[J-9A-2024 and J-9B-2024]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JAMES BERRY,

Appellant

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No. 16 EAP 2023

Appeal from the Judgment of 

Superior Court entered on October 

3, 2022 at No. 543 EDA 2022, 

affirming the Order entered June 28, 

2019 in the Court of Common Pleas, 

Philadelphia County, Criminal 

Division at Nos. CP-51-CR0006728-2018 and CP-51-CR0006729-2018.

ARGUED: March 6, 2024

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JAMES BERRY,

Appellant

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No. 17 EAP 2023

Appeal from the Judgment of 

Superior Court entered on October 

3, 2022 at No. 544 EDA 2022, 

affirming the Order entered June 28, 

2019 in the Court of Common Pleas, 

Philadelphia County, Criminal 

Division at Nos. CP-51-CR0006728-2018 and CP-51-CR0006729-2018.

ARGUED: March 6, 2024

OPINION

JUSTICE WECHT DECIDED: September 26, 2024

James Berry was convicted of several crimes arising from his sexual abuse of two 

young family members. For purposes of tabulating the applicable recommended 

sentencing range under the under the Pennsylvania Sentencing Guidelines,1 Berry had 

1 See 204 PA.CODE § 303.4.
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no prior convictions or juvenile adjudications, which resulted in a “prior record score” of 

zero. The sentencing court ultimately imposed a sentence that deviated significantly 

upward from the standard sentencing range recommended by the sentencing guidelines. 

Explaining its reasons on the record, the court stated that Berry’s arrest record (which the 

court characterized as “previous other contacts” with the criminal legal system) essentially 

negated Berry’s absence of a prior criminal record.

2

Challenging the discretionary aspects of this sentence, Berry appealed to the 

Superior Court, which affirmed.3 Upon allowance of appeal, we must decide whether a 

sentencing court lawfully may consider Berry’s record of prior arrests, which did not result 

either in juvenile adjudications or adult convictions, as a factor at sentencing. Because 

arrests without conviction “happen[ ] to the innocent as well as the guilty,”

4

they offer 

nothing probative about a defendant’s background at sentencing. Thus, the sentencing 

court misapplied the law by predicating the sentence in part upon Berry’s arrest record. 

Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

Berry’s jury trial began on March 11, 2019. The Commonwealth’s evidence

established that Berry had sexually assaulted his younger, intellectually disabled brother, 

J.B, on two occasions when J.B. was a young child. And when J.B. was sixteen years 

old, Berry forced J.B. into a sex act with a sex worker against J.B.’s will, while Berry 

recorded it. Berry also coerced his then-seven-year-old great-nephew, J.J., to touch 

Berry’s penis, and threatened to harm J.J. physically if he refused to do so or if he told 

2 Notes of Testimony (“N.T.”), 6/28/2019, at 24-25 (“I’m also taking into account that 

while this is Mr. Berry’s first conviction, there are previous other contacts. This is not the

anomaly that the [prior record score of] zero would foreshadow for me.”).

3 Commonwealth v. Berry, 543 & 544 EDA 2022, 2022 WL 4683292 (Pa. Super. 

Oct. 3, 2022) (unreported).

4 Michelson v. United States, 335 U.S. 469, 482 (1948).
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anyone. The jury found Berry guilty of sexual abuse of children and two counts of 

endangering the welfare of children (“EWOC”), one graded as a misdemeanor and one 

graded as a first-degree felony.5 The sentencing court deferred sentencing and ordered 

a pre-sentence investigation (“PSI”). 

The PSI report indicated that Berry had one juvenile arrest and five adult arrests, 

none of which resulted in an adjudication or conviction. As a juvenile, Berry was arrested 

for allegedly pushing a ten-year-old girl to the ground and forcibly taking her bicycle. As 

an adult, Berry was arrested after his girlfriend alleged that, following an argument, Berry 

had strangled her and then body-slammed her to the floor. Also as an adult, Berry had 

been arrested for possession of a small amount of marijuana. The PSI report provided

scant details relating to the circumstances that led to the remainder of the arrests. 

Although the PSI report cited several state and federal criminal databases as its sources 

for this information, none of these source documents was attached to the report.

On June 28, 2019, the trial court sentenced Berry to an aggregate of seven-andone-half to fifteen years of incarceration, which included the following consecutive 

sentences: sixty to one-hundred-and-twenty months for sexual abuse, eighteen to thirtysix months for felony EWOC, and twelve to twenty-four months for misdemeanor EWOC. 

The sexual abuse sentence was an upward deviation from the sentencing guidelines, 

while the felony and misdemeanor EWOC sentences were within the aggravated ranges

of the guidelines. 

Announcing its reasoning for the aggravated sentence from the bench, the 

sentencing court explained that it had arrived at this sentence by relying significantly upon

particular aggravating factors. The sentencing court stated:

5 See 18 Pa.C.S. §§ 6312(b)(1), 4304, 4303, respectively.
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The truly sad part of this is the fracturing of this family. Watching both sides, 

Mr. Berry’s parents on one side and his siblings on the other side. The fact 

that this family hasn’t figured out a way to come together, it exemplifies the 

harm that was done to these children. It shows me that not only were [J.B.] 

and [J.J.] directly harmed by Mr. Berry’s actions, but the victim’s [sic] of his 

actions extend far beyond these two little boys. 

The fact that I’ve been watching and reading that [J.B.] is no longer in his 

own home and is struggling to stay and become part of [another individual]’s 

home, which is admirable, he is moving forward despite this victimization. 

It’s a testament to [J.B.]’s strength, and I hope that he understands that and 

hears that. His testimony was not easy to give. He was forced to watch 

this video multiple times in this courtroom in front of strangers. 

I agree that Mr. Berry has a [c]onstitutional right to try his case, sir. I do not 

hold the fact there was a jury trial against him. However, there was a – in 

the process, that doesn’t mean we don’t revictimize the victim again. And 

in this particular case, this Court as well as the civilians had to sit there and 

watch as [J.B.] reacted to that video. 

This Court has balanced Mr. Berry’s prior record score of zero with the acts 

that the jury found him guilty of, the victim impact statements that have been 

made on behalf of [J.B.] and [J.J.]. I’m also taking into account that while 

this is Mr. Berry’s first conviction, there are previous other contacts. This is 

not the anomaly that the zero would foreshadow for me, and I have 

concerns about the predatory nature of Mr. Berry’s behavior in taking 

advantage of these children at a time in which their family was going through 

the health concerns of their father.

The fact that [J.B.] does suffer from Autism, and [J.J.] was at a very tender 

age at the time of these events that played a role into the sentencing and 

given the diminished capacity of the both of these young boys.6

On June 9, 2019, Berry filed an untimely post-sentence motion to reconsider his 

sentence. Eventually, Berry’s direct appellate rights were reinstated nunc pro tunc under 

the Post Conviction Relief Act.

7

 Berry filed a timely notice of appeal. In a timely filed Rule 

1925(b) statement of errors complained of on appeal,

8 Berry asserted that the sentencing

6 N.T., 6/28/2019, at 23-25 (emphasis added).

7 42 Pa.C.S. §§ 9541-9546.

8 Pa.R.A.P. 1925(b).
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court abused its discretion and imposed a manifestly excessive and unreasonable 

aggregate sentence by departing upwards from the sentencing guidelines and by relying

upon impermissible sentencing factors, including Berry’s “previous other contacts”—a

reference to Berry’s prior arrests that did not result in conviction. 

In response, the sentencing court explained that it had considered and weighed 

the gravity of the impact of the offenses on the victims, the PSI report, a psychiatric report 

prepared by the Probation Department, the sentence ranges suggested by the sentencing 

guidelines for each offense, and all other relevant mitigating and aggravating factors 

established by Berry and the Commonwealth. The sentencing court believed that the 

sentence it imposed was within its discretion based upon the reasons it provided at the 

sentencing hearing. The court emphasized the potential long-term impact of Berry’s 

crimes upon both of the victims and upon other members of their family, the court’s 

concern about the “predatory nature” of the crimes, the vulnerability of the victims due to 

J.B.’s intellectual disability and the victims’ ages, victim impact evidence, and the 

recommendation of the Commonwealth and the Center for Child Advocates.9 

Before the Superior Court, Berry acknowledged that court’s longstanding 

precedent providing that a sentencing court may take into consideration a defendant’s 

prior arrests so long as the court explicitly recognizes that the defendant was not 

convicted of any crimes.

10 The Commonwealth also relied upon this line of cases, arguing 

that these precedents rendered Berry’s claim meritless. 

9 Tr. Ct. Op., 3/19/2022, at 6. 

10 See, e.g., Commonwealth v. Bryant, 458 A.2d 1010, 1012 (Pa. Super. 1983) (“It 

has been held that a court, in imposing sentence may consider prior arrests . . . as long 

as the court realizes that the defendant had not been convicted on those prior charges.”)

(quoting Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super. 1981)).
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The Superior Court affirmed. Because Berry was challenging the discretionary 

aspects of sentencing, the Superior Court was obligated to engage in the four-part 

analysis that is a necessary precondition to reaching the merits of such a challenge. The 

Superior Court examined whether Berry’s appeal was timely, whether Berry preserved 

the issue, whether Berry’s brief included a concise statement of the reasons relied upon 

for allowance of appeal with respect to the discretionary aspects of sentence, and whether 

the concise statement raised a substantial question that the sentence is appropriate under 

the sentencing code.11

The Superior Court found that Berry complied with these requirements, and turned 

to the merits of his claim. On the merits, Berry argued, inter alia, that the sentencing court 

abused its discretion by crafting a sentence based at least in part upon his arrest record.

12

The Superior Court rejected this argument, relying upon its precedents permitting 

a sentencing court to consider prior arrests as long as the court recognizes that those 

arrests had not resulted in convictions.13 Because the sentencing court referred to Berry’s

arrests as “prior contacts” that did not contribute to the calculation of his prior record 

score, the Superior Court believed that the trial court had, in fact, acknowledged that the 

arrests were not convictions. Further, the court opined that “a record of prior police 

11 Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 

2119(f).

12 The other factors that Berry believed to be impermissible were Berry’s crossexamination of J.B., the gravity of the crimes, and the fracturing of the family following 

Berry’s crimes. These aspects were not encompassed within our grant of allocatur. 

13 Berry, 2022 WL 4683292 at *5 (citing Commonwealth v. Carr, 262 A.3d 561, 570 

(Pa. Super. 2021) (“[A] court in imposing sentence may consider prior arrests . . . as long 

as the court realizes that the defendant had not been convicted on those prior charges.”) 

(internal citation omitted).
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involvement goes to Berry’s amenability to rehabilitation, a factor the court must consider 

under 42 Pa.C.S. § 9721(b).”14, 15

We granted allowance of appeal to address the following question, as framed by 

Berry:

Did it not violate due process and the Sentencing Code for the trial court to 

consider [Berry’s] bare arrest record as a factor in imposing a more severe 

sentence, and did not the Superior Court err in reviewing this under an 

abuse of discretion standard?16

This issue presents a question of law over which our standard of review is de novo.

17

Berry argues that a sentencing court’s consideration of a defendant’s prior arrests 

as a sentencing factor violates Pennsylvania law and the federal Due Process Clause.18 

According to Berry, Pennsylvania law long has condemned the consideration of a 

14 Id. (citing Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) 

(holding that prior convictions may indicate a lack of amenability to rehabilitation under 

42 Pa.C.S. § 9721(b)).

15 The Superior Court also vacated the sentencing court’s order denying Berry’s 

motion to preclude application of the Sex Offender Registration and Notification Act, 42 

Pa.C.S. §§ 9799.10-9799.41, and remanded for further proceedings in accord with 

Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). This aspect of the Superior Court’s 

decision is not at issue in this appeal.

16 Commonwealth v. Berry, 296 A.3d 559 (Pa. 2023) (per curiam). 

17 Commonwealth v. Shabezz, 166 A.3d 278, 285 (Pa. 2017) (providing that, for 

questions of law, “our standard of review is de novo and our scope of review is plenary”). 

Although Section 9781(f) of the Sentencing Code precludes us from reviewing the 

discretionary aspects of a sentence, see 42 Pa.C.S. § 9781(f), “[n]othing in Section 

9781(f) precludes review of the application of legal principles.” Commonwealth v. Smith, 

673 A.2d 893, 895 (Pa. 1996); Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002) 

(plurality) (same). Here, we are called upon to review whether the Superior Court 

correctly interpreted and applied the Sentencing Code and case law in sentencing 

matters. As such, Section 9781(f) is not implicated. See Smith, 673 A.2d at 895; see 

also Commonwealth v. Cottle, 426 A.2d 598, 598 (Pa. 1981).

18 U.S. CONST. amend. XIV, § 1.
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defendant’s arrest record at sentencing,

19 as well as the use of prior arrests to impeach 

evidence of a defendant’s good character.

20

 Berry argues that an arrest does not equate 

to a conviction or evince guilt, and does not reflect upon the character of a defendant. 

For this reason, the legislature has deemed arrest records not to be relevant as a 

sentencing factor.21 Berry asks the Court to hold that prior arrests cannot be considered 

as a sentencing factor. 

Berry further argues that considering arrests at sentencing violates the Fourteenth 

Amendment’s guarantee of due process. As support for his argument, Berry argues that 

an arrest can be less indicative of a person’s guilt than it is a product of the person’s race 

or the character of the neighborhood in which the arrest occurred, and the consequent 

impact upon interactions with the police.

22

Berry recognizes that the Superior Court has developed a line of cases holding 

that a sentencing court may consider a defendant’s arrest record as an adverse

sentencing factor.23 Berry asks this Court to overrule this line of cases and to bar the 

consideration of arrests at sentencing as a matter of law. To remedy the legal error that 

occurred at sentencing, Berry requests that we remand this case for resentencing with 

19 See, e.g., Commonwealth v. Jones, 50 A.2d 342, 344 (Pa. 1947) (holding that the 

admission of testimony about prior arrests at sentencing was prejudicial to the defendant

and granting relief).

20 See Commonwealth v. Scott, 436 A.2d 607, 611 (Pa. 1981) (holding that crossexamination about arrests is so prejudicial to an accused that it is no longer permitted in 

Pennsylvania).

21 42 Pa.C.S. § 2154(b) (declining to include arrests in the factors considered in the 

sentencing guidelines). 

22 See, e.g., United States v. Berry, 553 F.3d 273, 285 (3d Cir. 2009) (observing that 

“economic, social and/or racial factors” contribute to police contacts, and stating that “[a] 

record of a prior arrest may . . . be as suggestive of a defendant’s demographics as his/her 

potential for recidivism or his/her past criminality”). 

23 See, e.g., Bryant, 458 A.2d at 1012.
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directions that the sentencing court consider only legally relevant and available factors,

and not the unlawful factor of prior arrests.24

The Commonwealth relies upon the Superior Court precedents permitting a 

sentencing court to consider a defendant’s prior arrests as a sentencing factor.25

According to the Commonwealth, the Sentencing Code does not preclude the sentencing 

court from considering arrests that did not lead to conviction. 

Responding to Berry’s due process argument, the Commonwealth concedes that 

a sentencing court cannot consider a defendant’s “bare arrest record,” i.e., a record of 

arrests and nothing more, and that there is a consensus among federal circuit courts that 

doing so is a violation of due process guarantees.26 The Commonwealth argues, 

however, that it is nonetheless consistent with due process for a sentencing court to 

consider a defendant’s arrest record at sentencing if there is some evidence of the 

criminal conduct that led to those arrests. 

The Commonwealth advocates for a rule that would permit a sentencing court to 

consider a defendant’s prior arrests if the Commonwealth can establish the criminal 

conduct underlying the arrest by a preponderance of the evidence.

27

 The Commonwealth 

argues that, in order to satisfy this preponderance of the evidence standard, the PSI report 

24 The Pennsylvania Association of Criminal Defense Lawyers has filed an amicus

brief in support of Berry.

25 See, e.g., Carr, 262 A.3d at 570; Craft, 450 A.2d at 1024. 

26 See, e.g., United States v. Rivera-Ruiz, 43 F.4th 172, 181 (1st Cir. 2022); United 

States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007); United States v. Berry, 553 F.3d 273, 

280-81 (3d Cir. 2009); United States v. Johnson, 648 F.3d 273, 277-78 (5th Cir. 2011); 

United States v. Mansfield, 21 F.4th 946, 958 (7th Cir. 2021).

27 See Rivera-Ruiz, 43 F.4th at 181 (holding that due process allows a court to 

consider a defendant’s arrest record at sentencing where “there is proof by a 

preponderance of the evidence that the defendant engaged in the underlying conduct 

alleged”). 
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must set forth the facts and circumstances underlying the arrest, from which the court can 

infer criminal conduct.28 Applying this standard here, the Commonwealth asserts that at 

least two of Berry’s five prior arrests were supported by a preponderance of the evidence 

establishing the criminal conduct underlying the arrests.29

As a general matter, evidence of a defendant’s arrest record is inadmissible and 

irrelevant in nearly every criminal law context. For example, “evidence of a criminal

defendant’s prior arrests is inadmissible as tending to prove [the defendant’s] disposition 

to commit crimes generally,” because “the fact of arrest or indictment is quite consistent 

with innocence.”30 Until 1981, there was an exception to this rule that allowed the 

Commonwealth to cross-examine a defendant’s character witnesses by asking about 

their knowledge of the defendant’s prior arrests, regardless of whether those arrests 

culminated in a conviction.

31

 In Commonwealth v. Scott,

32 however, we abrogated that 

exception and repudiated all of the cases that endorsed or applied the exception. Instead, 

we established a bright-line rule that evidence of a defendant’s prior arrests is not 

admissible, even for purposes of impeaching character witnesses, because “an arrest is 

28 See id. at 184 (holding that the preponderance of the evidence standard was met 

where the PSI report “provided sufficient detail about the circumstances . . . to enable the 

court to determine what likely happened”). 

29 The Pennsylvania District Attorneys Association has filed an amicus brief in 

support of the Commonwealth.

30 Commonwealth v. Little, 295 A.2d 287, 288, 289 (Pa. 1972). 

31 See, e.g., Commonwealth v. Jenkins, 198 A.2d 497, 498 (Pa. 1964). 

32 436 A.2d at 609.
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equally consistent with either guilt or innocence.”33 This prohibition is now codified in our 

rules of evidence.

34

Such evidence also is inadmissible at sentencing, generally. In Commonwealth v. 

Jones,

35 we considered sentencing-phase testimony revealing that the defendant, whom 

a jury had found guilty of first-degree murder, had discussed his prior arrests that did not 

lead to convictions. Although evidence of prior convictions would have been admissible, 

as would confessions by the defendant of other crimes, we refused to deem a history of 

arrests likewise admissible.36 We explained:

Even if it is definitely proved to a jury that a man has been arrested, of what 

probative value is that fact? Unless convicted, a man remains innocent and 

the law cannot in justice cast a shadow on his character for a mere arrest. 

It could not help the jury to know what manner of man the accused was, 

because the mere fact of an arrest does not prove or disprove anything.37 

Consequently, “[t]estimony of any prior arrest, without proof of conviction, was not 

relevant evidence to aid the jury to determine punishment or for any other purpose.”

38

 

We did not limit our condemnation of the use of prior arrests at sentencing to the death 

penalty context. Our statement was, rather, a broad, generally applicable recognition that 

prior arrests are not relevant and have no probative value at sentencing.

33 Id. at 612.

34 Pa.R.E. 405 (“In a criminal case, on cross-examination of a character witness, 

inquiry into allegations of other criminal conduct by the defendant, not resulting in 

conviction, is not permissible.”).

35 50 A.2d 342, 343 (Pa. 1947).

36 Id. at 344 (“The appellate courts of this Commonwealth have strictly limited the 

application of this rule of evidence to certain cases involving either prior convictions or 

admissions by accused of the actual commission of other crimes and any attempt to 

extend this principle to include testimony of mere arrests is without foundation in either 

law or reason.”). 

37 Id. 

38 Id.
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Nor is evidence of arrests, without conviction, relevant in a revocation of probation

and re-sentencing proceeding. In Commonwealth v. Cottle,

39 we considered the 

argument that a sentencing court erred by imposing a maximum prison sentence when 

no legally available factors justified such a sentence. Although the defendant had been 

arrested several times, the arrests had not resulted in convictions. Speaking to the 

relevance of the defendant’s arrest record, we held that “no inference adverse to [the 

defendant] can be drawn from the fact of those arrests.”40 The arrests, therefore, could 

not be factored into the defendant’s sentence as an indication of the defendant’s 

likelihood to engage in further criminal conduct.

Thus, our law is clear. Prior arrests shed no reliable light upon criminal 

propensity,41 cannot be used as evidence of bad character or for impeachment 

purposes,42 are not a relevant sentencing consideration,43 and have no probative value 

for establishing a defendant’s likelihood of recidivism.44

Nor are prior arrests a relevant consideration under the Sentencing Code. Section 

9721(b) of the Sentencing Code requires that a sentencing court, in determining the 

sentence to impose, consider “the protection of the public,” “the gravity of the offense as 

it relates to the impact on the life of the victim and on the community,” the defendant’s 

“rehabilitative needs,” and the guidelines created by the Pennsylvania Commission on 

39 426 A.2d 598, 601 (Pa. 1981).

40 Id. 

41 Little, 295 A.2d at 288; Cottle, 426 A.2d at 601.

42 Scott, 436 A.2d 611-12; Pa.R.E. 405.

43 Jones, 50 A.2d at 344.

44 Cottle, 426 A.2d at 601.
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Sentencing.45 A sentence of total confinement must be premised upon consideration of 

“the nature and circumstances of the crime and the history, character, and condition of 

the defendant.”46 At no point does the Sentencing Code require a court to consider 

independently a defendant’s prior arrests in crafting an individual sentence.

In order to address disparity in the sentences imposed upon similarly situated 

defendants, and to ensure at least a baseline sentence for such individuals,

47 Section 

2154(a) of the Sentencing Code instructs the Sentencing Commission to adopt guidelines 

for the sentencing court to consider in determining an individual sentence.48 The General 

Assembly directed the Sentencing Commission, in creating these guidelines, to address 

several “retributive factors,” which follow:

(1) Seriousness of the offense, by specifying the range of sentences 

applicable to crimes of a given degree of gravity.

(2) Criminal history, by specifying a range of sentences of increased 

severity or intensity of intervention for offenders previously convicted of or 

adjudicated delinquent for one or more misdemeanor or felony offenses 

committed prior to the current offense. The commission may exclude or 

reduce the valuation of less serious offenses and increase the valuation of 

offenses committed while under supervision or in a temporal or offense 

pattern.

(3) Criminal behavior, by specifying a range of sentences of increased 

severity or intensity of intervention for offenders with increased culpability, 

including those who possessed or used a deadly weapon or inflicted 

substantial harm during the commission of the current conviction offense.

(4) Aggravated and mitigated ranges, by specifying variations from the 

range of sentences applicable on account of aggravating or mitigating 

circumstances.

45 42 Pa.C.S. § 9721(b).

46 42 Pa.C.S. § 9725. 

47 Mouzon, 812 A.2d at 620 (plurality).

48 42 Pa.C.S. § 2154(a). 
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(5) The impact of any amendments to section 9756 (relating to sentence of 

total confinement).49

Although subsection (2) requires the Sentencing Commission to consider a defendant’s

criminal history, that provision, by its own terms, is limited to convictions or adjudications. 

There is no specific directive that would allow a court to factor prior arrests into a

sentencing determination. 

The resulting sentencing guidelines establish a procedure for determining a

sentence premised upon assessing the offense gravity score, the defendant’s prior record 

score, and the guideline sentence recommendation, including enhancements and 

aggravating or mitigating circumstances.50 The defendant’s prior record score is based 

upon prior convictions or juvenile adjudications, but not upon prior arrests.

51

 If a prior 

conviction or a prior juvenile adjudication or disposition is not reflected in the prior record 

score, the sentencing court may consider it independently.52 Nowhere in the guidelines 

is there any direction to consider prior arrests.

In 2010, the General Assembly passed, and the Governor signed, Act 95, which 

directed the Sentencing Commission to adopt a risk assessment instrument to assist the 

sentencing court in determining a sentence aptly tailored to the individual convicted 

49 Id. § 2154(b). 

50 204 PA. CODE § 303.2(a). The Guidelines are purely advisory in nature, and the 

sentencing court maintains the discretion to deviate from the recommended guidelines.

Commonwealth v. Sessoms, 532 A.2d 775, 781 (Pa. 1987) (“So long as the judiciary has 

ultimate control over the application of the guidelines to a particular case, as one factor 

among the many enumerated in the Sentencing Code as a whole, there has been no 

substantive change in the judicial prerogative in sentencing discretion that has not been 

accomplished by duly enacted legislation.”).

51 204 PA. CODE §§ 303.5, 303.7, 303.8. 

52 204 PA. CODE § 303.5(d) (“The court may consider at sentencing prior convictions, 

juvenile adjudications or dispositions not counted in the calculation of the Prior Record 

Score, in addition to other factors deemed appropriate by the court.”).
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defendant.

53

 The resulting risk assessment tool now is incorporated into the guidelines.54 

When it created the risk assessment instrument, the Sentencing Commission, in an 

exhaustive, multi-phase implementation, ultimately determined that prior arrests were not 

statistically significant to the risk of recidivism, and chose to use convictions, but not 

arrests, in assessing the relative risk that an offender is likely to reoffend and to be a 

threat to public safety.55 

Our precedents, our legislature, and our Sentencing Commission all confirm that 

prior arrests are not probative at a sentencing hearing and are not otherwise relevant to 

the factors that are central to the sentencing determination. They neither inform a 

sentencing court about “the gravity of the offense as it relates to the impact on the life of 

the victim and on the community” under Section 9721(b) nor shed any light on the nature 

and circumstances of the crime for which the defendant is being sentenced under Section 

9725. Prior arrests are also irrelevant to a consideration of the defendant’s “rehabilitative 

needs.”

56 In Goggins,57 the Superior Court held that a defendant’s prior convictions

demonstrated of a lack of amenability to rehabilitation, a relevant sentencing factor under 

Section 9721(b) of the Sentencing Code. However, neither Goggins nor any other 

precedent suggests that evidence of prior arrests, without conviction, “goes to [a 

defendant’s] amenability to rehabilitation,” as the Superior Court opined herein.58

53 Act of Oct. 27, 2010, P.L. 931, No. 95, § 2; 42 Pa.C.S. § 2154.7. 

54 204 PA. CODE §§ 305.1-305.9. 

55 204 PA.CODE § 305.1(b)(15) (listing prior convictions but not arrests as risk factors 

that are statistically significant to the risk of recidivism); id. § 305.1(c)(1)(iii)(A) (explaining 

that the Sentencing Commission chose to include prior convictions in its risk assessment 

but to exclude prior arrests).

56 42 Pa.C.S. § 9721(b).

57 748 A.2d at 732.

58 Berry, 2022 WL 4683292 at *5.
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A defendant’s arrest record likewise is not related to “the protection of the public,” 

as we held in Cottle59 and as the Sentencing Commission determined when it declined to 

include prior arrests in its risk assessment instrument.60 Nor are prior arrests relevant to 

the defendant’s character or condition under Section 9725. An arrest is not relevant to 

an assessment of one’s character.

61

 To the extent that the defendant’s criminal history 

is relevant under Section 9725, a history of prior arrests that did not result in conviction is 

not probative of that history. This is because, “[u]nless convicted, a man remains innocent 

and the law cannot in justice cast a shadow on his character for a mere arrest.”

62

 Arrests, 

without conviction, prove nothing.

Permitting the sentencing court to fashion a sentence even in part upon a 

defendant’s prior arrest that resulted in neither conviction nor adjudication would distort 

the intent and operation of Pennsylvania’s sentencing scheme generally, and, more 

specifically, a defendant’s prior record score. Indeed, that is precisely what occurred at 

Berry’s sentencing. The sentencing court correctly noted that Berry’s prior record score 

was zero, because Berry had no prior convictions or adjudications.63 The court then 

nullified the prior record score by considering, and significantly relying upon, Berry’s prior 

arrests. The court stated, “I’m also taking into account that while this is Mr. Berry’s first 

conviction, there are previous other contacts. This is not the anomaly that the [prior record 

59 426 A.2d at 601.

60 204 PA.CODE §§ 305.1(b)(15), (c)(1)(iii)(A).

61 Scott, 436 A.2d at 612.

62 Jones, 50 A.2d at 344.

63 N.T., 6/28/2019, 24. 
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score of] zero would foreshadow for me . . . .”64 The court’s consideration of prior arrests

skewed a necessary sentencing factor—Berry’s prior record score.

The likelihood of arrest may be influenced by a variety of factors other than the 

actual commission of the charged crimes. As the United States Court of Appeals for the 

Third Circuit observed in Berry:

[R]eliance on arrest records may also exacerbate sentencing disparities 

arising from economic, social and/or racial factors. For example, officers in 

affluent neighborhoods may be very reluctant to arrest someone for 

behavior that would readily cause an officer in the proverbial “high crime” 

neighborhood to make an arrest. A record of a prior arrest may, therefore, 

be as suggestive of a defendant’s demographics as his/her potential for 

recidivism or his/her past criminality.65

Since its decision in Berry, the Third Circuit court has noted “substantial research and 

commentary has only reinforced the regrettable circumstances that we emphasized in 

disallowing consideration of bare arrest records at sentencing.”

66

 In particular, the 

Sentencing Project has released a report that pointed to “a wide body of scholarship 

indicating that socioeconomic factors influenced disparities in arrest rates,” and that cited 

research indicating “that police are more likely to stop, and arrest, people of color due to 

implicit bias.”

67

Given the volume of precedent suggesting that prior arrests are an impermissible 

sentencing factor, the Superior Court’s contrary line of cases is confounding. It is 

worthwhile to examine the origins of those cases. Notwithstanding our prohibition in 

Jones on the consideration of prior arrests at sentencing, beginning in 1973, the Superior 

Court has held that prior arrests are a legitimate sentencing factor so long as the trial 

64 Id. at 24-25. 

65 553 F.3d at 285.

66 United States v. Mateo-Medina, 845 F.3d 546, 552 (3d Cir. 2017). 

67 Id. at 553.
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court recognized that arrests are not the equivalent of convictions. In Commonwealth v. 

Shoemaker,

68 the Superior Court interpreted a statutory provision that required the PSI 

report to include “any prior criminal record of the defendant and such information about 

his characteristics, his financial condition and the circumstances affecting his behavior as 

may be helpful in imposing sentence. . .”69 The defendant argued that only records of 

arrests that had resulted in convictions had to be included in the PSI report. 

Examining the American Bar Association Project on Standards for Criminal 

Justice-Standards Relating to Probation, the Superior Court observed that these 

standards included similar language and defined “any prior criminal record” to include 

only those charges that resulted in conviction, because “[a]rrests, juvenile dispositions 

short of an adjudication, and the like, can be extremely misleading and damaging if 

presented to the court as part of a section of the report which deals with past 

convictions.”

70

 Although the Advisory Committee did not believe such items should be 

included in the PSI report, it recommended that, if they were included, “a detailed effort 

should be undertaken to assure that the reader of the report cannot possibly mistake an 

arrest for a conviction.”71 The Superior Court found these words of caution to be welltaken, “for a sizeable percentage of arrests do not lead to convictions.”

72

 

Believing the phrase “prior criminal record” to be ambiguous, however, the 

Superior Court observed that the statute was intended to “make as much information as 

68 313 A.2d 342 (Pa. Super. 1973).

69 Id. at 345 (quoting 19 P.S. § 890(d) (repealed)).

70 Id. (citing American Bar Association’s Standards for Criminal Justice relating to 

probation (Approved Draft, 1970), § 2.3(ii)(B) (cmt)).

71 Id. at 346.

72 Id.
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possible available to the sentencing judge.”73 According to the Superior Court, the 

statute’s use of “prior criminal record” permitted the PSI report to include all arrests, 

whatever the outcome, and relied upon the sound judgment of the sentencing judge in 

making use of the information.74 Examining the record before it, the Superior Court held 

that the sentencing court had not exercised sound judgment with respect to the 

defendant’s prior arrests because the court had equated the prior arrests with criminal 

conduct.75 The Superior Court held that the sentencing court “should not have inferred 

that the arrests showed crimes,” and that, in doing so, the court had ignored the danger—

noted in the ABA standards—that arrests without conviction can be “extremely 

misleading,” ignored the presumption of innocence, and based the sentence “not simply 

on evidence not before the court but on no evidence at all.”76 Despite this error, the 

Superior Court declined to require resentencing because, that court reasoned, the 

sentence resulted from trial counsel’s failure to dispute the sentencing court’s inference 

by, for example, proving that one or more of the arrests had been disposed of favorably 

to the defendant.77

Relying on Shoemaker, the Superior Court thereafter developed a line of cases 

permitting the sentencing court to consider prior arrests, so long as the court does not 

equate arrests with convictions and does not afford these arrests undue weight.78 The 

73 Id. 

74 Id. 

75 Id. at 347. 

76 Id. at 347-348.

77 Id. at 348.

78 Carr, 262 A.3d at 570 (providing that a sentencing court may not assign “undue 

weight” to prior arrests); Commonwealth v. Darden, 531 A.2d 1144, 1149 (Pa. Super.

1987) (holding that “[p]rior connections of whatever nature, with law enforcement 

(continued...)
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Commonwealth presently makes no attempt to defend this line of cases, and this Court 

has never considered them. Considering them now, we think it clear that these

precedents fail to align with the law, and we disapprove them. The fact of an arrest may 

generate speculation, but ultimately means nothing.79 Like other unproven conduct, prior 

arrests cannot be a factor upon which a sentence is predicated.80

The Superior Court’s contrary precedents are inconsistent with our decision in 

Cottle and our rejection of arrests as a factor for the revocation of probation or parole. In 

Cottle, we held that the fact that a person had been subject to an arrest while on probation 

could not support a revocation sentence of incarceration.

81 For the same reason, the fact 

of prior arrests cannot be a factor at sentencing. In either instance, prior arrests do not 

support any adverse inferences. A decision to impose a sentence of incarceration must, 

authorities are unquestionably among the circumstances to be scrutinized” in determining 

the appropriate sentence); Commonwealth v. Allen, 489 A.2d 906, 912 (Pa. Super. 1985) 

(rejecting the argument of sentencing court error in considering unadjudicated arrests 

because the sentencing court “did not treat the prior arrests as convictions or give them 

undue weight”); Commonwealth v. Johnson, 481 A.2d 1212, 1214 (Pa. Super. 1984) 

(holding that the sentencing court may consider a defendant’s prior arrests which did not 

result in convictions, as long as court recognizes that the defendant was not convicted of 

the charges); Commonwealth v. Palmer, 462 A.2d 755, 761 (Pa. Super. 1983) (permitting 

a court to consider criminal activity or preparation for crimes as factors in sentencing even 

though no arrest or conviction resulted); Bryant, 458 A.2d at 1012 (holding that the 

sentencing judge did not err in considering the defendant’s prior arrests when imposing 

sentence where the judge plainly stated that the defendant had no prior convictions as a 

result of the prior arrests); Craft, 450 A.2d at 1021 (“It has been held that a court, in 

imposing sentence, may consider prior arrests and concurrent charges as long as the 

court realizes that the defendant had not been convicted on those prior charges.”).

79 Berry, 553 F.3d at 284 (“A defendant cannot be deprived of liberty based upon 

mere speculation.”).

80 Commonwealth v. Stufflet, 469 A.2d 240, 243 (Pa. Super. 1983) (vacating a 

sentence due to the sentencing court’s consideration of uncharged conduct); 

Commonwealth v. Cruz, 402 A.2d 536, 537 (Pa. Super. 1979) (“An Unsubstantiated 

statement that a defendant is a major drug dealer would be an inappropriate factor in a 

judge’s imposition of sentence.”).

81 Cottle, 426 A.2d at 601. 
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like the decision to revoke probation, “be based on evidence of probative value.”82 “[M]ere 

arrests and indictments, without convictions . . . have no value as probative matter.”83 

The Superior Court has long held that, at a revocation hearing, the Commonwealth is 

required to prove a violation by a preponderance of the evidence, that evidence of an 

arrest does not meet this standard, and that the Commonwealth must adduce some 

evidence about the circumstances surrounding the arrest.84

We conclude that the sentencing court committed an error of law when it relied 

upon prior arrests as a sentencing factor, a conclusion with which the Commonwealth 

agrees.85 If the court imposes a sentence for a felony or misdemeanor, the court is 

required to “make as a part of the record, and disclose in open court at the time of 

sentencing, a statement of the reason or reasons for the sentence imposed.”86 If a 

sentencing court chooses to depart from the guidelines, it must provide its reasons for 

82 Commonwealth v. Davis, 336 A.2d 616, 620 (Pa. Super. 1975).

83 Jones, 50 A.2d at 344. 

84 See Commonwealth v. Banks, 198 A.3d 391, 403 (Pa. Super. 2018) (providing 

that, when revocation is based upon an arrest not resulting in conviction, the 

Commonwealth must introduce evidence of the conduct underlying the arrest and any 

physical evidence); Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001) (“[W]e 

have found that an arrest alone, without facts to support the arrest, is not sufficient to 

revoke probation or parole.”); Davis, 336 A.2d at 620 (“evidence of some facts in addition 

to the fact of arrest is necessary before a court may revoke probation”); Commonwealth 

v. Newman, 310 A.2d 380, 381 (Pa. Super. 1973) (holding that evidence of some facts, 

in addition to the fact of arrest, is necessary before a court may revoke probation); see 

also Pa.R.Crim.P. 708(B), cmt. (“The judge may not revoke probation or parole on arrest 

alone, but only upon a finding of a violation thereof after a hearing, as provided in this 

rule.”). 

85 Commonwealth’s Brief at 8 (recognizing that “a trial court may not consider the 

bare fact of an arrest in and of itself as a sentencing factor”). 

86 42 Pa.C.S. § 9721(b).
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doing so.87 Here, the sentencing court indicated that a reason for the sentence—an 

upward departure from the guideline range—was Berry’s arrest record. The court’s use 

of arrest history as a sentencing factor is incompatible with settled law establishing that 

arrests, without convictions, simply “have no value as probative matter.”88 

As the Commonwealth acknowledges, the sentencing court believed Berry’s arrest 

record to be a legitimate sentencing factor.89 It did not predicate its reasoning upon either 

the federal or state Constitution. Because we conclude that this appeal is resolved by 

our precedent concerning the relevance and probative value of prior arrests, we do not 

reach the constitutional question regarding due process.90

Conceding that sentencing courts may not consider “a defendant’s mere record of 

arrests as a sentencing factor without something more,” the Commonwealth argues in the 

alternative that, consistent with due process, the criminal conduct underlying the arrest 

may be considered at sentencing if it is established by a preponderance of the evidence.91

Berry agrees that the consideration of prior criminal conduct at sentencing requires that 

conduct to be established by a preponderance of the evidence.92

87 Id. (providing that, if a court departs from the sentencing recommendations 

contained in the Guidelines, it must “provide a contemporaneous written statement of the 

reason or reasons for the deviation from the guidelines to the commission”). 

88 Jones, 50 A.2d at 344. 

89 Commonwealth’s Brief at 19.

90 See, e.g., Commonwealth v. Foster, 214 A.3d 1240, 1247 n.8 (Pa. 2019) (resolving 

an appeal on statutory rather than constitutional grounds); Commonwealth v. Veon, 150 

A.3d 435, 454-55 (Pa. 2016) (resolving appeal on non-constitutional grounds and 

avoiding the constitutional question). 

91 Commonwealth’s Brief at 13.

92 Appellant’s Reply Brief at 1 (“Consideration [of an arrest record] is permissible as 

a matter of due process only if the alleged criminal conduct is established by a 

preponderance of the evidence.”). 
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The Commonwealth urges this Court to conclude that a remand is unnecessary

here because the sentencing court identified other sentencing factors unrelated to Berry’s 

arrest record. The Commonwealth further asserts that the sentencing court did not rely 

upon any unsubstantiated prior arrests because two of Berry’s prior arrests were 

supported by “evidence as to the underlying crimes.”93 

The requirement that a sentencing court state its reasons on the record serves to 

convey the factors upon which the court relied in fashioning the sentence and to ensure 

that sentences are not being imposed on the basis of improper sentencing factors.94 

Here, the sentencing court noted on the record several circumstances that supported the 

sentence. One such factor was Berry’s prior arrests, a matter that we hold was not a valid 

sentencing factor. As the Commonwealth concedes, “the single fact that [Berry] had more 

than zero prior arrests was a factor in the court’s sentencing rationale, but the facts 

underlying any particular arrest were not.”95 The sentencing court provided no indication 

on the record that, as to Berry’s arrest record, it considered anything other than the fact 

of prior arrests. Whether and to what extent the sentencing court is permitted to rely upon 

evidence in the record other than a record of arrests is beyond the scope of this appeal. 

Accordingly, we do not reach the alternative arguments advanced by the parties about a 

trial court’s consideration of a prior arrest where the facts underlying that arrest are 

established by a preponderance of the evidence.

93 Commonwealth’s Brief at 20. 

94 42 Pa.C.S. § 9721(b); Commonwealth v. Riggins, 377 A.2d 140, 143 (Pa. 1977) 

(“[C]ourts have recognized the value of requiring a statement of reasons for the imposition 

of a particular sentence to prevent improper considerations from affecting the sentence 

imposed.”). 

95 Commonwealth’s Brief at 20.
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In Commonwealth v. Calvert,

96 the defendant had a lengthy criminal record that 

included convictions that were invalid under Gideon v. Wainwright.

97

 We held that the 

sentencing court improperly “g[a]ve explicit attention to appellant’s criminal record, and 

may have increased the punishment as the result of his knowledge of it.”98 Consequently, 

we held that the remedy was to vacate the judgment of sentence and to remand for 

resentencing.99 Where a sentencing court has considered prior arrests that did not result 

in convictions, the appropriate remedy likewise is a remand for resentencing without such 

consideration. Although it is apparent that the sentencing court considered other, 

legitimate sentencing factors, we cannot extricate the prior arrests from the sentencing 

court’s analysis. The sentencing court will have to do so on remand. We vacate Berry’s 

judgment of sentence, and we remand for resentencing.

Chief Justice Todd and Justices Donohue, Dougherty and Brobson join the 

opinion.

Justice Mundy concurs in result.

Justice McCaffery did not participate in the consideration or decision of this matter.

96 344 A.2d 797 (Pa. 1975).

97 372 U.S. 35 (1963).

98 344 A.2d at 799. 

99 Id.