Com. v. Shaffer, B.

J-S25025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN ALLAN SHAFFER :
:
Appellant : No. 15 WDA 2022
Appeal from the Judgment of Sentence Entered October 12, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s):
CP-10-CR-0001247-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 1, 2022
Appellant, Brian Allan Schaffer, appeals from the October 12, 2021
Judgment of Sentence entered in the Butler County Court of Common Pleas
following his jury conviction of Recklessly Endangering Another Person
(“REAP”) and Simple Assault by Physical Menace.1
The relevant facts and procedural history are as follows. In the morning
of May 27, 2017, Kevin McMaster, a recovery agent employed by A and L
Recovery, went to Appellant’s home in a remote area of Middlesex County to
repossess Appellant’s Chevy Silverado pickup truck. Mr. McMaster was
wearing a t-shirt displaying the text “Recovery Agent” on the front and back
and his tow truck was clearly marked “A and L Recovery” on both the
passenger and driver sides.
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1 18 Pa.C.S. §§ 2705 and 2701(a)(3), respectively.
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Mr. McMaster located the pickup truck parked in Appellant’s driveway.
As Mr. McMaster was preparing to complete the final step in the process of
securing Appellant’s truck to Mr. McMaster’s tow truck, Appellant, wearing only
his underwear and armed with a shotgun, exited his home with the shotgun
pointed at Mr. McMaster. While Appellant continued to point his shotgun at
Mr. McMaster, Mr. McMaster identified himself and informed Appellant that he
was on the premises to execute a repossession order for Appellant’s truck.
Appellant began to make threats and aggressive statements toward Mr.
McMaster. Appellant then climbed into the truck’s cab, started the engine,
and tried to disengage his truck from the tow truck causing the front end of
the tow truck to lift off the ground. Throughout the entirety of their
interaction, Appellant and Mr. McMaster were approximately ten feet from
each other and, although Mr. McMaster requested that Appellant lower his
shotgun, Appellant kept it pointed directly at Mr. McMaster at all times prior
to entering the truck. Eventually, Appellant was successful in breaking the
truck loose from the tow truck and he drove off into the woods and did not
immediately return.
Mr. McMaster called 911 immediately and Middlesex Township Police
Officer Brian Costanzo and Sergeant Ruediger2 arrived shortly thereafter. The
officers took photos of the damage to Mr. McMaster’s truck and took his
statement. Following his return to the police station, Officer Costanzo called
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2 Sergeant Ruediger’s first name does not appear in the trial court record.
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Appellant and requested that Appellant come to the station to discuss the
incident. Appellant arrived at the station and provided Officer Costanzo with
two different written accounts of what had transpired, as well as a verbal
explanation.3 Police ultimately recovered Appellant’s shotgun and secured it
with a gun lock.
The Commonwealth charged Appellant with REAP, Simple Assault,
Terroristic Threats, and Harassment. Appellant proceeded to a jury trial at
which the Commonwealth presented the testimony of Mr. McMaster and
Officer Costanzo, who testified to the above facts. Mr. McMaster also testified
that Appellant’s actions caused Mr. McMaster to be in fear for his life. He
further testified that he has never owned a gun and did not threaten Appellant
at any time. He conceded that he could not remember the exact words
Appellant used to threaten him, that Appellant did not rack4 the gun in his
presence, and that he did not know whether the shotgun was loaded. He
testified that, during their interaction, Appellant never reentered his home to
dress and put his shotgun away, as Appellant had claimed.
Appellant testified on his own behalf and offered the testimony of his
daughter, Cassidy Shaffer. Appellant testified that, on the morning of the
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3 The first written statement contradicted much of the report Mr. McMaster
had given police. After the officers informed Appellant that it was possible his
interaction with Mr. McMaster had been recorded by a camera on one of the
vehicles involved, Appellant provided a second written statement.
4“Racking” refers to the process by which a shotgun user advances a cartridge
case from the gun’s magazine into the breach of the gun to allow him to fire
a shot.
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incident, the sound of Mr. McMaster’s truck traversing his gravel driveway
roused him from bed. He testified that the noise startled him because he was
not expecting visitors and he believed that someone was trespassing on his
property to steal his truck. Appellant testified that he never pointed his
shotgun at or threatened Mr. McMaster. He testified that, instead, he rested
the shotgun on the toolbox of his truck while the two men discussed Mr.
McMaster’s reason for being at Appellant’s home. Appellant testified that he
had other guns in his truck that he wanted to remove before Mr. McMaster
towed it, but that Mr. McMaster issued a veiled threat to him. In particular,
Appellant testified that he “decided that I couldn’t touch the guns in the truck
. . . there’s no way I could come out with an armload of guns when [Mr.]
McMaster just said ‘you want to see a gun, I’ll show you a gun.’” 5 Appellant
testified that this veiled threat caused him to be fearful, to remove his truck
from the tow truck, and flee. Appellant also testified that, at some point
during the encounter, he went back inside his house, dressed, and returned
outside without his shotgun.
Ms. Shaffer testified at the time of the incident she was 15 or 16 years
old. She testified that on the morning in question, she was awoken by the
sound of Appellant yelling at a truck coming down the driveway. She observed
from her window that Appellant was upset. She testified that she saw
Appellant exit their home with his shotgun. She also testified that, because
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5 N.T. Trial, 8/18/21, at 99.
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her window was closed, she could not really hear what was going on. Ms.
Shaffer confirmed that Appellant entered his truck, forcefully disengaged it
from the tow truck, and drove away. She described the act of removing the
tow truck as “aggressive.”6 She testified that, after he drove away, Appellant
called her on the telephone to warn her not to go outside because Mr.
McMaster might be dangerous. Ms. Shaffer testified that she never saw
Appellant point his shotgun at anyone.
Also relevant to the instant appeal, during its opening statement, the
Commonwealth informed the jury that Appellant had not been making
payments on his truck, and that Mr. McMaster was at Appellant’s home to
repossess it. The Commonwealth explained that, after Mr. McMaster had
secured the repossessed pickup truck to his tow truck, Appellant had forcibly
removed it from the tow truck, breaking the cables or straps that held the
truck in place. Following the opening statement, Appellant moved for a
mistrial, asserting that the Commonwealth had improperly referred to
uncharged conduct. In response, the Commonwealth stated that “the facts of
this case are what they are” indicated that it would be “completely hamstrung”
if the court forced it to “try this case in a vacuum” without reference to the
context in which the incident arose.7 The trial court denied the motion
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6 Id. at 90
7 Id. at 24.
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concluding that the information conveyed to the jury in the opening statement
constituted the “natural development of the facts of the case.”8
At the close of the Commonwealth’s case, Appellant moved for a
judgment of acquittal arguing that the Commonwealth had not proved beyond
a reasonable doubt the critical fact upon which it based the charges, i.e., that
Appellant had been aiming a shotgun at Mr. McMaster during their interaction.
The Commonwealth argued that from the evidence presented, specifically Mr.
McMaster’s testimony—that Appellant pointed a shotgun at Mr. McMaster and
made aggressive statements towards him—it was reasonable for the jury to
infer that Appellant intended to use the shotgun. The trial court concluded
that the Commonwealth had presented enough evidence to submit the case
to the jury and, thus, denied Appellant’s motion for judgment of acquittal.
Following its deliberations, the jury convicted Appellant of REAP and
Simple Assault.9 On September 30, 2021, the trial court sentenced Appellant
to 6 to 23½ months of incarceration for his Simple Assault conviction. It
imposed no further penalty for his REAP conviction. The court determined
that Appellant was reentry eligible and immediately paroled him.
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8 Id.
9 The Commonwealth dismissed the Terroristic Threats charge after the jury
informed the court that it could not reach a unanimous verdict on that charge.
The court found Appellant not guilty of Harassment, a summary offense.
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That same day, the Commonwealth filed a Motion to Vacate Sentence
asserting that, pursuant to Commonwealth v. Finley, 135 A.3d 196 (Pa.
Super. 2016)10, by not providing the Commonwealth with at least 10 days’
notice and an opportunity to be heard, the court illegally paroled Appellant
before he had served his minimum sentence of 6 months.
On October 4, 2021, the court vacated Appellant’s sentence and
scheduled a resentencing hearing. Following Appellant’s resentencing
hearing, October 14, 2021, the court agreed with the Commonwealth that,
because Appellant’s minimum sentence had not expired before the court
paroled him, the Sentencing Code required it to provide the Commonwealth
with at least 10 days’ notice and an opportunity to be heard before it granted
Appellant immediate parole. The court, therefore, concluded that it was
without authority to immediately parole Appellant. Accordingly, the court
resentenced Appellant to a term of 23½ months of probation with restrictive
conditions of house arrest/electronic monitoring for 6 months for Appellant’s
Simple Assault conviction. It imposed no further penalty for his REAP
conviction.
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10 This Court, in Finley, examined the trial court’s authority pursuant to 42
Pa.C.S. § 9756(b)(3) to grant early parole to a defendant who had not yet
completed his minimum sentence. Finley, 135 A.3d at 199-200. The Finley
Court vacated the trial court’s order granting the defendant early parole
finding that the trial court was without authority to do so because it did not
make the defendant eligible for early parole at the time of sentence. Id. at
200.
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On October 21, 2021, Appellant filed a Post-Sentence Motion challenging
the weight of the evidence and the discretionary aspects of his sentence. The
trial court denied the motion after a hearing.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following five issues for our review:
I. Whether the trial court abused its discretion or erred as a
matter of law when it denied Appellant’s Motion for a Mistrial
following the Commonwealth’s opening statements, whereby
the Commonwealth argue[d] issues beyond the charged
misconduct in the criminal information which prejudiced
[Appellant]?
II. Whether the trial court abused its discretion or erred as a
matter of law when it denied Appellant’s Motion for Judgment
of Acquittal on all charges following the Commonwealth’s case
in chief?
III. Whether the Commonwealth presented sufficient evidence to
prove beyond a reasonable doubt that [] Appellant was guilty
of [REAP] and Simple Assault as the Commonwealth fail[ed] to
prove the element that Appellant’s actions were with the intent
to place McMaster[] in fear of imminent serious bodily injury
for the charge of Simple Assault and that the Commonwealth
failed to meet the element that Appellant’s actions placed
McMaster[] in danger for the charge of [REAP]?
IV. Whether the trial court abused its discretion or erred as a
matter of law when it instructed the jury on the charged
offenses without specifically detailing which specific “action” of
[] Appellant was at issue given the criminal information filed by
the Commonwealth?
V. Whether the trial court erred as a matter of law or abused its
discretion when it vacated its original sentence following the
Commonwealth’s objection and position that the trial court
lacked legal authority to issue immediate parole thereby
causing the court to impose an enhanced sentence upon []
Appellant?
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Appellant’s Brief at 7-8 (unnecessary capitalization and punctuation omitted;
reordered for ease of disposition).
Issue I- Motion for a Mistrial
In his first issue, Appellant claims that the trial court abused its
discretion when it denied Appellant’s motion for a mistrial. He argues that the
Commonwealth’s opening statement, which repeatedly referred to what
Appellant characterizes as “uncharged conduct,” i.e., Appellant’s forcible
removal of his truck from Mr. McMaster’s tow truck which damaged Mr.
McMaster’s tow truck and the repossession of Appellant’s truck for non-
payment, was severely prejudicial because the jury was unable to separate
the uncharged actions from the charged conduct, i.e., Appellant’s pointing a
shotgun at Mr. McMaster. Id. at 17. He asserts that the statement was
“designed to inflame the jury’s emotions,” led to its confusion, and gave the
jury the “ability to convict Appellant for conduct for which he was not
charged.” Id. He concludes that he was, thus, deprived of a fair trial. Id.
“The purpose of an opening statement is to apprise the jury of how the
case will develop, its background, and what will be attempted to be proved;
but it is not evidence.” Commonwealth v. Parker, 919 A.2d 943, 950 (Pa.
2007).
Our rules of criminal procedure provide that a court may declare a
mistrial “only for reasons of manifest necessity.” Pa.R.Crim.P. 605(B). When
reviewing a trial court’s denial of a motion for a mistrial, particularly in the
context of a prosecutor’s comments during opening statements, we assess
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whether the trial court abused its discretion. Commonwealth v. Cash, 137
A.3d 1262, 1273 (Pa. 2016). In determining whether a prosecutor committed
misconduct during opening statements such as to justify the grant of a
mistrial, our Supreme Court has stated:
It is within the discretion of the trial court to determine whether a
defendant has been prejudiced by misconduct or impropriety to
the extent that a mistrial is warranted. Comments by a prosecutor
do not constitute reversible error unless the unavoidable effect of
such comments would be to prejudice the jury, forming in their
minds a fixed bias and hostility toward the defendant such that
they could not weigh the evidence objectively and render a true
verdict. In considering appellant’s claims of prosecutorial
misconduct, we note that a prosecutor’s comments are not
evidence. . . . Opening statements must be fair deductions from
the evidence which the prosecutor expects will be presented at
trial.
Commonwealth v. Bronshtein, 691 A.2d 907, 917-18 (Pa. 1997) (citations
and paragraph breaks omitted).
The trial court provided the following instruction to the jury prior to the
Commonwealth’s opening statement:
The opening statements as with other statements of counsel do
not constitute evidence. You’re not to consider these opening
statements as established facts. The only purpose of an opening
statement is to give you a general outline of what the case is about
so you’ll have a better understanding about how each piece of
evidence fits in[,] subject[,] of course[,] to your evaluation of the
evidence as to its credibility, its accuracy, and the weight to be
given to the evidence.
N.T. Trial, 8/18/21, at 16.
As noted above, the trial court denied Appellant’s oral motion for a
mistrial after concluding that the Commonwealth’s statements represented
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the “natural development of the facts of the case.” Id. at 24. In its Rule
1925(a) Opinion, the trial court noted additionally that it had provided the jury
with the above opening instruction regarding the purpose of and use to which
the jury should put counsels’ opening statements. Trial Ct. Op., 2/16/22, at
2. The court explained that it denied Appellant’s motion for a mistrial because
it did not believe that the Commonwealth’s opening statement amounted to
misconduct and that Appellant did not suffer prejudice from it. Id.
Following our review, we agree with the trial court that the statements
to which Appellant objected merely, and permissibly, described the
background of the case. We further agree with the trial court that the
Commonwealth’s statements did not prejudice the jury by causing “in their
minds a fixed bias and hostility toward the defendant such that they could not
weigh the evidence objectively and render a true verdict.” Bronshtein, 691
A.2d at 918. Accordingly, the trial court did not abuse its discretion in denying
Appellant’s motion for a mistrial.
Issues II and III- Sufficiency of the Evidence
In his second and third issues, Appellant challenges the trial court’s
denial of his motion for judgment of acquittal and the sufficiency of the
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Commonwealth’s evidence in support of his convictions of Simple Assault and
REAP.11 Appellant’s Brief at 17-20, 22-25.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Our standard
of review is de novo, and our scope of review is plenary.” Commonwealth
v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019). When reviewing
sufficiency challenges, we evaluate the record in the light most favorable to
the verdict winner, giving the Commonwealth the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v. Trinidad, 96
A.3d 1031, 1038 (Pa. Super. 2014). This Court will not disturb a verdict when
“there is sufficient evidence to enable the fact-finder to find every element of
the crime beyond a reasonable doubt.” Commonwealth v. Orr, 38 A.3d 868,
872 (Pa. Super. 2011) (en banc) (citation omitted). The Commonwealth can
establish these elements using solely circumstantial evidence. Id.“[T]he fact finder is free to believe all, part, or none of the evidence.”
Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011) (citation
omitted). In making our determination, we do not re-weigh the evidence and
substitute our judgment for that of the factfinder. Id. at 890 Challenges to
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11“[A] defendant’s presentation of evidence after a demurrer to the evidence
waives this issue for appeal purposes.” Commonwealth v. Price, 610 A.2d
488, 489 (Pa. Super. 1992) (citing Commonwealth v. Ilgenfritz, 353 A.2d
387 (Pa. 1976)). Because we may treat this issue as a challenge to the
sufficiency of the evidence, we address Appellant’s second and third issues
together. See id.- 12 -
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witness credibility pertain to the weight, not sufficiency, of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (citation
omitted).
Simple Assault
With respect to his Simple Assault conviction, Appellant acknowledges
that Mr. McMaster testified that Appellant pointed a shotgun at him. He
argues, however that because: (1) Mr. McMaster did not testify that he saw
Appellant rack the shotgun; (2) Mr. McMaster was unable to recall the specific
threats issued by Appellant at the time of the incident; and (3) the
Commonwealth did not produce any evidence that the shotgun was loaded at
the time of the incident, the Commonwealth “fail[ed] to establish that []
Appellant pointed [the] shotgun at McMaster[] and that he did so with the
intention of placing McMaster[] in fear of imminent serious bodily injury rather
than self-defense against a perceived threat.” Appellant’s Brief at 19, 23-24.
The crime of simple assault requires proof of attempting “by physical
menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.
§ 2701(a)(3). Serious bodily injury is defined as a “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. at § 2301. We have held that the offense may be
proven with evidence of pointing a gun at another person under circumstances
demonstrating an intent to cause fear of serious injury. See In re Maloney,
636 A.2d 671, 674 (Pa. Super. 1994) (stating, “the act of pointing a gun at
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another person [can] constitute simple assault as an attempt by physical
menace to put another in fear of imminent serious bodily injury” (citations and
internal quotation marks omitted)).
Viewing the evidence, and all reasonable inferences therefrom, in the
light most favorable to the Commonwealth as verdict-winner, we conclude
that the Commonwealth presented sufficient evidence to support Appellant’s
conviction of Simple Assault. The evidence presented at trial, and conceded
by Appellant, established that Appellant pointed his shotgun at Mr.
McMaster.12 Appellant is, therefore, not entitled to relief on this claim.
REAP
Appellant next claims that because the Commonwealth did not present
evidence that Appellant’s shotgun was loaded or that Appellant racked it to
render it operable, it failed to prove the “actual danger” element of REAP.
Appellant’s Brief at 19-20, 24-25.
A person commits REAP “if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705.
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12 Moreover, to the extent that in this issue Appellant challenges the weight
the jury gave to: (1) Mr. McMaster’s testimony that Appellant pointed a
shotgun at him and threatened him; (2) Appellant and Ms. Shaffer’s testimony
to the contrary; and (3) Appellant’s testimony that he was acting in self-
defense, we cannot and will not substitute our judgment for that of the jury.
See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014);
Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011).
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To sustain a REAP conviction, the Commonwealth must prove that the
defendant had an “actual present ability to inflict harm.” Commonwealth v.
Reynolds, 835 A.2d 720, 728 (Pa. Super. 2003) (citation omitted). The
“mere apparent ability to inflict harm is not sufficient [to support a REAP
conviction]. Danger, and not merely the apprehension of danger, must be
created.” Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super.
1978) (footnote omitted) (explaining that pointing an unloaded gun, without
more, is insufficient to support a REAP conviction).
Viewing the totality of the evidence, and all reasonable inferences
therefrom, in favor of the Commonwealth as verdict-winner, we conclude that
the jury had sufficient evidence to conclude that Appellant committed the
offense of REAP. The trial court admitted as evidence Appellant’s shotgun,
which police officers had secured with a gun lock. From this, it was reasonable
for the jury to infer that the shotgun was operational. Moreover, Mr. McMaster
testified that for most of their interaction, Appellant had his shotgun pointed
at him and that Appellant was verbally threatening him. In addition, Appellant
himself testified that because he perceived Mr. McMaster as a threat to his
property and person, he carried his shotgun with him when confronting Mr.
McMaster. Ms. Shaffer also testified that Appellant warned her to remain
inside their home because Appellant feared for her safety. From this
testimony and evidence, it was reasonable for the jury to infer that Appellant
would not have confronted Mr. McMaster—a person Appellant considered a
possible threat to him, his family, and his property—unless his shotgun was
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loaded and operable. Accordingly, we affirm the jury’s verdict of guilty with
respect to Appellant’s REAP conviction.
Issue IV- Jury Instruction
In his fourth issue, Appellant asserts that he was prejudiced by the trial
court’s failure to provide an instruction to the jury specifying which of
Appellant’s actions it was to consider when determining whether he had
committed the charged offenses. Appellant’s Brief at 21-22. He claims that
the court’s failure led “to an outcome where the jury could have convicted
Appellant on uncharged misconduct” such as forcibly removing his truck from
Mr. McMaster’s two truck. Id. at 22.
Appellate briefs must materially conform to the requirements of the
Pennsylvania Rules of Appellate Procedure and this Court may quash or
dismiss an appeal if the defect in the brief is substantial. Commonwealth v.
Adams, 882 A.2d 496, 497 (Pa. Super. 2005); Pa.R.A.P. 2101. To properly
develop an issue for our review, an appellant bears the burden of ensuring
that his argument section includes citation to the notes of testimony. See
Pa.R.A.P. 2119(c) (requiring citation to the record).
Following our review, we conclude that Appellant has failed to develop
his argument. Notably, Appellant has failed to cite to the place in the Notes
of Testimony where the trial court gave the instruction Appellant asserts is
inadequate, and where Appellant preserved this issue by objecting to the
court’s instruction or by requesting that the court provide the instruction he
desired. Moreover, Appellant has not provided this court with the text of the
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jury instruction the court did issue so that we could consider its purported
inadequacy. Appellant’s omissions have deprived this Court of the ability to
conduct meaningful appellate review of this issue. Accordingly, we find it
waived.
Issue V-Legality of Sentence
In his final issue, Appellant claims that the trial court erred as a matter
of law when it vacated Appellant’s initial sentence of incarceration with
immediate parole and resentenced him to a term of probation. Appellant’s
Brief at 25-26. Appellant argues Finley, 135 A.3d 196, upon which both the
Commonwealth and the trial court relied, is distinguishable from the instant
case because, unlike in Finley, the trial court here determined at the time of
sentencing that Appellant was reentry eligible. Appellant’s Brief at 26.
The issue raised by Appellant, like the issue raised by the
Commonwealth in Finley concerns the authority of the court to grant early
parole to a defendant who has not completed his minimum sentence.13
Section 9756(b) of the Sentencing Code contemplates this scenario and
provides, in relevant part, as follows:
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13 “This determination requires an examination of the requirements for
sentences of total confinement and parole eligibility set forth in 42 Pa.C.S. §
9756. Therefore, our examination of this issue is one of statutory
interpretation, which is a question of law. Accordingly, as with all questions
of law, our scope of review is plenary and our standard of review is de novo.”
Finley, 135 A.3d at 199.
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(2) The minimum sentence imposed under this section may not
be reduced through parole prior to the expiration the minimum
sentence unless otherwise authorized by this section or other law.
(3) . . . [T]he court shall, at the time of sentencing, state whether
or not the defendant is eligible to participate in a reentry plan at
any time prior the expiration of the minimum sentence or at the
expiration of a specified portion of the minimum sentence. . . . [A]
court may parole a defendant prior to the expiration of the
minimum sentence only if the defendant was made eligible to
participate in a reentry plan at the time of sentencing. The court
shall provide at least ten days’ written notice and an
opportunity to be heard, pursuant to section 9776 (relating
to judicial power to release inmates), to the prosecuting
attorney before granting parole pursuant to this
subsection.
42 Pa.C.S. § 9756(b)(2)-(3) (emphasis added).
Instantly, it is undisputed that Appellant had not completed his
minimum sentence of 6 months’ incarceration before the trial court granted
him parole. Accordingly, the Sentencing Code plainly required the trial court
to provide the Commonwealth with at least 10 days’ notice and the
opportunity to be heard prior to paroling Appellant. It is also undisputed that
the trial court had not complied with the requirements of the Sentencing Code
before granting Appellant immediate parole. Thus, the court correctly
concluded that it had been without legal authority to immediately parole
Appellant, and it did not err in vacating Appellant’s original sentence.
Appellant is, therefore, not entitled to relief on this claim.
Judgment of Sentence affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2022
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