J-S10021-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GAVIN LAWRANCE NICKEL : : Appellant : No. 1115 MDA 2025 :
Appeal from the Judgment of Sentence Entered July 15, 2025 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002841-2023
BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.
MEMORANDUM BY BECK, J.: FILED: JULY 13, 2026
Gavin Lawrance Nickel (“Nickel”) appeals the judgment of sentence of
three to twenty-three months of incarceration imposed following the
revocation of his probation for technical violations. The Cumberland County
Court of Common Pleas (“trial court”) resentenced Nickel pursuant to 42
Pa.C.S. § 9771, a statute recently amended by Act 44 of 2023 (“Act 44”).
Nickel raises challenges to the legality and discretionary aspects of his
resentence. Upon review, we vacate his judgment of sentence and remand
for resentencing.
Overview of Pertinent Sections of Section 9771
We begin with an overview of the statute pertaining to resentences
imposed following a revocation of probation. At the time of Nickel’s
resentencing, section 9771, as amended by Act 44, provided as follows. J-S10021-26
Subject to the limitations imposed by subsections (b.1) and (c), upon
revocation, “the sentencing alternatives available to the court shall be the
same as were available at the time of initial sentencing,” including any
applicable mandatory minimum sentence the Commonwealth may seek for
the court to impose upon resentencing, with “due consideration being given
to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b). The
trial court’s discretion to resentence a probation violator to a period of total
incarceration, however, is cabined by section 9771(c). Id. § 9771(c); see
also Commonwealth v. Seals, 353 A.3d 747, 757-59 (Pa. Super. 2026) (en
banc). Section 9771(c) expressly presumes “against total confinement for
technical violations of probation.” 42 Pa.C.S. § 9771(c). Section 9771(c) then
sets forth two analytical components: subsection (c)(1), which contains the
prerequisites to imposing a sentence of total confinement, and subsection
(c)(2), which prescribes the time limitations upon such sentences. See id. §
9771(c)(1)-(2); Seals, 353 A.3d at 764.
To be able to exercise its discretion to sentence the violator to a term
of incarceration at all, the trial court first must determine whether the
Commonwealth has established the criteria in section 9771(c)(1). Seals, 353
A.3d at 764. Subsection (c)(1) presents three circumstances wherein a court
may resentence a defendant to a period of total confinement following
revocation of probation, which include: (i) “the defendant has been convicted
of another crime,” (ii) “the court finds by clear and convincing evidence that
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the defendant committed a technical violation that involves an identifiable
threat to public safety and the defendant cannot be safely diverted from total
confinement through less restrictive means,” or (iii) “the court finds by a
preponderance of the evidence that the defendant committed a technical
violation” and any one of the circumstances in (iii)(A)-(F) applies. See 42
Pa.C.S. § 9771(c)(1)(i)-(iii).1 These are “statutory prerequisites” that unlock
the trial court’s authority to impose a sentence of total confinement. Seals,
353 A.3d at 763.
If the court is resentencing a defendant for a technical violation of
probation pursuant to subsection (c)(1)(ii) or (iii), the court must turn to
subsection (c)(2), which directs it to consider the probationer’s employment
status and to select the applicable maximum length of the sentence. See id.
at *7, 12, 19; see also 42 Pa.C.S. § 9771(c)(2). The statute authorizes a
maximum period of fourteen days for a first technical violation and a maximum
period of thirty days for a second technical violation. 42 Pa.C.S.
____________________________________________
1 Of relevance to one of Nickel’s claims on appeal, section 9771(c)(1)(iii)(F) provides:
The technical violation involved an intentional and unexcused failure to adhere to recommended programming or conditions on three or more separate occasions and the defendant cannot be safely diverted from total confinement through less restrictive means. For purposes of this clause, multiple technical violations stemming from the same episode of events shall not constitute separate technical violations.
42 Pa.C.S. § 9771(c)(1)(iii)(F).
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§ 9771(c)(2)(i), (ii). “For a third or subsequent technical violation, the court
may impose any sentencing alternatives available at the time of initial
sentencing.” Id. § 9771(c)(2)(iii).
Case History
Nickel’s original conviction stems from violence he inflicted upon his
girlfriend, Katey Huntington (“Huntington”). In October 2023, Huntington
appeared at the police station seeking safe housing assistance for her and her
children. An officer observed dark purple bruising around her left eye socket,
red marks around her neck, and dark bruising on her thigh. Huntington
reported that Nickel struck her multiple times in her head and body, causing
dizzy spells, and restricted her breathing with his hands. Police charged Nickel
with aggravated assault, strangulation, and simple assault at docket number
CP-21-CR-0002841-2023 (“2841-2023”).
Nickel already had pending assault charges at docket number CP-21-
CR-253-2023 (“253-2023”) for violence he perpetrated upon Huntington on
January 17, 2023. Following the court’s denial of the Commonwealth’s motion
to consolidate the instant case with docket number 253-2023, and two
mistrials with hung juries when the Commonwealth tried 253-2023 separately,
Nickel resolved both cases with a negotiated guilty plea. On December 4,
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2024, he pled guilty to harassment as a summary offense at 253-2023 and
simple assault as a second-degree misdemeanor in the instant case.2
The trial court sentenced Nickel in both cases on January 21, 2025. The
original sentence in the instant case was supervised probation for twenty-one
months, with the conditions “that he be and remain on good behavior, that he
comply with the standard conditions of probation and parole as published and
adopted by this [c]ourt, that he successfully complete the AMEND Batterers
Program [(“AMEND”)], and that he have no contact whatsoever with the victim
in this case, except such contact as may be allowed by his current custody
order or agreement.” Sentencing Order, 1/28/2025, at 1.
On March 4, 2025, the Commonwealth filed a petition to revoke Nickel’s
probation, alleging that Nickel failed to provide a drug screen sample on
February 20, and March 4, 2025, and tested positive for methamphetamine
on January 24, and February 21, 2025. Petition for Revocation of Probation,
3/4/2025, at 1. Nickel’s counsel asserted that Nickel was “admitting the
violations” and deferring to the plan to recommit advanced by his probation
officer, P.O. Gilfus. N.T., 4/22/2025, at 2-3. P.O. Gilfus clarified that the
Commonwealth was “seeking an adjudication for the purposes of Act 44.” Id.
at 3. The trial court confirmed with Nickel that he understood that under “all
this whole new probation stuff” his admission “counts against [him]” because
2 18 Pa.C.S. § 2701(a)(1).
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it “would get worse” if he incurred another violation in the future. Id. The
trial court did not revoke his probation at that time but recorded the admission
in its written order in the event of future violations. Trial Court Order,
4/24/2025, at 1.
Just seven days after Nickel tendered his admission, the Commonwealth
filed a second petition to revoke his probation, averring that Nickel was
arrested on April 15, 2025, and had simple assault charges held over for court.
Petition for Revocation of Probation, 4/29/2025, at 1. Additionally, the
Commonwealth averred that the AMEND program unsuccessfully discharged
Nickel. Id. The Commonwealth alleged that the incident and discharge
violated probation conditions one (failing to remain arrest free) and two
(failing to remain on good behavior and refraining from dangerous behavior),
as well as the condition to successfully complete the AMEND batterers
program. Id.
At the May 27, 2025 revocation hearing, P.O. Gilfus informed the trial
court that Nickel had pending charges for simple assault and the victim was
his mother. N.T., 5/27/2025, at 5. Nickel’s counsel clarified that these
charges were in addition to another set of domestic violence related charges
Nickel had incurred before the court had imposed the probation order in the
instant case, wherein the alleged victim was a new girlfriend. N.T.,
5/27/2025, at 2-5. After posting bail in the case regarding the new girlfriend,
Nickel had been in the community for the past month working and staying
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clean. Id. at 4. Nevertheless, the new pending simple assault charges caused
AMEND to discharge him. Id. at 2. Nickel’s counsel requested a continuance
because the case with new charges was “still open.” Id. She admitted on
Nickel’s behalf, however, that AMEND discharged him, which constituted a
violation of probation. Id. P.O. Gilfus requested thirty days of incarceration
in Cumberland County Prison based on the nature of the violations but agreed
to help Nickel explore readmission to AMEND. Id. at 3, 5. Finding that Nickel
had remained in the community for about a month “without any issues,” the
trial court entered an order deferring action on the petition until June 17,
2025, and directed Nickel to explore the possibility of readmission to AMEND
or another program. Id. at 6-7; Trial Court Order, 5/27/2025, at 1.
When the hearing resumed on June 17, 2025, the prosecutor indicated
that Nickel had not remained in contact with P.O. Gilfus, which stymied any
effort for him to reenroll with AMEND. Id. at 2-3. The Commonwealth
recommended that Nickel be incarcerated for the probation violation,
particularly because police were investigating Nickel as a suspect in a new
rape case. Id. at 3-4. No charges had been filed at that point as police had
been unable to contact him to serve search warrants for his cell phone, his
DNA, and other items. Id. at 3. When Nickel was served that morning at the
courthouse, he claimed that he no longer lived at that address and never told
P.O. Gilfus, but he agreed to cooperate with police regarding the search
warrants for items in his home. Id. at 3-4. P.O. Gilfus requested that the
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trial court invoke what he characterized as the public safety exception in Act
44; according to P.O. Gilfus, this would allow the trial court to incarcerate
Nickel at a length based upon its discretion. Id. at 5. In support, P.O. Gilfus
cited Nickel’s prior “adjudicated violation,” his discharge from AMEND, his
failure to remain in contact with him to try to work with AMEND, and his violent
conduct (as established by his pending charges progressing past the
preliminary hearing stage). Id. at 5-8. The trial court asked Nickel’s counsel
whether he admitted that he was “in violation of his probation.” Id. at 6. His
attorney responded affirmatively. Id. The trial court indicated that it wanted
to see if there were new charges filed in the rape investigation before
sentencing him. Id. at 8. It revoked his probation and recommitted Nickel
to Cumberland County Prison pending resentencing. Trial Court Order,
6/17/2025, at 1. Id.
During the very brief resentencing hearing on July 15, 2025, the trial
court asked defense counsel to confirm that “since [Nickel] has been on
probation, he has two new domestic violence charges,” and counsel responded
affirmatively. N.T., 7/15/2025, at 2. The trial court acknowledged it
possessed a memo from P.O. Gilfus.3 Id. Defense counsel requested that
the trial court resentence Nickel to time served, noting that he had been
incarcerated since June 17, 2025, and the guidelines called for restorative
3 This memo is not contained in the certified record.
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sanctions to three months’ incarceration. Id. Nickel declined his opportunity
for allocution. Id. The trial court explained that it would not sentence him to
time served “because getting two new offenses while you’re on probation for
a simple assault is not indicating success with probation.” Id. Nickel
interjected, pointing out that there “was only one violation on the PV.” Id.
The court responded, “Well one new domestic violence charge is one too many
new domestic violence charges,” and its decision stood “whether it was one
or whether it was two.” Id. at 3. It then resentenced Nickel to incarceration
in the Cumberland County Prison for not less than three months nor more
than twenty-three months. Id. The court authorized work release, awarded
credit for time served awaiting resentencing, ordered as conditions of release
on parole that he be and remain on good behavior, comply with the court’s
standard conditions of probation and parole, have absolutely no contact with
the victim, and complete a long-term anger management program. Id. The
court noted that his ability to reenroll in AMEND was unclear, but that the
court intended for him to complete a program of similar duration and
intensity.4 Id. The court did not make any specific findings pertaining to
section 9771(c) on the record.
4 Subsections (c)(1) and (2) of 9771 pertain to sentences of total confinement, not other sentencing alternatives, including partial confinement. See 42 Pa.C.S. § 9771(c)(1)-(2). We assume for purpose of our analysis that the trial court’s sentence was one of total confinement, as both parties and the trial court refer to the sentence in such a manner without any further (Footnote Continued Next Page)
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Nickel filed a post-sentence motion, arguing without elaboration that he
was seeking to modify his standard range sentence. Nickel’s Post-Sentence
Motion, 7/25/2025, ¶¶ 3-4. Following a hearing, the trial court denied the
motion except to the extent that it awarded additional time credit for ten days
in April 2025. Trial Court Order, 8/28/2025, at 1.
This appeal by Nickel followed. Both the trial court and Nickel complied
with Pa.R.A.P. 1925. Nickel’s concise statement challenged only his maximum
sentence and expressly described the challenge as being to the discretionary
aspects of his revocation sentence. Concise Statement, 8/29/2025, ¶¶ 3, 7-
8. On appeal, Nickel raises the issue that he raised in his concise statement:
“Measured against the Sentencing Guideline standard range and the kind of
probation violation committed, was [Nickel’s] revocation sentence, which
exceeded the original sentence, inordinate; and thus, the court arriving at a
manifestly unreasonable decision?” Nickel’s Brief at 6.
In its Rule 1925 opinion, the trial court addressed section 9771(c)
directly. It explained that it recorded Nickel’s first admission to the missed
and positive drug tests without imposing any further sanction at the time to
preserve the adjudication for purposes of section 9771(c). Trial Court Opinion,
discussion. Under our sentencing code, sentencing schemes that include work release from confinement may take on various forms. See, e.g., 42 Pa.C.S. § 9755(c)(1) (relating to partial confinement with release for employment); id. § 9755.1 (relating to court’s authority to temporarily release prisoners from county correctional institutes).
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9/12/2025, at 4, 9. It then found, based upon counsel’s admission on Nickel’s
behalf at the June 17, 2025 revocation hearing, that Nickel admitted to the
probation violations alleged in the second petition, which included discharge
from AMEND and receiving new criminal charges. Id. The court revoked
Nickel’s probation as a result. Id.
The trial court observed that Nickel’s counsel admitted at the June 17,
2025 hearing that Nickel “received two new sets of domestic violence
charges,” although Nickel personally “contested whether he received only one,
rather than two, new sets of domestic violence charges.” Id. at 9 & n.13.
The trial court found the number of pending charges “to be a distinction
without a difference,” and noted that “in fact, [Nickel] received three new sets
of domestic violence charges while he was on probation supervision in this
case.” Id. at 9 & n.14. What was significant to the trial court was that Nickel,
“while on probation supervision for committing a crime of domestic violence,”
demonstrated that he was unable to take his treatment regimen seriously
(citing the AMEND discharge), was not taking positive rehabilitative measures
in his life (citing the drug screens), and would not be successful on probation
(citing the domestic violence arrests), thereby warranting revocation of his
probation and the sentence it imposed. Id. at 9-10. Echoing the statutory
language of section 9771(c)(1)(ii) without citing it directly, the trial court
“concluded by clear and convincing evidence that [Nickel] committed multiple
technical violations involving an identifiable threat to public safety, and that
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[Nickel] could not be safely diverted from total confinement through less-
restrictive means.” Id. at 10.5 By the trial court’s calculation, Nickel
committed at least five technical probation violations—missed drug testing,
positive tests for methamphetamine, unsuccessful discharge from AMEND;
and “two separate sets of new domestic violence charges”—and this conduct
demonstrated that “there was no alternative but to impose a sentence of total
confinement.” Id. Invoking section 9771(c)(2)(iii), the court “exercised its
discretion to impose a sentencing alternative originally available” to it. Id.
Using the updated presentence investigation report and the sentencing
guidelines, the trial court imposed a sentence “at the top of the standard
range” to aid Nickel in reforming his conduct while protecting the community
at large. Id. at 11. While the new sentence of incarceration plus supervision
was longer than the term of the original probation sentence, the trial court
explained that it selected this sentence because Nickel was unsuccessful under
supervision “in multiple ways, most substantially by his being charged with
several sets of new crimes involving violence.” Id.
Waiver and Classification of Sentencing Challenges
Before we address the merits of Nickel’s claims, we consider the
Commonwealth’s argument that Nickel has waived appellate review in its
5It also noted that after it sentenced Nickel, he had incurred new charges while incarcerated by allegedly possessing the controlled substance K2 in the Cumberland County Prison. Id. at 5 n.10, 10 n.17.
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entirety by failing to “preserve his claim related to the purported error on the
part of the trial court in sentencing [him] to a period of total confinement for
probation violations” by failing to object at sentencing or in his post-sentence
motion. Commonwealth’s Brief at 12-13. Pursuant to Commonwealth v.
Slaughter, 339 A.3d 456 (Pa. Super. 2025), overruled by Seals, 353 A.3d at
764, the Commonwealth contends that this failure is fatal to Nickel’s appeal.
Id.
Although we find certain aspects of Nickel’s arguments waived (as
discussed infra), we decline to find global waiver. While this case was pending,
an en banc panel of this Court overruled Slaughter to the extent that it
applied the analysis in Commonwealth v. Schutzues, 54 A.3d 86 (Pa.
Super. 2012), without recognizing that our Supreme Court’s intervening
superseding authority had repudiated Schutzues’ analysis of section 9771(c).
See Seals, 353 A.3d at 763 (citing Commonwealth v. Barnes, 151 A.3d
121 (Pa. 2016), and Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022)).
Consistent with that authority, Seals directs that the classification of a
challenge to a resentence following probation revocation depends on the
specifics of the appellant’s challenge. Id. at 763. To the extent that an
appellant challenges the trial court’s authority to impose a sentence of total
confinement based upon its failure to adhere to the mandatory limits imposed
by section 9771(c), the claim presents a challenge to the legality of the
sentence imposed that is not subject to issue preservation requirements. Id.
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On the other hand, if the appellant challenges the manner in which a trial
court exercises its discretion within the confines of its authority, the challenge
is addressed to the discretionary aspects of sentencing, which contains
particular issue preservation requirements. Id. at 763 n.21. Nickel presents
both types of challenges, which we address individually.
Nickel’s Arguments
Although Nickel purports to present one issue on appeal, we discern
multiple components to his argument. We address each seriatim, as they
have distinct legal standards.
Excessiveness of Maximum Sentence Compared to Nature of Violations
First, Nickel argues that despite his overall standard range sentence, his
maximum sentence of twenty-three months of total confinement is excessive
as compared to the nature of his technical violations. Nickel’s Brief at 10-12,
15-16, 30-32. He argues that sentencing him to close to the statutory
maximum for these technical violations is unreasonable and indicative of a
“harsh and excessive sentence, disproportionate to the underlying violations
or circumstances” that is “more retributive than reformative in nature.” Id.
at 32 (citations omitted).
This argument implicates the discretionary aspects of his sentence.
“An appellant wishing to appeal the discretionary aspects of a probation-
revocation sentence has no absolute right to do so but, rather, must petition
this Court for permission.” Commonwealth v. Kalichak, 943 A.2d 285, 289
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(Pa. Super. 2008). An appellant challenging the sentencing court’s discretion
is entitled to review by this Court if s/he: (1) timely filed a notice of appeal;
(2) properly preserved the issue at sentencing or in a post-sentence motion;
(3) complied with Pa.R.A.P. 2119(f), which requires a separate section of the
brief setting forth a concise statement of the reasons relied upon for allowance
of appeal of the discretionary aspects of a sentence; and (4) presents a
substantial question that the sentence appealed is not appropriate under the
Sentencing Code by advancing a colorable argument that the sentence is
inconsistent with a specific provision of the Sentencing Code, contrary to the
fundamental norms underlying the sentencing process, or otherwise
incongruent with 42 Pa.C.S. § 9781(b). Commonwealth v. Schroat, 272
A.3d 523, 527 (Pa. Super. 2022).
We are unable to review Nickel’s argument regarding the trial court’s
exercise of discretion because he has not satisfied all of the above
requirements. Specifically, Nickel failed to preserve this argument at
sentencing or in his post-trial motion. His post-trial motion, while filed timely,
failed to set forth any reason why the trial court should modify the sentence,
let alone explain how it abused its discretion. See Motion to Modify Sentence,
7/25/2025, at ¶¶ 1-5.6 The mere filing of a motion does not preserve a
6 To the extent that Nickel presented a specific argument before the trial court orally at the August 28, 2025 proceeding, we have no record of this argument. Nickel ordered production of transcripts four times, but none of these requests (Footnote Continued Next Page)
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challenge to the discretionary aspects of sentence for appeal; instead, the
appellant must afford the trial court the opportunity to address the factual and
legal basis of the issue in the first instance. See Commonwealth v. Rivera,
238 A.3d 482, 499 (Pa. Super. 2020) (concluding appellant waived
discretionary aspects challenge by presenting the same general legal theories
with different rationales below).
Consideration of Mere Arrests
Nickel’s next argument pertains to the trial court’s consideration of his
arrests to revoke his probation and to justify imposing a longer sentence.
Nickel’s Brief at 16-26. Nickel contends that the trial court’s on-the-record
commentary is replete with references to his arrests to justify revoking his
probation and imposing a sentence near the statutory maximum. Id. at 16-
17, 21 (citing N.T., 5/27/2025, at 4-5; N.T., 7/15/2025, at 2-3). He raises
ordered transcription of the August 28, 2025 proceeding and a transcript does not otherwise appear in the certified record. “This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006). Although this Court notified the lower court that it had sent only one of the transcripts requested by Nickel as part of the certified record, prompting the clerk to certify a supplemental record, this Court will not request that the transcription of proceedings in the first instance on its own accord. Pursuant to Rule 1911 of our Rules of Appellate Procedure, it is the appellant’s responsibility to order any transcript necessary for the resolution of the issues raised on appeal. Id. If this Court cannot resolve a claim in the absence of the necessary transcript, we deem the issue waived for the purpose of appellate review. Id.
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several arguments in support of his claim that this was error, which we
address separately.
First, he argues that consideration of arrests runs counter to the
language of section 9771(c)(1)(i), which requires a conviction. Id. at 16; see
also 42 Pa.C.S. 9771(c)(1)(i) (permitting a sentence of total confinement if
“the defendant has been convicted of another crime”). Statutory
interpretation presents a question of law, of which we engage in a de novo
review. Seals, 353 A.3d at 767.
As presented by Nickel, this argument fails. He relies upon the language
of section 9771(c)(1)(i) in isolation and tries to extend it to mean that in the
absence of a conviction, his conduct that resulted in his arrest cannot be a
basis for a sentence of total confinement. He makes this bald argument
without offering any statutory analysis, considering the additional provisions
of section 9771(c), or citing to a post-Act 44 case construing the statute in
the manner he proposes. See Seals, 353 A.3d at 762 (“We consider the
statutory language not in isolation, but within the context in which it
appears.”) (citation omitted). Section 9771(c)(1)(i) authorizes the trial court
to impose a sentence of total confinement upon revocation of probation when
the defendant has been convicted of another crime. See 42 Pa.C.S.
§ 9771(c)(1)(i). Nothing in the language of subsection (c)(1)(i) or the
remainder of section 9771, however, suggests that a trial court is prohibited
from considering the conduct underlying an arrest without a conviction as a
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basis to revoke probation or as a sentencing factor. Nickel offers no statutory
analysis and does not cite any post-Act 44 decision construing this language
beyond what it says on its face. As such, we construe the statute to mean
what it says: section 9771(b) requires “proof of the violation of specified
conditions of the probation to revoke,” and section 9771(c)(1) presumes that
incarceration of any length is not warranted unless the defendant is convicted
of another crime or the Commonwealth offers and proves each component of
(ii) or (iii) to the prescribed burden of proof. See 42 Pa.C.S. § 9771(b),
(c)(1)(i)-(iii).
Next, Nickel argues that pursuant to Commonwealth v. Berry and
Commonwealth v. Fitzgerald, relying upon criminal conduct that did not
result in a conviction is an impermissible sentencing factor that lacks value as
a probative matter. Id. at 21, 29 (citing Commonwealth v. Berry, 323 A.3d
641 (Pa. 2024), and Commonwealth v. Fitzgerald, 2025 WL 2315296 (Pa.
Super. Aug. 12, 2025) (non-precedential decision), reconsideration granted
and case superseded by Commonwealth v. Fitzgerald, 2026 WL 832882
(Pa. Super. Mar. 24, 2026) (non-precedential decision)).
To begin, Nickel’s reliance upon our initial Fitzgerald decision is
unavailing because, as noted above, this Court reconsidered, withdrew, and
filed a new decision that superseded the cited Fitzgerald decision after Nickel
filed his brief. In its later decision following reconsideration, this Court
concluded that the trial court did not err in determining that Fitzgerald
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committed a violation or in revoking his probation based upon its finding that
he committed harassment based upon the evidence presented at the
revocation hearing, even though he was never arrested, charged, or convicted
of that criminal conduct. Fitzgerald, 2026 WL 832882, at *3, 5-6; see also
Berry, 323 A.3d at 654-55 (reserving for another day and not reaching the
parties’ alternative arguments concerning whether a trial court may consider
a prior arrest where the facts underlying the arrest are established by
preponderance of the evidence); Commonwealth v. Brown, 469 A.2d 1371,
1377 (Pa. 1983) (trial court may revoke probation prior to a criminal trial with
proof of criminal behavior by preponderance of the evidence without offending
due process).
Further, to the extent that Nickel invokes Berry in support of his
argument that the trial court imposed an excessive sentence to punish him
for being arrested for domestic-violence-related crimes while on probation,
this constitutes a challenge to the discretionary aspects of his sentence. See
Commonwealth v. Davis, 341 A.3d 808, 812 (Pa. Super. 2025) (holding
that claim that trial court impermissibly factored Davis’ record of arrests
without concomitant convictions into his sentence challenges the sentencing
court’s exercise of discretion, and not its legal authority to impose a sentence)
(citing, inter alia, Berry, 323 A.3d at 643). As we already discussed, Nickel
failed to preserve any challenge to the discretionary aspects of his sentence
by filing a boilerplate and vague post-sentence motion. Nickel’s invocation of
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Berry, however, finds more purchase within the context of the legality-of-
sentence argument we address next.
Statutory Prerequisites Not Met
Nickel’s final arguments are addressed to the legality of his sentence.
See Seals, 353 A.3d at 763. Although he intertwines two arguments, we
concentrate our efforts on the one we find dispositive. Therein, Nickel
resurrects his invocation of Berry, arguing that the trial court erred by
counting his arrests as violations of his probation at all based upon their lack
of probative value. Nickel’s Brief at 26-29.7 We review challenges to the
legality of sentence under a de novo standard, and, as stated above, such
challenges are not subject to issue preservation requirements. Id.
Section 9771(c)(1)(ii), upon which the trial court relied, permits it to
impose a sentence of total confinement when it “finds by clear and convincing
evidence that the defendant committed a technical violation that involves an
identifiable threat to public safety and the defendant cannot be safely diverted
7 From what we are able to discern, Nickel further contends that the trial court miscalculated his technical violations for purposes of section 9771(c)(1)(iii)(F) and (2); he then groups the conduct he contends constituted “the same episode of events” and advocates for a sentence under section 9771(c)(2)(ii) for a second technical violation. See Nickel’s Brief at 10-11, 21-29. In so arguing, however, he fails to recognize that the trial court applied section 9771(c)(1)(ii) as the basis to impose a sentence of total confinement. See Trial Court Opinion, 9/12/2025, at 12. Thus, whether any of his violations stem from the same episode of events is irrelevant, as the General Assembly expressly included the “same episode” language only under section 9771(c)(1)(iii), and Nickel makes no argument that this language applies to revocations under subsection (ii). See 42 Pa.C.S. § 9771(c)(1)(iii).
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from total confinement through less restrictive means.” 42 Pa.C.S.
§ 9771(c)(1)(ii). While not the sole reason for its decision, the record reflects
that Nickel’s arrests plainly influenced the trial court’s decision to revoke his
probation and sentence him to total confinement. See, e.g., N.T. 7/15/2025,
at 2 (addressing Nickel directly and stating that it was “not going to give you
time served because getting two new offenses while you’re on probation for a
simple assault is not indicating success with probation.”); Trial Court Opinion,
9/12/2025, at 5 n.10 (listing various charges incurred by Nickel across four
dockets).8 Obviously, if Nickel did engage in the conduct alleged in the various
charges, this would be evidence of his lack of success on probation, and the
sheer number and nature of the charges certainly raises the proverbial red
flag. However, as our Supreme Court in Berry observed, while the “fact of
an arrest may generate speculation,” it “ultimately means nothing.” Berry,
323 A.3d at 654. Arrests without convictions are unproven conduct without
probative value and “happen to the innocent as well as the guilty.” Berry,
323 A.3d at 643, 654 (cleaned up). Simply put, whether the trial court
considers an arrest to support the decision to revoke probation or the decision
to impose a sentence of incarceration, the fact of an arrest alone cannot
8 Complicating our review of this case is that when references are made to Nickel’s pending charges and arrests on the record, in the trial court’s opinion, and in the parties’ briefs, the trial court/parties are often unclear regarding which particular set of charges are being referenced. Ultimately, the only charge or arrest listed in a revocation petition was the April 2025 simple assault against Nickel’s mother.
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“support any adverse inferences,” and lacks probative value to indicate that
the defendant is likely to engage in further criminal conduct. Id. at 654; see
also Commonwealth v. Cottle, 426 A.2d 598, 601 (Pa. 1981) (holding that
three arrests without convictions while on probation did not indicate that the
probationer was “likely to commit a future crime if he was not imprisoned”
because “no inference adverse to appellant can be drawn from the fact of
those arrests”).
Thus, a mere arrest, without other evidence pertaining to the
probationer’s underlying conduct, cannot constitute clear and convincing
evidence that the accused presents a public safety threat or that s/he cannot
be diverted through less restrictive means, which is the standard of proof that
section 9771(c)(1)(ii) expressly requires. Our review of the record shows that
the Commonwealth did not introduce any evidence of the April 15, 2025 arrest
cited in the second petition to revoke beyond the mere fact of the arrest and
P.O. Gilfus’ representations that the pending charges were for simple assault,
the victim was his mother, and that a magisterial district judge had
determined that the Commonwealth presented a prima facie case at the
preliminary hearing warranting continued proceedings. Although Nickel
admitted that he had technically violated his probation, nothing in the
admissions indicated that he conceded the statutory findings necessary to
satisfy section 9771(c)(1)(ii) for purposes of resentencing. See
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Commonwealth v. Potoczny, __A.3d __, 2026 WL 1102873, *9 (Pa. Super.
2026).
Without clear and convincing evidence that Nickel “committed a
technical violation that involves an identifiable threat to public safety and …
cannot be safely diverted from total confinement through less restrictive
means,” the trial court lacked authority to invoke subsection (c)(1)(ii) to
sentence Nickel to a period of incarceration. See 42 Pa.C.S. § 9771(c)(1)(ii).
The appropriate remedy for its consideration of mere prior arrests without any
evidence of Nickel’s underlying conduct or concomitant convictions is a
remand for resentencing without consideration of these arrests. Berry, 323
A.3d at 656. As in Berry, while “it is apparent that the [trial] court considered
other, legitimate sentencing factors,” it is that court’s task on remand to
“extricate the prior arrests from the [] court’s analysis,” not ours. Id.
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Judgment of sentence vacated. Case remanded for proceedings
consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 7/13/2026
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