NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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J-S04041-23  

v. 

 

 

ONALD M. COOL       

 

Appellant 

 No. 1826 EDA 2022 

Appeal from the Judgment of Sentence Entered June 10, 2022 
In the Court of Common Pleas of Monroe County Criminal Division at 
No(s):  CP-45-CR-0001617-2021 

EFORE:  MURRAY, J., KING, J., and PELLEGRINI, J.* 

MEMORANDUM BY PELLEGRINI, J.: 

FILED MARCH 16, 2023 

 

Donald M. Cool (Cool) appeals from the judgment of sentence imposed 

in the Court of Common Pleas of Monroe County (trial court) after he entered 

an open guilty plea to four counts of possession of a firearm prohibited,1 that 

after  the  trial  court  sentenced  him,  it  then  granted  the  Commonwealth’s 

motion  for  reconsideration  of  sentence.    He  argues  that  the  trial  court  was 

presumptively vindictive when it resentenced him to a greater maximum term 

of  imprisonment  because  the  new  sentence  was  based  on  the  same  set  of 

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* Retired Senior Judge assigned to the Superior Court. 

 18 Pa.C.S. § 6105(a)(1).  The Commonwealth nolle prossed five additional 
counts  of  possession  of  a  firearm  prohibited  and  one  count  of  possessing 
unlawful body armor (bullet proof vest), 18 Pa.C.S. § 907(c), in exchange for 
the plea. 
 

     

    D

   

 

 

  B

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J-S04041-23 

affirm. 

record. 

facts as the original sentence and that it relied on impermissible factors.  We 

 

We take the following factual background and procedural history from 

the trial court’s August 25, 2022 opinion and our independent review of the 

I. 

 

On March 3, 2021, police  responded to a call  at a residence  in Mount 

Pocono, Pennsylvania.  The caller advised that his roommate had allowed an 

individual to spend the night and the caller became concerned when he saw 

guns and a bullet proof vest that the individual had brought to the home. 

 

On  March  3,  2022,  Cool  pled  guilty  to  four  counts  of  possession  of  a 

firearm prohibited, fugitive from justice.  (See Written Guilty Plea Colloquy, 

3/03/22,  at  ¶  4).    The  trial  court  ordered  the  preparation  of  a  presentence 

investigation (PSI) report.  On May 13, 2022, with the assistance of the PSI, 

the trial court sentenced Cool to an aggregate term of imprisonment of not 

less  than  twenty-four  nor  more  than  forty-eight  months  to  be  served 

consecutively to a Luzerne County sentence imposed at docket number 1612 

of 2019 for his guilty plea to statutory sexual assault. 

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The  Commonwealth  filed  a  motion  for  reconsideration  of  sentence,2 

arguing that the seriousness of the offenses and the disturbing circumstances 

of the case required reconsideration.  Specifically, the Commonwealth averred 

that  Cool  had  plead  guilty  to  felony  2  statutory  sexual  assault  in  Luzerne 

County for impregnating his fifteen-year-old cousin, was declared a sexually 

violent predator (SVP), and failed to appear for sentencing, instead fleeing to 

Mount  Pocono  Borough  for  another  sexual  encounter.    (Commonwealth’s 

Motion for Reconsideration of Sentence, 5/20/22, at ¶¶ 5-6, 9).  According to 

the Commonwealth, the PSI3 prepared in this case indicates Cool has a serious 

2  “Well-settled  Pennsylvania  law  permits  the  Commonwealth  to  pursue  a 
correction, modification or increase in the originally imposed sentence because 
no sentence is final until the right of appellate review has been exhausted or 
waived.”    Commonwealth  v.  Quinlan,  639  A.2d  1235,  1239  (Pa.  Super. 
1994) (citations omitted); see Pa.R.Crim.P. 721(A)(1), (B) (Commonwealth 
may  file  motion  to  modify  sentence  within  ten  days  after  sentence’s 
imposition). 

 Although Cool’s arguments involve the PSI and the claim that nothing new 
was presented at the  reconsideration hearing, the trial court record reflects 
that he failed to ensure that the certified record provided to this Court contains 
the PSI or to order a transcript of the original May 13, 2022 sentencing hearing 
to enable us to compare it with the reconsideration hearing.  It is well-settled 
that  “an  appellate  court  is  limited  to  considering  only  the  materials  in  the 
certified record when resolving an issue.”  Commonwealth v. Preston, 904 
A.2d 1, 6 (Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citation 
omitted).    “Our  law  is  unequivocal  that  the  responsibility  rests  upon  the 
appellant to ensure that the record certified on appeal is complete in the sense 
that  it  contains  all  of  the  materials  necessary  for  the  reviewing  court  to 
perform its duty.”  Id. (citation omitted); see id. at 7 (“any claims that cannot 
be resolved in the absence of the necessary transcript or transcripts must be 
deemed  waived  for  the  purpose  of  appellate  review.”)  (citation  omitted); 
Pa.R.A.P.  1911,  1931.    Nor  is  it  this  Court’s  responsibility  to  scour  the  trial 
(Footnote Continued Next Page) 

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psychiatric issue that involves sexual abuse.  (See id. at ¶ 10).  When he was 

arrested  at  the  Mount  Pocono  home,  he  had  nine  firearms,  some  of  them 

loaded with a round in the chamber, ammunition, magazines for the guns and 

a bullet proof vest.  (See id. at ¶¶ 7-8).  The grading of the offenses in this 

case were only charged as misdemeanors because sentencing on the felony 2 

sexual  assault  had  not  yet  occurred  due  to  Cool  having  absconded  from 

Luzerne County.  (See id. at ¶ 11).  The Commonwealth stated that, “given 

the circumstances of this case, [Cool] poses a serious, grave danger to society 

[because]  he  is  psychologically  unstable,  on  the  run  with  an  arsenal  of 

weapons and numerous magazine[s] of ammunition[,]” and the sentences he 

received  on  each  count  below  the  middle  of  the  standard  range  are  not 

appropriate in this case.  (Id. at ¶ 12); (see id. at ¶¶ 13-14). 

 

On  June  10,  2022,  the  court  held  argument  on  the  Commonwealth’s 

motion at which it did not receive any new evidence.  Although the court had 

court to unearth materials presented to the trial court but never made part of 
the certified record.  See Preston, 904 A.2d at 7-8. 

owever, Cool does not argue that the court misstates what the PSI contains, 
and the court does not maintain that it relied on new information that was not 
previously  available  to  it.    Although  the  PSI  and  May  13,  2022  sentencing 
transcript would enable a more thorough review, we decline to find waiver in 
the interest of judicial economy and rely on the representations of Cool and 
the court about what they contain. 
 

  H

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the PSI and appended Sexual Offender Assessment Board (SOAB)4 report at 

the  time  of  the  initial  sentencing,  in  an  effort  to  elucidate  the  court  about 

Cool’s  character  and  need  for  increased  supervision,  the  prosecutor  argued 

about their  specific contents.  The prosecutor noted that this case does not 

involve  any  sexual  offenses  or  sentences  but  stated  that  the  SOAB  report 

contained information about Cool that raised concerns about his character and 

circumstances for sentencing purposes in this matter.  For example, the SOAB 

report noted his deceptive character, his psychological diagnosis of anti-social 

personality disorder, inconsistencies in his statement to probation officers in 

this  case  and  to  officers  in  the  Luzerne  County  case,  and  his  history  of 

violence,  including  a  previous  conviction  for  terroristic  threats  and  simple 

assault  for  attacking  his  mother’s  paramour  and  threatening  to  attack  his 

mother with a hatchet.  Cool’s counsel objected to the prosecutor’s mention 

of  statements  in  the  SOAB  report  made  by  Cool’s  statutory  sexual  assault 

victim about him threatening her with violence based on hearsay because he 

denied  the  threats  in  the  same  report.    The  court  overruled  the  objection, 

stating  that  it  regularly  relies  on  such  reports  in  sentencing.    (See  N.T. 

Reconsideration, 6/10/22, at 4-8). 

____________________________________________ 

4 The SOAB report was produced in Luzerne County and attached to the PSI 
in this matter (that was not provided to this Court).  We rely on the testimony 
from the reconsideration hearing for what it contains because Cool does not 
argue that its contents were misrepresented. 
 

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J-S04041-23 

 

According  to  the  Commonwealth,  the  PSI  reflected  that  Cool’s 

statements  to  officers  in  this  matter  conflicted  with  those  of  his  wife  about 

such things as how long they had been together, who owned the guns found 

in his possession and why he was in the area, with her saying he was in Monroe 

County to avoid serving his Luzerne County sentence and him saying it was 

for a marital retreat.  He lacked remorse for his past criminal actions with his 

fifteen-year-old  cousin.    Finally,  in  addition  to  the  number  of  guns  in  his 

possession, the prosecutor mentioned that there was a “bulletproof vest with 

a loaded gun with one in the chamber attached to the vest[,]” to which Cool’s 

counsel  did  not  object  or  argue  that  it  was  an  impermissible  consideration 

where the related charge had been nolle prossed.  (Id. at 11); (see id. at 10-

14). 

 

 

Cool’s counsel argued that the court had the PSI and SOAB report at the 

original sentencing, so there was no new information to justify modifying the 

sentence.  (See id. at 15-16). 

When resentencing, while the court kept the minimum sentence on each 

count the same (twenty-four months), it increased the back end from forty-

eight to ninety-six months.  It explained that although it had the PSI at the 

initial sentencing hearing, upon reconsideration, the four years of supervision 

was inadequate based on all the circumstances that had been brought to its 

attention.  Instead, it believed that a longer period of parole supervision was 

appropriate.  (See id. at 16-18); (Trial Ct. Op., at 2-3) (pagination provided). 

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Pa.R.A.P. 1925(b). 

After  the  court  denied  Cool’s  motion  for  reconsideration,  Cool  timely 

appealed and filed a court-ordered statement of errors complained of.   See 

Cool raises four issues in which he alleges the trial court committed an 

abuse of discretion5, 6 by:  (1) reconsidering and increasing his sentence based 

on  the  same  facts  and  information  available  at  the  time  of  the  original 

sentence;  (2)  increasing  his  sentence  based  on  current  events;  (3) 

considering  unreliable  hearsay  testimony;  and  (4)  considering 

facts 

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5 “Generally, a plea of guilty constitutes a waiver of all defects and defenses 
excepting the voluntariness of the plea, the jurisdiction of the court and the 
legality of the sentence.”  Commonwealth v. Torres, 223 A.3d 715, 717 n.3 
(Pa.  Super.  2019)  (citation  omitted).    However,  Cool  can  challenge  the 
discretionary  aspects  of  his  sentence  because  he  entered  an  open  plea 
“without an agreement to the terms of the sentence.”  Id. (citation omitted). 

 Our standard of review of a discretionary aspects of sentence challenge is 
well-settled: 
 

Sentencing  is  a  matter  vested  in  the  sound  discretion  of  the 
sentencing judge, and a sentence will not be disturbed on appeal 
absent a manifest abuse of discretion.  In this context, an abuse 
of discretion is not shown merely by an error in judgment.  Rather, 
the appellant must establish, by reference to the record, that the 
sentencing  court  ignored  or  misapplied  the  law,  exercised  its 
judgment  for  reasons  of  partiality,  prejudice,  bias  or  ill  will,  or 
arrived at a manifestly unreasonable decision. 
 

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal 
denied, 95 A.3d 275 (Pa. 2014) (citation omitted). 
 

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underlying  charges  that  had  been  nolle  prossed  in  exchange  for  the  plea 

J-S04041-23 

agreement.  (See Cool’s Brief, at 13).7 

II. 

 

A challenge to the discretionary aspects of a sentence is not appealable 

as of right and is more properly considered a request for permission to appeal. 

Before  [this  Court  may]  reach  the  merits  of  [a  challenge  to  the 
discretionary  aspects  of  a  sentence],  we  must  engage  in  a  four 
part analysis to determine:  (1) whether the appeal is timely; (2) 
whether  Appellant  preserved  his  issue;  (3)  whether  Appellant’s 
brief includes a concise statement of the reasons relied upon for 
allowance  of  appeal  with  respect  to  the  discretionary  aspects  of 
sentence  [see  Pa.R.A.P.  2119(f)];  and  (4)  whether  the  concise 
statement  raises  a  substantial  question  that  the  sentence  is 
appropriate under the sentencing code....  [I]f the appeal satisfies 
each  of  these  four  requirements  we  will  then  proceed  to  decide 
the substantive merits of the case. 
 

Antidormi, 84 A.3d at 759 (citation omitted) (brackets in original). 

 

Cool has satisfied all the requirements for us to reach the substantive 

merits  of  his  claims  where  the  appeal  is  timely;  he  filed  a  motion  for 

reconsideration of sentence, his brief includes a Rule 2119(f) statement with 

the reasons relied upon for appeal and he raises a substantial question.  See 

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018), appeal denied, 

207  A.3d  911  (Pa.  2019)  (claim  of  vindictiveness  in  resentencing  raises 

substantial question); Commonwealth v. Bromley, 862 A.2d 598, 605 (Pa. 

Super. 2004), appeal denied, 881 A.2d 818 (Pa. 2005), cert. denied, 546 U.S. 

____________________________________________ 

7 The Commonwealth failed to file a brief in this matter. 
 

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claims. 

1095  (2006)  (claim  that  court  relied  on  impermissible  factors  in  sentencing 

raises a substantial question).  Accordingly, we proceed to the merits of Cool’s 

A. 

 

Cool argues that the trial court abused its discretion when it relied on 

the  same  information  available  at  the  original  sentencing  hearing  to 

resentence him to an increased term of incarceration.  (See Cool’s Brief, at 

20-23).    He  maintains  that  this  raises  a  presumption  of  vindictiveness  that 

cannot be overcome because the increase was not based on new information.  

(See id.). 

 

“The  trial  court,  as  a  matter  of  law,  has  discretion  to  modify  its  own 

sentence  in  response  to  a  Commonwealth  Motion  for  Reconsideration  of 

Sentence.  However, any increase in sentence cannot be the result of judicial 

vindictiveness.”    Commonwealth  v.  Bullock,  170  A.3d  1109,  1125  (Pa. 

Super.  2017),  appeal  denied,  184  A.3d  944  (Pa.  2018)  (citations  omitted).  

“Generally,  a  presumption  of  vindictiveness  arises  if  the  court  imposes  a 

harsher  sentence  upon  resentencing.”    Commonwealth  v.  Watson,  228 

A.3d  928,  937  (Pa.  Super.  2020)  (citation  omitted).    However,  the 

presumption of vindictiveness only arises “if a defendant establishes facts that 

demonstrate  a  probability  that  an  adverse  action  by  the  …  court  has  been 

motivated  by  vindictiveness  in  retaliation  for  successful  exercise  of  a 

defendant’s  legal  rights  rather  than  for  some  other  legitimate  cause.”  

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Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa. 2018), appeal denied, 

197  A.3d  1180  (Pa.  2018)  (citation  omitted);  see  Commonwealth  v. 

Speight,  854  A.2d  450,  455  (Pa.  2004)  (A  trial  court  “may  not  punish  an 

appellant  for  exercising  appellate  rights.”).    “The  key  to  whether  a 

presumption  of  vindictiveness  arises  in  a  given  case  would  be  the  factual 

circumstance  in which the challenged action occurred.”   Kane, 188 A.3d at 

1229 (citation omitted).  A court can rebut any presumption if it places non-

vindictive  reasons  on  the  record  such  as  identifiable  conduct  that  occurred 

after  the  original  sentence  or  other  “objective  information  or  legitimate 

sentencing  concerns  that  were  not  …  considered  by  the  trial  court  at  the 

original sentencing hearing.”  Id. (citation omitted). 

 

The presumption of vindictiveness does not apply to the circumstances 

of this matter.  Although the court imposed a higher maximum sentence after 

resentencing,  it  did  not  do  so  in  response  to  Cool  successfully  appealing  or 

even after Cool successfully challenged the original judgment of sentence in a 

post-sentence  motion.    Instead,  it  entered  the  new  sentence  after  the 

Commonwealth exercised its legal right to file a motion for reconsideration 

of sentence, not in retaliation for Cool doing so.  Therefore, the presumption 

of vindictiveness is not applicable.  See Kane, 188 A.3d at 1229. 

 

Moreover,  even  assuming  that  it  was,  Cool  would  be  due  no  relief  on 

this issue.  As stated previously, the Commonwealth had the legal right to file 

a motion for reconsideration of the sentence, and the court had the discretion 

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to modify its sentence based on information it failed to consider at the original 

sentencing hearing.  See Kane, 188 A.3d at 1229; Bullock, 170 A.3d at 1125.  

The  court  explained  its  reasons  for  increasing  the  maximum  term  of  the 

sentence at the June 10, 2022 reconsideration hearing and in its August 25, 

2022 opinion. 

 

At the hearing, the court explained that although it had the opportunity 

to view the PSI before imposing the original sentence, upon reconsideration 

of  the  PSI,  this  “is  a  disturbing  case.”    (N.T.  Reconsideration,  at  16).    The 

court  noted  the  photographs  attached  to  the  PSI  showing  the  number  and 

type of firearms, with many of them loaded with bullets in the chamber.   It 

drew  attention  to  the  fact  that  at  the  time  he  was  arrested  in  this  matter, 

there was a bench warrant for his failure to appear for sentencing in a sexual 

assault case in Luzerne County.  (See N.T. Reconsideration, at 16-17).  In its 

opinion it again explains: 

Instantly, we received the Commonwealth’s Motion and at hearing 
determined  that  there  were  details  in  the  [PSI]  which  we 
reconsidered.  We considered that [Cool] absconded from Luzerne 
County where he was scheduled to be sentenced on serious sexual 
offenses  to  which  he  plead  guilty  and  failed  to  appear  for 
sentencing.  After he fled from Luzerne County, he was located in 
Monroe County with nine firearms, some of which were loaded and 
he was in possession of a bullet proof vest.  We considered [Cool]’s 
plea  in  this  case  and  upon  reconsideration,  we  believe  that  the 
sentence should be increased to an aggregate sentence of not less 
than 24 months nor more than 96 months in a state correctional 
institution.  The sentences imposed were all within the  standard 
guideline  range  and  ordered  to  be  served  consecutively.    In 
modifying the sentence, the [c]ourt felt a longer period of parole 
supervision was warranted under the circumstances. 
 

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(Trial Ct. Op., at 2-3) (pagination provided). 

 

First,  there  is  no  evidence  that  the  trial  court  was  motivated  by  any 

vindictiveness in resentencing Cool, only by a fuller understanding of the facts.  

Moreover,  even  if  the  presumption  of  vindictiveness  applied,  the  trial  court 

rebutted any presumption by putting non-vindictive reasons on the record to 

support its modification of sentence.  See Kane, 188 A.3d at 1229. 

B. 

 

Cool argues that the trial court abused its discretion when it relied on 

current events of mass shootings to support vacating his original sentence and 

imposing an increased one.  (See Cool’s Brief, at 24-25).  Because he was not 

charged with any offenses related to the mass shootings, Cool maintains that 

consideration of their prevalence was impermissible.  (See id. at 24-25). 

 

Cool  relies  on  Commonwealth  v.  Sypin,  491  A.2d  1371,  1372  (Pa. 

Super. 1985), in support of his argument.  In Sypin, the defendant pled guilty 

to involuntary deviate sexual intercourse with a child and corruption of minors 

for his sexual abuse of a nine-year-old boy.  See Sypin, 491 A.2d at 1372.  

In imposing sentence, the court stated:  “As you know there are thousands of 

kids, and I mean thousands of kids that disappear every year.  …  Youngsters 

no  one  ever  sees  or  hears  from  again.    Sometimes  they’re  found  dead; 

sometimes they’re never found.  …  And their problems result from men like 

you.”  Id.  A panel of this court vacated the judgment of sentence, concluding 

the trial court relied on factors unrelated to the defendant’s case.  See id. 

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Here, Cool points to the trial court’s statement that: 

I mean the way things are going in society today it’s not unusual 
to hear stories about people involved in shooting in public places.  
You know it’s happening  all over the place and here Mr.  Cool is 
with  an  arsenal  on  a  bench  warrant  for  failure  to  appear  for 
sentencing. 
 

(N.T. Reconsideration, at 17). 

 

Although  the  trial  court  made  the  general  comment  about  guns  and 

shootings,  the  court  increased  the  back  end  of  Cool’s  sentence  based  on 

considerations  specific  to  him,  including  his  absconding  from  justice,  his 

psychiatric diagnosis and violent history.  See Commonwealth v. Walls, 926 

A.2d  957,  966  (Pa.  2007)  (affirming  judgment  of  sentence  where,  despite 

court’s  general  comments  about  people  who  victimize  young  children, 

sentence  was  individualized  to  defendant).    While  the  trial  court  mentioned 

recent mass shootings, which would not be an appropriate basis for modifying 

Cool’s sentence, it was harmless error since it was made in passing and Cool 

was not prejudiced by it.  See Commonwealth v. Holt, 273 A.3d 514, 540 

(Pa. 2022).8 
 

 

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8 The harmless error doctrine applies where the error “did not prejudice the 
defendant or the prejudice was de minimis[.]”  Holt, 273 A.3d at 540.  “We 
may sua sponte invoke the harmless error doctrine as it does nothing more 
than affirm a valid judgment of sentence on an alternative basis.”  Id. (citation 
and internal quotation marks omitted). 
 

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C. 

 

Cool asserts that the trial court erred by admitting unreliable hearsay at 

sentencing  to  prove  his  violent  nature.    Specifically,  he  notes  that  the 

prosecutor  mentioned  an  incident  reported  in  his  SOAB  report  in  which  the 

victim alleged that he threatened her with a firearm.  (See Cool’s Brief, at 27) 

(citing N.T. Reconsideration, at 5).  He maintains that since he denied pointing 

a gun at the victim in the same assessment, the victim’s hearsay statement 

should  not  have  been  considered  since  he  had  no  opportunity  to  cross-

examine her.  (See id. at 27-28). 

[A] proceeding held to determine sentence is not a trial, and the 
court  is  not  bound  by  the  restrictive  rules  of  evidence  properly 
applicable to trials.  Commonwealth v. Orsino, 197 Pa. Super. 
306, 178 A.2d 843, 846 (Pa. Super. 1962) (sentencing court has 
wide latitude in considering facts, regardless of whether such facts 
are produced by witnesses who the court sees and hears).  Rather, 
the court may receive any relevant information for the purposes 
of  determining  the  proper  penalty.  …  Although  sentencing 
proceedings  must  comport  with  due  process,  the  convicted 
defendant need not be accorded the entire panoply of criminal trial 
procedural rights. 
 

Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999), appeal 

denied,  749  A.2d  468  (Pa.  2000)  (quotation  marks  and  most  citations 

omitted). 

 

At the reconsideration hearing, to demonstrate Cool’s past violent acts 

and  threats,  the  prosecutor  mentioned  the  fifteen-year-old  Luzerne  County 

victim’s  statements  about  Cool’s  alleged  threats  involving  weapons,  which 

were contained in the SOAB report.  (See N.T. Reconsideration, at 5-6).  The 

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court  overruled  defense  counsel’s  hearsay  objection  because  it  regularly 

considers such reports in sentencing.  (See id. at 6). 

 

First, given that he had been determined to be an SVP based on that 

report,  the  trial  court  did  not  abuse  its  discretion  in  allowing  the 

Commonwealth  to  argue  about  the  victim’s  statements.    See  Medley,  725 

A.2d  at  1229.    Moreover,  even  assuming  arguendo  that  the  court  erred  or 

abused its discretion, Cool has not proved that he was prejudiced.  There is 

no  evidence  that  the  court  considered  the  victim’s  statements  in  imposing 

Cool’s  sentence.    As  stated  previously,  the  court  expressly  explained  the 

reasons why it was increasing Cool’s period of supervision, and they involved 

facts related to this case, not the Luzerne County victim’s statements in the 

SOAB report.9 

D. 

 

Finally, relying on Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. 

Super. 2005), Cool argues that the trial court abused its discretion because it 

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9 Cool’s reliance on Commonwealth v. Rhodes, 990 A.2d 732 (Pa. Super. 
2009)  is  wholly  unpersuasive  because  it  is  distinguishable  from  the  case  at 
bar.  Rhodes involved, in pertinent part,  a trial court’s express reliance on 
police  reports  it  received  ex  parte  that  were  almost  entirely  comprised  of 
hearsay  statements.    The  court  “then  drew  factual  inferences  directly  from 
those reports on the basis of which [it] imposed a sentence almost five times 
that recommended by the Commonwealth and only one to two years shy of 
the statutory maximum[.]”  Rhodes, 990 A.2d at 745.  This is inapposite to 
the  facts  herein  where  there  is  no  evidence  that  the  court  considered  the 
victim’s  statements  at  all  to  impose  the  standard  range  sentence  and  only 
modified the back end of the sentence for supervision purposes. 
 

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reconsidered  and  then  increased  his  sentence  based  on  the  nolle  prossed 

unlawful body armor charge. 

 

In  Stewart,  this  Court  considered  the  issue  of  whether  a  defendant 

could be sentenced to an aggravated range sentence based on charges that 

had been nolle prossed.  Stewart, 867 A.2d at 591.  In deciding the issue, 

the Court considered the competing maxims that, “when a court imposes its 

sentence,  the  court  may  consider  a  defendant’s  previous  arrests  and 

concurrent  charges”  and  “a  sentence  cannot  be  enhanced  for  any  offense 

other  than  the  one  to  which  the  defendant  pled  guilty.”    Id.  at  593.    In 

Stewart’s case, in imposing sentence, the court explained, in pertinent part, 

that “[t]his sentence is in the aggravated range because two counts of IDSI, 

which  each  [carries]  a  mandatory  minimum  of  five  years,  have  been  nolle 

prossed  as  well  as  another  count  of  statutory  sexual  assault.”    Id.  (record 

citation omitted).  Based on the specific circumstances, this Court observed 

that “a manifest abuse of discretion exists when a sentence is enhanced due 

to charges that have been nolle prossed as part of a plea agreement, because 

notions of fundamental fairness are violated.”  Id. (citation omitted). 

 

Cases  since  Stewart  have  restricted  this  observation  to  the  specific 

facts of that case.  For example, in Commonwealth v. Tobin, 89 A.3d 663, 

667  (Pa.  Super.  2014),  we  concluded  that  a  trial  court’s  reference  to  facts 

underlying  the  nolle  prossed  charges  did  not  indicate  that  it  was  expressly 

considering  the  charges  to 

formulate 

its  sentence. 

  Similarly 

in 

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Commonwealth v. Turner, 58 A.3d 845, 847 (Pa. Super. 2012), the crime 

of possession of a firearm was nolle prossed.  At sentencing, the court made 

a factual  finding that  Turner possessed a firearm at  the time he committed 

possession  with  intent  to  deliver,  resulting  in  a  mandatory  term  of 

imprisonment.  We held that the court did not err because it did not penalize 

the defendant on the nolle prossed possession charge.  See Turner, 58 A.3d 

at 847. 

 

At the reconsideration hearing in this case, in an effort to elucidate the 

court  about  Cool’s  character  and  need  for  increased  supervision,  the 

prosecutor argued extensively about inconsistencies in Cool’s statement in this 

case and in the Luzerne County litigation, his failure to appear at the Luzerne 

County  sentencing  hearing,  psychological  and  sexual  offender  diagnoses  in 

the  SOAB  report,  his  lack  of  remorse  for  the  sexual  relationship  with  his 

fifteen-year-old  cousin,  his  previous  convictions  for  assault  and  terroristic 

threats, the number of guns in his possession and mentioned that there was 

a “bulletproof vest with a loaded gun with one in the chamber attached to the 

vest.”10  (N.T. Reconsideration, at 11); (see id. at 3-14). 

 

In  imposing  the  new  sentence,  the  court  mentioned  a  laundry  list  of 

what was discovered in Cool’s possession at the time of his arrest, including 

____________________________________________ 

10 We again note that defense counsel did not object to the Commonwealth 
mentioning the bullet proof vest or argue that it was an improper consideration 
for the court.  (See N.T. Reconsideration, at 15-16). 

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the fact that “[t]here was a bulletproof vest.”  (Id. at 16).  However, there is 

no indication that the court considered the charge of unlawful possession of 

the bullet proof vest in fashioning its sentence.  Contrary to Cool’s argument 

that the court improperly considered this fact, there is absolutely no evidence 

that the court considered the charge and enhanced his sentence on this basis.  

See  Commonwealth  v.  Miller,  965  A.2d  276,  280  (Pa.  Super.  2009) 

(concluding court did not abuse its discretion in sentencing defendant where 

it carefully reviewed the PSI and other evidence and mere reference to facts 

underlying nolle prossed charge did not indicate that it specifically considered 

the charge and enhanced his sentence based thereon); cf. Commonwealth 

v.  Stewart,  867  A.2d  589,  593  (Pa.  Super.  2005)  (trial  court  specifically 

indicated  that  it  was  sentencing  appellant  in  aggravated  range  because  of 

three counts that were nolle prossed). 

 

In fact, as noted previously, the court only increased the  back end of 

Cool’s sentence to allow for increased supervision, which was not imposed for 

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the charge of possessing the bullet proof vest. 

Judgment of sentence affirmed. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/16/2023 

 

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