Philadelphia Criminal Defense Blog

Zak Goldstein 10/7/26 Zak Goldstein 10/7/26

PA Superior Court: Post-Sentence Motion Nunc Pro Tunc Must Be Filed Within 10 Days of the Order Granting Permission

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Wirfel, 2026 PA Super 224, holding that once a trial court grants a defendant permission to file a post-sentence motion nunc pro tunc, the defendant has ten days from that order to file the motion. If the motion never gets filed, the order does nothing for the appeal deadline, and the notice of appeal is still due thirty days after sentencing. The Court also rejected a vindictiveness challenge to a sentence that the trial judge increased after the defendant sent a threatening letter to a prosecutor.

The Facts

In Wirfel, a York County jury convicted the defendant of possession with intent to deliver cocaine and simple possession. On July 21, 2025, the trial judge sentenced him to two to four years in state prison on the PWID and no further penalty on the possession. The judge did not tell him anything about his right to file a post-sentence motion or an appeal, or how long he had to do either.

Shortly after sentencing, the chief deputy prosecutor in the York County District Attorney’s Office received a letter from the defendant. According to the trial court’s description, he called her “a miserable pig of a woman” and “Ms. Piggy,” told her he had a private investigator watching her, and made a point of saying he knew she had a daughter and what kind of car she drove. He also wrote, “I will go to war with each and every one of you.”

Procedural History

The Commonwealth moved to modify the sentence under Rule 721, which gives the prosecution ten days after sentencing to ask the judge to reconsider. At a hearing on August 19, 2025, the defendant admitted writing the letter and told the judge, “I was just frustrated, honestly.” The judge called the letter “a veiled threat,” granted the motion, and resentenced him to three to six years. For the second time, the judge did not advise him of his post-sentence and appeal rights.

After the court appointed counsel, the defendant asked for permission to file a post-sentence motion nunc pro tunc because the judge had never advised him of his rights. On September 16, 2025, still within thirty days of the amended sentence, the trial court granted that request under 42 Pa.C.S. § 5505. The order did not say when the motion had to be filed. Counsel then decided not to file a post-sentence motion. Instead, she filed a notice of appeal on October 16, 2025, which was thirty days after the order granting permission but fifty-eight days after the resentencing.

The Superior Court’s Decision

The Court took up jurisdiction first. Nothing in the Rules of Criminal Procedure says how long a defendant has to file a post-sentence motion once a trial court grants leave to file one nunc pro tunc. The Court answered that question with two of its earlier cases. Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc), treats a post-sentence motion filed with the trial court’s express permission under Section 5505 as if it had been filed within the original ten days. Commonwealth v. Wright, 846 A.2d 730 (Pa. Super. 2004), gives a defendant whose appeal rights are restored nunc pro tunc the same thirty days he would have had at the start. Putting the two together, the Court held that an order granting nunc pro tunc relief “winds back” the clock to the day of sentencing, and the Rule 720 deadlines then run from the order. That means ten days to file the post-sentence motion and thirty days from the ruling on that motion to appeal.

The problem for Wirfel was that he never filed the motion. Quoting Dreves, the Court explained that “the time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion.” With no motion on file, his appeal deadline stayed at thirty days from August 19, and the October 16 notice of appeal missed it by about a month.

The Court heard the appeal anyway. Under Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), when a sentencing judge fails to advise the defendant of his post-sentence and appeal rights, that is a breakdown in the court system, and an appellate court can excuse a late appeal because of it. This judge skipped the colloquy at both sentencings. The Court said it was “troubled” by that and treated the appeal as timely.

On the merits, the Court affirmed. In Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022), the Pennsylvania Supreme Court explained how the presumption of vindictiveness from North Carolina v. Pearce works. When a judge imposes a harsher sentence the second time around and does not say on the record that the increase rests on objective information about something the defendant did after the first sentencing, the increase is presumed vindictive. But if there is objective evidence of a post-sentencing event that likely gave the judge new information about the defendant’s character and prospects for rehabilitation, the presumption does not apply, and the defendant has to prove that the judge actually acted out of vindictiveness. The Superior Court found that the letter was that kind of event. It came after the July sentencing, the defendant admitted writing it, and the trial court reasonably read it as a threat. His explanation that he was frustrated did not meet his burden.

The Court also vacated the no further penalty sentence on the simple possession count on its own. That count merged into the PWID because both rested on the same cocaine, and under Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020), a sentence of no further penalty on a merged count is an illegal sentence.

The Takeaway

The ten-day holding is the part of Wirfel that will likely come up again. Until now, there was no clear answer on when a post-sentence motion had to be filed after a trial court grants nunc pro tunc relief under Section 5505. The answer is ten days from the order. Previously, that was just an assumption. If the plan is to skip the motion and appeal directly, the thirty days still run from the sentence. Wirfel was still able to appeal only because the trial judge twice failed to give him the required colloquy. Most defendants will not have that excuse.

The vindictiveness ruling is a warning for anyone who has just been sentenced. The Commonwealth has ten days to ask the judge for more time, and the Pearce presumption will not help a defendant who hands the judge a new reason during that window. Wirfel’s letter cost him a year on the minimum and two years on the maximum. If you are angry about your sentence, it is better to tell your lawyer than write to the prosecutor.

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Zak Goldstein 10/3/26 Zak Goldstein 10/3/26

PA Supreme Court: Judges Do Not Have to Terminate DUI ARD After a Violation

Zak T. Goldstein - Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided Commonwealth v. Worzel, holding that a trial judge retains discretion to keep a DUI defendant in the Accelerated Rehabilitative Disposition (ARD) program even after finding that they violated a condition of the program. The Commonwealth argued that Section 3807(e)(2) of the Vehicle Code requires the judge to terminate ARD and send the case back for prosecution whenever a DUI defendant commits a violation of the terms. The Supreme Court rejected that argument. It read the statute to incorporate Rule of Criminal Procedure 318(C), which permits the judge to terminate ARD but does not require it. A judge who finds a violation may instead extend supervision and let the defendant finish the program.

ARD and the Two Termination Provisions

ARD is a pretrial diversion program typically offered to first-time, non-violent offenders. If the defendant completes it, the court dismisses the charges and expunges the record. The Supreme Court created ARD through its rulemaking power, and Chapter 3 of the Rules of Criminal Procedure governs it. For DUI cases, the General Assembly has added more requirements in Section 3807 of the Vehicle Code.

Two provisions address what happens after a violation. Rule 318(C) provides that if the judge finds a violation, “the judge may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law.” Section 3807(e)(2) provides that “[t]he court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in the Rules of Criminal Procedure” if a DUI defendant fails to meet the statute’s requirements, is charged with or commits a crime, or “violates any other condition imposed by the court.” The rule says may. The statute says shall.

The Facts of Worzel

Police arrested Megan Worzel for DUI in Pike County in October 2020. It was her first DUI, and the Commonwealth offered her ARD. In June 2021, the trial court admitted her into the Pike County ARD program and placed her on six months of supervision. Under the county’s local ARD rules, she could not possess or consume alcohol during that period.

With two weeks left in the program, the probation office tested her, and she tested positive for alcohol. That was a violation of the conditions. She admitted in writing that she had been drinking, and the Commonwealth moved to terminate her ARD. After a hearing, the trial court found that she had violated the condition but denied the motion and extended her supervision by ninety days instead. She completed the extension in July 2022.

The Superior Court quashed the Commonwealth’s appeal from the extension order because the order was not appealable. The Commonwealth then filed a new criminal information charging the same DUI offenses. The trial court dismissed it, and the Superior Court affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed in an opinion by Justice Wecht. Every other justice joined, although Justice Brobson did not join the section on the rule of lenity.

The Court first found Section 3807(e)(2) ambiguous. The phrase “as prescribed in the Rules of Criminal Procedure” could modify “to proceed,” in which case the Rules govern how the prosecution moves forward. Or it could modify “shall direct,” in which case Rule 318(C) governs how the court responds to the violation, and the judge may terminate ARD, extend it, or decide that the violation does not warrant any consequence. The Court found both readings reasonable.

The Court then resolved the ambiguity in favor of judicial discretion for four reasons. First, the Commonwealth’s reading would create a constitutional conflict. Article V, Section 10(c) of the Pennsylvania Constitution gives the Supreme Court the power to make procedural rules and suspends any law inconsistent with those rules. The Court noted that the Commonwealth never explained how the legislature could override a rule of court, and it stated that “[t]his Court’s rulemaking power cannot be circumscribed by legislative fiat.” Second, ARD exists to rehabilitate, and the trial judge is in the best position to decide whether a violation warrants termination. Under the Commonwealth’s reading, “[a]n otherwise compliant defendant who demonstrates rehabilitation could lose that opportunity upon committing even the most trivial violation.” The Court gave the example of a defendant who cannot pay required fees or treatment costs because she is indigent. Third, the Court’s precedent, including Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985), has long treated the Supreme Court’s ARD rules as controlling the procedure for DUI ARD. Finally, the rule of lenity favored Ms. Worzel. The Court held that Section 3807 is a penal statute because ARD imposes monetary requirements and liberty restrictions under the threat of prosecution, so the defendant receives the benefit of any ambiguity.

What This Means for DUI ARD Participants

A violation of a DUI ARD condition does not mean automatic removal from the program. A positive alcohol test or an unpaid fee gives the Commonwealth a reason to file a motion, but a judge still decides what happens next. It may be possible to stay in the program. Rule 318(C) entitles the defendant to be heard, and that hearing matters because the judge does not have to terminate ARD. In Worzel, the trial judge relied on the fact that Ms. Worzel admitted the drinking and wanted more supervision and treatment. A defendant facing a termination motion should come to the hearing ready to show the same things. The holding that Section 3807 is a penal statute may also help defendants in other disputes over the DUI ARD statute. It is also good to see a court apply the rule of lenity as the decision could help in other cases involving ambiguous statutes or rules.

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Zak Goldstein 10/2/26 Zak Goldstein 10/2/26

PA Supreme Court: Prosecutors May Not Use a Defendant’s Decision to Hire a Lawyer Against Him

The Pennsylvania Supreme Court has decided Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), holding that a prosecutor violates a defendant’s due process right to a fair trial by telling the jury that the defendant consulted or retained a lawyer before police questioned or arrested him. But the defendant did not get a new trial. The Court held that the error is not structural and found it harmless this case because the trial judge gave a strong curative instruction and the evidence of guilt was overwhelming.

The Facts of Jenkins

On Valentine’s Day 2017, the defendant spent the evening drinking with a longtime friend and the friend’s girlfriend at their Dauphin County apartment. The friend felt dizzy and went to bed. The girlfriend told the defendant to leave, and he refused. She remembered him striking her and throwing her against a wall hard enough to damage it, and she remembered nothing after that. Motel surveillance video showed the defendant arriving at his room around 3:15 a.m. and carrying her limp body inside. She woke up in his room with her pants and underwear removed.

Two months later, after the defendant hired a lawyer, a detective interviewed him by phone with his attorney participating. The defendant denied any wrongdoing and specifically denied having sex with the complainant. DNA testing later identified his semen on the vaginal swab taken at the hospital, which is a tough fact. The Commonwealth charged him with rape of an unconscious victim, kidnapping, and related offenses.

The defendant did not testify at trial. In closing, the prosecutor told the jury that the defendant knew the case was serious, so “[h]e gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no.” She then argued that when he had the chance to come clean with his lawyer on the call, “[h]e lies. He lies.”

Defense counsel unsurprisingly moved for a mistrial. The trial court denied the motion but, at defense counsel’s request, told the jury that the defendant had a right to counsel, that “when statements are given the law prefers that it be with counsel,” and that the jurors should draw no adverse inference from his use of a lawyer. The jury convicted him on all charges, and the court imposed 13 to 30 years of incarceration. A divided Superior Court panel affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed, but it agreed with the defense on the central question. Writing for the majority, Chief Justice Todd explained that when a person has reason to believe police are investigating him, the decision to consult or hire a lawyer does not suggest guilt and has no relevance to whether he committed the crime. Relying on federal and out-of-state decisions, including the Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), the Court held that “it is error for a prosecutor to inform the finder of fact that a criminal defendant sought the advice or assistance of counsel prior to questioning by the police, or prior to arrest, for the criminal offense for which they are being tried, as it impacts the defendant’s due process right to a fair trial guaranteed by the Fourteenth Amendment.”

The Court found this prosecutor’s argument especially troubling because she tied the lie to the lawyer, suggesting that the defendant lied with his attorney’s help or blessing. The Commonwealth was free to argue that the DNA proved the defendant lied when he denied having sex with the complainant. The reference to his attorney added nothing to that point. It only undermined the defendant, and his lawyer, in the eyes of the jury.

The Court then rejected the defense argument that the error was structural and required automatic reversal. Applying Weaver v. Massachusetts, 582 U.S. 286 (2017), the Court found that a single improper comment at the end of a three-day trial did not infect the whole proceeding and that its effect could be measured against the rest of the evidence. Like other improper prosecutorial remarks, the comment is subject to harmless error review.

Finally, the Court held that the error was harmless beyond a reasonable doubt. The surveillance video, the DNA results, and the complainant’s testimony provided overwhelming evidence of guilt. The trial judge also gave a prompt instruction that directed the jury not to draw any adverse inference from the defendant’s use of a lawyer, and the Court presumed the jury followed it. The opinion closes with a warning to prosecutors that “this line of questioning should be scrupulously avoided.” Justice McCaffery, joined by Justice Donohue, filed a concurring and dissenting opinion.

The Takeaway

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Jenkins gives defense lawyers a clear, binding rule: the Commonwealth may not tell the jury that the defendant spoke with or hired a lawyer before police questioned or arrested him. But the rule helps only if trial counsel objects right away and moves for a mistrial. In distinguishing the federal and out-of-state cases that granted new trials, the Court pointed out that those cases involved no timely objection, no curative instruction, or an instruction that did not address the comment. Lawyers litigating this issue should also raise Article I, Section 9 of the Pennsylvania Constitution. The defendant in Jenkins did not argue that it provides greater protection, so the Court did not decide that question. But here, the evidence was still just too strong to overcome, so the defendant did not receive a new trial. In many cases, the evidence will not be quite as strong. Lawyers should always object to improper commentary on a defendant’s decision to retain counsel or remain silent in the face of questioning.

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Zak Goldstein 10/1/26 Zak Goldstein 10/1/26

PA Superior Court: Service of a Temporary PFA Order Does Not Prove the Defendant Knew About the Final Order

The Pennsylvania Superior Court has decided the case of Commonwealth v. Miller, 2026 PA Super 219, reversing a conviction for indirect criminal contempt of a Protection From Abuse order because the Commonwealth never proved that the defendant knew a final PFA order existed. The defendant had been served with the temporary order and the notice of the final hearing, but he did not attend the hearing, and the Commonwealth put on no evidence that anyone ever told him the court had entered a final order. The Court held that is not enough. It also refused to let the Commonwealth save the conviction with a portion of a video that was never played in court and never admitted into evidence.

The Facts of Miller

The complainant obtained a temporary PFA order against the defendant, with whom she lived, in March 2023. He was served with the temporary order on March 17, 2023. The court held the final hearing on April 19, 2023. The complainant appeared, the defendant did not, and the court entered a final PFA order by default barring him from contacting her or being at her residence for three years. On the day of the hearing, the defendant was in Philadelphia County custody.

On May 29, 2023, the complainant called the police at 2:19 a.m. and reported a verbal dispute with the defendant. The officer’s report stated that she did not report any assault, injury, or weapon, although she later testified that she had told him the defendant strangled her and threatened to kill her. Police arrested the defendant for violating the final PFA order and charged him with strangulation, terroristic threats, unlawful restraint, simple assault, recklessly endangering another person, and false imprisonment.

The Procedural History

The case went to a bench trial in December 2023. During cross-examination, defense counsel played a short portion from the beginning of the complainant’s recorded police interview to show that her speech was slurred. Both sides marked the video, but neither side moved it into evidence, and nothing in the record shows that any other part of it was played. The parties stipulated to the procedural history of the temporary and final orders. They did not stipulate that the defendant had notice of the final order, and the Commonwealth presented no evidence that he did.

The trial judge found the complainant’s testimony about the alleged assault not credible and acquitted the defendant of every charge except contempt. The judge found that he had been at her residence in violation of the final order and sentenced him to six months of reporting probation. The contempt conviction also triggered a probation violation on an older case, for which the defendant received five to ten years in prison. He appealed the contempt conviction, arguing that the Commonwealth never proved he knew about the final order.

The Superior Court’s Decision

To convict someone of indirect criminal contempt of a PFA order, the Commonwealth must prove that the order was clear, that the defendant had notice of it, that he did something the order prohibited, and that he acted with wrongful intent. On notice, the Pennsylvania Supreme Court held in Commonwealth v. Stevenson, 283 A.3d 196 (Pa. 2022), that the Commonwealth must prove beyond a reasonable doubt that the defendant had actual knowledge of the PFA order at the time of the violation. The defendant can get that knowledge any way at all, including from someone telling him. But the Supreme Court made clear it was not holding that knowledge of a temporary order equals knowledge of a final order.

The trial court’s opinion reasoned that the defendant knew about the final order because he had been served with the petition, the temporary order, and the notice of the April 19 hearing date. The Superior Court rejected that reasoning as contrary to Stevenson. Notice of the temporary order and of the hearing is not notice that the court actually entered a final order. The Commonwealth had to prove that the defendant knew the final order existed, and it offered nothing on that point.

The Commonwealth tried to fill the gap on appeal with the police interview video. It claimed that at roughly the eight-minute mark the complainant said the defendant took her copy of the final PFA order when he left, which would support an inference that he knew about it. The Court would not consider it. The video was marked for identification but never moved into evidence. The record showed that the judge saw only the opening minutes, played by the defense for a different purpose, and the trial court’s opinion never mentioned the statement the Commonwealth was relying on. The Commonwealth cited Commonwealth v. Jones, 271 A.3d 452 (Pa. Super. 2021), where the Court treated a video as part of the record even though no one formally moved it in, but in Jones the defense had stipulated to its admissibility and the video had been played for the judge. The Court applied the general rule from Jones instead: an exhibit that is only marked for identification is not evidence a fact-finder can rely on. The Court vacated the sentence, reversed the conviction, and discharged the defendant.

The Takeaway

PFA contempt cases move fast, and defendants often plead or go to a short bench trial without anyone asking whether the Commonwealth can prove notice of the final order. Miller shows why that question matters. A defendant who was served with a temporary order and then missed the final hearing, as this defendant did because he was in custody, has not necessarily learned that a final order was entered. The Commonwealth has to prove he knew, and if its only evidence is service of the temporary order, the conviction cannot stand.

The stakes here were not small. The contempt conviction itself carried six months of probation, but it also served as the basis for a five-to-ten-year sentence on a probation violation. The defendant separately appealed the revocation, and with the contempt conviction reversed, the conviction that supported it is gone. Defense lawyers handling probation violation cases should look hard at the underlying conviction, because a weak contempt case can be the only thing holding up a long state sentence.

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If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients in jury trials, bench trials, preliminary hearings, and appeals in state and federal court. We have won cases involving the most serious charges, including first-degree murder, and we have obtained new trials and sentencing relief for our clients through direct appeals and PCRA petitions. We offer a free criminal defense strategy session to anyone who is facing charges or who may be under investigation. Call 267-225-2545 to speak with an experienced and understanding defense attorney today