J-S04041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONALD M. COOL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1826 EDA 2022

Appeal from the Judgment of Sentence Entered June 10, 2022

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

No(s): CP-45-CR-0001617-2021

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED MARCH 16, 2023

Donald M. Cool (Cool) appeals from the judgment of sentence imposed

in the Court of Common Pleas of Monroe County (trial court) after he entered 

an open guilty plea to four counts of possession of a firearm prohibited,

1

that 

after the trial court sentenced him, it then granted the Commonwealth’s 

motion for reconsideration of sentence. He argues that the trial court was 

presumptively vindictive when it resentenced him to a greater maximum term 

of imprisonment because the new sentence was based on the same set of 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105(a)(1). The Commonwealth nolle prossed five additional 

counts of possession of a firearm prohibited and one count of possessing 

unlawful body armor (bullet proof vest), 18 Pa.C.S. § 907(c), in exchange for 

the plea.
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facts as the original sentence and that it relied on impermissible factors. We 

affirm.

We take the following factual background and procedural history from 

the trial court’s August 25, 2022 opinion and our independent review of the 

record.

I.

On March 3, 2021, police responded to a call at a residence in Mount 

Pocono, Pennsylvania. The caller advised that his roommate had allowed an 

individual to spend the night and the caller became concerned when he saw 

guns and a bullet proof vest that the individual had brought to the home.

On March 3, 2022, Cool pled guilty to four counts of possession of a 

firearm prohibited, fugitive from justice. (See Written Guilty Plea Colloquy, 

3/03/22, at ¶ 4). The trial court ordered the preparation of a presentence 

investigation (PSI) report. On May 13, 2022, with the assistance of the PSI, 

the trial court sentenced Cool to an aggregate term of imprisonment of not 

less than twenty-four nor more than forty-eight months to be served 

consecutively to a Luzerne County sentence imposed at docket number 1612 

of 2019 for his guilty plea to statutory sexual assault.
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The Commonwealth filed a motion for reconsideration of sentence,2

arguing that the seriousness of the offenses and the disturbing circumstances 

of the case required reconsideration. Specifically, the Commonwealth averred 

that Cool had plead guilty to felony 2 statutory sexual assault in Luzerne 

County for impregnating his fifteen-year-old cousin, was declared a sexually 

violent predator (SVP), and failed to appear for sentencing, instead fleeing to 

Mount Pocono Borough for another sexual encounter. (Commonwealth’s 

Motion for Reconsideration of Sentence, 5/20/22, at ¶¶ 5-6, 9). According to 

the Commonwealth, the PSI3 prepared in this case indicates Cool has a serious 

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2 “Well-settled Pennsylvania law permits the Commonwealth to pursue a 

correction, modification or increase in the originally imposed sentence because 

no sentence is final until the right of appellate review has been exhausted or 

waived.” Commonwealth v. Quinlan, 639 A.2d 1235, 1239 (Pa. Super. 

1994) (citations omitted); see Pa.R.Crim.P. 721(A)(1), (B) (Commonwealth 

may file motion to modify sentence within ten days after sentence’s 

imposition).

3 Although Cool’s arguments involve the PSI and the claim that nothing new 

was presented at the reconsideration hearing, the trial court record reflects 

that he failed to ensure that the certified record provided to this Court contains 

the PSI or to order a transcript of the original May 13, 2022 sentencing hearing 

to enable us to compare it with the reconsideration hearing. It is well-settled 

that “an appellate court is limited to considering only the materials in the 

certified record when resolving an issue.” Commonwealth v. Preston, 904 

A.2d 1, 6 (Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citation 

omitted). “Our law is unequivocal that the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete in the sense 

that it contains all of the materials necessary for the reviewing court to 

perform its duty.” Id. (citation omitted); see id. at 7 (“any claims that cannot 

be resolved in the absence of the necessary transcript or transcripts must be 

deemed waived for the purpose of appellate review.”) (citation omitted); 

Pa.R.A.P. 1911, 1931. Nor is it this Court’s responsibility to scour the trial 

(Footnote Continued Next Page)
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psychiatric issue that involves sexual abuse. (See id. at ¶ 10). When he was 

arrested at the Mount Pocono home, he had nine firearms, some of them 

loaded with a round in the chamber, ammunition, magazines for the guns and 

a bullet proof vest. (See id. at ¶¶ 7-8). The grading of the offenses in this 

case were only charged as misdemeanors because sentencing on the felony 2 

sexual assault had not yet occurred due to Cool having absconded from 

Luzerne County. (See id. at ¶ 11). The Commonwealth stated that, “given 

the circumstances of this case, [Cool] poses a serious, grave danger to society 

[because] he is psychologically unstable, on the run with an arsenal of 

weapons and numerous magazine[s] of ammunition[,]” and the sentences he 

received on each count below the middle of the standard range are not 

appropriate in this case. (Id. at ¶ 12); (see id. at ¶¶ 13-14).

On June 10, 2022, the court held argument on the Commonwealth’s 

motion at which it did not receive any new evidence. Although the court had 

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court to unearth materials presented to the trial court but never made part of 

the certified record. See Preston, 904 A.2d at 7-8.

However, Cool does not argue that the court misstates what the PSI contains, 

and the court does not maintain that it relied on new information that was not 

previously available to it. Although the PSI and May 13, 2022 sentencing 

transcript would enable a more thorough review, we decline to find waiver in 

the interest of judicial economy and rely on the representations of Cool and 

the court about what they contain.
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the PSI and appended Sexual Offender Assessment Board (SOAB)4report at 

the time of the initial sentencing, in an effort to elucidate the court about 

Cool’s character and need for increased supervision, the prosecutor argued 

about their specific contents. The prosecutor noted that this case does not 

involve any sexual offenses or sentences but stated that the SOAB report 

contained information about Cool that raised concerns about his character and 

circumstances for sentencing purposes in this matter. For example, the SOAB 

report noted his deceptive character, his psychological diagnosis of anti-social 

personality disorder, inconsistencies in his statement to probation officers in 

this case and to officers in the Luzerne County case, and his history of 

violence, including a previous conviction for terroristic threats and simple 

assault for attacking his mother’s paramour and threatening to attack his 

mother with a hatchet. Cool’s counsel objected to the prosecutor’s mention 

of statements in the SOAB report made by Cool’s statutory sexual assault 

victim about him threatening her with violence based on hearsay because he 

denied the threats in the same report. The court overruled the objection, 

stating that it regularly relies on such reports in sentencing. (See N.T. 

Reconsideration, 6/10/22, at 4-8).

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4 The SOAB report was produced in Luzerne County and attached to the PSI 

in this matter (that was not provided to this Court). We rely on the testimony 

from the reconsideration hearing for what it contains because Cool does not 

argue that its contents were misrepresented.
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According to the Commonwealth, the PSI reflected that Cool’s 

statements to officers in this matter conflicted with those of his wife about 

such things as how long they had been together, who owned the guns found 

in his possession and why he was in the area, with her saying he was in Monroe 

County to avoid serving his Luzerne County sentence and him saying it was 

for a marital retreat. He lacked remorse for his past criminal actions with his 

fifteen-year-old cousin. Finally, in addition to the number of guns in his 

possession, the prosecutor mentioned that there was a “bulletproof vest with 

a loaded gun with one in the chamber attached to the vest[,]” to which Cool’s 

counsel did not object or argue that it was an impermissible consideration 

where the related charge had been nolle prossed. (Id. at 11); (see id. at 10-

14).

Cool’s counsel argued that the court had the PSI and SOAB report at the 

original sentencing, so there was no new information to justify modifying the 

sentence. (See id. at 15-16).

When resentencing, while the court kept the minimum sentence on each 

count the same (twenty-four months), it increased the back end from fortyeight to ninety-six months. It explained that although it had the PSI at the 

initial sentencing hearing, upon reconsideration, the four years of supervision 

was inadequate based on all the circumstances that had been brought to its 

attention. Instead, it believed that a longer period of parole supervision was 

appropriate. (See id. at 16-18); (Trial Ct. Op., at 2-3) (pagination provided).
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After the court denied Cool’s motion for reconsideration, Cool timely 

appealed and filed a court-ordered statement of errors complained of. See

Pa.R.A.P. 1925(b).

Cool raises four issues in which he alleges the trial court committed an 

abuse of discretion5, 6 by: (1) reconsidering and increasing his sentence based 

on the same facts and information available at the time of the original 

sentence; (2) increasing his sentence based on current events; (3) 

considering unreliable hearsay testimony; and (4) considering facts 

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5 “Generally, a plea of guilty constitutes a waiver of all defects and defenses 

excepting the voluntariness of the plea, the jurisdiction of the court and the 

legality of the sentence.” Commonwealth v. Torres, 223 A.3d 715, 717 n.3 

(Pa. Super. 2019) (citation omitted). However, Cool can challenge the 

discretionary aspects of his sentence because he entered an open plea 

“without an agreement to the terms of the sentence.” Id. (citation omitted).

6 Our standard of review of a discretionary aspects of sentence challenge is 

well-settled:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal 

denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
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underlying charges that had been nolle prossed in exchange for the plea 

agreement. (See Cool’s Brief, at 13).7

II.

A challenge to the discretionary aspects of a sentence is not appealable 

as of right and is more properly considered a request for permission to appeal.

Before [this Court may] reach the merits of [a challenge to the 

discretionary aspects of a sentence], we must engage in a four 

part analysis to determine: (1) whether the appeal is timely; (2) 

whether Appellant preserved his issue; (3) whether Appellant’s 

brief includes a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of 

sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the concise 

statement raises a substantial question that the sentence is 

appropriate under the sentencing code.... [I]f the appeal satisfies 

each of these four requirements we will then proceed to decide 

the substantive merits of the case.

Antidormi, 84 A.3d at 759 (citation omitted) (brackets in original).

Cool has satisfied all the requirements for us to reach the substantive 

merits of his claims where the appeal is timely; he filed a motion for 

reconsideration of sentence, his brief includes a Rule 2119(f) statement with 

the reasons relied upon for appeal and he raises a substantial question. See 

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018), appeal denied, 

207 A.3d 911 (Pa. 2019) (claim of vindictiveness in resentencing raises 

substantial question); Commonwealth v. Bromley, 862 A.2d 598, 605 (Pa. 

Super. 2004), appeal denied, 881 A.2d 818 (Pa. 2005), cert. denied, 546 U.S. 

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7 The Commonwealth failed to file a brief in this matter.
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1095 (2006) (claim that court relied on impermissible factors in sentencing 

raises a substantial question). Accordingly, we proceed to the merits of Cool’s 

claims.

A.

Cool argues that the trial court abused its discretion when it relied on 

the same information available at the original sentencing hearing to 

resentence him to an increased term of incarceration. (See Cool’s Brief, at 

20-23). He maintains that this raises a presumption of vindictiveness that 

cannot be overcome because the increase was not based on new information. 

(See id.).

“The trial court, as a matter of law, has discretion to modify its own 

sentence in response to a Commonwealth Motion for Reconsideration of 

Sentence. However, any increase in sentence cannot be the result of judicial 

vindictiveness.” Commonwealth v. Bullock, 170 A.3d 1109, 1125 (Pa. 

Super. 2017), appeal denied, 184 A.3d 944 (Pa. 2018) (citations omitted).

“Generally, a presumption of vindictiveness arises if the court imposes a 

harsher sentence upon resentencing.” Commonwealth v. Watson, 228 

A.3d 928, 937 (Pa. Super. 2020) (citation omitted). However, the 

presumption of vindictiveness only arises “if a defendant establishes facts that 

demonstrate a probability that an adverse action by the ... court has been 

motivated by vindictiveness in retaliation for successful exercise of a 

defendant’s legal rights rather than for some other legitimate cause.” 
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Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa. 2018), appeal denied, 

197 A.3d 1180 (Pa. 2018) (citation omitted); see Commonwealth v. 

Speight, 854 A.2d 450, 455 (Pa. 2004) (A trial court “may not punish an 

appellant for exercising appellate rights.”). “The key to whether a 

presumption of vindictiveness arises in a given case would be the factual 

circumstance in which the challenged action occurred.” Kane, 188 A.3d at 

1229 (citation omitted). A court can rebut any presumption if it places nonvindictive reasons on the record such as identifiable conduct that occurred 

after the original sentence or other “objective information or legitimate 

sentencing concerns that were not ... considered by the trial court at the 

original sentencing hearing.” Id. (citation omitted).

The presumption of vindictiveness does not apply to the circumstances 

of this matter. Although the court imposed a higher maximum sentence after 

resentencing, it did not do so in response to Cool successfully appealing or 

even after Cool successfully challenged the original judgment of sentence in a 

post-sentence motion. Instead, it entered the new sentence after the 

Commonwealth exercised its legal right to file a motion for reconsideration 

of sentence, not in retaliation for Cool doing so. Therefore, the presumption 

of vindictiveness is not applicable. See Kane, 188 A.3d at 1229.

Moreover, even assuming that it was, Cool would be due no relief on 

this issue. As stated previously, the Commonwealth had the legal right to file 

a motion for reconsideration of the sentence, and the court had the discretion 
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to modify its sentence based on information it failed to consider at the original 

sentencing hearing. See Kane, 188 A.3d at 1229; Bullock, 170 A.3d at 1125. 

The court explained its reasons for increasing the maximum term of the 

sentence at the June 10, 2022 reconsideration hearing and in its August 25, 

2022 opinion.

At the hearing, the court explained that although it had the opportunity 

to view the PSI before imposing the original sentence, upon reconsideration 

of the PSI, this “is a disturbing case.” (N.T. Reconsideration, at 16). The

court noted the photographs attached to the PSI showing the number and 

type of firearms, with many of them loaded with bullets in the chamber. It 

drew attention to the fact that at the time he was arrested in this matter, 

there was a bench warrant for his failure to appear for sentencing in a sexual 

assault case in Luzerne County. (See N.T. Reconsideration, at 16-17). In its 

opinion it again explains:

Instantly, we received the Commonwealth’s Motion and at hearing 

determined that there were details in the [PSI] which we 

reconsidered. We considered that [Cool] absconded from Luzerne 

County where he was scheduled to be sentenced on serious sexual 

offenses to which he plead guilty and failed to appear for 

sentencing. After he fled from Luzerne County, he was located in 

Monroe County with nine firearms, some of which were loaded and 

he was in possession of a bullet proof vest. We considered [Cool]’s 

plea in this case and upon reconsideration, we believe that the 

sentence should be increased to an aggregate sentence of not less 

than 24 months nor more than 96 months in a state correctional 

institution. The sentences imposed were all within the standard 

guideline range and ordered to be served consecutively. In 

modifying the sentence, the [c]ourt felt a longer period of parole 

supervision was warranted under the circumstances.
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(Trial Ct. Op., at 2-3) (pagination provided).

First, there is no evidence that the trial court was motivated by any 

vindictiveness in resentencing Cool, only by a fuller understanding of the facts. 

Moreover, even if the presumption of vindictiveness applied, the trial court 

rebutted any presumption by putting non-vindictive reasons on the record to 

support its modification of sentence. See Kane, 188 A.3d at 1229.

B.

Cool argues that the trial court abused its discretion when it relied on 

current events of mass shootings to support vacating his original sentence and 

imposing an increased one. (See Cool’s Brief, at 24-25). Because he was not 

charged with any offenses related to the mass shootings, Cool maintains that 

consideration of their prevalence was impermissible. (See id. at 24-25).

Cool relies on Commonwealth v. Sypin, 491 A.2d 1371, 1372 (Pa. 

Super. 1985), in support of his argument. In Sypin, the defendant pled guilty 

to involuntary deviate sexual intercourse with a child and corruption of minors 

for his sexual abuse of a nine-year-old boy. See Sypin, 491 A.2d at 1372. 

In imposing sentence, the court stated: “As you know there are thousands of 

kids, and I mean thousands of kids that disappear every year. ... Youngsters 

no one ever sees or hears from again. Sometimes they’re found dead; 

sometimes they’re never found. ... And their problems result from men like 

you.” Id. A panel of this court vacated the judgment of sentence, concluding 

the trial court relied on factors unrelated to the defendant’s case. See id.
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Here, Cool points to the trial court’s statement that:

I mean the way things are going in society today it’s not unusual 

to hear stories about people involved in shooting in public places. 

You know it’s happening all over the place and here Mr. Cool is 

with an arsenal on a bench warrant for failure to appear for 

sentencing.

(N.T. Reconsideration, at 17).

Although the trial court made the general comment about guns and 

shootings, the court increased the back end of Cool’s sentence based on 

considerations specific to him, including his absconding from justice, his 

psychiatric diagnosis and violent history. See Commonwealth v. Walls, 926 

A.2d 957, 966 (Pa. 2007) (affirming judgment of sentence where, despite 

court’s general comments about people who victimize young children, 

sentence was individualized to defendant). While the trial court mentioned 

recent mass shootings, which would not be an appropriate basis for modifying 

Cool’s sentence, it was harmless error since it was made in passing and Cool 

was not prejudiced by it. See Commonwealth v. Holt, 273 A.3d 514, 540 

(Pa. 2022).8

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8 The harmless error doctrine applies where the error “did not prejudice the 

defendant or the prejudice was de minimis[.]” Holt, 273 A.3d at 540. “We 

may sua sponte invoke the harmless error doctrine as it does nothing more 

than affirm a valid judgment of sentence on an alternative basis.” Id. (citation 

and internal quotation marks omitted).
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C.

Cool asserts that the trial court erred by admitting unreliable hearsay at 

sentencing to prove his violent nature. Specifically, he notes that the 

prosecutor mentioned an incident reported in his SOAB report in which the 

victim alleged that he threatened her with a firearm. (See Cool’s Brief, at 27) 

(citing N.T. Reconsideration, at 5). He maintains that since he denied pointing 

a gun at the victim in the same assessment, the victim’s hearsay statement 

should not have been considered since he had no opportunity to crossexamine her. (See id. at 27-28).

[A] proceeding held to determine sentence is not a trial, and the

court is not bound by the restrictive rules of evidence properly 

applicable to trials. Commonwealth v. Orsino, 197 Pa. Super.

306, 178 A.2d 843, 846 (Pa. Super. 1962) (sentencing court has 

wide latitude in considering facts, regardless of whether such facts 

are produced by witnesses who the court sees and hears). Rather, 

the court may receive any relevant information for the purposes

of determining the proper penalty. ... Although sentencing 

proceedings must comport with due process, the convicted 

defendant need not be accorded the entire panoply of criminal trial 

procedural rights.

Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999), appeal 

denied, 749 A.2d 468 (Pa. 2000) (quotation marks and most citations 

omitted).

At the reconsideration hearing, to demonstrate Cool’s past violent acts 

and threats, the prosecutor mentioned the fifteen-year-old Luzerne County 

victim’s statements about Cool’s alleged threats involving weapons, which 

were contained in the SOAB report. (See N.T. Reconsideration, at 5-6). The 
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court overruled defense counsel’s hearsay objection because it regularly 

considers such reports in sentencing. (See id. at 6).

First, given that he had been determined to be an SVP based on that 

report, the trial court did not abuse its discretion in allowing the 

Commonwealth to argue about the victim’s statements. See Medley, 725 

A.2d at 1229. Moreover, even assuming arguendo that the court erred or 

abused its discretion, Cool has not proved that he was prejudiced. There is 

no evidence that the court considered the victim’s statements in imposing 

Cool’s sentence. As stated previously, the court expressly explained the 

reasons why it was increasing Cool’s period of supervision, and they involved 

facts related to this case, not the Luzerne County victim’s statements in the 

SOAB report.

9

D.

Finally, relying on Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. 

Super. 2005), Cool argues that the trial court abused its discretion because it 

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9 Cool’s reliance on Commonwealth v. Rhodes, 990 A.2d 732 (Pa. Super. 

2009) is wholly unpersuasive because it is distinguishable from the case at 

bar. Rhodes involved, in pertinent part, a trial court’s express reliance on 

police reports it received ex parte that were almost entirely comprised of 

hearsay statements. The court “then drew factual inferences directly from 

those reports on the basis of which [it] imposed a sentence almost five times 

that recommended by the Commonwealth and only one to two years shy of 

the statutory maximum[.]” Rhodes, 990 A.2d at 745. This is inapposite to 

the facts herein where there is no evidence that the court considered the

victim’s statements at all to impose the standard range sentence and only 

modified the back end of the sentence for supervision purposes.
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reconsidered and then increased his sentence based on the nolle prossed

unlawful body armor charge.

In Stewart, this Court considered the issue of whether a defendant 

could be sentenced to an aggravated range sentence based on charges that 

had been nolle prossed. Stewart, 867 A.2d at 591. In deciding the issue, 

the Court considered the competing maxims that, “when a court imposes its 

sentence, the court may consider a defendant’s previous arrests and 

concurrent charges” and “a sentence cannot be enhanced for any offense 

other than the one to which the defendant pled guilty.” Id. at 593. In 

Stewart’s case, in imposing sentence, the court explained, in pertinent part, 

that “[t]his sentence is in the aggravated range because two counts of IDSI,

which each [carries] a mandatory minimum of five years, have been nolle

prossed as well as another count of statutory sexual assault.” Id. (record

citation omitted). Based on the specific circumstances, this Court observed

that “a manifest abuse of discretion exists when a sentence is enhanced due 

to charges that have been nolle prossed as part of a plea agreement, because 

notions of fundamental fairness are violated.” Id. (citation omitted).

Cases since Stewart have restricted this observation to the specific 

facts of that case. For example, in Commonwealth v. Tobin, 89 A.3d 663, 

667 (Pa. Super. 2014), we concluded that a trial court’s reference to facts

underlying the nolle prossed charges did not indicate that it was expressly 

considering the charges to formulate its sentence. Similarly in 
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Commonwealth v. Turner, 58 A.3d 845, 847 (Pa. Super. 2012), the crime 

of possession of a firearm was nolle prossed. At sentencing, the court made 

a factual finding that Turner possessed a firearm at the time he committed 

possession with intent to deliver, resulting in a mandatory term of 

imprisonment. We held that the court did not err because it did not penalize 

the defendant on the nolle prossed possession charge. See Turner, 58 A.3d 

at 847.

At the reconsideration hearing in this case, in an effort to elucidate the 

court about Cool’s character and need for increased supervision, the 

prosecutor argued extensively about inconsistencies in Cool’s statement in this 

case and in the Luzerne County litigation, his failure to appear at the Luzerne 

County sentencing hearing, psychological and sexual offender diagnoses in 

the SOAB report, his lack of remorse for the sexual relationship with his 

fifteen-year-old cousin, his previous convictions for assault and terroristic 

threats, the number of guns in his possession and mentioned that there was 

a “bulletproof vest with a loaded gun with one in the chamber attached to the 

vest.”10 (N.T. Reconsideration, at 11); (see id. at 3-14).

In imposing the new sentence, the court mentioned a laundry list of 

what was discovered in Cool’s possession at the time of his arrest, including 

____________________________________________

10 We again note that defense counsel did not object to the Commonwealth 

mentioning the bullet proof vest or argue that it was an improper consideration 

for the court. (See N.T. Reconsideration, at 15-16).
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the fact that “[t]here was a bulletproof vest.” (Id. at 16). However, there is 

no indication that the court considered the charge of unlawful possession of 

the bullet proof vest in fashioning its sentence. Contrary to Cool’s argument 

that the court improperly considered this fact, there is absolutely no evidence 

that the court considered the charge and enhanced his sentence on this basis. 

See Commonwealth v. Miller, 965 A.2d 276, 280 (Pa. Super. 2009) 

(concluding court did not abuse its discretion in sentencing defendant where 

it carefully reviewed the PSI and other evidence and mere reference to facts 

underlying nolle prossed charge did not indicate that it specifically considered 

the charge and enhanced his sentence based thereon); cf. Commonwealth 

v. Stewart, 867 A.2d 589, 593 (Pa. Super. 2005) (trial court specifically 

indicated that it was sentencing appellant in aggravated range because of 

three counts that were nolle prossed).

In fact, as noted previously, the court only increased the back end of 

Cool’s sentence to allow for increased supervision, which was not imposed for 

the charge of possessing the bullet proof vest.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2023