proceed pro se and response to the Rule 907 notice confirms that Appellant 

did not raise any claims of ineffective assistance by PCRA counsel before the 

PCRA court. Regardless, after this Court announced its decision in Betts, our 

Supreme Court has held that a PCRA petitioner may “raise claims of PCRA 

counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.” 

Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (footnote 

omitted). 

Appellant has raised claims of PCRA counsel’s ineffectiveness for the first time 

on appeal, however, for the reasons stated above, Appellant has not 

developed his claims to the point where it is necessary to remand the matter 

to the PCRA court for consideration of his claims. Cf. Bradley, 261 A.3d at 

402 (explaining that “to advance a request for remand [for further 

development of the record, an appellant] would be required to provide more 

than mere boilerplate assertions of PCRA counsel’s ineffectiveness” (citation 

and quotation marks omitted)). 
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“Issues involving statutory interpretation like [RRRI eligibility] implicate 

questions of law, for which our standard of review is de novo and our scope 

of review is plenary.” Id. at 913 (citations omitted). We may affirm the PCRA

court on any grounds. See Commonwealth v. Wiley, 966 A.2d 1153, 1157 

(Pa. Super. 2009) (stating this Court “may affirm the decision of the PCRA 

court if there is any basis on the record to support the PCRA court’s action; 

this is so even if we rely on a different basis in our decision to affirm” (citation 

omitted and formatting altered)). 

“The [RRRI] Act is intended to encourage eligible offenders to complete 

Department of Corrections programs that are designed to reduce recidivism.

Eligible offenders may also be able to take advantage of a reduced sentence.” 

Cullen-Doyle, 164 A.3d at 1240 (citations omitted). The RRRI Act requires 

the trial court to determine at the time of sentencing whether the defendant 

is an “eligible offender.” 61 Pa.C.S. § 4505(a); see also 42 Pa.C.S. § 

9756(b.1) (requiring the sentencing court to impose a RRRI minimum 

sentence when the defendant is eligible for one). 

Section 4503, in relevant part, defines the persons eligible for RRRI as 

follows:

A defendant or inmate convicted of a criminal offense who will be 

committed to the custody of the [D]epartment [of Corrections] 

and who meets all of the following eligibility requirements: 

(1) Does not demonstrate a history of present or past violent 

behavior.

* * *
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(3) Has not been found guilty of or previously convicted of or 

adjudicated delinquent for or criminal attempt, criminal 

solicitation or criminal conspiracy to commit . . . a personal 

injury crime as defined under section 103 of the act of 

November 24, 1998 (P.L. 882, No. 111),[8] known as the Crime 

Victims Act, . . .

61 Pa.C.S. § 4503(1), (3). 

For the purpose of Section 4503(3), a “personal injury crime” includes, 

in relevant part, “[a]n act, attempt or threat to commit an act which would 

constitute a misdemeanor or felony under . . . 18 Pa.C.S. Ch. 37 (relating to 

robbery).” 18 P.S. § 11.103. 

In Cullen-Doyle, our Supreme Court examined whether a defendant’s 

single burglary conviction demonstrated a “history of present or past violent 

behavior” for the purposes of Section 4503(1). Cullen-Doyle, 164 A.3d at 

1240. Concluding that the legislative intent of the RRRI Act was to “offer 

greater reform opportunities for first-time offenders than for repeat 

offenders[,]” the Court held that the defendant’s “single, present conviction 

for a violent crime does not constitute a history of violent behavior.” Id. at 

1243-44 (citations omitted); see also Finnecy, 249 A.3d at 916 (holding that 

“a single prior conviction for a non-enumerated crime demonstrating violent 

behavior does not qualify as a history of past violent behavior under the 

Section 4503[(1)] of the RRRI Act”). 

Here, the PCRA court discussed Appellant’s RRRI eligibility in the context 

of Appellant’s claim that trial counsel and appellate counsel were ineffective 

____________________________________________

8 18 P.S. § 11.103.
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for failing to raise his RRRI eligibility.

9

 PCRA Ct. Op., 7/21/21, at 5. Regarding 

the arguable merit prong, the PCRA court concluded:

According to 61 Pa.C.S.[] § 4503, an “eligible person” for the 

[RRRI] program is one who does not demonstrate a history of past 

or present violent behavior.

In this case, there is evidence of both past and present violent 

behaviors. [Appellant] has three separate convictions of robbery 

in Lycoming County in 1995 and 1996. He also has a charge of 

simple assault which was reduced to harassment in Dauphin 

County in 2004. Additionally, [Appellant’s] conviction for which 

this PCRA arises was terroristic threats could also disqualify him 

for RRRI. [Appellant] told several different hospital staff that he 

was going to punch them. He also threatened to have his biker 

gang come to the hospital and harm the workers. These facts also 

show the [Appellant’s] tendency for violence which also eliminate 

him from the RRRI program. 

Id. (formatting altered).10

As noted by the PCRA court, Appellant has three prior convictions for 

robbery. See N.T. Sentencing Hr’g, 8/26/19, at 15. Robbery is codified under 

Chapter 37 of Title 18, and at a minimum constitutes a felony of the third 

degree. See 18 Pa.C.S. § 3701(a)(1), (b). Robbery, therefore, is a personal 

injury crime which renders Appellant ineligible for the RRRI program under 

subsection 4503(3). See 61 Pa.C.S. § 4503(3); 18 P.S. § 11.103. Because

Appellant has more than one prior conviction for robbery, which is a personal 

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9 To the extent appellant argues that trial counsel, appellate counsel, and 

PCRA counsel were ineffective for failing to raise the issue of his RRRI 

eligibility, those claims are waived for the reasons stated above. 

10 The PCRA court also concluded that because Appellant presented this 

ineffectiveness claim for the first time in his Rule 1925(b) statement, it was 

waived. Id. 
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injury crime, neither Finnecy nor Cullen-Doyle is applicable to the facts of 

this case. Therefore, we agree with the PCRA court’s conclusion that Appellant

was not eligible for RRRI, albeit under subsection 4503(3) instead of 

subsection 4503(1). See Wiley, 966 A.2d at 1157 (we may affirm the PCRA 

court on any legal basis). 

Applications for Relief

We must also address Appellant’s applications for relief. In his first 

application for relief pending before this Court (his third overall), Appellant 

requests that this Court grant his previously filed applications for relief. App. 

for Relief, 12/28/21, at 2. This Court denied those applications on December 

9, and 14, 2021, respectively. Therefore, we deny Appellant’s December 28, 

2021 application for relief as moot. 

In his second application for relief pending before this Court (his fourth 

overall), Appellant makes several requests, including that this Court reverse 

his judgment of sentence and order his immediate parole pending a new 

trial.11 App. for Relief, 1/19/22, at 1-6, 11. 

We address each request separately. Appellant raises two challenges to 

the legality of his sentence. First, he argues that the trial erred in relying on 

his prior convictions during sentencing, which resulted in an illegal sentence. 

Id. at 2. Second, Appellant contends that because a previous panel of this 

____________________________________________

11 In his application for relief, Appellant includes several claims that he has 

already raised in his brief. Because we have already addressed those issues 

and found them either waived or meritless, we do not address them here. 
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Court vacated his concurrent sentence for the misdemeanor count of 

terroristic threats on direct appeal, his “aggregated sentence” is now illegal. 

Id. at 2-3. 

“If no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. Likewise, a sentence that exceeds 

the statutory maximum is illegal.” Commonwealth v. Infante, 63 A.3d 358, 

363 (Pa. Super. 2013) (citations omitted and formatting altered). While 

challenges to the legality of sentence are cognizable on PCRA review, see 

Finnecy, 249 A.3d at 912, challenges to the discretionary aspects of the 

sentence are not. See Commonwealth v. Torres, 223 A.3d 715, 716 (Pa. 

Super. 2019). 

Appellant’s claim that the trial court erred in considering his prior 

convictions, although framed as a challenge to the legality of his sentence, 

actually goes to the discretionary aspects of his sentence. See 

Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004) (holding 

that the miscalculation of a defendant’s prior record score “constitutes a 

challenge to the discretionary aspects of [a] sentence” (citation omitted)). 

Therefore, this claim is not cognizable on PCRA review. See Torres, 223 A.3d 

at 716. 

To the extent Appellant argues that his present sentence is illegal after 

a prior panel of this Court vacated his concurrent sentence, that claim is 

meritless. Appellant was convicted of two counts of terroristic threats, one

graded as a felony of the third degree and the other as a misdemeanor of the 
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first degree. The trial court imposed concurrent sentences of three to seven 

years’ imprisonment and one to five years’ imprisonment, respectively. On 

direct appeal, this Court held that Appellant’s misdemeanor conviction merged 

with his felony conviction, and vacated the concurrent sentence of one to five 

years for the misdemeanor charge. See Burkhart, 2020 WL 6778766 at *7. 

Because the trial court imposed concurrent sentences, this Court’s decision 

did not affect Appellant’s aggregate sentence of three to seven years. See 

id. Further, the maximum possible sentence for a felony of the third degree 

is seven years of imprisonment. See 18 Pa.C.S § 1103(3). Therefore, 

because Appellant’s sentence does not exceed the lawful maximum, it is a 

legal sentence. See id. 

Next, Appellant asserts that the trial court lacked jurisdiction to impose 

his sentence. App. for Relief, 1/19/22, at 3. “An objection to lack of subject 

matter jurisdiction can never be waived . . . .” Commonwealth v. Jones, 

929 A.2d 205, 208 (Pa. 2007) (citations omitted). A challenge to subjectmatter jurisdiction presents a question of law, so our standard of review is de 

novo and our scope of review is plenary. Commonwealth v. Seiders, 11 

A.3d 495, 496-97 (Pa. Super. 2010). There are the “two requirements for 

subject matter jurisdiction as it relates to criminal defendants: the 

competency of the court to hear the case, and the provision of formal notice 

to the defendant of the crimes charged” that complies with the Sixth 

Amendment of the United States Constitution and Article I, Section 9, of the 

Pennsylvania Constitution. Jones, 929 A.2d at 210. “Controversies 
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stemming from violations of the Crimes Code are entrusted to the original 

jurisdiction of the courts of common pleas for resolution.” Seiders, 11 A.3d 

at 497 (citation omitted). 

Here, the Lancaster County Court of Common Pleas, Criminal Division, 

was competent to hear Appellant’s case, which involved violations of the 

Pennsylvania Crimes Code occurring in Lancaster County. See 

Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002) (holding 

that a county court of common pleas has jurisdiction over offenses that take 

place within its borders). Further, the Commonwealth provided notice to the 

Appellant of the charges in an information and subsequent amended 

informations. See, e.g., Criminal Information, 12/18/18; Am. Criminal 

Information, 6/3/19. Therefore, we conclude that the trial court had subjectmatter jurisdiction to try and sentence Appellant. See Jones, 929 A.2d at 

210; Seiders, 11 A.3d at 497. 

Appellant also asks this Court to order immediate parole. See App. for 

Relief, 1/19/22, at 11. It is well settled that the Parole Board has exclusive 

authority to parole convicted offenders serving a sentence of greater than two 

years. See 61 Pa.C.S. § 6132(a); see also Commonwealth v. Miller, 770 

A.2d 362, 363 (Pa. Super. 2001) (explaining when authority to parole 

offenders lies with the Parole Board and when it lies with the trial court). Here, 

the trial court imposed an aggregate sentence of three to seven years’ 

incarceration. Therefore, this Court lacks jurisdiction to order Appellant’s 
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release on parole. See 61 Pa.C.S. § 6132(a). Accordingly, we deny his 

application without prejudice to seek relief from the Parole Board. 

Appellant next requests that this Court hold PCRA counsel in contempt 

for allegedly failing to comply with a PCRA court order to turn over his file to 

Appellant. App. for Relief, 1/19/22, at 6-11. Appellant also asks this Court 

to hold the Commonwealth’s witnesses in contempt for allegedly committing

perjury during Appellant’s trial. Id. at 10. 

Our Supreme Court has explained: 

Courts possess an inherent power to enforce their orders by way 

of the power of contempt. Generally, contempt can be criminal or 

civil in nature, and depends on whether the core purpose of the 

sanction imposed is to vindicate the authority of the court, in 

which case the contempt is criminal, or whether the contempt is 

to aid the beneficiary of the order being defied, in which case it is 

civil. Civil contempt orders, in turn, usually occur as one of two 

sub-species: compensatory or coercive. Compensatory civil 

contempt, as its moniker suggests, involves compensation that is 

paid to the party whom the contempt has harmed. On the other 

hand, a coercive civil contempt citation . . . is intended to coerce 

the disobedient party into compliance with the court’s order 

through incarceration and/or monetary punishment.

Commonwealth v. Bowden, 838 A.2d 740, 760-61 (Pa. 2003) (citations and 

footnote omitted). 

Holding a person or entity in contempt, whether civil or criminal, 

requires the court to find facts establishing the contempt. See, e.g., 

Commonwealth v. Moody, 125 A.3d 1, 5 n.4 (Pa. 2015) (explaining that 

criminal contempt requires proof beyond reasonable doubt of four elements); 
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Harcar v. Harcar, 982 A.2d 1230, 1234-35 (Pa. Super. 2009) (explaining 

that the elements of civil contempt including a hearing and an adjudication). 

“[I]t is not an appellate court’s function to engage in fact finding.” 

BouSamra v. Excela Health, 210 A.3d 967, 979-80 (Pa. 2019) (citation 

omitted). Furthermore, a trial court may enforce its own orders even after an 

appeal has been taken. See Pa.R.A.P. 1701(b)(2). 

Appellant requests that this Court hold his former PCRA counsel in 

contempt for allegedly failing to comply with the PCRA court’s order to turn 

over his file to Appellant. This Court may not engage in the fact finding 

required to hold someone in contempt. See BouSamra, 210 A.3d at 979-80. 

Further, because Appellant claims that PCRA counsel has violated a PCRA court 

order, it is within the power of the PCRA court to enforce its order by holding 

PCRA counsel in civil contempt after an appropriate hearing. See Bowden, 

838 A.2d at 760-61; see also Pa.R.A.P. 1701(b)(2). Therefore we deny 

Appellant’s request to hold PCRA counsel in contempt because this Court is 

not the proper forum for a petition for contempt of a PCRA court order. 

Likewise, we deny Appellant’s request to hold the Commonwealth’s 

witnesses in contempt because this Court does not engage in fact finding, and 

is therefore not the appropriate forum for his contempt petition.

12 See

BouSamra, 210 A.3d at 979-80. 

____________________________________________

12 In any event, we note that, were we to hold PCRA counsel or any of the 

Commonwealth’s witnesses in contempt without notice and an opportunity to 

(Footnote Continued Next Page)
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Because we have concluded that all of the issues raised in Appellant’s 

January 19, 2022 application for relief are waived, meritless, or seek redress 

for issues that this Court has no authority to grant, we deny Appellant’s 

January 19, 2022 application for relief. 

In his third application for relief pending before this Court (his fifth 

overall), Appellant repeats the arguments he raised in his brief and requests 

that this Court grant him a new trial, or in the alternative, vacate his judgment 

of sentence. App. for Relief, 3/4/22, at 1a-13. Because we have already 

concluded that Appellant is not entitled to relief on these issues, we deny his 

March 4, 2022 application for relief. 

Conclusion

In sum, we conclude that all of the claims included in Appellant’s brief 

are either waived or meritless. Therefore, we affirm the PCRA court’s order. 

Further, we conclude that Appellant’s requests for relief are either moot, 

meritless, or seek redress for issues that this Court has no authority to grant. 

For these reasons we deny Appellant’s applications for relief. 

Order affirmed. Applications for relief denied.

____________________________________________

be heard, it would violate those individuals’ rights to due process. See, e.g., 

Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013) (explaining that 

“the basic elements of procedural due process are adequate notice, the 

opportunity to be heard, and the chance to defend oneself before a fair and 

impartial tribunal having jurisdiction over the case” (citations omitted)). 

Therefore, even if we could engage in fact finding, we would decline to do so 

on that basis.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2022