J-E01002-18 & J-E01003-18


                            2018 PA Super 283

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                       Appellee

                  v.

KEITH FIELDS

                       Appellant                  No. 1069 WDA 2016


       Appeal from the Judgment of Sentence Entered April 5, 2016
           In the Court of Common Pleas of Allegheny County
           Criminal Division at Nos: CP-02-CR-0004803-2012,
                        CP-02-CR-0004806-2012


COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                       Appellee

                  v.

GERALD HOWARD DAVIS, JR.

                       Appellant                  No. 445 WDA 2016


    Appeal from the Judgment of Sentence Entered February 19, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at Nos: CP-02-CR-0004831-2012,
                         CP-02-CR-0004834-2012


BEFORE: BENDER, P.J.E., PANELLA, SHOGAN, LAZARUS, OLSON, STABILE,
        DUBOW, KUNSELMAN, and MURRAY, JJ.

OPINION IN SUPPORT OF AFFIRMANCE BY STABILE, J.:


                                           FILED OCTOBER 17, 2018
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        I concur fully with the Majority’s conclusions that a) section 9543 of the

PCRA1 is not a jurisdictional provision, but rather an eligibility for relief

provision2, b) section 9545 is the jurisdictional provision under the PCRA, and

c) this Court’s statement in Commonwealth v. Ahlborn, 683 A.2d 632 (Pa.

Super. 1996)(en banc), aff’d by Commonwealth v. Ahlborn, 699 A.2d 718

(Pa. 1997), that the “currently serving” requirement under section 9543 to

hear a PCRA petition is jurisdictional, was in error.      I respectfully dissent

however, from the Majority’s view that Appellants Fields and Davis waived

their claims for review because they appealed only from their resentencing

orders and not from the orders vacating their original judgments of sentence,


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1   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

2 It long has been settled that the ability of a court to hear or adjudicate a
controversy and the power to grant relief are separate and distinct questions.
Beltrami Ent. v. Dept. of Environmental Resources, 632 A.2d 989 (Pa.
Cmwlth. 1993). A court may have jurisdiction to hear a claim

              [E]ven though a plaintiff have no standing to
              bring his action, even though his complaint be
              demurrable, even though he failed to establish
              its allegations, even though the court should
              finally conclude that the relief he seeks should
              not be granted, nor any or all of the
              circumstances would enter into, much less
              determine, the question whether the court had
              jurisdiction of the litigation.

Id. at 993, citing Sperry & Hutchinson Co. v. O’Connor, 412 A.2d 539, 541
(Pa. 1980)(quoting Studio Theatres, Inc. v. City of Washington, 209 A.2d
802, 804 (Pa. 1965).



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and that they otherwise waived their claims by presenting them for the first

time on appeal. Consequently, I would reach the merits of Appellants’ claims,

and in doing so, would affirm the resentencing orders of the trial court.

       Both Appellants filed Amended PCRA petitions contending they were

entitled to be resentenced as a result of the ineffectiveness of their trial

counsel who failed to challenge certain mandatory minimum sentences. These

mandatory minimums were imposed by the trial court for several robbery

convictions among a multitude of other crimes to which they pled.3 The PCRA

court, by orders dated February 19, 2016 and April 5, 2016, for Davis and

Fields respectively, granted the PCRA relief requested to vacate the judgments

of sentence in their entireties and imposed new judgments of sentence,

implicitly if not expressly acknowledging that the sentencing errors upset the

original sentencing schemes.          Upon resentencing, the trial court imposed

lesser aggregate terms of 17 to 40 years’ incarceration upon Davis and 17 to

50 years’ incarceration upon Fields. In Davis’ case, his resentence included 1

to 2 years of incarceration each for carrying a firearm without a license4 and

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3 Davis was charged with 25 and 29 counts under criminal information No.’s
CP-02-CR-00004831-1212 and CP-02-CR-00004834-1212, respectively.
Fields was charged with 48 and 29 counts under criminal information No.’s
CP-02-CR-00004803-1212 and CP-02-CR-00004806-1212, respectively.

418 Pa.C.S.A. § 6106(a)(1). The Majority incorrectly states this conviction as
being from one count of possession of a firearm, a different crime codified at
18 Pa.C.S.A. § 6105(a)(1).




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for one count of REAP. Davis’ original sentence imposed a determination of

guilty without further penalty for these crimes. In Fields’ case, his resentence

included incarceration for multiple counts for which he already served his time

under his original judgments of sentence or for which he received a

determination of guilty without further penalty.5 Appellants each filed timely

appeals from their new judgments of sentence. Neither appealed from the

orders granting PCRA relief to vacate their original sentences.

       In my opinion, Appellants properly appealed from the resentencing

orders to challenge whether the trial court could again sentence them on

counts for which they already served their time or for which they received a

determination of guilt without further penalty. In my opinion, Appellants could

not appeal from the orders granting their PCRA relief vacating their original

judgments of sentence as held by the Majority, as they were not aggrieved

parties under those orders.          I therefore disagree with the Majority that

Appellants waived their claims by not appealing from the PCRA orders that

vacated their original sentences.

       Rule 501 of the Rules of Appellate Procedure provides that “any party

who is aggrieved by an appealable order […] may appeal therefrom.”

Pa.R.A.P. 501. “An aggrieved party is one who has been adversely affected


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5For instance, Fields points out that he was resentenced at count 29 of CP-
02-CR-00004806-1212, for robbery-threatens serious bodily injury, 18
Pa.C.S.A. § 3701, to 1 to 2 years’ incarceration for which his sentence already
had been served at time of resentencing. Fields Brief at p. 33.

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by the decision from which the appeal is taken.”             Commonwealth v.

Dellisanti, 831 A.2d 1159, 1163 n.7 (Pa. Super. 2003) (en banc), reversed

on other grounds, 876 A.2d 376 (Pa. 2005).                A prevailing party, by

definition, is not an aggrieved party. See Basile v. H & R Block, Inc., 973

A.2d 417, 421 (Pa. 2009) (“Pennsylvania case law also recognizes that a party

adversely affected by earlier rulings in a case is not required to file a protective

cross-appeal if that same party ultimately wins a judgment in its favor; the

winner is not an aggrieved party.”) (emphasis added). A party who is not

aggrieved in any way by the matter he seeks to challenge has no standing to

obtain judicial resolution of his challenge. See, 20 Pennsylvania Appellate

Practice, 2017-2018 Ed. (G. Ronald Darlington, Kevin J. McKeon, Daniel R.

Schuckers, Kristen W. Brown, Patrick Cawley) § 501:2.         Appellants were the

prevailing parties under their amended PCRA petitions because the PCRA court

granted the relief they requested and vacated their judgments of sentence.

As a result, Appellants were not adversely affected by those orders and

consequently, were not aggrieved to confer standing upon them to appeal

those orders. On the other hand, had the Commonwealth felt aggrieved by

the PCRA orders vacating the Appellants’ judgments of sentence, it would have

had standing to appeal as it would have been aggrieved by the orders.6

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6 I, respectfully disagree with my learned colleague in her concurring and
dissenting opinion wherein she views resolution of this waiver issue as one
concerning the finality of orders from which a party may appeal. Concurring



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Accordingly, it is my opinion Appellants properly appealed from the trial court’s

resentencing orders as aggrieved parties.        It is from those orders that

Appellants claim the trial court erred by resentencing them for crimes for

which they already completed their time or for which no further penalty had

been imposed under their original judgments of sentence.

       I further disagree with the Majority’s alternative waiver analysis that

Appellants waived their claims because neither raised them during their

resentencing hearings or asserted them in a post-sentence motion. In the

Majority’s view, both men waived their claims because they waited until the

present appeal to contend for the first time that the PCRA court lacked

authority to disturb their original sentences on certain convictions. Although

not explicitly stated by the Majority, the basis for this alternative waiver

conclusion implies that Appellants are seeking review of the discretionary

aspects of their resentences. See Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011)(an appellant who challenges the discretionary aspects

of his sentence must 1) file a timely notice of appeal, 2) preserve the issue at

sentencing or in a motion to reconsider and modify sentence, 3) comply with

Pa.R.A.P. 2119(f) and 4) demonstrate that the challenge raises a substantial

question that the sentence appealed from is not appropriate under the



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and Dissenting Opinion at p. 9-10. Both the PCRA orders and trial court
resentencing orders were final orders from which an aggrieved party could
appeal. The issue here is one of standing not finality.

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Sentencing Code). To the contrary, Appellants maintain that the issue each

raises concerns the legality of their resentences and therefore, the issue may

be raised at any time, even for the first time on appeal.

      The Majority examines whether Appellants have raised an illegal

sentencing claim against the three narrow categories recognized as non-

waivable for illegal sentencing claims, those being: (1) claims that the

sentence fell outside of the legal parameters prescribed by the applicable

statute, (2) claims involving merger/double jeopardy, and (3) claims

implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). Concluding that Appellants claims clearly do

not fall within the first or third categories, the Majority examines whether the

Appellants’ claims concern sentencing illegality under principles of double

jeopardy.   The Majority concludes that because it perceives no double

jeopardy violation (a conclusion with which I agree) there is no need for this

Court to sua sponte raise such a claim and vacate either of Fields’ or Davis’

at-issue sentences. Majority Opinion at p. 12-13.

      Since the Majority introduced this double jeopardy analysis as a segue

to its alternate waiver conclusion, it is not clear to me whether the Majority

believes the issues raised by Appellants do not raise legality claims or if they

do, no relief is available under principles of double jeopardy. I certainly view

Appellants’ claims as invoking illegality, as the claims challenge the sentencing

court’s ability to impose punishment a second time for crimes Appellants claim


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their sentences already had been served.              See Commonwealth v.

Kuykendall, 2 A.3d 559 (Pa. Super. 2010)(whether revocation of SIP

sentence and resentencing violated double jeopardy where original sentence

of incarceration already had been served at time of revocation).             If the

Majority’s view is that the claims are illegality claims, but no relief is due under

principles of double jeopardy, then I find the Majority’s analysis does not fully

address the issue raised by Appellants. The Majority does not reach the issue

raised as to whether the court, after relief is granted under the PCRA, could

resentence Appellants as part of an overall resentencing scheme on counts for

which they already completed their sentences or for which they received no

further penalty.

      As I do not believe Appellants waived their claims and that the claims

raise issues of sentencing illegality, it is my opinion this Court is obligated to

address those claims on the merits. In doing so, I would conclude that the

trial court did not err in resentencing Appellants. The Appellants sought and

received relief that disrupted their original sentencing schemes. When the

PCRA court vacated Appellants’ original judgments of sentence, the effect of

those orders was to vacate the sentences in their entireties and to render

them null and void. Commonwealth v. Colding, 393 A.2d 404, 408 (Pa.

1978).   The slate was wiped clean and the sentencing court was free to

resentence without regard to the original sentence, so long as the new

sentences did not impose more severe penalties that ran afoul of double


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jeopardy principles.7 Id. As the Majority correctly notes, “by filing a petition

for collateral relief, [Appellants] assumed the risk that [their] sentencing on

the various counts would be adjusted insofar as was necessary to preserve

the integrity of the original sentencing scheme.” Commonwealth v. Walker,

568 A.2d 201, 208 (Pa. Super. 1989), disapproved of on other grounds by

Commonwealth v. Robinson, 931 A.2d 15, 20-22 (Pa. Super. 2007) (en

banc).     Majority Opinion at p. 12.          The trial court did precisely that and

resentenced Appellants to terms of incarceration less than those imposed

under their original sentences.8               The fact that Appellants also were

resentenced on several crimes for which their original sentences already had

been served or for which they received no further penalty, is of no moment

as the original judgments of sentence became nullities once they were vacated

by the PCRA court.

        The respective positions of Appellants and the Commonwealth call into

question whether this Court’s prior decisions in Commonwealth v. Bartrug,

732 A.2d 1287 (Pa. Super. 1999), appeal denied, 747 A.2d 896 (Pa. 1999),



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7 In this regard, I am in full accord with the Majority's view that double
jeopardy is not triggered here, since Fields and Davis were both resentenced
to lower aggregate terms of incarceration, the aggregate sentences imposed
upon resentencing did not exceed the original aggregate sentences, and both
were given credit for time served in their written sentencing orders. Neither
therefore, will suffer multiple punishments for the same offense. See Majority
Opinion at p. 12-13.

8   Appellants of course are entitled to credit for time already served.

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and Commonwealth v. Matin, 832 A.2d 1141 (Pa. Super. 2003), appeal

denied, 843 A.2d 1247 (Pa. 2004), are in conflict with each other. I do not

find these cases to be in conflict or in conflict with the decision I would reach

in this case.

       Both Bartrug and Matin were appeals from orders of a PCRA court. In

Bartrug, the sole issue presented was whether the PCRA court erred in

vacating an entire sentence rather than addressing only that part of the

appellant’s sentence that was found to be illegal. The appellant questioned

whether the PCRA court had jurisdiction9 to vacate otherwise legal sentences

which were not part of his PCRA petition. The appellant had pled guilty to

burglary, theft by unlawful taking or disposition, and receiving stolen property.

The trial court sentenced him to 7 ½ to 15 years imprisonment for theft by

unlawful taking. No further sentence was imposed on the other counts.

Subsequently, the PCRA court found that the sentence for theft by unlawful

taking was illegal, as the maximum term appellant could be sentenced for that

conviction was 7 years. The appellant was subsequently resentenced to 7½ to

15 years’ incarceration again, but this time incarceration was imposed for the

burglary charge, which would have permitted a maximum sentence of 20


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9 The different jurisdictional question presented in Bartrug was whether the
PCRA court had jurisdiction to vacate otherwise legal sentences after the time
for direct appeal had passed and which were not part of the PCRA petition.
We concluded that we did not see the PCRA as being an obstacle to
resentencing as the power or jurisdiction of the court to act is broadly defined
under section 9546 of the PCRA. Id. 732 A.2d at 1289.

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years. No further sentence was imposed on the remaining counts, including

the count for theft by unlawful taking.

      On appeal, this Court held that the trial court did not commit error in its

resentencing because our case law held that when a trial court errs in it

sentence on one count in a multi-count case, that all sentences for all counts

will be vacated so the court can restructure its entire sentencing scheme. This

is true even where an appellant limits his appeal to one particular illegal

sentence based upon one bill of information and does not appeal sentences

based upon other bills of information, where those sentences are part of a

common sentencing scheme. We further stated that when a defendant appeals

a judgment of sentence, he accepts the risk the Commonwealth may seek a

remand for resentencing thereon if disposition in the appellate court upsets

the original sentencing scheme of the trial court. In Bartrug, there was no

suggestion that the appellant completed serving any part of his sentence at

the time relief was granted.

      Matin presents a completely different scenario from Bartrug.            In

Matin, the appellant pled guilty to two counts of robbery, and one count each

of criminal conspiracy and possessing a firearm without a license. He was

sentenced to an aggregate term of imprisonment of 6 to 20 years, with all

sentences running concurrently. The sentence imposed for the firearms

violation was 2½ to 5 years imprisonment. On initial appeal to this Court, we

reversed and remanded the case to the PCRA court finding that one of the


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appellant’s issues held arguable merit; that being whether trial counsel was

ineffective for advising appellant to plead guilty to the firearms violation when

appellant had not possessed any firearm during the robbery. Unfortunately,

when the case returned to the PCRA court for consideration of this issue,

appellant’s sentence for the firearms conviction had expired. Consequently,

the PCRA court found appellant no longer was eligible for relief on any issue

challenging his conviction and again dismissed his petition. On appeal again

to this Court, we were constrained to agree with the PCRA court’s analysis.

Citing Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997), we held that a

petitioner is ineligible for relief under the PCRA once the sentence for the

challenged conviction is completed.     Since appellant completed serving his

sentence on the firearms conviction that was the basis for his sentencing

challenge when he appeared for the second time before the PCRA court, he

no longer was eligible for relief. See 42 Pa.C.S.A. § 9543(a)(1) (eligibility for

relief is determined at the time relief is granted).

      The result in Bartrug was driven by the fact that the court was entitled

to resentence completely, since the sentencing challenge found to have merit

upset the sentencing scheme. There was no suggestion the term of

incarceration for the conviction upon which the sentence was challenged had

expired when relief was granted. In contrast, the PCRA court in Matin did not

possess the ability to grant relief because the appellant already completed

serving his sentence for the conviction upon which his claim for relief was


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based. Simply stated, Bartrug and Matin are distinguishable as Bartrug

concerned the court’s power to fashion relief, whereas Matin concerned

whether the court was capable of granting relief.     Bartrug and not Matin

controls the instant appeals. Here, there is no suggestion that either Fields

or Davis completed their sentences for the convictions upon which the trial

court illegally imposed mandatory minimum sentences that formed the basis

for collateral relief when relief was granted. The PCRA court therefore,

possessed the ability to resentence consistent with principles already stated

herein governing that process.

      Appellants’ argument that the PCRA court lacked jurisdiction to

resentence them for counts where sentencing time already was completed or

for which no further penalty was imposed under their original sentences

likewise does not render Bartrug and Matin in conflict. As explained by the

Majority, § 9543 of the PCRA that requires a petitioner to be currently serving

a sentence to be eligible for relief, is not a jurisdictional provision. Rather,

the conditions for establishing jurisdiction are set forth in section 9545 that

require timely filed petitions. Since the convictions already completed or for

which no further penalty was imposed, did not form the basis for PCRA

jurisdiction, and those claims were not the basis upon which relief was

granted, the trial court did not err by including those convictions in the new

judgments of sentence.




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      For the foregoing reasons, I respectfully concur and dissent from the

Majority, would reach the merits of Appellants’ issues, deny relief, and affirm

the PCRA court orders.

      Judge Kunselman joins this opinion in support of affirmance.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018




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