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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAHEEM WILLIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1621 EDA 2021

Appeal from the Judgment of Sentence Entered April 9, 2018

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

No(s): CP-51-CR-0005238-2009

COMMONWEALTH OF PENNSYLVANIA

v.

SHAHEEM WILLIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2034 EDA 2021

Appeal from the PCRA Order Entered August 26, 2021

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

No(s): CP-51-CR-0005238-2009

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 9, 2023

Following a jury trial in the Philadelphia County Court of Common Pleas

in July of 2010, Shaheem Willis (Appellant) was convicted of attempted 

murder1 and related charges for his role in the March 2009, shooting of 

thirteen-year-old J.S., and sentenced to an aggregate term of 20 to 40 years’ 

____________________________________________

1 18 Pa.C.S. §§ 901, 2502(a).
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imprisonment. He was later granted partial post-conviction collateral relief as 

to his sentence and resentenced to the same term on April 9, 2018. The pro 

se appeal at Docket No. 1621 EDA 2021 is from the judgement of sentence 

imposed upon resentencing. Appellant contends: (1) the trial court lacked

authority to sentence him pursuant to 18 Pa.C.S. § 1102(c) (attempted 

murder causing serious bodily injury) and lacked subject matter jurisdiction 

over that offense; and (2) his sentence is illegal because the court did not 

consider his juvenile status in imposing a statutory maximum sentence and 

failed to comply with 18 Pa.C.S. § 1106 when ordering restitution.

The pro se appeal at Docket No. 2034 EDA 2021 is from the August 26, 

2021, order entered in the Philadelphia County Court of Common Pleas 

dismissing Appellant’s second petition filed pursuant to the Post Conviction 

Relief Act2 (PCRA) as untimely. Appellant argues the petition was not 

untimely, but rather, prematurely filed before his April 2018 judgment of 

sentence was final. He nevertheless asserts the ineffective assistance of trial 

counsel for failing to protect him from an aggravated sentence.

For ease of disposition, we address these related appeals in a single 

memorandum. At Docket No. 1621 EDA 2021, for the reasons discussed 

below, we vacate, in part, the judgment of sentence imposed at Appellant’s 

April 2018 resentencing, and remand for resentencing limited to the issue of 

restitution; in all other respects, we affirm. At Docket No. 2034 EDA 2021, 

____________________________________________

2 42 Pa.C.S. §§ 9541-9546.
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we conclude the trial court had no jurisdiction to consider Appellant’s 

premature PCRA petition, and, consequently, we quash the appeal.

I. FACTS & PROCEDURAL HISTORY

The relevant facts underlying Appellant’s conviction were summarized 

by this Court in a prior appeal as follows:

At 3:30 p.m. on February 25, 2009, [then 17-year-old] 

Appellant, Christian Williams, and Deshaoun Williams were 

standing near 6100 Spruce Street in Philadelphia.1 The victim in 

this case, thirteen-year-old J.S., arrived in a car driven by his 

mother, Tamika Anderson. As they circled the block looking for a 

parking place, J.S. noticed that either Appellant or one of the 

Williams brothers was pointing at the car. Once the car was 

parked, J.S. waited in the front passenger seat while his mother 

entered the school to pick up her daughter. 

__________

1 Appellant was tried with co-defendant Christian Williams 

(Williams).

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Soon after his mother exited, J.S. observed Appellant and 

the Williams brothers approaching in the rearview mirror. A shot 

was fired, causing the passenger window to shatter, and striking 

J.S. in the chest. Appellant then ran up to the car, firing a second 

shot at J.S. from only two feet away. The second shot struck J.S. 

in the hand.2 Appellant and Williams fled. 

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2 Crime scene investigators ultimately recovered five 9-mm bullet 

casings at the scene of the shooting. They determined that all five 

casings had been ejected from the same gun.

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J.S. spent two and a half weeks in the hospital, after 

sustaining what the sentencing court described as “grave, life 

threatening injuries that required extensive surgery to all of his 

vital organs, including removal of part of his lung.” He had 
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multiple scars from the surgeries and bullet wounds. After being 

discharged from the hospital, J.S. then spent several months 

recovering from his injuries before he could resume some of his 

normal activities. 

When given a photo array on March 3, 2009, J.S. identified 

Appellant as the shooter and Williams as one of his companions.

Tamika Anderson also observed Appellant placing a gun in his 

pocket as he fled. She gave chase but lost Appellant in a crowd. 

A nearby bus driver, Jonathan McGill, heard the gunshots and then 

observed Appellant running from the scene of the crime. McGill 

called police and gave them a physical description of Appellant.

Acting pursuant to a warrant, police arrested Deshaoun 

Williams at his home, recovering from Deshaoun a cell phone that 

contained a photo of him brandishing two firearms. One of those 

firearms was the same type used to shoot J.S. The cell phone also 

had Appellant listed as one of Deshaoun’s contacts, under 

Appellant’s nickname in the neighborhood, “Shy”. In a room 

shared by the Williams brothers, shown to police by Williams’ 

mother, a live bullet was found that matched the bullet casings 

found at the crime scene.

Commonwealth v. Willis, 470 EDA 2011 (unpub. memo. at 1-3) (Pa. Super. 

Jun. 12, 2012), appeal denied, 331 EAL 2012 (Pa. Mar. 12, 2013), cert. 

denied, 571 U.S. 866 (Oct. 7, 2013).

Appellant was subsequently arrested and charged with attempted 

murder, aggravated assault, criminal conspiracy, firearms not to be carried 

without a license, carrying a firearm on a public street in Philadelphia, and 

possession of an instrument of crime (PIC).

3

 His criminal information did not 

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3 18 Pa.C.S. §§ 2702(a), 903(a)(1), 6106(a)(1), 6108, and 907, respectively.
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specify that the victim of Appellant’s attempted murder suffered serious bodily 

injury.4

As noted above, Appellant proceeded to a joint jury trial with Christian 

Williams and was convicted of the above-stated charges. Furthermore, on the 

verdict sheet, the jury responded, “Yes” to the question of whether the victim 

suffered “serious bodily injury.” See Verdict Report, 7/20/10.

On October 8, 2010, the trial court sentenced Appellant to an aggregate 

term of 20 to 40 years’ imprisonment for attempted murder, followed by an 

aggregate 12 years’ probation for the firearms offenses.5 He was also ordered 

to pay $34,637.79 in restitution. Appellant’s aggravated assault and 

conspiracy convictions merged for sentencing purposes, and the court 

imposed no further penalty for PIC.

Appellant filed a direct appeal challenging the discretionary aspects of 

his sentence, specifically, asserting the trial court did not “adequately consider 

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4 See 18 Pa.C.S. § 1102(c) (permitting a court to impose a sentence of up to 

40 years; imprisonment when serious bodily injury results from an attempted 

murder; otherwise the maximum sentence permissible is 20 years’ 

imprisonment).

5 The trial court noted that it had ordered a presentence investigation report, 

mental health evaluation, and a drug and alcohol evaluation, which were 

completed prior to sentencing and provided to the parties. See N.T., 10/8/10, 

at 5.
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that Appellant was only 17 years old at the time of the offense.”6 Willis, 470 

EDA 2011 (unpub. memo. at 8). This Court affirmed the judgment of 

sentence, and both the Pennsylvania Supreme Court and United States 

Supreme Court denied review.7

Appellant filed a timely PCRA petition, pro se, on March 10, 2014, in 

which he asserted numerous trial court errors, as well as the ineffective 

assistance of preliminary hearing, trial, and direct appeal counsel. See

Appellant’s Petition for Post-Conviction Collateral Relief, 3/10/14, at 6(A)-

6(D). Although counsel was appointed, Appellant, acting pro se, filed both a 

supplemental and amended petition. On September 15, 2014, Appellant filed 

a motion to remove counsel and proceed pro se. Following a Grazier8 hearing 

on February 9, 2016, the court granted Appellant’s request. 

Appellant filed an amended pro se PCRA petition on April 28, 2016, 

followed by a supplemental petition on May 6. In the supplemental petition, 

Appellant asserted for the first time that he was improperly sentenced to 

mandatory minimum terms pursuant to 42 Pa.C.S. §§ 9712 (offenses 

committed with firearms) and 9718 (offenses against infant persons), which 

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6 At the April 2018 resentencing hearing, the court noted that Appellant was 

“in fact, 17 years and ten months” at the time of the shooting. N.T., 4/9/18, 

at 30.

7 For purposes of PCRA review, Appellant’s judgment of sentence was final on 

October 7, 2013, the date the United States Supreme Court denied Appellant’s 

petition for writ of certiorari. See 42 Pa.C.S. § 9545(b)(3).

8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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have been deemed unconstitutional pursuant to Alleyne v. United States, 

570 U.S. 99, 116 (2013) (any fact that increases mandatory minimum 

sentence must be submitted to jury and found beyond reasonable doubt). 

At some point thereafter, the trial court granted Appellant relief on his 

sentencing claim.9 On April 9, 2018, the court conducted a hearing to 

“resentence [Appellant] pursuant to” Alleyne. See N.T., 4/9/18, at 11. 

Appellant continued to represent himself. At the resentencing hearing, the 

trial court stated that it “wanted to make sure that it was absolutely clear [it] 

was not sentencing [Appellant] to a mandatory minimum sentence[.]” Id. 

After hearing argument from both the Commonwealth and Appellant, the court 

imposed the same sentence as it did at the original hearing — a standard 

range sentence of 20 to 40 years’ imprisonment for attempted murder causing 

serious bodily injury, followed by an aggregate term of 12 years’ probation for 

the firearms offenses. See N.T., 4/9/18, at 29-30. The court also reimposed 

the restitution order in the amount of $34,637.79. Id. at 31. 

Relevant to the claims before us, the trial court made the following 

comments regarding the sentence it imposed: 

[This] is a guideline range sentence. It is appropriate under the 

circumstances given the Commonwealth incorporating by 

reference the testimony from the [October 8, 2010,] sentencing 

which included the testimony of the mother and impact on the 

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9 There is no order in the certified record or notation on the docket indicating 

when the court granted this relief.
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victim, and the original determination by the jury that they found 

serious bodily injury caused on the verdict sheet. 

The Commonwealth’s memo underlying the fact that the 

victim was shot in the chest injuring his heart, lung, kidneys and 

liver and was shot a second time on the left hand. His injuries 

were severe, numerous, and life altering. The sentence of 20 to 

40 years accurately reflects the seriousness of the offense. It will 

promote respect for the law and provide just punishment for the 

offense.

[Appellant] argues that he should be treated like the 

juveniles who have been sentenced to life imprisonment and who 

are now having their sentences reviewed. [Appellant] was not 

sentenced on a homicide case, this was not a life sentence where 

[his] juvenile status would be taken into consideration. I have 

read [Appellant’s] document called motion for court to take 

judicial notice of mitigating sentencing factors. [Appellant] was, 

in fact, 17 years and ten months. He was very close to being 18 

years old and . . . this was a crime that [Appellant] deliberately 

participated in and was the person who shot the victim numerous 

times.

So I’m reimposing the same sentence of 20 to 40 years on 

the charge of attempted murder. . . . 

N.T., 4/9/18, at 29-30.

On April 17, 2018, Appellant filed a timely pro se post-sentence motion, 

requesting reconsideration of his sentence on the following bases: (1) recent 

United States Supreme Court decisions regarding juvenile brain development 

confirm his sentence was manifestly excessive; (2) the court failed to properly 

consider mitigating factors and paid “lip service” to the “illegality of the 

mandatory minimums that were initially” imposed, as well as the fact that his 

co-defendant received a lenient sentence; (3) the court failed to provide 

adequate reasons on the record for the sentence imposed; (4) the court failed 

to consider his testimony that he was “extremely remorseful” and “had 
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matured and rehabilitated[;]” and (5) the court failed to order an updated 

presentence investigation report. See Appellant’s Post Sentence Motion for 

Reconsideration of Sentence, 4/17/18, at 2-3 (unpaginated). The trial court 

did not promptly rule upon Appellant’s post-sentence motion. Although the 

motion should have been denied by operation of law on August 15, 2018, 

there was no order entered on the docket or served on the parties. See

Pa.R.Crim.P. 720(B)(3)(a), (c).

Meanwhile, on April 10, 2018, the trial court issued Appellant 

Pa.R.Crim.P. 907 notice of its intent to dismiss the remaining claims in his 

PCRA petition without conducting an evidentiary hearing. Appellant promptly 

filed an objection; however, on May 4, 2018, the court entered an order 

dismissing Appellant's petition as meritless. See Order, 5/4/18. Appellant 

timely appealed.

On November 15, 2019, a panel of this Court affirmed the order denying 

PCRA relief.10 See Commonwealth v. Willis, 1555 EDA 2018 (unpub. 

memo. at 1) (Pa. Super. Nov. 15, 2019), appeal denied, 103 EAL 2020 (Pa. 

Aug. 18, 2020). The Pennsylvania Supreme Court denied Appellant’s petition 

for allowance of appeal on August 18, 2020.

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10 We note that Appellant’s first claim challenged the discretionary aspects of 

his April 2018 resentencing. See Willis, 1555 EDA 2018 (unpub. memo. at 

6). However, the panel concluded that issue was not before it because 

Appellant did not appeal from the new judgment of sentence; rather, the 

appeal was from the May 4, 2018 order denying his prior PCRA petition. See 

id. (unpub. memo. at 6-7). 
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On August 25, 2020, Appellant filed the present PCRA petition, pro se. 

He sought relief from his April 9, 2018, resentencing, and asserted the petition 

was timely filed. See Appellant’s Petition for Post-Conviction Relief Pursuant 

to 42 Pa.C.S. § 9541, et. seq., 8/25/20 (2020 PCRA Petition), at 2. Appellant 

raised the following two claims: (1) his sentence was illegal because the 

Commonwealth failed to provide notice that it intended to prove the victim of 

his attempted murder suffered serious bodily, thus permitting the court to 

impose a lengthier sentence; and, relatedly, (2) trial counsel was ineffective 

for failing to object to a special interrogatory verdict sheet, which asked the 

jury to determine if the victim suffered serious bodily injury. See id. at 3. 

The Commonwealth filed a motion to dismiss on May 12, 2021, 

asserting: (1) Appellant’s claims regarding his April 2018 resentencing were 

premature because the clerk of courts never entered an order denying 

Appellant’s post-sentence motion by operation of law; and (2) Appellant’s 

challenge to trial counsel’s ineffective assistance was time-barred. See

Commonwealth’s Motion to Dismiss Appellant’s PCRA Petition, 5/12/21, at 7-

8. In his pro se response, Appellant “agree[d] with the Commonwealth that 

his sentencing claim [was] prematurely filed because his post-sentence 

motion from his resentencing [had] yet to be formally disposed.” Appellant’s 

Response to Commonwealth’s Motion to Dismiss, 5/24/21, at 2 (capitalization 

omitted). However, relying on the unpublished decision of this Court in 

Commonwealth v. Fantauzzi, 19 EDA 2018 (Pa. Super. May 22, 2019), 

appeal denied, 480 MAL 2019 (Pa. Feb. 3, 2020), Appellant insisted he could 
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raise counsel’s ineffectiveness for failing to “protect [him] from the imposition 

of an illegal sentence.” Appellant’s Response to Commonwealth’s Motion to 

Dismiss at 3-4.

On July 27, 2021, the trial court entered an order denying Appellant’s 

April 17, 2018, post-sentence motion by operation of law. See Order, 

7/27/21. Appellant filed a timely notice of appeal on August 3, 2021,11 and

complied with the trial court’s order directing him to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The appeal from the April 9, 

2018, judgment of sentence is docketed at 1621 EDA 2021. 

Meanwhile, also on July 27, 2021, the court notified Appellant of its 

intent to dismiss his 2020 PCRA Petition without conducting an evidentiary 

hearing pursuant to Pa.R.Crim.P. 907. See Notice Pursuant to Pennsylvania 

Rule of Criminal Procedure 907, 7/27/21. Appellant did not file a reply, and 

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11 “If post-sentencing motions are timely filed, . . . the judgment of sentence 

does not become final for purposes of appeal until the trial court disposes of 

the motion, or the motion is denied by operation of law.” Commonwealth 

v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Pursuant to Pa.R.Crim.P. 

720, a trial court “shall decide [a timely filed] post-sentence motion . . . within 

120 days of the filing of the motion[,]” otherwise the clerk of courts “shall 

forthwith enter an order” denying the motion by operation of law. 

Pa.R.Crim.P. 720(B)(3)(a), (c). However, “where the clerk of courts does not

enter an order indicating that the post-sentence motion is denied by operation 

of law and notify the defendant of same, a breakdown in the court system has 

occurred and we will not find an appeal untimely under these circumstances.” 

Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). Thus, 

Appellant’s notice of appeal, filed within 30 days of the date the trial court 

belatedly entered an order denying his post-sentence motion by operation of 

law, was timely filed.
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on August 26, 2021, the court dismissed Appellant’s 2020 PCRA Petition as 

untimely. Order, 8/26/21. Appellant filed a timely appeal,12 which is docketed 

at 2034 EDA 2021. 

II. RESENTENCING APPEAL (DOCKET NO. 1621 EDA 2021)

At Docket No. 1621 EDA 2021, Appellant raises the following claims 

concerning his April 9, 2018, resentencing:

A. Did not the sentencing court lack statutory authorization to 

impose a 40 year sentence on Appellant for an attempted 

murder charge where the element of serious bodily injury in 

relation to attempted murder was not included in the 

information as required by 42 Pa.C.S. § 8931(e), and 

Pa.R.Crim.P. 560(B)(5) and 560(D), in violation of 1 Pa.C.S. § 

1504?

B. Is not Appellant’s sentence illegal because he was ambushed 

with the verdict sheet’s special interrogatory about serious 

bodily injury in connection with attempted murder and 

Appellant had no de jure nor de facto notice to defend against 

attempted murder with serious bodily injury, and this surprise 

interrogatory was not enough to put Appellant on notice?

C. Did not the trial court lack jurisdiction over the subject matter 

of attempted murder with serious bodily injury, under the 

current law and the law at the time of trial where the 

Commonwealth failed to make the necessary formal accusation 

in Appellant’s criminal information?

D. Did not the sentencing court illegally impose restitution when 

it failed to order the “method of restitution”; where the order 

for restitution is to those who do not statutorily qualify as a 

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12 Although the notice of appeal was docketed on September 27, 2021, the 

30th day after the entry of the court’s order — September 25th — fell on a 

Saturday. Therefore, Appellant had until the following Monday, September 

27th, to file a timely appeal. See 1 Pa.C.S. § 1908.
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victim; and where the Commonwealth’s recommendation was 

not based upon information received from the victim and 

committed a fraud upon the court?

E. Is not Appellant’s sentence illegal where the sentencing court 

stated, on the record, that Appellant’s juvenile status should 

not come into consideration because he was not facing a life 

sentence before imposing the harshest possible penalty for an 

attempted murder [charge], in violation of the United States’ 

and Pennsylvania’s cruel and unusual punishment clauses?

F. Is not Appellant’s sentence illegal because the sentencing court 

failed to give credit for time served in “custody” and the 

applicable statute did not exclude, by any statutory definition, 

strict confinement to a home with electronic monitoring and 

probationary officers virtually present at all times, with law 

enforcement officers on standby from the statutory term 

“custody”?

Appellant’s Brief (1621 EDA 2021) (Appellant’s Resentencing Brief) at 4-6 

(some capitalization omitted).13

(A)(1) REVIEW FOLLOWING RESENTENCING

Preliminarily, we note that Appellant has filed this appeal from the 

judgment of sentence imposed following his resentencing, which was the 

result of a successful PCRA claim challenging the possible unconstitutionality 

of his original sentence. Because he has already had the benefit of a direct 

appeal following his conviction, his claims in this appeal are limited to those 

challenging the sentence imposed following remand. See Commonwealth 

v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016); Commonwealth v. 

Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002) (“Having succeeded on 

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13 We have reordered Appellant’s claims for purposes of disposition.
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[challenges to his sentence] and having been re-sentenced following remand, 

appellant could not file another direct appeal attacking his conviction: the only 

issues reviewable in a direct appeal would be challenges to the sentence 

imposed following remand.”).

(A)(2) ATTEMPTED MURDER WITH SERIOUS BODILY INJURY

Appellant’s first three claims, which we address together, challenge the 

trial court’s authority to impose a maximum 40-year term of imprisonment for 

his conviction of attempted murder. 

By way of background, Section 1102 of the Crimes Code governs 

sentencing for a conviction of, inter alia, murder and attempted murder. See

18 Pa.C.S. § 1102. Subsection (c) provides, in relevant part: 

(c) . . . Notwithstanding section 1103(1) (relating to sentence of 

imprisonment for felony), a person who has been convicted of 

attempt . . . to commit murder . . . where serious bodily injury 

results may be sentenced to a term of imprisonment which shall 

be fixed by the court at not more than 40 years. Where serious 

bodily injury does not result, the person may be sentenced to a 

term of imprisonment which shall be fixed by the court at not more 

than 20 years.

18 Pa.C.S. § 1102(c)(emphases added). Therefore, as an en banc panel of 

this Court explained: 

Section 1102(c) imposes a condition precedent to the imposition 

of a maximum term of imprisonment of up to 40 years, 

specifically, that serious bodily injury must have resulted from the 

attempted murder. Otherwise, the sentence shall be not more 

than 20 years. Serious bodily injury is a fact that must be proven 

before a maximum sentence of [40] years may be imposed for 

attempted homicide. Moreover, a defendant must be put on 
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notice when the Commonwealth is seeking a 40–year maximum 

sentence for attempted murder. 

Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017) (en banc) 

(citations & quotation marks omitted). 

Furthermore, pursuant to the dictates of Apprendi v. New Jersey, 530 

U.S. 466 (2000), “[o]ther than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum 

must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 

490. Thus, we have held that in order to comport with Apprendi and its 

progeny, a trial court may not impose an aggravated sentence of more than 

20 years’ imprisonment for attempted murder unless the jury finds, beyond a 

reasonable doubt, that the victim suffered serious bodily injury as a result of 

the attempted murder. See Commonwealth v. Johnson, 910 A.2d 60, 67 

(Pa. Super. 2006); see also Barnes, 167 A.3d at 118-19. With this 

background in mind, we consider Appellant’s arguments on appeal.

Appellant first argues the trial court “lacked statutory authorization” to 

impose a 40-year maximum sentence when he was “not charged, via 

information” with the offense of attempted murder with serious bodily 

injury.

14

 See Appellant’s Resentencing Brief at 12-14. He emphasizes that 

under Pennsylvania Rules of Criminal Procedure 561(B), “any charge not listed 

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14 Appellant’s criminal information charged only that he committed “Criminal 

Attempt” by “attempting to cause the death of another human being.” 

Information, 5/11/09, at 1.
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on the information shall be deemed withdrawn by . . . the Commonwealth.” 

Id. at 12-13, citing Pa.R.Crim.P. 561(B) (emphasis omitted).

Appellant further maintains that he was “ambushed” by the special 

interrogatory on the jury’s verdict sheet which, he claims, “for the first time, 

[raised] a question about [serious bodily injury] in connection with attempted 

murder[.]” Appellant’s Resentencing Brief at 19. He insists the facts of this 

case are “completely identical” to those in Commonwealth v. Bickerstaff, 

204 A.3d 988, 997-98 (Pa. Super. 2019) (vacating 40-year maximum 

sentence for attempted murder and remanding for resentencing; finding trial 

counsel was ineffective for failing to object to special interrogatory asking jury 

to determine if victim sustained serious bodily injury when there was no notice 

of serious bodily injury claim prior to jury deliberations). Appellant’s 

Resentencing Brief at 19-20. In a related claim, Appellant argues that because 

of the Commonwealth’s failure to include the charge of attempted murder with 

serious bodily injury in his information, the trial court lacked subject matter 

jurisdiction, and he must be discharged. Id. at 30.

Preliminarily, we emphasize that, contrary to Appellant’s argument, the 

trial court had the “statutory authority” to impose a sentence of up to 40 years’ 

imprisonment pursuant to Section 1102(c) after the jury found the victim 

suffered serious bodily injury as a result of the attempted murder. See 18 

Pa.C.S. § 1102(c). Nevertheless, Appellant’s claims implicate the legality of 

his sentence — he, inarticulately, invokes a due process challenge by arguing 

he had no notice that the Commonwealth intended to prove the victim suffered 
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serious bodily injury as a result of the attempted murder. Thus, our “standard 

of review is de novo and the scope of review is plenary.” Commonwealth v. 

King, 234 A.3d 549, 559-60 (Pa. 2020). 

The Supreme Court’s recent decision in King, supra, is instructive. In 

that case, as here, the defendant was charged with attempted murder, but 

the criminal information “made no reference” to the fact that the 

Commonwealth intended to prosecute him for attempted murder causing

serious bodily injury pursuant to Section 1106(c). King, 234 A.3d at 552-53. 

However, the jury verdict sheet included an interrogatory question, which 

asked the jury to determine if the victim suffered serious bodily injury, in the 

event it found the defendant guilty of attempted murder. Id. at 553. The 

jury responded that the victim did suffer serious bodily injury, and the trial 

court later sentenced the defendant to an aggravated term of 20 to 40 years’ 

imprisonment for his conviction of attempted murder. Id.

Both the trial court and a panel of this Court rejected the defendant’s 

claim that his attempted murder sentence was illegal because he was not 

properly charged with attempted murder causing serious bodily injury. See 

King, 234 A.3d at 553-54. The Supreme Court granted allowance of appeal 

to consider, inter alia, whether a defendant’s due process and Sixth 

Amendment rights are denied when the Commonwealth is not required to 

“provide formal notice to a defendant when seeking to prosecute him for an 

aggravated offense, specifically the 40-year maximum sentence authorized 

under 18 Pa.C.S.A. § 1102(c)?” Id. at 556.
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The Supreme Court concluded that formal notice was required: 

[W]hen the Commonwealth intends to seek an enhanced sentence 

for attempted murder resulting in serious bodily injury under 

Section 1102(c), the Commonwealth must include a citation to the 

statutory provision as well as its language in the charging 

documents. 

King, 234 A.3d at 562. However, while the Court concluded that formal notice 

was lacking in that case, it, nevertheless, declined to find the defendant’s 

sentence illegal because it concluded the error was harmless. See id. at 563, 

566. 

The King Court noted that the defendant relied on caselaw striking down 

mandatory minimum sentencing statutes in the wake of Alleyne, supra,

15

which rejected a harmless error analysis. See King, 234 A.3d at 565. 

However, the Supreme Court held those cases were inapplicable to the present 

facts. Id. Indeed, in the Alleyne cases, the mandatory minimum statutes 

were determined to be “facially unconstitutional” and incapable of severance, 

so that the Commonwealth could not cure the unconstitutionality of the statute 

absent legislative authority. Id. at 565-66. However, the King Court 

explained that, in the case before it, “a proper notice would permit the 

sentence” imposed by the trial court; thus, it concluded the “error [was]

amenable to harmless error review.” Id. at 566. The Court further found:

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15 In Alleyne, the United States Supreme Court expanded Apprendi to apply 

to mandatory minimum sentences, and held that “any fact that increases the 

mandatory minimum is an ‘element’ that must be submitted to the jury.” 

Alleyne, 570 U.S. at 103. 
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[T]he Commonwealth has met its burden of establishing that the 

error was harmless beyond a reasonable doubt. [T]he evidence 

of serious bodily injury in this case was overwhelming and 

uncontroverted. Moreover, this is not a case where the judge 

made the requisite finding, . . . but rather it was stipulated to and 

found by the jury beyond a reasonable doubt. [The defendant]

never contested the severity of [the victim’s] injuries, but rather 

stipulated that, as a result of two gunshot wounds, [the victim]

suffered a shattered hipbone and anklebone, requiring multiple 

surgeries and high intensity inpatient occupational and physical 

therapy. While [the defendant] did not receive formal notice of 

the Commonwealth’s intent to seek the enhancement, [he]

received de facto notice, at various points before trial, that the 

Commonwealth was seeking the enhancement. For example, the 

factual summaries in the charging documents made clear that [the 

victim] suffered serious bodily injury. Moreover, the 

Commonwealth advised [the defendant] that the minimum 

penalty for attempted murder if convicted was seventeen and onehalf years, signaling that the Commonwealth intended to seek the 

enhancement. Finally, the Commonwealth and [the defendant’s]

attorney reviewed and agreed to the content and form of the 

verdict sheet prior to jury deliberations, which included a special 

interrogatory regarding whether [the victim] suffered serious 

bodily injury as a result of the attempted murder.

We also find persuasive the Commonwealth’s point that its 

failure to provide formal notice of its intent to seek the enhanced 

sentence did not affect [the defendant’s] choice of defense or 

execution of that defense, considering [he] stipulated to [the 

victim’s] injuries and instead sought to demonstrate that another 

unknown individual committed the crime. Therefore, the harmless 

nature of the error precludes a finding that the sentence was 

illegally imposed.

Id. (citations omitted).

We conclude the same is true here. It is undisputed the Commonwealth 

failed to provide Appellant with formal notice in the charging documents of its 

intent to prove the victim suffered serious bodily injury as a result of the 

attempted murder. See Information at 1. Nevertheless, Appellant’s claim 
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that he was “ambushed” by the jury interrogatory at the time of deliberations 

is specious. 

First, the affidavit of probable cause averred that the victim was shot in 

the “chest and hand,” transported to the hospital “where he underwent 

surgery[,]” and was in “critical condition.” Affidavit of Probable Cause 3/4/09 

at 2. Moreover, on the first day of trial, before testimony began, the court 

asked the Commonwealth’s attorney if the aggravated assault charge involved 

serious bodily injury. See N.T. 7/13/10 at 34. The Commonwealth’s attorney

responded, “Yes,” and further stated: “I would just request at the end of trial 

that there be a separate interrogatory on the serious bodily injury in 

regards to the attempted murder . . . because it does change the 

maximum penalty.” Id. at 35 (emphasis added). Appellant did not object.

Thus, before he even presented his defense, Appellant was well aware the 

Commonwealth intended to prove the victim suffered serious bodily injury as 

a result of the attempted murder. 

Additionally, Appellant did not question the victim concerning the extent 

of his injuries, nor did he object when the Commonwealth moved to admit the 

victim’s medical records into evidence. See N.T., 7/14/10, at 191-205 

(Appellant’s cross-examination of the victim); N.T., 7/16/10 at 86-87

(Commonwealth moved medical records into evidence). Although Appellant’s 

trial counsel — Geoffrey Kilroy, Esquire — did object when the jury requested 

a copy of the victim’s medical records during deliberations, he did so only to 

the extent that the records “contain numerous amounts of hearsay about who 
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said what about what[.]” N.T., 7/19/10 at 85. However, Attorney Kilroy 

agreed that there was “really [no] doubt that” the victim suffered serious 

bodily injury. Id. at 86. Thus, counsel for all parties agreed to provide the 

jury with a summary of the medical records. See id. at 89.

Lastly, the trial court instructed the jury there would “be one question 

that [it would] have to answer in connection with the charge of attempted 

murder” — that is, “Do you find that serious bodily injury was caused to [the 

victim]?” N.T., 7/19/10, at 81-82. Attorney Kilroy did not object to either the 

instruction or the verdict sheet. As noted supra, the jury responded, “Yes,” 

to that special interrogatory question. 

Accordingly, we conclude the facts of this case are nearly identical to 

those presented in King. Although the Commonwealth should have notified 

Appellant in the charging documents that it intended to prove he committed 

attempted murder with serious bodily injury, we conclude the failure to do so 

was harmless error. Significantly, the jury, itself, specifically found the victim 

suffered serious bodily injury. Moreover, the Commonwealth stated on the 

record before trial that it intended to request a special interrogatory on that 

exact issue, and Appellant did not challenge the victim’s injuries or medical 

records. Thus, under King, Appellant is entitled to no relief on this claim.

Nor do we find that this Court’s decision in Bickerstaff, supra, compels 

a different result. Appellant maintains that the facts of his case are 

“completely identical” to those in Bickerstaff, such that he is “entitled to the 

same relief[,]” namely, remand for resentencing. See Appellant’s 
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Resentencing Brief at 19. What Appellant fails to acknowledge, however, is 

the procedural posture of Bickerstaff — an appeal from an order denying 

PCRA relief on a claim on ineffective assistance of counsel. This Court 

opined:

[T]he Commonwealth charged [the defendant] with only 

attempted murder generally and did not include the element of 

serious bodily injury in the criminal complaint or information. The 

Commonwealth also failed to put [the defendant] on notice that 

the Commonwealth intended to prove attempted murder/serious 

bodily injury at trial. The Commonwealth did not prosecute [the 

defendant] for attempted murder/serious bodily injury.

Furthermore, the court did not instruct the jury on serious bodily 

injury related to the attempted murder offense. Instead, the court 

gave a jury instruction only on serious bodily injury related to 

aggravated assault. Here, [the defendant] was essentially 

ambushed with the verdict sheet’s special interrogatory that 

raised for the first time a question about serious bodily injury in 

connection with attempted murder. Prior to the interrogatory, 

[he] had no warning that there was even an issue of serious bodily 

injury associated with attempted murder. The charges, 

complaint, information, and jury instructions for attempted 

murder made no mention of associated serious bodily injury. 

Absent more, this surprise interrogatory was not enough to put 

[the defendant] on notice to defend against attempted 

murder/serious bodily injury.

Due to this lack of notice and [the defendant’s] resultant 

inability to defend, counsel should have objected to the 

interrogatory before the jury deliberated. Counsel had no 

rational basis for failing to object to the interrogatory, given the 

lack of notice, and counsel’s failure to object prejudiced [the 

defendant], because it caused [him] to endure a conviction for 

attempted murder with serious bodily injury and set [him] up to 

face a maximum sentence of 40 years for that offense, rather than 

20 years for attempted murder generally. Moreover, when the 

court imposed the enhanced sentence for attempted 

murder/serious bodily injury, based solely on the jury’s 

response to the interrogatory, counsel again failed to 

object. Thus, we agree with [the defendant’s] contention 

that trial counsel was ineffective for failing to protect [him]
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from the sentence enhancement for attempted 

murder/serious bodily injury.

Id. at 997–98 (emphases & paragraph break added; citations omitted).

Here, Appellant raises his claim on direct appeal following his 

resentencing hearing — not as an allegation of trial counsel’s ineffectiveness 

on PCRA review. Thus, at this juncture, trial counsel’s failure to object to the 

interrogatory waives the claim for our review. See Pa.R.A.P. 302(a) (“Issues 

not raised in the trial court are waived and cannot be raised for the first time 

on appeal.”). Moreover, as explained above, the de facto notice Appellant 

received in the present case is similar to the notice the defendant received in 

King, and more than that provided to the defendant in Bickerstaff. Thus, 

we find King controlling.

With regard to Appellant’s assertion that he should be discharged 

because the trial court lacked subject matter jurisdiction when the 

Commonwealth did not include the charge of attempted murder causing

serious bodily injury in his information,16 the King Court rejected that same 

argument. See King, 234 A.3d at 557 n.9. The Supreme Court explained:

[T]he Apprendi violation herein would, at most, deprive the court 

of the ability to sentence [the defendant] to an enhanced 

sentence. It would not divest the trial court of the jurisdiction to 

sentence [the defendant] for the unenhanced attempted murder 

charge of which he plainly had formal notice. . . . 

Id.

____________________________________________

16 Appellant’s Resentencing Brief at 30.
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Thus, Appellant’s challenges to the trial court’s authority to sentence 

him pursuant to Section 1102(c) fail.

(A)(3) RESTITUTION

In his next issue, Appellant insists the trial court illegally imposed 

restitution. See Appellant’s Resentencing Brief at 15. He contends the trial 

court failed to “order the ‘Method’ of payment” as required by 18 Pa.C.S. § 

1106(c)(2)(ii), and “ordered payment to entities who are not ‘victims[.]’” Id.

at 15-16. Appellant also maintains the Assistant District Attorney “personally 

increased the victim’s medical costs” without supporting documentation. Id.

at 16-17.

Restitution is governed by Section 1106 of the Crimes Code. Section 

1106(c) requires the trial court to order “full restitution” to “the victim” or 

victims, “[r]egardless of the current financial recourses of the defendant,” so 

that they are provided with “the fullest compensation for the loss.” 18 Pa.C.S. 

§ 1106(c)(1)(i). A “victim” is defined as, inter alia, “[a] direct victim[, and a] 

parent . . . of a child who is a direct victim[.]” See 18 Pa.C.S. §§ 11.103, 

1106(h). A “direct victim” is defined as “[a]n individual against whom a crime 

has been committed or attempted and who as a direct result of the criminal 

act or attempt suffers physical or mental injury . . . .” 18 P.S. § 11.103. In 

addition, the statute mandates that “[a]t the time of sentencing, the court 

shall specify the amount and method of restitution.” 18 Pa.C.S. § 1106(c)(2)

(emphasis added). The court may order restitution to be paid “in a lump sum, 
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by monthly installments or according to such other schedule as it deems just.” 

18 Pa.C.S. § 1106(c)(2)(ii).

We note that a challenge to an order of restitution may raise either a 

legality or discretionary sentencing claim:

[A] challenge to the legality of sentence is presented when the 

defendant claims that the trial court lacked statutory authority to 

impose restitution because the Commonwealth failed to establish 

one or more of the requirements of section 1106(a). Conversely, 

where the Commonwealth has established each element of § 

1106(a), i.e., the victim suffered loss to person or property 

directly caused by the specific crime committed by the defendant, 

a claim that the restitution order is excessive implicates the 

discretionary aspects of sentencing.

Commonwealth v. Muhammed, 219 A.3d 1207, 1212 (Pa. Super. 2019) 

(citations & quotation marks omitted).

Here, Appellant’s argument consists of both a legality and discretionary 

challenge. His assertion that the court awarded restitution to entities that 

were not proper “victims” and failed to order the “method” of payment raise 

legality of sentencing issues pertaining to the court’s statutory authority to 

impose restitution. See Muhammed, 219 A.3d at 1212. Although he raises 

these illegal sentencing claims for the first time in this appeal, they are not 

waived. See id. at 1211 (challenge to legality of sentence can never be 

waived).

 However, his assertion that the costs of the victim’s medical expenses 

presented by the Commonwealth were excessive implicates the discretionary 

aspects of his restitution sentence. Because Appellant failed to challenge the 
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restitution amount at his resentencing hearing or in in his post-sentence 

motion, that claim is waived for our review. See Pa.R.Crim.P. 720.

Nevertheless, we are constrained to conclude that the order of 

restitution imposed by the trial court at Appellant’s 2018 resentencing hearing 

was illegal. First, as Appellant maintains, the restitution amount requested 

by the Commonwealth included payment to the “Firearms Identification Unit” 

for “a laboratory fee” ($135) and the cost for “the T-Mobile custodian of 

records” for their testimony regarding “phone records in this case” ($15.45). 

See N.T., 10/8/10, at 39. Neither of these entities constitute a “victim” as 

defined in the Crimes Code. Thus, the order awarding “restitution” to these 

entities was illegal.17

Moreover, we are also constrained to agree with Appellant that the trial 

court’s failure to specify the “method of restitution” at the resentencing 

hearing, renders his restitution sentence illegal. The text of the statute is 

clear: “At the time of sentencing the court shall specify the amount and 

method of restitution.” 18 Pa.C.S. § 1106(2) (emphasis added). This 

“method” may include a lump sum payment or monthly installments. See 18 

Pa.C.S. § 1106(2)(ii). Although we recognize Appellant’s lengthy term of 

____________________________________________

17 We note the trial court did not provide any further discussion of the 

restitution sentence at the 2018 resentencing hearing. It simply “reorder[ed] 

restitution” in the same amount as the original sentence. See N.T., 4/9/18, 

at 31.
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imprisonment renders the restitution order superfluous at the present time,

the trial court is required by statute to specify how restitution is to be paid. 

Therefore, we vacate Appellant’s April 2018 judgment of sentence with 

respect to the restitution order, and remand to permit the trial court to impose 

a new restitution order which complies with Section 1106. See 

Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (holding 

proper remedy following determination that restitution award was not to 

discharge defendant from restitution, but to provide trial court with 

opportunity “to impose a new restitution order”). 

(A)(4) CONSIDERATION OF JUVENILE STATUS

In his penultimate issue concerning his resentencing, Appellant argues 

his sentence is illegal because the trial court stated that it need not consider 

his “juvenile status” because he was not facing a life sentence. Appellant’s 

Resentencing Brief at 22. He insists the court ignored the holdings of Miller 

v. Alabama, 567 U.S. 460 (2012),18 and Jones v. Mississippi, 141 S.Ct. 

1307 (U.S. 2021),19 that “youth matters” and “must be considered as a 

mitigating sentencing factor.” Appellant’s Resentencing Brief at 22-23

____________________________________________

18 See Miller, 567 U.S. at 465 (holding “mandatory life without parole for 

those under the age of 18 at the time of their crimes violates the Eighth 

Amendment's prohibition on ‘cruel and unusual punishments.’”) (emphasis 

added).

19 See Jones, 141 S.Ct. at 1318-19 (holding “a separate factual finding of 

permanent incorrigibility is not required before a sentencer imposes a lifewithout-parole sentence on a murderer under 18”) (emphasis added).
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(citations omitted). He insists the court’s statement at his resentencing 

hearing that his “juvenile status did not come into it’s [sic] consideration 

makes [his] sentence . . . illegal[.]” Id. at 25.

Although Appellant frames his issue as a challenge to the legality of his 

sentence, he is, in fact, challenging the discretionary aspects of his sentence

— namely, the trial court’s purported failure to consider the mitigating factor 

of his youth. See Jones, 141 S.Ct. at 1315, 1316 (explaining Miller, supra, 

“repeatedly described youth as a sentencing factor akin to a mitigating 

circumstance” and “did not require the sentencer to make a separate finding 

of permanent incorrigibility before imposing” a sentence of life-without-parole 

on a juvenile defendant). It is well-settled that before we may consider a 

discretionary aspects of sentencing claim,

we must first determine whether [the defendant] has done four 

things: (1) filed a timely notice of appeal, see Pa.R.A.P. 902 and 

903; (2) preserved the issue at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

included a Pa.R.A.P. 2119(f) statement in his brief; and (4) set 

forth a substantial question that his sentence is not appropriate 

under the Sentencing Code.

Commonwealth v. Lynch, 242 A.3d 339, 346 (Pa. Super. 2020), appeal

denied, 252 A.3d 1072 (Pa. 2021).

In the present case, Appellant properly filed both a timely post-sentence 

motion and a timely notice of appeal. See id. Although his brief does not 

include the requisite Pa.R.A.P. 2119(f) concise statement of reasons relied 

upon for allowance of appeal, the Commonwealth did not object to the 

omission; accordingly, we decline to find the claim waived. See 
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Commonwealth v. Cramer, 195 A.3d 594, 610 n.7 (Pa. Super. 2018). 

Therefore, we must determine whether Appellant has raised a substantial 

question for our review.

An appellant “presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the sentencing 

code or is contrary to the fundamental norms of the sentencing process.” 

Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (citation 

omitted). However, “this Court repeatedly has held that a claim of inadequate 

consideration of mitigating factors does not raise a substantial question for 

our review.” Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super.

2021) (citation omitted). See also Commonwealth v. Cruz-Centeno, 668 

A.2d 536, 545 (Pa. Super. 1995) (“[A]n allegation that a sentencing court 

failed to consider or did not adequately consider certain factors does not raise 

a substantial question that the sentence was inappropriate.”) (citation & 

quotation marks omitted). Therefore, Appellant’s claim that the trial court 

failed to properly consider his youth as a mitigating factor does not present a 

substantial question for our review.

Nevertheless, we note that Appellant’s claim is premised upon a 

misapprehension of the trial court’s comments at the resentencing hearing.20 

____________________________________________

20 “Sentencing is a matter vested in the sound discretion of the sentencing

judge” which an appellate court will not disturb “absent an abuse of 

discretion.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 

2015) (en banc) (citation omitted).
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Representing himself pro se at the hearing, Appellant argued that the trial 

court should take into consideration the fact that he was a juvenile when he 

committed the shooting and cited United States Supreme Court decisions 

involving challenges to sentences for juvenile offenders convicted of firstdegree murder. See N.T., 4/9/18, at 21-24. He emphasized that those 

decisions discussed how juvenile offenders are “highly vulnerable to peer 

pressure and negative influence” but have “greater prospects for reform 

making them less deserving of the most severe punishments.” Id. at 23. 

In re-imposing the standard range sentence21 of 20 to 40 years’ 

imprisonment, the trial court “incorporate[ed] by reference the testimony 

from the [October 2010] sentencing hearing which included the testimony of 

the mother and impact on the victim[.]” N.T., 4/9/18, at 29. The court also 

noted the victim’s injuries were “severe, numerous, and life-altering[,]” 

emphasizing the sentence imposed “reflects the seriousness of the offense[,] 

will promote respect for the law and provide just punishment for the offense.” 

Id. Regarding Appellant’s juvenile status, the trial court commented:

[Appellant] argues that he should be treated like the 

juveniles who have been sentenced to life imprisonment and who 

are now having their sentences reviewed. [Appellant] was not 

sentenced on a homicide case, this was not a life sentence where 

[his] juvenile status would be taken into consideration. I have 

read [Appellant’s] document called motion for court to take 

judicial notice of mitigating sentencing factors. [Appellant] was, 

in fact, 17 years and ten months [old at the time of the crime]. 

He was very close to being 18 years old and . . . this was a crime 

____________________________________________

21 See N.T., 10/8/10, at 46; N.T. 4/9/18, at 29.
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that [he] deliberately participated in and was the person who shot 

[V]ictim numerous times.

So I’m reimposing the same sentence of 20 to 40 years on 

the charge of attempted murder. . . .

Id. at 29-30.

Therefore, the trial court did not refuse to consider Appellant’s juvenile 

status as Appellant now claims on appeal. Rather, the court rejected 

Appellant’s argument that he should be treated like those juvenile offenders 

who were convicted of first-degree murder and sentenced to either death or 

life imprisonment without the possibility of parole. Appellant raised a similar 

claim in the direct appeal from his October 2010 sentencing, which a panel of 

this Court rejected. Indeed, we explained that the United States Supreme 

Court decisions concerning the sentencing of juvenile offenders did not 

“suggest[ ] that a . . . sentence of 20 – 40 years’ incarceration is an 

inappropriate penalty for a 17 year old who formed the intent to kill, acted on

that intent, and then only fell short of committing first degree murder by the 

miracle of modern medicine[.]” Willis, 470 EDA 2011 (unpub. memo. at 9). 

Accordingly, Appellant’s challenge to the discretionary aspects of his sentence

fails.

(A)(5) CREDIT FOR TIME SERVED

In his final claim on direct appeal from resentencing, Appellant insists 

he should receive credit for time served on house arrest pursuant to 42 Pa.C.S. 
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§ 9760 (“Credit for Time Served”).

22

 See Appellant’s Resentencing Brief at 

26. Although he acknowledges that the Pennsylvania Supreme Court, in 

Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), “excluded all forms of 

house arrest from the statutory definition of custody” for purposes of time 

credit, Appellant insists that “holding violates the law.” Appellant’s 

Resentencing Brief at 26. 

In Kyle, our Supreme Court explicitly held: “Today, we make clear that 

time spent on bail release, subject to electronic monitoring, does not qualify 

as custody for purposes of Section 9760 credit against a sentence of 

incarceration.” Kyle, 874 A.2d at 20 (emphasis added). The Court further 

explained: “Incarceration in an institutional setting is different in kind, not 

in mere degree, from ‘confinement’ to the comforts of one’s home. Id. at 22.

While Appellant would have us determine that Kyle was wrongly 

decided, we emphasize:

As an intermediate appellate court, we generally lack[ ] the 

authority to determine that [the Supreme] Court’s decisions are 

no longer controlling. Instead, we are duty-bound to effectuate 

[the Supreme] Court’s decisional law. . . . 

Commonwealth v. Brensinger, 218 A.3d 440, 457 (Pa. Super. 2019) (en 

banc) (citations & quotation marks omitted). See also Bell v. Willis, 80 A.3d 

476, 479 (Pa. Super. 2013) (“As an intermediate appellate court, this Court is 

____________________________________________

22 An “issue regarding credit for time served involves the legality of 

sentence[;]” therefore, “our standard of review is de novo, and our scope of 

review is plenary.” Commonwealth v. Nobles, 198 A.3d 1101, 1106 (Pa. 

Super. 2018).
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obligated to follow the precedent set down by our Supreme Court.”) (citation 

omitted). Therefore, even if we agreed with Appellant’s contention — which 

we do not — we would be precluded from granting relief. 

(A)(6) CONCLUSION ─ RESENTENCING APPEAL

Accordingly, at Docket No. 1621 EDA 2021, we vacate the April 9, 2018, 

judgment of sentence with respect to the order of restitution, and remand for 

further proceedings. In all other respects, we affirm.23

III. PCRA APPEAL (DOCKET NO. 2034 EDA 2021)

At Docket No. 2034 EDA 2021, Appellant raises the following claims 

concerning the trial court’s denial of his 2020 PCRA Petition:

A. Did not the [trial] court violate statutory law when it deemed 

Appellant’s PCRA petition untimely instead of premature, 

although Appellant’s judgment of sentence was not yet final, 

and one year had not expired as required by 42 Pa.C.S. § 

9545(b)(1), (3)?

B. Did not the [trial] court err when it held that Appellant’s 

ineffective assistance of counsel claim, after resentencing, did 

not amount to a challenge to an illegal sentence where 

Appellant’s counsel failed to protect Appellant from an illegal 

sentence?

Appellant’s Brief (2034 EDA 2021) (Appellant’s PCRA Brief) at 4.24

____________________________________________

23 We decline Appellant’s request to publish the disposition of the appeal at 

Docket No. 1621 EDA 2021. See Appellant’s Resentencing Brief at iii-iv. 

24 We have reordered Appellant’s claims for ease of disposition.
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(B)(1) PCRA REVIEW

Our review of an order denying PCRA relief is well-settled. “[W]e 

examine whether the PCRA court’s determination is supported by the 

record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 

1283–84 (Pa. 2016) (citation and quotation marks omitted). Moreover, we 

note that the statutory requirement that a PCRA petition be filed within one 

year of the date the judgment of sentence becomes final is a “jurisdictional 

deadline” and a PCRA court may not ignore the untimeliness of a petition to 

address the merits of the issues raised therein. Commonwealth v. 

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d 

1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1). 

(B)(2) TIMELINESS OF PETITION

Appellant argues the PCRA court erred in dismissing his 2020 PCRA 

Petition as untimely filed, rather than dismissing it as premature. Appellant’s 

PCRA Brief at 13. He acknowledges that he was “statutorily barred” from filing 

a timely PCRA petition following his April 2018 resentencing until that 

judgment of sentence was final. See id. at 13-14. We agree.

Appellant’s original judgment of sentence was final on October 7, 2013, 

the date the United States Supreme Court denied Appellant’s petition for writ 

of certiorari following his direct appeal. As noted supra, he filed a timely 

PCRA petition, and was granted relief in part — that is, a new sentencing 

hearing. However, the court denied relief on Appellant’s remaining collateral 
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claims, and this Court affirmed that ruling on appeal. See Willis, 155 EDA 

2018. Therefore, for purposes of PCRA review, any trial-based claims 

Appellant seeks to pursue are now untimely. See 42 Pa.C.S. § 9545(b)(1)

(any PCRA petition “shall be filed within one year of the date the judgment 

becomes final”). The fact that Appellant received relief limited to resentencing 

does not provide him with the opportunity to collaterally challenge his 

underlying convictions for a second time. As this Court explained in 

Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008),

[A] successful first PCRA petition does not “reset the clock” for the 

calculation of the finality of the judgment of sentence for purposes 

of the PCRA where the relief granted in the first petition neither 

restored a petitioner’s direct appeal rights nor disturbed his 

conviction, but, rather, affected his sentence only. We reached 

this conclusion because the purpose of the PCRA is to prevent an 

unfair conviction.

Id. at 785.

However, to the extent Appellant challenges his 2018 resentencing, 

he is statutorily ineligible for PCRA relief until that judgment of sentence is

final. See Commonwealth v. Smith, 244 A.3d 13 (Pa. Super. 2020) (“[A] 

PCRA petition may only be filed after an appellant has waived or exhausted 

his direct appeal rights.”) (citation omitted). Although we address Appellant’s 

direct appeal from resentencing in this memorandum, his judgment of 

sentence will not be final until “the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” See 42 Pa.C.S. § 9545(b)(3). Thus, because this petition was filed 
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while his direct appeal from resentencing is still pending, we quash this appeal 

without prejudice to Appellant to file a timely PCRA petition when his direct 

appeal is final, limited solely to claims related to his 2018 resentencing. See 

Commonwealth v. Lesko, 15 A.3d 345, 366 (Pa. 2011) (petitioner who 

received federal habeas relief on sentencing was not permitted to “revive the 

claims that expired once the . . . verdict of guilt became final[;]” petitioner’s 

“‘right’ to first petition PCRA review [was] necessarily confined to that part of 

the final Pennsylvania judgment that was disturbed by the federal habeas 

proceedings.”). 

(B)(3) INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Although Appellant concedes his PCRA petition is premature, he 

nonetheless argues that the trial court erred in determining his ineffective 

assistance of counsel claim — related to the failure of counsel to object to the 

imposition of a 20 to 40 year sentence for attempted murder causing serious 

bodily injury when he was not charged with that crime — is a “trial error,”

rather than a sentencing error. See Appellant’s PCRA Brief at 11. He 

maintains that this Court’s unpublished decision in Fantauzzi25 is controlling. 

Id. at 10-11. We disagree. 

____________________________________________

25 Non-precedential decisions of this Court filed after May 1, 2019, “may be 

cite for their persuasive value.” Pa.R.A.P. 126(1)-(2). Fantauzzi was filed 

on May 22, 2019. 
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In Fantauzzi, the defendant was charged with, inter alia, attempted 

murder following a shooting. See Fantauzzi, 19 EDA 2018 (unpub. memo. 

at 1-2). Neither the criminal complaint nor the information notified the 

defendant that the Commonwealth intended to prove that the victim suffered 

serious bodily injury. Id. at 2. Although trial counsel entered into a stipulation

that the victim suffered serious bodily injury, the court did not instruct the 

jury to render a finding on that issue, or include a relevant interrogatory on 

the verdict sheet. See id. at 2-3. Following his conviction, the defendant was 

sentenced to a term of 15 to 30 years’ for attempted murder causing serious 

bodily injury. Id. at 3. He also received mandatory minimum sentences for 

several of his other convictions. Id.

Following the United States Supreme Court’s decision in Alleyne, the 

defendant sought, and was granted collateral relief in the form of a new 

sentencing hearing. Fantauzzi, 19 EDA 2018 (unpub. memo. at 4). Relevant 

herein, the trial court reimposed the same term of 15 to 30 years’ 

imprisonment for attempted murder causing serious bodily injury. Id. The 

defendant subsequently filed a timely PCRA petition following the 

resentencing, alleging, inter alia, that resentencing counsel was ineffective 

for failing to object to the imposition of his illegal sentence for attempted 

murder causing serious bodily injury. Id. at 9. The PCRA court denied relief.

On appeal, a panel of this Court concluded that the Commonwealth 

failed to properly notify the defendant of its intent to prosecute him for 

attempted murder with serious bodily injury, and trial counsel’s stipulation 
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was insufficient to “put [the defendant] on notice . . . that he would be exposed 

to an enhanced sentence[.]” See Fantauzzi, 19 EDA 2018 (unpub. memo. 

at 16-17). Accordingly, the panel found:

[The defendant’s] lack of notice and resultant inability to defend 

is apparent on the face of the record, and resentencing counsel

should have brought this illegal sentence to the attention of the 

resentencing court and/or objected when the resentencing court 

re-imposed the enhanced sentence of 15 to 30 years’ 

incarceration for attempted murder. Resentencing counsel had 

no rational basis for failing to raise a challenge to the illegal 

sentence, given the lack of notice. Further, resentencing 

counsel’s failure to object at resentencing prejudiced [the 

defendant], because it left [him] exposed to an enhanced 

maximum sentence for that offense, which he received in violation 

of Apprendi, supra, instead of the 20-year maximum for 

attempted murder generally. Thus, we conclude resentencing 

counsel was ineffective for failing to protect [the defendant] 

from the illegal sentence enhancement he received for attempted 

murder/serious bodily injury. 

Id. at 17 (citation omitted & emphases added). Thus, this Court reversed the 

order denying PCRA relief, vacated the judgment of sentence, and remanded 

for resentencing without the attempted murder enhancement. See id. at 20.

Appellant fails to acknowledge that the Fantauzzi Court granted the 

defendant relief based upon resentencing counsel’s ineffectiveness for 

failing to object to the enhanced sentence. In the present case, Appellant 

represented himself, pro se, at the April 2018 resentencing hearing. Although 

he had a constitutional right to do so, when he so chooses, he cannot “revive 

defaulted trial claims by alleging his own ineffectiveness[.]” See

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). Accordingly, 

while Appellant still has the right to file a PCRA petition after his judgment of 
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sentence following resentencing is final, he cannot assert his own 

ineffectiveness for failing to object to the imposition of an enhanced 

sentence for attempted murder causing serious bodily injury.26

(B)(4) CONCLUSION ─ PCRA APPEAL

Accordingly, we conclude the trial court had no jurisdiction to entertain 

Appellant’s 2020 PCRA Petition filed while his judgment of sentence following 

resentencing was not final. Thus, we quash the appeal at Docket No. 2034 

EDA 2021. 

At Docket No. 1621 EDA 2021, judgment of sentence vacated, in part, 

and remanded for resentencing limited to restitution. Jurisdiction 

relinquished. 

At Docket No. 2034 EDA 2021, appeal quashed. Jurisdiction 

relinquished.

____________________________________________

26 Moreover, as noted above, any challenges to trial counsel’s ineffective 

assistance are now untimely. See Williams, 151 A.3d at 625.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2023