J-A10034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALI A. QAWIEE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 653 EDA 2022

Appeal from the Judgment of Sentence Entered December 22, 2021

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

No(s): CP-23-CR-0003043-2019

BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED MAY 3, 2024

Appellant, Ali A. Qawiee, appeals the judgments of sentence imposed 

by the Court of Common Pleas of Delaware County after a jury found him 

guilty of robbery, burglary, and false imprisonment.1 He challenges the 

admission of evidence that he was arrested while in possession of a semiautomatic handgun two months after the instant robbery that was committed 

with a gun that substantially matched the gun that was later found on him. 

He also challenges the discretionary aspects of his sentence. Upon review, 

we affirm the convictions, vacate the judgments of sentence, and remand for 

resentencing. 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(ii), 3502(a)(1)(i), and 2903(a), respectively.
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On January 25, 2019, Shakeem Ho-Sang visited the Terminal Pub Check 

Cashing business located at the 69th Street Terminal in Upper Darby to cash 

a paycheck in an amount between $670 and $700. N.T. 10/27/21, 21-25, 31-

32, 37, 59. After cashing his check and buying some items at that location, 

he returned to his apartment near the Terminal in the unit block of Victory 

Avenue. Id. at 30-34. He “took all [his] stuff off,” stashed his money in a 

dresser drawer, and, shortly thereafter, heard a knock on his door. Id. at 34-

35, 52. When he opened the door, Appellant forced himself inside.

2

 Id. at 

35. Appellant asked Ho-Sang “where the money was,” and forced him onto 

a bed. Id. at 36-37. Ho-Sang acted like he did not know what money 

Appellant was talking about. Id. at 37. Appellant forced Ho-Sang into the 

bathroom where he tied Ho-Sang to a radiator with some home electronics

and HDMI cords before he started ransacking the apartment. Id. at 37-38,

42. Appellant hit Ho-Sang two to three times on the back of his head with a 

gun. Id. at 38. Appellant took the money that Ho-Sang stowed in the drawer,

some cigarettes, and Ho-Sang’s cellphone before leaving the apartment.

3

 Id.

at 37-38, 40.

____________________________________________

2 Appellant’s face was not covered at that time and Ho-Sang identified him at 

trial as the intruder. N.T. 10/27/21, 35-36, 45, 58. Ho-Sang also noted in 

his trial testimony that Appellant was wearing black gloves during the incident 

at the apartment. Id. at 44. 

3 The cellphone was never subsequently recovered, and the police were unable 

to track it because Ho-Sang terminated service on the phone shortly after the 

incident. N.T. 10/27/21, 92.
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Ho-Sang was left on the bathroom floor with his hands tied together and 

to the radiator and his legs tied together. N.T. 10/27/21, 38, 40. After about 

fifteen to thirty minutes, he was able to untie himself. Id. at 41-42. He went 

next door to an automobile repair shop to call the police. Id. at 42. Ho-Sang 

was thereafter taken to a police station where photographs were taken of the 

wounds on the back of his head. Id. at 43. In a statement to the police, HoSang described Appellant’s gun as a chrome semi-automatic. Id. at 53-55. 

To be exact, Ho-Sang agreed at trial that he described the gun as chrome for 

the statement, but he did not recall describing the type of the gun. Id. at 55 

(Ho-Sang: “Yeah, I said it was chrome, but I didn’t know if it was semi-auto 

or not.”). At trial, Ho-Sang added that the gun was “like a small gun you can 

hold in your hand ... not like – big like a[n] AR or nothing like that.” Id. at 

55. He also noted at trial that the gun was “like a Glock,” and by “chrome,” 

he meant that the gun was “[l]ike gray and black.” Id. at 44. The police 

showed Ho-Sang a photographic array on the day of the incident and he

“picked out” Appellant. Id. at 57-59; Trial Exhibit C-5 (photographic array).

Responding police officers took photographs of Ho-Sang’s apartment, 

showing that it was ransacked and in disarray. N.T. 10/27/21, 62-63. They 

also noticed the home entertainment and HDMI cords that were tied to the 

radiator in the bathroom. Id. at 64. The scene was not processed for DNA 

and fingerprints because Ho-Sang told them that the intruder had been 

wearing gloves. Id. 65-66. As a result of the police officers’ recovery of the 

check stub that Ho-Sang had cashed earlier that day and Ho-Sang’s assertion 
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that he had previously been at the check cashing business, the police 

responded to that business. Id. at 67. The business confirmed that Ho-Sang 

had been there. Id. at 67. A review of the business’s surveillance footage 

showed a person in line behind Ho-Sang that matched Ho-Sang’s description 

for the intruder. Id. 67-68. 

The police also recovered surveillance footage from the inside and the 

outside of the 69th Street Terminal of the Southeastern Pennsylvania 

Transportation Authority (SEPTA), a shopping center across the street from 

the terminal, and Ho-Sang’s apartment building. N.T. 10/27/21, 68. A 

compilation of the recovered videos showed Ho-Sang walking into the check 

cashing business at 12:13 p.m. Id. at 71. It then showed Ho-Sang cash two 

checks, followed by Appellant cashing a check directly after him. Id. at 73. 

It showed Ho-Sang leave the store in the check cashing business at 12:16 

p.m. Id. at 73. In the compilation video, Appellant left the same store and 

followed Ho-Sang to Victory Avenue. Id. at 73-78. Appellant can be seen 

putting on gloves in the video after about thirty to thirty-five seconds of 

following Ho-Sang. Id. at 78. The video also showed Appellant 36 minutes 

later, running away from the area of Ho-Sang’s apartment toward the 69th

Street Terminal while looking back towards the apartment. Id. at 78-79. 

After obtaining the video evidence, the police recovered a copy of the pay 
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records for Appellant from the check cashing business, including the copy of 

the check he cashed which had his address on it.4 Id. at 79-80.

After obtaining the check cashed by Appellant, the police contacted the 

payee of the check, Solid Waste Services, Inc., and confirmed Appellant’s 

name, address, and date of birth with that company. N.T. 10/27/21, 80. 

Based on that information, the police obtained a photograph of Appellant that 

they used for the photographic array that they showed to Ho-Sang. Id. at 

80. The Upper Darby police had difficulty subsequently confirming Appellant’s 

identity due to his use of different aliases with varied spelling and the use of 

multiple birth dates and social security numbers for him. Id. at 81. They 

executed a search warrant at the property listed on the check that Appellant 

had cashed, but they were unable to locate him there. Id. at 82. In the 

meantime, an arrest warrant for Appellant was entered into a national crime 

database. Id. at 83. 

At trial, when Detective Matthew Rowles of the Upper Darby Police

Department testified that Appellant was later taken into custody in 

Philadelphia, Appellant’s counsel requested a sidebar where he broached the 

issue that Appellant was found in possession of a gun at the time of his arrest. 

N.T. 10/27/21, 83-84. Counsel objected to the admission of evidence 

concerning the recovered gun, pursuant to Pa.R.E. 404(b), because there had 

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4 The check was addressed to “Ali Qawiee Williams” as opposed to how his 

name is docketed as “Ali A. Qawiee” in the caption for this appeal. N.T. 

10/27/21, 79. 
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been no evidence that Ho-Sang had been asked to identify the recovered gun 

as the gun that had been used in the home invasion incident at Ho-Sang’s 

apartment. Id. at 84. The trial court agreed to permit the admission of the 

evidence concerning the possession of the gun and limited examination about

the arrest as follows:

... [A]ll right, here’s my thought on this. It’s not technically 

404(b), however, I think it’s relevant because this case is a 

robbery with a gun. So, I would agree that anything regarding 

the Philadelphia case should be excluded, either allegations of a 

prior case with a gun or whatever.

...

But the fact that he was arrested with a gun I think is relevant to 

this case. You can certainly cross examine about was it the same 

type gun or it’s not described -- however you want cross examine

[sic]. But the mere fact just strictly that he was arrested with a 

gun, excluding everything regarding the Philadelphia matter, I 

think I’ll let in. Okay? Objection noted. 

Id. at 86. The court also granted Appellant’s request for a limiting instruction

about that testimony. Id. at 86-87. After the detective was asked about the 

recovery of items from Appellant during his arrest in Philadelphia in March of 

2019, Appellant’s counsel renewed his former objection and the detective 

testified that the recovered gun was a black and silver Bryco Arms semiautomatic handgun.5

 Id. at 89-90.

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5 A photograph of the recovered gun was showed to the jury because the gun 

itself was still being held as evidence in Appellant’s unrelated Philadelphia 

matter. N.T. 10/27/21, 85, 90.
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After the conclusion of the direct examination of the detective, the trial 

court offered the following limiting instruction with respect to the testimony 

concerning the recovered firearm:

Before we start [a break for lunch], ladies and gentlemen, I just 

want to give you a cautionary instruction. There was testimony 

about Mr. Qawiee eventually being arrested with a gun. Now, you 

can consider that piece of evidence that there was testimony 

heard earlier about a gun that was used in this case and that later 

on Mr. Qawiee was arrested with a gun. However, you’re not to 

infer or assume that Mr. Qawiee is a person of bad character or 

that he has a propensity for criminal misconduct because he was 

arrested with a gun later on during this case. So, again, you can 

consider if you find it relevant during your deliberations for strictly 

the reason that a gun was testified to and that a gun was found 

on Mr. Qawiee when he was arrested but not to infer bad character 

on his part because of possession of a gun, okay? All right. 

N.T. 10/27/21, 101-02. 

Appellant testified at trial that he had previously purchased marijuana 

from Ho-Sang. N.T. 10/27/27, 124, 126. He claimed that he recognized HoSang while walking to a bus from the check cashing business and then decided 

to go buy more marijuana from Ho-Sang. Id. at 129, 131. Appellant then 

admittedly walked to Ho-Sang’s home. Id. at 131. He asserted that Ho-Sang 

invited him into the apartment. Id. at 133. He then supposedly got in a 

“kerfuffle” when he complained of the “grade of the weed” that he previously

purchased from Ho-Sang and they parted ways without making an exchange 

of marijuana. Id. at 134-36. Appellant alleged that the “kerfuffle” had 

“turned physical” with “[s]hoving, [and] then a couple punches,” and, during 

the exchange, he hit Ho-Sang on his head with a laptop cord that had an 
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electrical adapter on it. Id. at 137-38. He denied that he tied Ho-Sang to a 

radiator or that he was wearing gloves. Id. at 138-39. 

On October 26-27, 2021, Appellant proceeded to be tried by a jury. The 

jury found him guilty of the above-referenced offenses. Verdict Slip, 

10/27/21, 1-2; N.T. 10/27/21, 218. On December 22, 2021, the court 

sentenced him to an aggregate term of eight to sixteen years’ imprisonment, 

including consecutive four-to-eight-year imprisonment terms for robbery and 

burglary along with a two-year probation term for false imprisonment.6 

Sentencing Order, 12/22/21, 1; N.T. 12/22/21, 18. On January 4, 2022, 

Appellant filed counseled post-sentence motions including a motion for 

reconsideration of sentence in which he cited his “lack of significant adult 

criminal history” and requested the imprisonment terms to be reimposed as 

concurrent terms.7 Motion for Reconsideration of Sentence, 1/4/22, ¶¶ 6-7. 

On February 4, 2022, the trial court issued an order denying the counseled 

post-sentence motions. On March 7, 2022, Appellant filed a counseled notice 

of appeal and a motion to withdraw as counsel. Notice of Appeal, 3/7/22, 1; 

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6 As will be addressed infra, the trial court designated that the probation term 

would be served concurrent with the initial imprisonment term imposed for 

robbery. Sentencing Order, 12/22/21, 1; N.T. 12/22/21, 18. 

7 The certified record also includes a pro se motion for reconsideration of 

sentence, dated January 3, 2022, that bears a time stamp reflecting an 

attempted filing date of January 10, 2022. As Appellant was represented by 

counsel at the time that the pro se motion was attempted to be filed, that 

motion is a nullity for purposes of our procedural history. See 

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting 

that, when defendant was represented by counsel, his “pro se post-sentence 

motion was a nullity, having no legal effect.”).
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Counsel Withdrawal Motion, 3/1/22, 1-2. On April 4, 2022, the trial court 

issued an order granting counsel’s request to withdraw from representation. 

Order, 4/4/22, 1.

On June 22, 2022, we remanded and directed the trial court to 

determine Appellant’s eligibility for court-appointed appellate counsel. 

Superior Court Order, 6/21/22, 1. Present counsel was appointed. Order, 

6/28/22, 1; Order, 7/19/22, 1. With the grant of a filing-date extension, 

Appellant timely filed a court-ordered statement of matters complained of on 

appeal. Rule 1925(b) Order, 7/27/22, 1; Extension Order, 8/15/22, 1; Rule 

1925(b) Statement, 9/7/22, 1-5. 

Appellant presents the following questions for our review:

1. Whether the lower court erred in permitting evidence that 

[Appellant] possessed a firearm when arrested months later 

and in a different county, where no connection was shown 

between that firearm and the weapon alleged to have been 

used in this case, in violation of the 6th and 14th

Amendment[s] to the [United States] Constitution, Article 1 

§§[ ]6, 8, and 9 of the Pennsylvania Constitution, [Pa.R.E.] 

404(b)(1) and (b)(3), and [Appellant’s] fundamental right 

to the presumption of innocence at trial[?]

2. Whether the lower court erred as a matter of law and 

violated the discretionary aspect[s] of [his] sentence when 

it imposed a manifestly excessive and unreasonable 

sentence, inasmuch as the trial court did not state adequate 

grounds for imposing such a sentence, such a sentence 

lacked sufficient support in the record and such sentence 

failed to give individualized consideration to [A]ppellant’s 

personal history and background, and was in excess of what 

was necessary to address the gravity of the offense, the 

protection of the community, and Appellant’s rehabilitative 

needs, all in violation of the 6th, 8th[, and] 14[th] 

Amendments to the [United States] Constitution, Article 1, 
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§§[ ]6 and 9 of the Pennsylvania Constitution and the 

Pennsylvania Sentencing Code[, 42 Pa.C.S. § 9701, et 

seq.?]

Appellant’s Brief at 4 (formatting in brackets and references to answers of the 

trial court omitted).

In the first issue presented, Appellant challenges the admission of 

evidence concerning his possession of a gun upon his arrest in Philadelphia 

more than a month following the incident at Ho-Sang’s apartment. Appellant’s 

Brief at 15-26. He characterizes the testimony about the subsequent gun 

possession as inadmissible other bad act evidence under Pa.R.E. 404(b). Id.

In particular, he alleges that the trial court erred by denying his objection to 

the gun possession testimony where Ho-Sang was never asked to identify the 

recovered gun and “there was no nexus between that firearm and the gun 

that was alleged to have been on the scene two [2] months earlier in this 

case.” Id. at 15-19. He asserts that the trial court failed to conduct an onrecord analysis of the prejudice of the gun possession evidence to him and 

demonstrated a “fallacious belief that the evidence of gun possession was not 

other bad act evidence under Rule 404(b).” Id. at 20 (emphasis in original). 

He also argues that cross-examination concerning the gun possession 

evidence and the trial court’s jury instruction about it were insufficient to cure 

unfair prejudice to him. Id. at 18, 20.

This issue concerns the admissibility of evidence, which rests within the 

sound discretion of the trial court, and therefore, we “will reverse [the] trial 

court’s decision ... only if the appellant sustains the ‘heavy burden’ to show 
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that the trial court has abused its discretion.” Commonwealth v. Bryant, 

67 A.3d 716, 726 (Pa. 2013) (citations omitted). With respect to this burden,

It is not sufficient to persuade the appellate court that it might 

have reached a different conclusion[;] it is necessary to show an 

actual abuse of the discretionary power. An abuse of discretion 

will not be found based on a mere error of judgment, but rather 

exists where the court has reached a conclusion [that] overrides 

or misapplies the law, or where the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias 

or ill-will.

Id. (alteration in original) (citation omitted).

Only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is 

relevant if it tends to make a material fact more or less probable than it would 

be without the evidence and the fact is of consequence to determining the 

action. Pa.R.E. 401(a)-(b). Even if relevant, however, evidence may be 

excluded “if its probative value is outweighed by ... unfair prejudice, confusing 

the issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” Pa.R.E. 403. 

Pursuant to Pa.R.E. 404(b)(1), “[e]vidence of any other crime, wrong, 

or act is not admissible to prove a person’s character in order to show that on 

a particular occasion the person acted in accordance with the character.” 

Further, evidence of other crimes, wrongs, or acts, “may be admissible for 

another purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident. In a 
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criminal case this evidence is admissible only if the probative value of the 

evidence outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).

Evidence of a weapon that is not specifically linked to a charged crime 

is generally inadmissible; however, the fact that a defendant had a weapon 

suitable to the commission of the charged crime is admissible. See 

Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015); see also 

Commonwealth v. Robinson, 721 A.2d 344, 351 (Pa. 1998). If the 

Commonwealth offers evidence about such a weapon, it must establish a 

foundation that would permit the finder of fact to infer a likelihood that the 

weapon was used in the commission of the crime, but the Commonwealth 

need not definitively establish that the weapon was actually used in the 

charged crime. See Commonwealth v. Holt, 273 A.3d 514, 537 (Pa. 2022). 

Any uncertainty that the proffered weapon is the actual instrument used in 

the charged crime goes to the weight, not the admissibility of evidence about 

the weapon. Christine, 125 A.3d at 400. 

Appellant’s admissibility analysis implies that the Commonwealth could 

not seek admission of the recovered gun unless it demonstrated that the 

recovered gun was in fact the gun used in the incident at Ho-Sang’s 

apartment. He points out that Ho-Sang was not asked to identify the 

recovered gun and that there was no ballistics evidence. Appellant’s Brief at 

16-17. He alleges that there was a lack of a nexus between the recovered 

gun and the gun alleged to have been used to assault Ho-Sang. Id. at 17. 

Christine, on the other hand, did not require conclusive proof that the two 
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guns were one and the same. 125 A.3d at 400. Appellant could have proved 

that the admission of the gun was an error because the recovered gun could 

not have possibly been the gun that was used in the charged crimes for the 

instant case, but he fails to make that argument. 

The relevant concern for our analysis is whether the Commonwealth laid 

a foundation that the recovered gun could have been the gun used to rob HoSang. Id. at 401 (“The theory of the exception is that the weapon possessed 

could have been the weapon used...”). Appellant’s possession of the recovered 

gun that was substantially similar to the gun used for the charged crimes in 

this case permitted the inference that it could have been used in the crimes

committed at Ho-Sang’s apartment. Christine, 125 A.3d at 400 (“That it was 

possessed may allow the inference that it could have been used.”). 

Moreover, the evidence presented below demonstrated adequate 

similarity such that the recovered gun could have been the gun used to rob 

Ho-Sang. Ho-Sang’s trial testimony reflected that he identified the gun in his 

statement to the police as a chrome semi-automatic gun. N.T. 10/27/21, 53-

54 (“I agree that [the statement] says it was chrome, semi-automatic.”). At 

trial, he added that “it also had some black in it too” and that it was “[l]ike 

gray and black.” Id. at 44, 53; see also id. at 56 (“Q. Okay. So today it’s 

chrome and black. Back then it was just chrome. Fair? A. Yeah, that’s fair.”). 

He also made clear that it was a handgun. Id. at 55 (“It’s definitely like a 

small gun you can hold in your hand. It’s not like – big like a[n] AR or nothing 

like that...”). At trial, he also equivocated on whether the gun was a semi-
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automatic though it was identified as that in his police statement. Id. At the 

same time, he described the gun at trial as “like a Glock,” which is a common 

brand of semi-automatic pistols. Id. at 44, 90. 

The testimony above provided an adequate foundation for admission of 

testimony of the recovered gun because the recovered gun was a black and 

silver Bryco Arms semi-automatic firearm, a gun that was consistent with the 

gun described by Ho-Sang:

Exhibit C-9 (photograph of the gun recovered from Appellant during his March 

2019 arrest); N.T. 10/27/21, 90; see Holt, 273 A.3d at 539 (trial court did 

not abuse its discretion in admitting evidence of Holt’s prior possession of a 

firearm that was allegedly of the same type used in a shooting under the 

similar-weapon exception to the rule precluding the admission of prior bad 

acts evidence; the evidence was relevant to demonstrate Holt’s access to and 

familiarity with the weapon). Any inconsistencies in Ho-Sang’s accounts of 

the color and make of the gun and whether the recovered gun was actually 
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used in the robbery/burglary incident went to the weight, not admissibility, of 

the evidence. See Christine, 125 A.3d at 400. 

Further, contrary to Appellant’s argument, the evidence of the recovered 

gun was not unfairly prejudicial and had no tendency to impugn his character 

as there was no assertion or reference to any firearms possession charges, 

consistent with the trial court’s directive that limited information about the 

Philadelphia arrest would be presented. Additionally, our review of the record 

fails to uncover any assertion that Appellant lacked a license to carry a firearm. 

Accordingly, the assertion that he had been found in possession of a gun at 

the time of his arrest had no bearing on any character traits with respect to 

the instant matter. Cf. Commonwealth v. Hicks, 208 A.3d 916, 936 (Pa. 

2019) (a police officer may not infer criminal activity, of a kind supporting an 

investigative detention, merely from an individual’s possession of a concealed 

firearm in public, given that such possession may be lawful if the individual 

has a license to do so). In any event, any hypothetical prejudicial effect of 

allowing the admission of the evidence of the recovered gun would have been 

mitigated by the trial court’s instruction to the jury that specifically prohibited 

them from inferring that Appellant was a person of bad character or had a 

propensity for criminal misconduct based on the recovery of the gun from him. 

N.T. 10/27/21, 101-02. See Commonwealth v. Boczkowski, 846 A.2d 75, 

89 (Pa. 2004) (recognizing that limiting instructions weigh in favor of 

upholding admission of other bad acts evidence); Commonwealth v. 
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LaCava, 666 A.2d 221, 228 (Pa. 1995) (noting that jurors are presumed to

follow the court’s limiting instructions).

Based on the foregoing, we conclude that Appellant failed to 

demonstrate an abuse of discretion with respect to the trial court’s ruling 

concerning the admissibility of the evidence concerning the firearm recovered 

from him at the time of his arrest. 

In the second issue presented, Appellant challenges the discretionary 

aspects of his sentence, arguing, inter alia, that the imposition of consecutive 

four-to-eight-year terms of imprisonment resulted in a manifestly excessive 

and unreasonable sentence. Appellant’s Brief at 27-29. We are unable to 

address this claim at this juncture because we notice a defect rendering

Appellant’s sentence illegal and necessitating a new sentencing hearing: the 

lower court imposed a term of probation to be served concurrently with a state 

imprisonment sentence. 

By the terms of 42 Pa.C.S. § 9721(a), sentences including orders of 

probation and total imprisonment, among other sentencing alternatives, may 

be imposed “consecutively or concurrently.” On prior occasions, however, 

when we have been confronted with situations where imprisonment and 

probationary terms have been imposed concurrently, we have ruled that the 

resulting combined service of these terms is incompatible, resulting in an 

illegal sentence. In Commonwealth v. Basinger, 982 A.2d 121, 127 (Pa. 

Super. 2009), we noted: “No section of the Sentencing Code contemplates 

imprisonment as an element of a probationary sentence; probation is in fact 
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a less restrictive alternative to imprisonment directed at rehabilitating the 

defendant without recourse to confinement during the probation period.” In 

Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super. 2011), overruled 

on other grounds by Commonwealth v. Simmons, 262 A.3d 512 (Pa. 

Super. 2021) (en banc), we stated: “[W]e find no support in the Pennsylvania 

statutes that the General Assembly intended to permit defendants to serve a 

term of probation and term of state incarceration simultaneously.” See also 

Commonwealth v. Brown, 145 A.3d 184, 188 (Pa. Super. 2016) (holding 

that Appellant Brown’s probationary sentence did not commence until his 

release from federal custody and noting that because “probation rehabilitates 

a defendant in a less restrictive manner than total confinement” then “logic 

would lead to the conclusion that a term of probation cannot be served while 

the defendant is imprisoned on an unrelated sentence, whether it be in a state 

facility as in Allshouse or in federal custody as with Brown”).

When confronted with the imposed judgments of sentence in this case, 

we must conclude that there was no authority for the trial court to impose 

them in their current form pursuant to Allshouse, and determine that they 

are illegal and must be corrected. See Commonwealth v. Merced, 308 A.3d 

1277, 1283 (Pa. Super. 2024) (“If no statutory authorization exists for a 

particular sentence, that sentence is illegal and subject to correction. An 

illegal sentence must be vacated.”) (citation omitted). Accordingly, we vacate 

Appellant’s judgments of sentence and remand for resentencing in accordance 
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with this memorandum.8 See Commonwealth v. Watson, 228 A.3d 928, 

941 (Pa. Super. 2020) (issues relating to the legality of a sentence may be 

raised sua sponte by an appellate court).

Convictions affirmed. Judgments of sentence vacated. Remand for 

resentencing. Jurisdiction relinquished. 

Date: 5/3/2024

____________________________________________

8

In light of our disposition and order remanding this matter for resentencing, 

we do not reach Appellant’s substantive arguments concerning the 

discretionary aspects of the now-vacated judgments of sentence.