J-S93045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL ALLEN,

Appellant No. 1076 EDA 2015

Appeal from the Judgment of Sentence November 10, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos.: CP-51-CR-0003272-2012

CP-51-CR-0007389-2012

CP-51-CR-0008821-2012

CP-51-CR-0010494-2013

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 22, 2017

Appellant, Michael Allen, appeals from the judgment of sentence 

imposed after his jury conviction of four counts of robbery,1three counts of 

terroristic threats,2and one count each of intimidation,3and retaliation.4 

The charges stemmed from four robberies that the court consolidated for 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3701(a)(1).

2 18 Pa.C.S.A. § 2706(a)(1).

3 18 Pa.C.S.A. § 4952(a)(1).

4 18 Pa.C.S.A. § 4953(a).
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trial. Specifically, the jury convicted Appellant at Docket No. 3272-2012, of 

robbery (F1); at Docket No. 7389-2012, of robbery (F1) and terroristic 

threats (M1); at Docket No. 8821-2012, of robbery (F2) and terroristic 

threats (M1); and at Docket No. 10494-2013, of robbery (F2), intimidation 

(F1), retaliation (F3), and terroristic threats (M1). Appellant challenges his 

removal from the courtroom during trial, the admission of lay opinion 

testimony, and both the legality and discretionary aspects of his sentence. 

Upon review, we vacate Appellant’s sentence, and remand to the trial court 

for resentencing.

We take the factual and procedural history from the trial court opinion 

and our review of the certified record in this matter. The facts underlying 

the charges at Docket No. 8821-2012, are as follows. On February 22, 

2012, at approximately 7:00 p.m., Appellant entered Los Charales Market 

located at 9th Street and Snyder Avenue in South Philadelphia, where 

Antonia Rojas was working the cash register. When Appellant entered the 

store, he said that he had a gun and held his right hand inside his pocket. 

Appellant reached into the cash register and grabbed between $800 and 

$1,000 before fleeing from the store. Mr. Rojas waived down a police officer 

to report the robbery, and give officers a description of the man who robbed 

him. (See Trial Court Opinion, 10/29/15, at 4).

The facts underlying the charges at Docket No. 7389-2012, are as 

follows. On February 25, 2012, at approximately 8:30 p.m., Appellant 

entered the Rite Aid at 7th and Dickenson Streets in South Philadelphia 
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where Chefra Mao was working as a cashier. Appellant screamed at Ms. Mao 

to open the register. She assumed that he had a gun because he kept his 

right hand in his pocket and kept pointing it at her. Ms. Mao was scared for 

her life, and could not enter her code to open the register. Appellant then 

told Ms. Mao that he was going to come back and get her and fled from the 

store. Ms. Mao described Appellant to police. Police then drove her in their 

police car to where they had apprehended Appellant, and she stated that his

clothing appeared different. Ms. Mao later identified Appellant at a police 

lineup and at trial. (See id. at 3-4).

The facts underlying the charges at Docket No. 3272-2012, are as 

follows. On February 25, 2012, within minutes of the Rite Aid robbery, 

Appellant approached Salvador Hernandez, who was walking on 6th Street 

from Morris Street toward Tasker Street in South Philadelphia, pressed an 

object against his back, and told him to put his hands up or he would blow 

off his head. Appellant searched Mr. Hernandez’s pockets and stole $20, 

keys, a pack of cigarettes, and a Rite Aid card. While Appellant was robbing 

Mr. Hernandez, a police officer approached them. The officer raised his 

weapon after Appellant refused to remove his hands from his pockets, and 

when the officer eventually lowered his weapon, Appellant ran away. After a 

chase involving several officers, Appellant was apprehended and the items 

stolen from Mr. Hernandez were recovered. Mr. Hernandez then told police 
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about the robbery and identified Appellant as the man who robbed him.5 

(See id. at 4-5).

The facts underlying the charges at Docket No. 10494-2013, are as 

follows. On July 16, 2013, at approximately 3:00 a.m., Appellant 

approached Mr. Hernandez and grabbed him by the arm. Appellant told Mr. 

Hernandez that he remembered who he was, and then took $60 from his 

wallet. Appellant threatened to kill Mr. Hernandez if he continued to testify 

against him concerning the earlier robbery. (See id. at 5).

On August 19-25, 2014, Appellant was tried by a jury for the above 

four robberies. At trial, each of the victims, investigating officers, and 

officers involved in the February 25, 2012 chase all testified. Detective 

Michael McKenna, who was assigned to investigate the February 22, 2012, 

Los Charales Market robbery, testified that he viewed video surveillance 

from the market. After learning about the February 25, 2012, Rite Aid 

robbery, Detective McKenna also viewed video surveillance from that 

incident. He testified that he observed several similarities between the facial 

features, mannerisms, movements and body posture of the individual 

involved in both robberies. (See N.T. Trial, 8/22/14, at 29-30). Based on 

his observations comparing the two videos, Detective McKenna prepared a 

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5 On November 6-8, 2012, Appellant was tried for the above three robberies. 

The trial ended in a hung jury. Appellant was released on June 3, 2013, 

after his motion for release pursuant to Pa.R.Crim.P. 600 was granted. (See

Trial Ct. Op., at 2).
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photo array for the Los Charales robbery and obtained an arrest warrant for 

Appellant.6

Throughout the course of the trial, Appellant was disruptive and often 

argued with the trial court judge. The record also reflects that on August 

19, 2014, the trial court reprimanded Appellant for commenting out-loud 

within the hearing of the jury while the assistant district attorney was 

questioning her witnesses. (See N.T. Trial, 8/19/14, at 179-82). The trial 

court judge told Appellant that, if he continued to argue with her, she would 

find him in contempt. 

On August 21, 2014, Appellant was again disruptive during witness 

testimony, arguing that the witness should not be able to answer the court’s 

question. (See N.T. Trial, 8/21/14, at 74). The judge excused the jurors 

from the courtroom, and found Appellant in contempt. (See id. at 75). The 

court directed two sheriffs to escort Appellant to the back of the courtroom. 

While he was being escorted away, he reached for a water container on the 

table, apparently intending to throw it, and referred to the court as “Nut-ass 

bitch.” (Id. at 76). Defense counsel then went in to the back and tried to 

calm Appellant down. After speaking with Appellant, counsel reported to the 

court that 

____________________________________________

6 Mr. Rojas, the Los Charales robbery victim, was not able to identify 

Appellant from the photo array. (See N.T. Trial, 8/22/14, at 35).
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[Defense Counsel]: Your Honor, as counsel, I find myself in a 

very awkward position, to say the least, in that I’ve become 

aware of, without divulging the source, that there may be 

intentions that are disruptive of the legal process, and things 

that I cannot countenance if . . . I am aware that they’re about 

to come about. . . . I am certainly not going to risk anybody’s 

health or safety in this courtroom, because I know things that I 

should divulge but I am not going to divulge them at this point 

because I still owe a duty to this gentleman to remain solid as to 

whatever he says to me. . . .

(Id. at 80). 

The court then had a discussion with counsel concerning its options 

with regard to Appellant’s violent and disruptive behavior. The trial court 

judge stated that if Appellant continued to engage in outbursts, she would 

consider removing him from the courtroom to view the rest of the 

proceedings on closed-circuit television. (See id. at 82-83). Defense 

counsel agreed explaining that it was in an abundance of caution because he 

could not say what his client might do. (See id. at 84, 97). The court noted 

that it would not have the capacity to set up the closed circuit television until 

the next day. The court considered gagging and shackling Appellant, and 

allowing him to remain in the courtroom; however, defense counsel objected 

to gagging. (See id. at 88). Defense counsel discussed these options with 

Appellant. (See id. at 97-98). 

When Appellant returned to the courtroom, he also objected to 

gagging. (See id. at 104). The trial court judge again warned Appellant 

that if he continued to disrupt trial, she would take steps to ensure the trial 

continued undisrupted, which might include shackles and gagging for the 
J-S93045-16

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rest of the trial. (See id. at 104-05). The court told Appellant that it now 

had four sheriffs in the room, to which Appellant responded: “You’re going 

to need more than that, for the record.” (Id. at 106; see id. at 105-06). 

Later that day, Appellant again commented out-loud during testimony, and 

the court again warned him not to have any outbursts. (See id. at 147-48).

On the next day of trial, August 22, 2014, trial commenced with 

Appellant seated at the table with his counsel; however, within the first 

twenty-minutes of the first witness’s testimony, he again spoke out. (See 

N.T. Trial, 8/22/15, at 15). He then interrupted the court and asked for his 

counsel to be fired. (See id.). The court removed Appellant to a room in 

the back of the courtroom, where the closed circuit television had been set 

up in anticipation of a disruption, and where Appellant would be able to see

and hear everything going on in the courtroom. (See id. at 16). Defense 

counsel objected, for the record, that the court was forcing Appellant out of 

the courtroom, arguing that he should be present for all proceedings. (See 

id. at 23-24). The court instructed the jury that Appellant was relocated to 

another room where he could watch all proceedings because he “was 

engaging in verbal inappropriate behavior that was disruptive of the trial[.]” 

(Id. at 25).

The jury convicted Appellant on all charges. On November 10, 2014, 

at the sentencing hearing, the court stated that Appelant “was found guilty 

on several counts of robbery, three counts of F1 robbery, one count of F2 

robbery, one count of F1 intimidation, one count of F3 retaliation, and three 
J-S93045-16

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counts of M1 terroristic threats.” (N.T. Sentencing, 11/10/14, at 41). The 

court then sentenced Appellant as follows:

7 and-a-half to 15 years state prison on the F1 intimidation 

charge. On the three counts of F1 robbery, the same sentence 

is 7 and-a-half to 15 years to run concurrent on the three counts 

for a total aggregate sentence of 30 to 60 years. In addition, 

those sentences will run consecutive on each count. In addition, 

with regards to the one count of the F2 robbery, the sentence is 

5 to 10 years in state prison consecutive. So the total 

aggravated sentence on the F1 and F2 counts in this case is 35 

to 70 years in state prison.

On the remaining counts, the three counts of terroristic 

threats, the sentence is 2 and-a-half to 5 years. These–the 

sentence is the same on all three counts. Those are to run 

concurrent with each[ ]other and to run concurrent with the 35 

to 70 already imposed. In addition, on the one count of 

retaliation, the sentence is 3 and-a-half to 7 to run concurrent 

with the terroristic threats counts and to run concurrent with the 

F1 counts and the F2 count.

(Id. at 41-42).7

Appellant filed a timely post-sentence motion on November 20, 2014, 

which was denied by operation of law on March 20, 2015. He filed a timely 

notice of appeal on April 13, 2015, and pursuant to the court’s order, filed a 

concise statement of errors complained of on appeal on May 13, 2015. See

____________________________________________

7 We quote extensively from the sentencing transcript to refer to the 

sentence originally imposed by the trial court because the certified record 

does not contain the original sentencing orders for each docket. As 

discussed below, (see infra at n.8), because the original sentencing orders 

were removed from the certified record and replaced by the trial court’s 

corrected orders, the only contemporaneous record of the original sentence 

imposed by the trial court is the notes of testimony from the sentencing 

hearing. 
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Pa.R.A.P. 1925(b). The trial court entered an opinion on October 29, 2015. 

See Pa.R.A.P. 1925(a).8 

Appellant raises five issues on appeal.

1. Did the [trial] court improperly order [A]ppellant to be 

physically removed from the courtroom during his trial; fail to 

warn [A]ppellant in advance that he could be removed and that 

removal would be prejudicial to the trial; and fail to instruct the 

jury that [A]ppellant’s removal was unrelated to guilt?

2. Did the [trial] court violate due process and the rules of 

evidence and invade the province of the jury by permitting a 

police detective to testify that he compared the surveillance 

videos from two separate robberies and concluded that the 

robber of the Los Charales grocery store (a person never 

identified as [A]ppellant) was the same person as the robber of a 

Rite Aid (identified as [A]ppellant), and, further, allowed the 

detective to display still photographs from the two surveillance 

videos alongside a photograph of [A]ppellant, leaving no doubt 

that the detective believed [A]ppellant was the person depicted 

in both videos?

3. Did the [trial] court impose an illegal sentence above the 

statutory maximum by sentencing [A]ppellant to [not less than 

seven and one-half nor more than fifteen] years for robbery, a 

felony of the second degree, in [Docket No. ]10494-2013?

4. Are not the [trial] court’s new, back-dated sentencing orders 

issued with its Rule 1925 [o]pinion a nullity and should they not 

be vacated, a position at least partially adopted by the lower 

court in its [s]upplemental [o]pinion?

____________________________________________

8 We observe that, after Appellant filed his notice of appeal in this matter, 

and without conducting a sentencing hearing or notifying Appellant or his 

attorney, the trial court issued several corrected sentencing orders, 

attempting to correct errors in the original sentence. (See Docket No. 

8821-2012, entries D8/1 and 2, 11/10/14; Docket No. 10494-2013, entries 

D6/2 and 2, 11/10/14). As discussed below, (see infra at 15-17), we 

conclude that the trial court’s corrected sentencing orders are a nullity. 
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5. Did the [trial] court abuse its discretion, violate general 

sentencing principles and disregard the needs of [A]ppellant and 

the community, when it imposed excessive, consecutive 

sentences totaling [not less than] thirty-five [nor more than] 

seventy years, a de facto life sentence?

(Appellant’s Brief, at 4-5).

In his first issue, Appellant claims that the court erred when it 

removed him from the courtroom during trial. (See id. at 32-42). 

Specifically, he argues that the court failed to warn him that he would be 

removed if he continued to disrupt trial, and that the court failed to instruct 

the jury that his removal was unrelated to guilt. We disagree.

The United States Constitution[,] the Pennsylvania 

Constitution[,] and Pennsylvania Rules of Criminal Procedure 

1117(a) guarantee the right of an accused to be present in the 

courtroom at every stage of a criminal trial. However, in 

Illinois v. Allen, 397 U.S. 337 (1970), the United States 

Supreme Court determined that the right to be present in the 

courtroom is not absolute and explicitly held,

that a defendant can lose his right to be present at trial if, 

after he has been warned by the judge that he will be 

removed if he continues his disruptive behavior, he 

nevertheless insists on conducting himself in a manner so 

disorderly, disruptive, and disrespectful of the court that 

his trial cannot be carried on with him in the courtroom. 

Once lost, the right to be present can, of course, be 

reclaimed as soon as the defendant is willing to conduct 

himself consistently with the decorum and respect inherent 

in the concept of courts and judicial proceedings.

Commonwealth v. Basemore, 582 A.2d 861, 866–67 (Pa. 1990), cert. 

denied, 502 U.S. 1102 (1992) (footnotes and most citations omitted; 

citation formatting provided). 
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In Basemore, our Supreme Court considered whether a trial court 

abused its discretion in removing an appellant from the courtroom during 

trial when he had been disrupting proceedings by verbally attacking the 

judge and berating jurors. The Court held that the trial court “followed the 

guidelines set forth in Allen, supra by warning [the a]ppellant before 

removing him from the courtroom and by giving [the a]ppellant the 

opportunity to return at any time provided he agreed to conduct himself 

properly.” Id. at 868.

Here, Appellant disrupted the testimony of several witnesses and was 

warned by the trial court that if he continued to disrupt trial he would be 

held in contempt. (See N.T. Trial, 8/19/14, at 179-82; N.T. Trial, 8/21/14, 

at 74-76). Appellant verbally abused the court and attempted to reach for a 

water container on a table, which the court considered a threat, while being 

led out of the room. (See N.T. Trial, 8/21/14, at 76). Defense counsel 

informed the court that he was concerned about further disruptions and 

requested that his client be allowed to view the rest of the proceedings on 

closed circuit television.9 (See id. at 80-84). Defense counsel met with 

Appellant and discussed the court’s plan, after which the trial court again 

warned Appellant that if he continued to disrupt trial it would take steps to 

ensure that the trial continued uninterrupted. (See id. at 104-06). The 

____________________________________________

9 Defense counsel later objected, for the record, that Appellant was being 

forced out of the room. (See N.T. Trial, 8/22/14, at 23-24).
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court removed Appellant on the following day after he again disrupted trial, 

and instructed the jury that he was removed because of the disruptions.10 

(See N.T. Trial, 8/22/14, at 15-16). 

After careful review, we conclude that the trial court did not abuse its 

discretion in removing Appellant from the courtroom. The trial court 

followed the guidelines set forth in Allen by warning Appellant that he could 

be removed if he continued to be disruptive.11 Appellant’s first issue does 

not merit relief.

In his second issue, Appellant claims that the trial court abused its 

discretion in permitting Detective McKenna to testify concerning the 

surveillance videos from the Rite Aid and Los Charales robberies. (See

Appellant’s Brief, at 43-51). Specifically, he argues that Detective 

McKenna’s testimony was impermissible lay opinion testimony because he 

did not have personal knowledge as to the identity of the person in the 

____________________________________________

10 To the extent that Appellant argues the court’s instruction to the jury 

following his removal was insufficient, he has waived such claim for failure to 

object at trial. See Commonwealth v. McCloskey, 835 A.2d 801, 812 

(Pa. Super. 2003) (holding appellant waived challenge to jury instruction 

when he failed to make specific and timely objection).

11 Appellant has claimed that the warning was not sufficient, because the 

record does not reflect Appellant specifically being told that removal was an 

option. However, the record is clear that, not only did the court tell defense 

counsel about its intent to remove Appellant if he continued to disrupt, and 

then ask counsel to speak to Appellant about his behavior, defense counsel 

joined in the request to remove Appellant. (See N.T. Trial, 8/21/14, at 82-

84, 97-98).
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surveillance videos. (See id. at 44-48). Furthermore, he argues that the 

testimony was highly prejudicial because the detective who testified is a 

veteran of the police force. (See id. at 50-51). We disagree.12

In reviewing a challenge to the admissibility of evidence, 

we note that such matters are within the sound discretion of the 

trial court and thus, we will reverse the trial court’s decision only 

if the appellant sustains the heavy burden to show that the trial 

court has abused its discretion.

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.

Commonwealth v. Brown, 134 A.3d 1097, 1105–06 (Pa. Super. 2016), 

appeal denied, 145 A.3d 161 (Pa. 2016) (citations and quotation marks 

omitted). 

A lay witness may offer testimony as to his opinion if the opinion is 

“(a) rationally based on the witness’s perception; (b) helpful to clearly 

understanding the witness’s testimony or to determining a fact in issue; and 

____________________________________________

12 Although Appellant’s second question presented contends the court erred 

by allowing Detective McKenna to display still photographs from the videos 

alongside a photograph of him, he did not develop an argument in support of 

this claim with any pertinent legal discussion or authority. See Pa.R.A.P. 

2119(a)-(b). Thus, we conclude it is waived. See Pa.R.A.P. 2101.
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(c) not based on scientific, technical, or other specialized knowledge within 

the scope of Rule 702.” Pa.R.E. 701. 

“[E]vidence may be excluded if its probative value is outweighed 

by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence.” 

Pa.R.E. 403 (emphasis added). Evidence is not unfairly 

prejudicial simply because it is harmful to the defendant’s case. 

Rather, exclusion of evidence on this ground is limited to 

evidence so prejudicial that it would inflame the jury to make a 

decision based upon something other than the legal propositions 

relevant to the case. 

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa. Super. 2012), appeal 

denied, 60 A.3d 535 (Pa. 2013) (case citations and some quotation marks 

omitted; citation formatting provided).

Here, the trial court explained that it permitted Detective McKenna to 

testify about similarities he observed between the videos, because it served 

as the basis for preparing a photo array and procuring an arrest warrant for 

Appellant for the Los Charales robbery. (See Trial Ct. Op., at 15). The 

court reasoned that Detective McKenna’s testimony was essential for the 

jury to understand his testimony and why he considered Appellant a suspect 

in connection with the Los Charales robbery. (See id. at 17).

Upon review, we conclude that the trial court did not abuse its 

discretion in permitting Detective McKenna to testify about viewing the two 

surveillance videos and the similarities he noticed. See Brown, supra at 

1105-06. The detective’s testimony was based on his viewing of the videos 

in connection with his investigation, was helpful for the jury to understand 
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his testimony and why he connected Appellant with the robbery, and was 

not based on scientific or specialized evidence. See Pa.R.E. 701. 

Furthermore, the fact that the testimony came from a detective who was a 

veteran of the police force, does not make it unfairly prejudicial. See Foley, 

supra at 891; Pa.R.E. 403. The trial court did not abuse its discretion in 

permitting Detective McKenna’s testimony; therefore, Appellant’s second 

issue does not merit relief.

Because our holding with respect to Appellant’s fourth issue impacts 

our analysis with respect to Appellant’s third issue, we have considered 

Appellant’s fourth issue first, for ease of disposition. In his fourth issue, 

Appellant argues that the trial court’s corrected sentencing orders, issued 

October 13, 2015,13 are a nullity. (See id. at 54-61). We agree.

Appellant’s issue presents a question of law for which our scope of 

review is plenary and our standard of review is de novo. See

Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011), affirmed, 

80 A.3d 1219 (Pa. 2013).

The law is clear that a court may modify or rescind any 

order within 30 days after its entry, if no appeal has been taken. 

[See] 42 Pa.C.S.[A] § 5505; Pa.R.A.P. 1701(a). Thus, where a 

Notice of Appeal has been filed, the trial court cannot act further 

in the matter. However, this rule must be read in conjunction 

with a court’s inherent powers to amend its records, to correct 

____________________________________________

13 Because the trial court dated the corrected sentencing orders November 

10, 2014, the same date as the original sentencing orders, we refer to the 

date the docket entries were printed for reference.
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mistakes of the clerk or other officer of the court, inadvertencies 

of counsel, or supply defects or omissions in the record, even 

after the lapse of the term. . . . Thus, under limited 

circumstances, even where the court would normally be divested 

of jurisdiction, a court may have the power to correct patent and 

obvious mistakes.

Commonwealth v. Klein, 781 A.2d 1133, 1135 (Pa. 2001) (citations and 

quotation marks omitted). 14

Furthermore, this Court has long held that “when a judgment has been 

vacated . . . the rights of the parties are left as though no judgment has 

been entered. . . . [and] de novo [re-]sentencing resuscitates the duties of 

the sentencing court and the rights of the defendant, including the 

defendant’s right to personally address the court.” Commonwealth v. 

Anderson, 603 A.2d 1060, 1063 (Pa. Super. 1992) (citations and quotation 

marks omitted); see also Commonwealth v. Hobson, 452 A.2d 22, 23 

(Pa. Super. 1982) (concluding that trial court is empowered to modify 

sentence, yet “a criminal defendant and his attorney should be present 

during all aspects of sentencing.”) (citations omitted).

____________________________________________

14 The law regarding what constitutes patent or obvious mistakes is less than 

clear. See e.g. Klein, supra at 1135 (concluding, although order entered 

greater than thirty-days prior, court permitted to modify sentence at new 

sentencing hearing when original intent was clear); Commonwealth v. 

Borrin, 80 A.3d 1219, 1227 (Pa. 2013) (holding that court could not modify 

sentencing order, which had been entered greater than thirty-days prior, 

with respect to consecutive or concurrent nature of sentences to correct 

ambiguity in original sentence); Commonwealth v. Holmes, 933 A.2d 57, 

67 (Pa. 2007) (holding court permitted to correct “clear errors in the 

imposition of sentences that were incompatible with the record . . . or black 

letter law . . . .”).
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In the instant case, the trial court imposed sentence on November 10, 

2014. After denial of his post-sentence motions, Appellant filed a timely

notice of appeal on April 13, 2015. On October 13, 2015, while this appeal 

was pending, the trial court sua sponte issued corrected sentencing orders, 

without notifying Appellant or his counsel and without holding a hearing. 

Because the trial court vacated the original sentence and imposed a new 

sentence, without holding a hearing or notifying Appellant, we conclude that 

the court erred in modifying his sentence. See Anderson, supra at 1063. 

We further conclude the corrected sentencing orders are improper and 

require a remand to the trial court for resentencing. Therefore, it is not 

essential for us to determine whether the trial court had jurisdiction to 

modify the original sentence because of patent or obvious errors, and we 

conclude that the corrected sentencing orders are a nullity.15

____________________________________________

15 Moreover, we note that the trial court candidly conceded that the original 

sentencing error at Docket No. 10494-2013 was the result of confusion with 

respect to whether the robbery was a felony of the first or second degree, 

and was not a clerical error. (See Supplemental Trial Ct. Op., 4/07/16, at 

2). The court compounded this initial sentencing error when it issued its 

October 13, 2015 orders, which not only altered the sentence at Docket No. 

10494-2013, but also significantly altered the sentence at Docket No. 8821-

2012, and increased the grading of the robbery charge in that case. The 

court has recognized its error with regard to Docket No. 8821-2012, and 

explained that the sentence imposed November 10, 2014, for that robbery 

was correct, and the October 13, 2015 corrected sentencing order is an 

error. These compound errors were all done outside the presence of 

Appellant and his counsel. 
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In his third issue, Appellant argues that the trial court erred when it 

sentenced him on November 10, 2014, to a term of not less than seven-andone-half, nor more than fifteen years of imprisonment for his robbery 

conviction at Docket No. 10494-2013. (See Appellant’s Brief, at 51-54). 

Specifically, he contends that he was convicted of robbery as a seconddegree felony, thus the sentence imposed, which is above the maximum 

permitted for felonies of the second degree, is an illegal sentence. (See 

id.).16 We agree.

The scope and standard of review applied to determine the 

legality of a sentence are well established. If no statutory 

authorization exists for a particular sentence, that sentence is 

illegal and subject to correction. An illegal sentence must be 

vacated. In evaluating a trial court’s application of a statute, our 

standard of review is plenary and is limited to determining 

whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001–02 (Pa. Super. 2006) 

(citations omitted). 

Here, the jury returned a guilty verdict at Docket No. 10494-2013, for 

robbery, fear of immediate bodily injury, which is a felony of the second 

degree. (See Verdict Slip, 8/25/14); 18 Pa.C.S.A. §§ 3701(a)(1)(IV), (b). 

The statutory maximum sentence for a felony of the second degree is not 

more than ten years’ imprisonment. See 18 Pa.C.S.A. § 1103(2). 

____________________________________________

16 We note that both the trial court and the Commonwealth concede that the 

sentence imposed for robbery at Docket No. 10494-2013, was illegal. (See

Supplemental Trial Ct. Op., at 2; Commonwealth’s Brief, at 32-33).
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Therefore, the court’s sentence of not less than seven and one-half, nor 

more than fifteen years of imprisonment, which is in excess of the 

maximum, is an illegal sentence. See Leverette, supra at 1001-02. 

Accordingly, we vacate the sentences imposed and remand for resentencing 

in all four cases in accordance with the provisions of this memorandum, 

because our vacation may upset the trial court’s sentencing scheme. 

Finally, in his fifth issue, Appellant challenges the discretionary aspects 

of his sentence. (See Appellant’s Brief, at 62-66). However, because we 

have vacated his sentence, Appellant’s challenge to the discretionary aspects 

of the sentence is moot. 

Judgment of sentence vacated. Case remanded to the trial court for 

resentencing. Jurisdiction relinquished.

Judge Dubow did not participate in the consideration or decision of this 

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2017