J-S63040-19

                                    2020 PA Super 4

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                 Appellee                      :
                                               :
                     v.                        :
                                               :
    TERRELL COLEMAN,                           :
                                               :
                 Appellant                     :   No. 99 EDA 2019


       Appeal from the Judgment of Sentence Entered August 30, 2018
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009492-2017

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                           FILED JANUARY 09, 2020

        Terrell Coleman (Appellant) appeals from the judgment of sentence of

14 to 28 months of incarceration to be followed by four years of probation,

imposed after he was found guilty in a bench trial of burglary, criminal

trespass, and contempt in connection with his violating a Protection From

Abuse (PFA)1 order. After careful review, we vacate Appellant’s judgment of

sentence and remand for proceedings consistent with this opinion.

        The trial court summarized the factual and procedural history of this

case as follows.

               On or about August 7, 2017, [M.H. (Complainant),] was
        granted a temporary PFA [order] against her live-in boyfriend,
        Appellant. Appellant was not on the lease at [the premises] in
        the city and county of Philadelphia (“the house”), nor did he ever
____________________________________________


1   23 Pa.C.S. §§ 6101-6122.


*   Retired Senior Judge assigned to the Superior Court.
J-S63040-19


     possess a key to the house. Appellant evaded attempts at
     service, and gained entry into the house on several occasions
     without a key, causing Complainant to stay at her grandmother’s
     house until Appellant could be served [with the temporary PFA
     order]. Appellant was served with the [temporary] PFA [order]
     and eviction notice on August 21, 2017[,] when Complainant
     came home and found Appellant hiding in her daughter’s
     bedroom closet.      Complainant was present when an officer
     offered Appellant an opportunity to get anything of his from
     inside the house. Appellant declined the opportunity, and said,
     “I don’t have shit in that house. I don’t want nothing to do with
     her.”

            On August 25, 2017, Complainant made a point of locking
     all of the doors and windows “because of everything that was
     going on.”     At around 9 or 9:30 [a.m.], Complainant was
     returning home and parking her car at the back of the house
     after dropping her daughter off at school when she noticed
     [Appellant] coming out of the house holding a bag. Complainant
     testified there was no exterior sign of forced entry, but further
     stated, [that] Appellant “tried to climb through [her] window a
     couple of months prior and kind of messed the fan up of [her
     second story] bedroom window [….] he’s Spiderman or
     something, he found ways to get into this house.” Complainant
     saw that the internet box, which was in Appellant’s name, was
     missing from the house. Appellant did not have permission to be
     in the house on August 25, 2017 [(August 25 Incident). It was
     Appellant’s position that he and Complainant discussed this over
     the phone, and she was permitting him to retrieve the internet
     box.]

                                   ***

           On or about August 30, 201[7], Complainant went to
     Appellant’s new residence, at Appellant’s invitation.      When
     Complainant arrived, she realized that Appellant’s new girlfriend
     … was living there as well. Complainant was not let in, but the
     police were called.

Trial Court Opinion, 4/17/2019, at 1-4 (citations to notes of testimony and

footnotes omitted).




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       With respect to the August 25 Incident, Appellant was charged with

burglary, criminal trespass, criminal mischief, and contempt for violating the

PFA order. On June 12, 2018, after a bench trial, Appellant was found guilty

of burglary, criminal trespass, and contempt.2

       The trial court conducted a sentencing hearing on August 23, 2018. At

that hearing, it was determined that Appellant had a prior record score of

zero, and an offense gravity score of seven, which set the sentencing

guidelines at 6 to 14 months of incarceration, plus or minus 6 months. N.T.,

8/23/2018, at 4. The trial court pointed out that it had reviewed the

presentence investigation report. Id. at 5.      Counsel for Appellant told the

trial court that Appellant is employed part-time and is “finished with the

relationship with [Complainant].” Id. at 16. Appellant lives in another city

with his new girlfriend, who testified at the sentencing hearing about the

positive impact Appellant has had on her life.

       The Commonwealth requested Appellant serve 6½ to 23 months of

incarceration. The trial court offered the following.

            You know, the impact of the victim, this woman – I saw
       the text messages…. I wanted to make sure I looked at
       everything…. And the way really [sic] tortured her, and what she
       had to go through, through this…. You’re a young man. You
       have your whole life ahead of you. And something that I’m so
       happy about is that you work…. So I’m going to give you a
       sentence that’s going to give you a chance to be out sooner
____________________________________________
2 Appellant was charged separately for another incident, which occurred in
July of 2018. Those charges were tried together with the charges for the
August 25 Incident. He was found not guilty with respect to those charges.


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        rather than later. It’s, ultimately, going to be up to you, and
        you’re not going to be supervised for life.

              But this has to be a wake up call, because this is too
        serious. There are too many people that think that domestic
        violence is OK.

N.T., 8/23/2018, at 24-25.

        The trial court sentenced Appellant to concurrent terms of 12 to 24

months of incarceration on the burglary and criminal trespass convictions, to

be followed by two years of probation.3          Appellant timely filed a post-

sentence motion pursuant to Pa.R.Crim.P. 720, challenging the trial court’s

decision to sentence Appellant to more than the 6½-to-23-month sentence

recommended by the Commonwealth. Of note, in that motion, Appellant

referred to the fact that the trial court stated that Appellant “tortured”

Complainant via text message. Post-Sentence Motion, 8/27/2018, at ¶ 4;

N.T., 8/23/2018, at 24.

        A hearing was held on August 30, 2018.       At that hearing, Appellant

rested on the motion and requested the trial court to impose a county

sentence. N.T., 8/30/2018, at 3. The trial court then offered the following.

“I have reviewed your motion for reconsideration and [there is] something I

want to point out…. I said torture. And that didn’t factor into the sentence I

gave. It’s still a guideline sentence.” Id. at 4. Then, the trial court pointed

out that between the time of the conviction in this case and the time of his

____________________________________________
3   Appellant was sentenced to no further penalty on the contempt conviction.


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J-S63040-19


original sentencing, Appellant pleaded guilty to violating the PFA order again.

Id. The trial judge stated that after the original sentencing, he “went home

and thought to [himself], [he] may have done the wrong thing and gave too

many breaks and that [he] didn’t take enough seriousness [sic] of the

domestic violence.” Id. at 5.          The trial court then asked Appellant if he

would like to say anything, and Appellant said, “I didn’t mean to violate the

PFA, Your Honor….” Id. The trial court then re-sentenced Appellant to 14 to

28 months of incarceration for burglary to be followed by four years of

probation.4

       Appellant timely filed a post-sentence motion challenging the trial

court’s decision to increase Appellant’s sentence at the hearing on the post-

sentence motion.         That motion was denied by operation of law, and

Appellant timely filed a notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       On appeal, Appellant argues that the trial court abused its discretion

“by imposing a harsher sentence on Appellant at the hearing on his motion

[for] reconsideration” where the trial court “had no new information at its

disposal to support” the increase, and “additional prison time is simply

unreasonable and vindictive, unjustified by anything other than [that which]

was already known to the sentencing court.” Appellant’s Brief at 15.
____________________________________________
4 As it relates to the sentence imposed on August 23, 2018, this sentence
added two months to Appellant’s minimum sentence, four months to his
maximum sentence, and an additional two years of probation.


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J-S63040-19


Appellant, the Commonwealth, and the trial court all suggest that Appellant

is challenging the discretionary aspects of his sentence.    We examine that

issue first.

       Generally, issues not raised before the trial court are waived for
       appellate purposes. Similarly, this Court generally may not
       reverse, modify, or vacate an order or judgment of sentence for
       a reason not raised by the parties. Notwithstanding these
       general rules, [a] challenge to the legality of a particular
       sentence may be reviewed by any court on direct appeal; it need
       not be preserved in the lower courts to be reviewable and may
       even be raised by an appellate court sua sponte.

Commonwealth v. Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018) (internal citations and quotation marks

omitted).

       Instantly, the trial court, at a hearing on Appellant’s motion to modify

his sentence, increased Appellant’s sentence. Three facts are not in dispute:

1) the Commonwealth did not request a modification of Appellant’s

sentence, either in writing pursuant to Pa.R.Crim.P. 721 or orally at the

hearing;5 2) the trial court was not correcting a patent or obvious mistake in

Appellant’s original sentence;6 and 3) the original sentence imposed upon

____________________________________________
5 There is no question that the Commonwealth may file a motion to modify
sentence, and the trial court is permitted to increase a defendant’s sentence
in response thereto. See Pa.R.Crim.P. 721; Commonwealth v. Anderson,
450 A.2d 1011 (Pa. Super. 1982) (en banc).

6 A trial court may sua sponte correct a patent or obvious mistake. See
Pa.R.Crim.P. 720 (Miscellaneous Comments); 42 Pa.C.S. § 5505 (providing a
court may modify or rescind an order within 30 days). In Commonwealth
v. Holmes, 933 A.2d 57, 67 (Pa. 2007), our Supreme Court pointed out that
(Footnote Continued Next Page)

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J-S63040-19


Appellant was not illegal.7 Thus, the issue here is whether a court may sua

sponte increase a defendant’s sentence where it has decided the original

sentence imposed was too lenient.              We conclude that such a challenge

implicates the authority of the court to impose the sentence, and therefore

this issue is a challenge to the legality of Appellant’s sentence, which we

may address sua sponte. See Commonwealth v. Robinson, 7 A.3d 868,

870 (Pa. Super. 2010) (“This Court has held that an attack upon the power

of a court to impose a given sentence is a challenge to the legality of a

sentence.”).

      Our review of this appeal is guided by this Court’s decision in

Commonwealth v. Nickens, 923 A.2d 469 (Pa. Super. 2007).                      In

Nickens, on January 19, 2006, Nickens’s probation was revoked and the

court sentenced him to an aggregate 20 to 72 months of incarceration. This

sentence consisted of two concurrent terms of 14 to 60 months of

incarceration, and a consecutive term of 6 to 12 months of incarceration.

Nickens timely filed a motion to modify sentence, requesting the trial court


(Footnote Continued) _______________________
“the inherent power to correct errors does not extend to reconsideration of a
court’s exercise of sentencing discretion. A court may not vacate a
sentencing order merely because it later considers a sentence too harsh or
too lenient.”

7 A trial court may correct an illegal sentence sua sponte, even where a
defendant has started serving that sentence. See Commonwealth v.
Jones, 554 A.2d 50 (Pa. 1989); Commonwealth v. Vanderlin, 580 A.2d
820, 829 (Pa. Super. 1990).



                                          -7-
J-S63040-19


to run the consecutive term concurrently, and re-sentencing him to an

aggregate of 14 to 60 months of incarceration. The Commonwealth did not

file its own motion; instead, it filed “an answer to [Nickens’s] motion which

included a ‘New         Matter.’”   Id. at     471.   “In the   New   Matter, the

Commonwealth requested that the court increase [Nickens’s] sentence.” Id.

       The trial court denied Nickens’s motion to modify sentence, and

“simultaneously modified [Nickens’s] sentence upward,” adding four months

to Appellant’s minimum sentence “for the reasons enumerated in the

Commonwealth’s answer.” Id. Nickens filed a notice of appeal to this Court,

challenging the “the sentencing court’s order that modified his sentence

upward despite the Commonwealth’s failure to file a post-sentence motion.”8

Id. This Court offered the following.

       [W]hen the Commonwealth does not file a post-sentence motion
       seeking modification of a sentence, the sentencing court may not
       increase a sentence based upon the defendant’s post-sentence
       motion. In Commonwealth v. Broadie, [] 489 A.2d 218 ([Pa.
       Super.] 1985), this Court stated that “[i]n the case of a Rule
       1410[3] motion by the defendant, the court [cannot] increase the
       sentence since it cannot raise issues sua sponte.” Id. at 222 n.5,
       citing Commonwealth v. Murphy, [] 451 A.2d 514 ([Pa.
       Super.] 1982); see also Commonwealth v. Greer, [] 554 A.2d
       980, 987 n. 6 ([Pa. Super.] 1989).[]

              [3]Former Pa.R.Crim.P. 1410 was renumbered as Rule 720,
              effective April 1, 2001. Similarly, former Rule 1411 was
              renumbered as Rule 721.
____________________________________________
8  Nickens does not consider whether the issue involves the legality or
discretionary aspects of a sentence, but does state that the trial court
“increased [Nickens’s] sentence sua sponte without the legal authority to do
so.” Nickens, 923 A.2d at 472.


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J-S63040-19



Nickens, 923 A.2d at 472.

       This Court went on to point out that there is no authority for this Court

to consider “the Commonwealth’s Answer and New Matter as an equivalent

to a post-sentence motion.” Id. Therefore, we concluded “that because the

Commonwealth did not file a timely post-sentence motion, the sentencing

court had no basis on which to impose a harsher sentence. By doing so, the

trial court essentially increased [Nickens’s] sentence sua sponte, without the

legal authority to do so.” Id. Thus, this Court vacated Nickens’s judgment of

sentence and remanded for the trial court “to reinstate the sentence

imposed on January 19, 2006.” Id. at 473.

       Instantly, Appellant’s situation is virtually indistinguishable from that

which we considered in Nickens.                Appellant filed a post-sentence motion

requesting the trial court to reduce his sentence. Then, despite the fact the

Commonwealth did not file a post-sentence motion,9 the trial court sua

sponte reconsidered its sentence and increased Appellant’s sentence.

Pursuant to Pa.R.Crim.P. 720, Pa.R.Crim.P. 721, and Nickens, the trial court

was without authority to do so.           Accordingly, as we did in Nickens, we

vacate the sentencing order of August 30, 2018, and remand for the trial

court to reinstate the sentencing order of August 23, 2018.



____________________________________________
9 In fact, the Commonwealth did not even request an increase in Appellant’s
sentence.


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J-S63040-19


      Judgment of sentence vacated.    Case remanded.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/20




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