J-S20015-22
2022 PA Super 201
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYAN WILLIAM CONLEY :
:
Appellant : No. 935 WDA 2021
Appeal from the Judgment of Sentence Entered July 15, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002061-2018
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
OPINION BY NICHOLS, J.: FILED: NOVEMBER 22, 2022
Appellant Bryan William Conley appeals from the judgment of sentence
imposed following the revocation of his county intermediate punishment (CIP)
and his consecutive terms of probation. This matter returns to this Court after
we remanded for the filing of an amended Anders/Santiago1 brief or an
advocate’s brief. Appellant has filed an advocate’s brief challenging both the
discretionary aspects and the legality of his revocation sentence. We vacate
the judgment of sentence and remand for further proceedings consistent with
this opinion.
The underlying facts of this matter are well known to the parties. See
Trial Ct. Op., 6/12/19, at 5-10. Briefly, Appellant and Andrea Delsandro (the
victim) separated in May of 2018 after dating for approximately five years. At
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1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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the time of their separation, they had a three-year-old child, and the victim
was pregnant with their second child. On June 25, 2018, the victim obtained
a Protection From Abuse (PFA) order against Appellant. The victim gave birth
at St. Vincent Hospital on June 27, 2018. Although Appellant had been served
with the PFA order and hospital staff denied him entry, Appellant circumvented
hospital security to reach the victim. During the encounter at the hospital,
Appellant threatened to kill the victim, their newborn child, and the victim’s
father. The victim called a nurse for help, and Appellant left the victim’s
hospital room. The nurse alerted hospital security, and the hospital was
placed on lockdown.
Appellant was subsequently charged with two counts each of terroristic
threats, disorderly conduct, and harassment, and one count of simple assault.2
Following a non-jury trial on November 28, 2018, Appellant was convicted of
two counts of terroristic threats (one graded as a felony of the third degree
and the other as a misdemeanor of the first degree) and one count each of
simple assault, disorderly conduct, and harassment. The trial court acquitted
Appellant of one count each of disorderly conduct and harassment.
The trial court held a sentencing hearing on February 13, 2019. At the
hearing, Appellant argued that his misdemeanor terroristic threats and simple
assault convictions should merge with the felony terroristic threats conviction.
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2 18 Pa.C.S. §§ 2706(a)(1), 5503(a)(1), 2709(a)(1), and 2701(a)(3),
respectively.
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However, the trial court disagreed and sentenced Appellant on all three
counts. The trial court sentenced Appellant to an aggregate term of four years
of CIP followed by three years of probation.3
On direct appeal, Appellant challenged the sufficiency of the evidence
supporting his convictions for terroristic threats, simple assault, and disorderly
conduct. Commonwealth v. B. Conley, 496 WDA 2019, 2020 WL 3989174,
at *4 (Pa. Super. filed July 15, 2020) (B. Conley I) (unpublished mem.).
Ultimately, a panel of this Court concluded that the evidence was sufficient to
sustain Appellant’s convictions. Id. at *4-6. However, the Court did not
address whether any of Appellant’s convictions should have merged for
sentencing purposes.
While he was serving his CIP sentence, Appellant was detained after
admitting to his probation officer that he had been using methamphetamine.
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3 Specifically, for count one, the felony terroristic threats conviction, the trial
court sentenced Appellant to four years’ CIP, which included a term of 205
days’ incarceration followed by three months’ electronic monitoring, and then
followed by three months’ intensive supervision. For count two, the
misdemeanor terroristic threats conviction, the trial court sentenced Appellant
to a consecutive term of two years’ probation. For count three, simple assault,
the trial court sentenced Appellant to one year of probation concurrent to
count two. For count four, disorderly conduct, the trial court imposed a
consecutive term of nine months’ probation. Lastly, for count six, harassment,
the trial court imposed a consecutive term of three months’ probation. See
Sentencing Order, 2/13/19, at 1 (unpaginated). The trial court also gave
Appellant credit for ninety-nine days’ time served. See id. at 2 (unpaginated).
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On July 15, 2021, the trial court held a violation of probation4 (VOP) hearing.
Appellant conceded that he had violated the conditions of his CIP because he
had used methamphetamine, and the trial court revoked his CIP and his
consecutive terms of probation. See N.T. VOP Hr’g, 7/15/21, at 4. Both
Appellant and his probation officer, Ashley Clark, testified at the VOP hearing.
Id. at 6-10, 13-16. Officer Clark stated that Appellant had accrued twenty-
five misconducts while incarcerated. Id. at 6-7. She also stated that she had
received letters from Appellant containing sexual messages. Id. at 7-8; see
also id. at 12-13. Appellant admitted that he sent those letters to Officer
Clark, but he claimed that he had “acted out of character to be noticed[,]”
because the prison authorities had mistreated him, and he apologized to
Officer Clark during the hearing. Id. at 8-11, 14. At the conclusion of the
hearing, the trial court resentenced Appellant to an aggregate term of three-
and-a-half to seven years’ incarceration followed by one year of probation.5
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4 During the revocation portions of the proceedings on July 15, 2021, the trial
court and parties referred to Appellant’s sentence as probation, even though
he was serving his CIP sentence at that time. Compare N.T. VOP Hr’g,
7/15/21, at 2-4 with id. at 16 and Sentencing Order, 2/13/19, at 1
(unpaginated). As discussed further below, at the time of the VOP hearing,
the General Assembly had reclassified CIP as a form of probation with
restrictive conditions. See 42 Pa.C.S. § 9804(a) (am. eff. Dec. 18, 2019).
However, for consistency, we refer to the original sentence imposed at count
one as CIP.
5 Specifically, the trial court imposed consecutive terms of incarceration as
follows: two to four years for felony terroristic threats, one to two years for
the misdemeanor terroristic threats, and six months to one year for simple
assault. The trial court also reimposed consecutive terms of probation as
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Appellant filed a timely post-sentence motion requesting reconsideration
and modification of his sentence, which the trial court denied. Appellant then
filed a timely appeal and court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued a Rule 1925(a) opinion addressing Appellant’s challenge to the
discretionary aspects of his sentence. See Trial Ct. Op., 12/20/21, at 6-9.
As noted previously, this case returns to this Court after we remanded
for the filing of an amended Anders/Santiago brief or an advocate’s brief.
Commonwealth v. B. Conley, 935 WDA 2021, 2022 WL 3151832, at *10
(Pa. Super. filed Aug. 8, 2022) (B. Conley II) (unpublished mem.).
On appeal, Appellant has filed a counseled advocate’s brief raising three
issues, which we have reordered as follows:
1. Did the [trial] court err in its revocation of the sentences of
probation, when they had not yet started at the time of
[Appellant’s] violation?
2. Did the [trial] court commit[] reversible error in failing to
merge the felony and misdemeanor counts [of terroristic
threats] for purposes of sentencing [Appellant]?
3. Did the [trial] court commit reversible error in that its sentence
was manifestly excessive and clearly unreasonable, and not
individualized as required by law, when it did not refer to
having reviewed a pre-sentence investigation at the time of
sentencing?
Appellant’s Brief at 3.6
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follows: nine months for disorderly conduct and three months for harassment.
See Sentencing Order, 7/15/21, at 1 (unpaginated).
6 The Commonwealth did not file a responsive brief.
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Revocation of Consecutive Probation
Appellant first argues that the trial court lacked the authority to revoke
his probation, because at the time the trial court revoked his CIP sentence, he
had not begun serving his consecutive terms of probation. Id. at 16-17 (citing
Commonwealth v. Simmons,
262 A.3d 512 (Pa. Super. 2021) (en banc)).
Appellant contends that although Simmons did not address the revocation of
probation that runs consecutive to a term of CIP, the same rationale applies
to his case.
Id. Therefore, Appellant concludes that the trial court’s VOP
sentence is illegal under Simmons.
Id.
“It is axiomatic that a sentence imposed without statutory authority is
an illegal sentence.” Commonwealth v. K. Conley, 266 A.3d 1136, 1140
(Pa. Super. 2021) (citation omitted). Challenges to the legality of the
sentence are non-waivable and may be raised for the first time on appeal.
See Commonwealth v. Martinez,
153 A.3d 1025, 1030 n.2 (Pa. Super.
2016). Our standard of review is de novo and our scope of review is plenary.
Id. at 1030. “An illegal sentence must be vacated.” Commonwealth v.
Tucker,
143 A.3d 955, 960 (Pa. Super. 2016) (citation omitted).
Initially, we reiterate that the trial court imposed Appellant’s original CIP
sentence in February of 2019.7 However, in December of 2019, the General
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7 At that time, the Sentencing Code classified probation and CIP as different
sentencing alternatives. See 42 Pa.C.S. § 9721(a)(1), (6) (listing “[a]n order
of probation” and “county intermediate punishment” as separate sentencing
alternatives available to the trial court), subsection (a)(6) repealed by Act of
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Assembly amended the Sentencing Code to reclassify CIP as a type of
probation.8 See 42 Pa.C.S. § 9804(a) (providing that “[c]ounty intermediate
punishment programs are restrictive conditions of probation”), as amended
by Act of Dec. 18, 2019, P.L. 776, No. 115.
Further, at the time the trial court revoked Appellant’s probation in
2021, this Court’s case law permitted anticipatory revocations of probation.
See, e.g., Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super.
1980) (holding that “[i]f, at any time before the defendant has completed the
maximum period of probation, or before he has begun service of his probation,
he should commit offenses of such nature as to demonstrate to the trial court
that he is unworthy of probation . . . the trial court could revoke or change
the order of probation” (citations omitted)).
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Dec. 18, 2019, P.L. 776, No. 115; see also Commonwealth v. Wegley,
829
A.2d 1148, 1153 (Pa. 2003) (observing that, under the prior version of the
Sentencing Code, CIP was “a distinct, and more severe, sanction than
traditional probation”).
8 Additionally, the General Assembly repealed the statute authorizing a trial
court to revoke a CIP sentence. See 42 Pa.C.S. § 9773, repealed by Act of
Dec. 18, 2019, P.L. 776, No. 115. Nevertheless, our Supreme Court has
observed that because CIP is now classified as a form of probation, 42 Pa.C.S.
§ 9771 (modification or revocation of order of probation), authorizes a trial
court to revoke a CIP sentence. See Commonwealth v. Hoover,
231 A.3d
785, 790 (Pa. 2020) (plurality).
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However, in Simmons,9,10 an en banc panel of this Court overruled
Wendowski and its progeny, explaining:
Simply stated, Wendowski was incorrect in holding that a trial
court may anticipatorily revoke an order of probation and in
reasoning that “a term of probation may and should be construed
for revocation purposes as including the term beginning at the
time probation is granted.” Wendowski, 420 A.2d at 630
(quotations omitted). No statutory authority exists to support this
understanding. Rather, the plain language of the relevant
statutes provides that: a trial court may only revoke an order of
probation “upon proof of the violation of specified conditions of
the probation;” the “specified conditions” of an order of probation
are attached to, or are a part of, the order of probation; and, when
the trial court imposes an “order of probation” consecutively to
another term, the entirety of the “order of probation” — including
the “specified conditions” — do not begin to commence until the
prior term ends.
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9 Simmons was decided after Appellant filed his notice of appeal. It is well
settled that “Pennsylvania appellate courts apply the law in effect at the time
of the appellate decision. This means that we adhere to the principle that a
party whose case is pending on direct appeal is entitled to the benefit of
changes in law which occur before the judgment becomes final.”
Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations
omitted and formatting altered).
10 We note that the Commonwealth did not file a petition for allowance of
appeal to our Supreme Court after this Court announced its decision in
Simmons. However, our Supreme Court subsequently granted the
Commonwealth’s petition for review in an unrelated matter, which directly
implicates our holding in Simmons. See Commonwealth v. Rosario,
271
A.3d 1285 (Pa. 2022) (granting the Commonwealth’s petition for allowance of
appeal to consider whether the Simmons Court erred in holding that trial
courts lack the statutory authority to anticipatorily revoke a defendant’s
probation that has not yet commenced). In any event, we remain bound by
Simmons “as long as the decision has not been overturned by our Supreme
Court.” Commonwealth v. Reed,
107 A.3d 137, 143 (Pa. Super. 2014)
(citations omitted).
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Simmons, 262 A.3d at 524-25 (footnote omitted); see also K. Conley, 266
A.3d at 1140 (concluding that “under Simmons, [the defendant] was not yet
required to comply with the probation portion of the imposed order of sentence
before he began serving it; thus, his noncompliance did not permit the
anticipatory revocation of his order of probation”). The Simmons Court
vacated the defendant’s sentence and remanded the case with instructions for
the trial court to reinstate the original order of probation. Simmons,
262
A.3d at 527; see also K. Conley, 266 A.3d at 1140.
Although this Court has not yet applied Simmons in matters where the
defendant is serving multiple, consecutive terms of probation,11 we conclude
that the same rationale applies in the instant case. Here, the trial court
revoked Appellant’s CIP sentence and anticipatorily revoked his consecutive
probation sentences, which he had not yet begun to serve.12,13 However,
because Appellant had not yet begun serving his consecutive terms of
probation at the time he violated the conditions of his CIP, he was not yet
required to comply with the conditions of his consecutive terms of probation.
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11 As noted above, a CIP sentence is now considered a form of probation with
restrictive conditions.
12 As stated above, Appellant’s original probationary sentence was composed
of three consecutive terms of probation: two years for count two, nine months
for count four, and three months for count six. The trial court also sentenced
Appellant to a term one year of probation for count three, concurrent to count
two.
13The trial court did not address the applicability of Simmons in its Rule
1925(a) opinion.
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See Simmons, 262 A.3d at 525 (explaining that “when the trial court imposes
an ‘order of probation’ consecutively to another term, the entirety of the ‘order
of probation’ — including the ‘specified conditions’ [of probation] — do not
begin to commence until the prior term ends” (footnote omitted)). Therefore,
we conclude that the trial court lacked the statutory authority to anticipatorily
revoke Appellant’s consecutive terms of probation. Accordingly, we are
constrained to vacate the July 15, 2021 judgment of sentence and remand for
the trial court to reinstate the original February 13, 2019 orders imposing
consecutive terms of probation. See
id. at 527.
Merger
Appellant also argues that his conviction for count two: terroristic
threats, graded as a misdemeanor of the third degree, should merge with his
conviction for count one: terroristic threats, graded as a felony of the first
degree. Appellant’s Brief at 13-16. Appellant contends that all of the elements
of required for his misdemeanor terroristic threats conviction are included in
his conviction for felony terroristic threats, which has the additional element
of causing “the occupants of the building . . . to be diverted from their normal
or customary operations . . . .” Id. at 14-15 (quoting 18 Pa.C.S. § 2706).
Appellant contends that because he committed a single act, these two offenses
should have merged. Id. at 13, 15-16 (citing, inter alia, 42 Pa.C.S. § 9765).
“A claim that crimes should have merged for sentencing purposes raises
a challenge to the legality of the sentence.” Martinez, 153 A.3d at 1029-30
(citation omitted).
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Section 9765 of the Sentencing Code provides that:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
This Court has explained, “[t]he statute’s mandate is clear. It prohibits
merger unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Martinez, 153 A.3d at 1030
(citations omitted).
“If the offenses stem from two different criminal acts, merger analysis
is not required.” Commonwealth v. Williams, 958 A.2d 522, 527 (Pa.
Super. 2008) (citation omitted).
The Martinez Court further explained:
When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a “break in
the chain” of criminal activity. The issue is whether the actor
commits multiple criminal acts beyond that which is necessary to
establish the bare elements of the additional crime, then the actor
will be guilty of multiple crimes which do not merge for sentencing
purposes.
In determining whether two or more convictions arose from a
single criminal act for purposes of sentencing, we must examine
the charging documents filed by the Commonwealth.
Martinez, 153 A.3d at 1030-31 (citations omitted and formatting altered).
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Terroristic threats is defined, in relevant part, as follows:
(a) Offense defined.—A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly, a
threat to:
(1) commit any crime of violence with intent to terrorize
another;
…
(d) Grading.—An offense under subsection (a) constitutes a
misdemeanor of the first degree unless the threat causes the
occupants of the building . . . to be diverted from their normal or
customary operations, in which case the offense constitutes a
felony of the third degree.
18 Pa.C.S. § 2706(a)(1), (d).
In Commonwealth v. Burkhart, 1916 MDA 2019, 2020 WL 6778766
(Pa. Super. filed Nov. 18, 2020) (unpublished mem.), 14 a panel of this Court
examined whether a misdemeanor count of terroristic threats merged with a
felony count of terroristic threats. Burkhart,
2020 WL 6778766, at *4-7. In
that case, a hospital was placed on lockdown after the defendant made threats
to hospital staff, telling staff that he had previously ‘done time in jail,’ and he
would have his motorcycle gang come to the hospital to ‘make things ugly [.]”
Id. at *1. The defendant was convicted of two counts of terroristic threats,
one graded as a felony of the third degree and one graded as a misdemeanor
of the first degree. Id. On appeal, the defendant argued that his sentences
for the two counts of terroristic threats should have merged. Id. at *2. This
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14 We may cite to unpublished memorandum decisions of this Court filed after
May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
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Court explained that “it is undisputed that all of the elements of the
misdemeanor-graded terroristic threats offense are included within the felony-
graded offense.” Id. at *5. The Burkhart Court examined the amended
criminal information to determine if the charges involved identical conduct by
the defendant. Id. at *5-7. This Court concluded that because both counts
alleged “identical conduct in the amended criminal information, and nothing
in the record suggests that the jury considered separate conduct as the factual
basis for each offense,” the defendant’s misdemeanor terroristic threats
conviction should have merged with his felony terroristic threats conviction.
Id. at *7.
Here, the Commonwealth charged Appellant as follows:
[COUNT ONE:]
. . . on or about June 28, 2018, in the said County of Erie and
[Commonwealth] of Pennsylvania, the said [Appellant] did
otherwise cause serious public inconvenience, or cause terror or
serious public inconvenience with reckless disregard of the risk of
causing such terror or inconvenience, to-wit: the said [Appellant]
did state to the victim Andrea Delsandro, he was going to kill her
and/or her new born infant and/or her father at a time when there
was an active PFA in place causing the hospital staff to relocate
the victim as a patient to another room and floor and/or the
hospital occupants to be diverted from their existing operations .
. . thereby the said [Appellant] did commit the crime of terroristic
threats, a felony of the third degree. [18 Pa.C.S. § 2706(a)(1).]
COUNT TWO:
. . . that on the day and year aforesaid in the said County of Erie
and [Commonwealth] of Pennsylvania, the said [Appellant] did
communicate, either directly or indirectly, a threat to commit any
crime of violence with intent to terrorize another, to-wit: the said
[Appellant] did state he was going to kill victim Andrea
Delsandro’s new born infant and/or her father and bury him
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and/or that he would go get his guns and blow off the victim’s
head . . . thereby the said [Appellant] did commit the crime of
terroristic threats, a misdemeanor of the first degree. [18 Pa.C.S.
§ 2706(a)(1)].
Criminal Information, 8/23/18, at 1 (formatting altered); see also id. at 4
(setting forth the statutes under which the Commonwealth charged
Appellant).
The trial court did not address the issue of merger in either its June 12,
2019 Rule 1925(a) opinion for Appellant’s direct appeal nor in its December
20, 2021 Rule 1925(a) opinion for the instant appeal. However, in its June
12, 2019 Rule 1925(a) opinion, the trial court concluded that the same
evidence was sufficient to sustain Appellant’s terroristic threats convictions at
counts one and two. See Trial Ct. Op., 6/12/19, at 10-11.
Based on our review of the record, it is clear that the Commonwealth
charged Appellant for identical conduct at counts one and two of the criminal
information. Specifically, both charges describe the incident in which
Appellant threatened to kill the victim, her newborn child, and her father. See
Criminal Information, 8/23/18, at 1; see also Trial Ct. Op., 6/12/19, at 10-
11 (discussing the identical evidence for counts one and two). Therefore, we
conclude that Appellant’s convictions arose from the same criminal act. See
Martinez, 153 A.3d at 1030-31; see also Burkhart,
2020 WL 6778766 at
*7. Further, all of the statutory elements of misdemeanor terroristic threats
are included in the statutory elements of felony terroristic threats. See 18
Pa.C.S. § 2706(a)(1), (d); see also Burkhart,
2020 WL 6778766 at *5. For
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these reasons, we conclude that Appellant’s misdemeanor terroristic threats
conviction should have merged with the felony count for sentencing purposes.
See Martinez, 153 A.3d at 1030. Although we do not disturb Appellant’s
conviction for misdemeanor terroristic threats, we vacate the sentence
imposed on count two. See, e.g., Tucker,
143 A.3d at 968 (affirming the
defendant’s convictions but vacating an illegal sentence).
For these reasons, we vacate the judgment of sentence and remand for
resentencing consistent with this opinion.15 See Commonwealth v. Thur,
906 A.2d 552, 569 (Pa. Super. 2006) (stating that if this Court’s “disposition
upsets the overall sentencing scheme of the trial court, we must remand so
that the court can restructure its sentence plan” (citation omitted)).
Judgment of sentence vacated. Case remanded for resentencing with
instructions to reinstate the original orders of probation except as to count
two, consistent with our disposition that count two merges with count one for
purposes of sentencing. Jurisdiction relinquished.
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15 In light of our disposition, we decline to address Appellant’s claim regarding
the discretionary aspects of his sentence. See Commonwealth v. Barnes,
167 A.3d 110, 125 n.13 (Pa. Super. 2017) (en banc) (concluding that when
this Court remands a matter for resentencing, the Court “need not address”
the defendant’s challenge to the discretionary aspects of his sentence, and
stating that “[w]hen a sentence is vacated and the case remanded for
resentencing, the sentencing judge should start afresh” (citation omitted)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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