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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Atkinson, T.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 506 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Beck

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.4K)

• PDF

Combined Opinion

                        by Beck

J-S41019-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYQUAN ATKINSON :
:
Appellant : No. 506 EDA 2025

Appeal from the Judgment of Sentence Entered March 12, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0011938-2020

BEFORE: BOWES, J., BECK, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY BECK, J.: FILED FEBRUARY 27, 2026

Tyquan Atkinson (“Atkinson”) appeals nunc pro tunc from the judgment

of sentence imposed by the Philadelphia County Municipal Court (“municipal

court”) following the revocation of his probation. 1 He contends the municipal

court abused its discretion by imposing an excessive aggregate sentence of

three to six years’ incarceration after considering an impermissible sentencing

factor, not considering mitigating evidence, and failing to take into account

Atkinson’s rehabilitative needs. Upon review, we affirm.

---

• Retired Senior Judge assigned to the Superior Court.

1 In Philadelphia, municipal court judges have jurisdiction over criminal
offenses for which no prison term may be imposed or which are punishable by
imprisonment for a term of not more than five years. 42 Pa.C.S. § 1123(a)(2).
Municipal court judges exercising jurisdiction under section 1123 “shall have
the same jurisdiction in probation and parole arising out of sentences imposed
by them as judges of the court of common pleas.” 42 Pa.C.S. § 1123(a)(2).
J-S41019-25

Facts and Procedural History

Atkinson’s original probation stemmed from charges he incurred during

a lengthy incarceration at Philadelphia Industrial Correctional Center awaiting

trial for homicide in another matter. Ultimately, in April 2022, a jury acquitted

Atkinson of homicide and other charges. However, Atkinson continued to face

the consequences of his conduct during his pretrial incarceration, which

resulted in probation in two separate cases.

In the first—the underlying case in this matter—a correctional officer

found an eight-inch shank in Atkinson’s waistband in January 2020. Following

a nonjury trial, the municipal court found Atkinson guilty of making repairs,

selling, or otherwise dealing in, using, or possessing an offensive weapon and

introducing a weapon into a correctional facility which may be used for

escape.2 On June 15, 2022, the municipal court imposed concurrent one-year

terms of probation for each offense.

A second set of charges stemmed from Atkinson’s possession of a cell

phone on two occasions. Atkinson pled guilty to two counts of contraband-

possession of a telecommunication device by an inmate. 3 On December 2,

2022, the municipal court sentenced Atkinson to two years of reporting

---

2 See 18 Pa.C.S. §§ 908(a), 5122(a)(1). The municipal court acquitted him
of possession of an instrument of crime with intent to employ it criminally.
See id. § 907(a).

3 See id. § 5123(c)(2).

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J-S41019-25

probation consecutive to the period of probation imposed for his possession

of the shank.

Following his release from incarceration, while serving probation for the

shank incident, Atkinson was found in possession of a firearm known as a

“ghost gun.” N.T., 3/12/2024, at 16. On February 20, 2023, during a stop of

a vehicle in which Atkinson was a passenger, law enforcement searched

Atkinson’s backpack and found a Polymer 180 firearm without a serial number

loaded with twelve live rounds, including one in the chamber. Id. at 8-10.

Atkinson fled the scene but was caught by police. Id. at 9-10. On December

13, 2023, Atkinson pled guilty in federal district court to possession of

ammunition by a felon4 and was sentenced to eighteen months in federal

prison followed by three years of supervised release. Id. at 11.

The state probation office filed a notice of probation violation based upon

the federal conviction. The municipal court held a Gagnon I hearing5 on

March 1, 2024, and a Gagnon II hearing on March 12, 2024. The probation

officer, Jose Fanel, provided testimony consistent with the above. N.T.,

---

4 18 U.S.C. § 922 (g)(1).

5 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth

v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that when a
probationer is detained based on an alleged probation violation, due process
requires a Gagnon I prerevocation hearing to determine whether there is
probable cause that the probationer committed a violation, followed by a
second more comprehensive Gagnon II revocation hearing wherein trial
court determines whether to revoke probationer’s probation).

-3-
J-S41019-25

3/12/2024, at 8-11. Atkinson and the Commonwealth stipulated that “a direct

violation[] of probation has occurred.” Id. at 12.

The Commonwealth requested reimposition of probation to run

consecutively to his federal incarceration sentence. Id. The municipal court

asked the Commonwealth why it would recommend probation when it

originally requested a sentence of eighteen to thirty-six months’ incarceration

at the original June 15, 2022 sentencing in the shank case, the municipal court

chose to impose a year of probation, and Atkinson committed more crimes.

Id. at 13-15. The prosecutor responded that Atkinson was already

incarcerated for the federal charges and its recommendation was within the

guidelines. Id. at 13, 15. After the municipal court ascertained that the

maximum penalty for the original charges was an aggregate term of ten years’

incarceration, defense counsel argued that the municipal court had no basis

for this “massive upward departure.” Id. at 19. The municipal court

responded:

[I]f I understand things correctly, [Atkinson] was looking down
the barrel of a murder charge with a gun, of which he … was
acquitted. He sat in jail for 38 months waiting for … his day in
court, 38 months. Notwithstanding the fact that he committed
three crimes while in custody, but he sat in jail … and then he is
placed on probation and within 4 months of being placed on
probation on the second charge, he finds a gun in his possession.
How can you tell me that [Atkinson] is amenable to probation? …
I can't possibly fathom what probation means to him. If I sat in
jail for 38 months waiting trial, and then I was let out, and I know
I’m on probation, and … I got a loaded gun, a ghost gun, in these
times, what kind -- what possible -- what -- why is that not a
basis?

-4-
J-S41019-25

Id. at 19-20.

Defense counsel argued that the court could not increase Atkinson’s

penalty based upon the homicide case and that giving him any incarceration

is disproportionate to his offense and at odds with the Commonwealth’s

request for probation. Id. at 21. The defense requested termination of

probation, arguing that state supervision was a waste of judicial resources

while he was subject to federal supervision. Id.

In Atkinson’s allocution, he explained that “it’s just dangerous times

outside, that’s all,” although he acknowledged it was not an excuse for

“carrying a gun.” Id. at 22. Sarah Morris, the director of the Youth Art &

Self-Empowerment Project, testified that Atkinson “was a model employee”

when he worked for the organization between June 2022 and February 2023,

and had a job waiting for him when he was released from prison. Id. at 23-

1. Atkinson’s mother, Stacy Atkinson, expressed her support for her son and

stated that he could work for her business when he was released. Id. at 25-

26.

The municipal court asserted that it had mentioned Atkinson’s homicide

trial because it believed that “the process should have been … a strong

education process for him,” particularly when the court had already given him

a “second chance” on probation. Id. at 26. From the court’s perspective,

“the circumstances upon which he was incarcerated and what he was being

faced with” should have made it “clear” that while he “on probation… he

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J-S41019-25

shouldn’t be anywhere near or around people with guns or having a gun.” Id.

Given that the court had already sentenced him to probation twice, it saw no

indication that Atkinson “sees the light” and was “amenable to probation.” Id.

at 27. His conduct, the court found, “in this day and age with gun violence

the way it is,” is “a huge threat to all of us, to every citizen of … the

Commonwealth of Pennsylvania and the City of Philadelphia.” Id. It revoked

probation and purported to impose “what the Commonwealth initially asked

for” and the court “did not grant” at Atkinson’s original sentencing hearing:

eighteen to thirty-six months of incarceration, followed by two years of

reporting probation, for each misdemeanor, to run consecutively to each other

and to his current federal sentence. Id. at 27-28.6 The municipal court found

Atkinson not to be in violation of the terms of his probation in his two cell

phone possession cases because his probationary terms in these two cases

did not commence until June 15, 2023.

Atkinson initially filed a notice of appeal without filing a post-sentence

motion; his counsel inadvertently filed a motion to seek reconsideration of the

sentence on the dockets for the cell phone cases. After a change in counsel,

Atkinson withdrew the appeal docketed at 1136 EDA 2024. On September

13, 2024, the municipal court reinstated his rights to file a post-sentence

---

6 For purposes of completeness, we note that the Commonwealth originally
asked for half the time the court imposed here, as it requested an eighteen to
thirty-six month on each count to run concurrently. See Commonwealth’s
Sentencing Memorandum, 6/14/2022, at 9.

-6-
J-S41019-25

motion and notice of appeal nunc pro tunc pursuant to the Post Conviction

Relief Act. That same day, Atkinson filed a post-sentence motion arguing that

his sentence was more than necessary to protect the public and rehabilitate

him, that the court overweighed the homicide matter for which he was

acquitted, and that his family and community support, work history, and job

prospects demonstrated that he was amenable to rehabilitation. Post-

Sentence Motion, 9/13/2024, at ¶¶ 10-17. On October 9, 2024, the municipal

court granted Atkinson’s rule to show cause for a hearing on his post-sentence

motion and scheduled a hearing in December. Municipal Court Order,

10/9/2024, at 1.

After the Supreme Court decided Commonwealth v. Berry, 323 A.3d

641 (Pa. 2024), Atkinson filed a supplemental motion on October 12, 2024.

This time he challenged the excessiveness of his sentence, inadequate

consideration of mitigating factors and his rehabilitative needs, and improper

consideration of his arrest that resulted in acquittal. See Supplemental Post-

Sentence Motion, 10/12/2024, at ¶¶ 6, 9, 11.

Because the municipal court did not expressly grant reconsideration or

vacate the sentence in its October 9 order, Atkinson’s time for appeal expired

on October 13, 2024, before the court ruled on the motion or Atkinson filed a

-7-
J-S41019-25

notice of appeal.7 Atkinson filed a second timely PCRA petition on December

12, 2024, seeking reinstatement of his post-sentence and appellate rights

nunc pro tunc for counsel’s own per se ineffective assistance by failing to file

a timely appeal. PCRA Petition, 12/12/2024, at 4-6. The court granted PCRA

relief and reinstated his appellate rights in a separate order. See Municipal

Court Order, 2/4/2025, at 1.

Atkinson filed a notice of appeal nunc pro tunc. Both Atkinson and the

municipal court complied with Pennsylvania Rule of Appellate Procedure 1925.

---

7 See Pa.R.Crim.P. 708(E) (filing a motion to modify sentence does not toll
30-day appeal period); Pa.Rs.A.P. 903(a) (an appellant must file a notice of
appeal within thirty days of entry of order), 1701(b)(3)(requiring court to
expressly grant reconsideration within timeframe of rules); Commonwealth
v. Duffy, 143 A.3d 940, 942, 942 n.3 (Pa. Super. 2016) (holding that notice
of appeal from resentencing order must be filed within thirty days of imposition
of sentence in open court and filing of motion to modify sentence following
revocation of probation does not toll appellate period); Commonwealth v.
Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (holding that rule 708 continues
to govern right to modify sentence and appellate rights after reinstatement of
rights nunc pro tunc via a PCRA petition).

After the period to appeal expired, Atkinson filed a motion for leave to
withdraw his original and supplemental post-sentence motion. Atkinson’s
Motion for Leave, 12/14/2024, at 1. On December 17, 2024, the municipal
court purported to grant Atkinson leave to withdraw his post-sentence motion
and the supplemental motion without prejudice. See Municipal Court Order,
12/17/2024, at 1. However, this order was null and void, as the municipal
court was divested of jurisdiction by this point. See 42 Pa.C.S. § 5505;
Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. 1998)
(sentencing court has thirty days from imposition of sentence to modify
sentence) (citations omitted). It also was unnecessary, as Atkinson’s filing of
the motions in accordance with the order allowing him to do so nunc pro tunc
preserved any issues presented therein for appeal, notwithstanding the
municipal court’s failure to rule upon the motions prior to losing jurisdiction.
See Commonwealth v. Swope, 123 A.3d 333, 337 n.16 (Pa. Super. 2015).

-8-
J-S41019-25

Issues on Appeal

Atkinson raises the following issue on appeal:

Was the [violation of probation] sentence of total state
incarceration excessive and an abuse of discretionary aspects of
sentencing, for the following reasons:

1. [i]t was entered with partiality and ill-will as it impermissibly
   considered a homicide arrest that culminated in an acquittal by
   a jury;

2. it was a misapplication of the law as it impermissibly considered
   a homicide arrest that culminated in an acquittal by a jury;

3. it overrode the law and appellant’s right to the presumption of
   innocence and [d]ue [p]rocess in another criminal matter,
   pursuant to the Federal and Pa Constitutions, when it
   impermissibly punished appellant for a homicide arrest that
   culminated in an acquittal by a jury;

4. it was manifestly unreasonable as it was more than the
   probation that was requested by the Commonwealth;

5. it was more than necessary to rehabilitate the appellant, who
   has meaningful and excellent work history and two
   employment opportunities awaiting when released from
   custody, and who is amenable to community supervision and
   has potential for complete rehabilitation; [and]

6. it was excessive for an appellant who enjoys a tremendous
   familial and community support system, and who is amenable
   to community supervision and has potential for complete
   rehabilitation?

Atkinson’s Brief at 4.

Petition for Review of Discretionary Aspects of 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

-9-
J-S41019-25

(Pa. Super. 2008). An appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by: (1) timely filing a notice of appeal;

(2) properly preserving the issue at sentencing or in a post-sentence motion;

(3) complying 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) presenting 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).

Atkinson has satisfied all requirements for invoking our jurisdiction. He

timely appealed following the order reinstating his appellate rights nunc pro

tunc. He raised the claims in his post-sentence motion that he now seeks for

us to review on appeal. See Post-Sentence Motion, 9/13/2024, at ¶¶ 10-17;

Supplemental Post-Sentence Motion, 10/12/2024, at ¶¶ 6, 9, 11; see also

N.T., 3/12/2024, at 19, 21. And his brief includes a Rule 2119(f) concise

statement, wherein he presents two substantial questions for our review: (1)

the municipal court’s alleged consideration of his arrest not resulting in

conviction in fashioning his sentence, and (2) the sentencing court

inadequately considered mitigating factors and imposed an excessive

• 10 - J-S41019-25

sentence that is more than is necessary to protect the public, vindicate the

decedent’s family and rehabilitate the appellant. See Commonwealth v.

Berry, 323 A.3d 641, 654 (Pa. 2024) (holding that “sentencing court

committed an error of law when it relied upon prior arrests as a sentencing

factor”); Commonwealth v. Pacheco, 227 A.3d 358, 376 (Pa. Super. 2020)

(“[A]n allegation that the court considered an impermissible sentencing factor

raises a substantial question.”); Commonwealth v. Raven, 97 A.3d 1244,

1253 (Pa. Super. 2014) (“[A]n excessive sentence claim—in conjunction with

an assertion that the court failed to consider mitigating factors—raises a

substantial question.”). As such, we proceed to review his appellate issues on

the merits.

Standard of Review

Imposing a new sentence following the revocation of probation is within

the sound discretion of the sentencing court. See Commonwealth v. Starr,

234 A.3d 755, 760-61 (Pa. Super. 2020). Absent an abuse of that discretion,

we will not disturb the resentence on appeal. Id. “An abuse of discretion is

more than an error in judgment—a sentencing court has not abused its

discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Id. (citation omitted). “[W]hen a defendant reappears before the court for

sentencing proceedings following a violation of the mercy bestowed upon him

in the form of a probationary sentence,” the court is “already fully informed

• 11 - J-S41019-25

as to the facts and circumstances of both the crime and the nature of the

defendant.” Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014).

We emphasize a trial court does not necessarily abuse its
discretion in imposing a seemingly harsher post-revocation
sentence where the defendant received a lenient sentence and
then failed to adhere to the conditions imposed on him. In point
of fact, where the revocation sentence was adequately considered
and sufficiently explained on the record by the revocation judge,
in light of the judge’s experience with the defendant and
awareness of the circumstances of the probation violation, under
the appropriate deferential standard of review, the sentence, if
within the statutory bounds, is peculiarly within the judge’s
discretion.

Id. at 28 (citation omitted).

In addition to the abuse of discretion standard, our review is confined

by section 9781(c) and (d) of the Sentencing Code:

(c) Determination on appeal.--The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:

(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.

(d) Review of record.--In reviewing the record the appellate
court shall have regard for:

(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.

• 12 - J-S41019-25

(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(c), (d).

Legal Standards Regarding Resentencing

Following the revocation of Atkinson’s probation for his direct violation,

the municipal court had available to it the same sentencing alternatives “as

were available at the time of initial sentencing, due consideration being given

to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b); see

also id. § 9721(a) (directing court to consider and select one or more

sentencing alternatives to impose consecutively or concurrently, including an

order of probation, a determination of guilt without further penalty, partial or

total confinement, and a fine). It was limited only “by the maximum sentence

that it could have imposed originally at the time of the probationary sentence.”

Pasture, 107 A.3d at 27-28. Additionally, the court must abide by the

considerations for imposing a sentence of total confinement set forth in section

9721(b). Commonwealth v. Derry, 150 A.3d 987, 994 (Pa. Super. 2016);

see 42 Pa.C.S. § 9721(b) (directing court to consider the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the defendant

when imposing a sentence of total confinement). The court must state on the

• 13 - J-S41019-25

record the reasons for the sentence imposed following revocation, see

Pa.R.Crim.P. 708(D)(2), but its explanation need not be as elaborate as the

initial sentencing. Pasture, 107 A.3d at 27-28.

As our Supreme Court has recognized, the General Assembly mandated

that the Pennsylvania Commission on Sentencing “adopt guidelines for

resentencing that the sentencing court shall consider when resentencing an

offender following revocation of probation.” Commonwealth v. Simmons,

262 A.3d 512, 525 (Pa. 2021) (citing 42 Pa.C.S. § 2154.4). The initial

Resentencing Guidelines applied to revocations of probation for all offenses

committed on or after January 1, 2020, but prior to January 1, 2021. See

204 Pa. Code § 307.2 (b)(1). They require a court to state its reasons for

revocation and the sentence imposed, and where the sentence is outside of

the guidelines to explain the reason for its deviation. See 42 Pa.C.S.

§ 9721(b); 204 Pa. Code § 307.2 (a), (d). For a conviction violation 8

(commonly known as a direct violation) resulting in probation revocation, the

resentencing guidelines begin with the initial sentencing guidelines and

increase the prior record score by one category. 204 Pa. Code § 307.3 (b)(1)

(7th Ed., effective 1/1/2020 to 12/31/2020).

Atkinson’s Arguments

---

8 See 204 Pa. Code § 307.1 (defining conviction violation as commission of a
new offense during the period of probation, resulting in a conviction for a
misdemeanor or felony, whether or not judgment of sentence has been
imposed) (internal footnote omitted).

• 14 - J-S41019-25

Atkinson contends that the municipal court abused its discretion by

imposing “a completely punitive and excessive sentence,” considering his

homicide arrest despite his acquittal, and ignoring the mitigation evidence he

presented. Atkinson’s Brief at 32. He argues that a “consecutive-in-nature”

incarceration sentence followed by probation is unreasonable, excessive,

punitive, and outside sentencing norms because “it was much more than

necessary rehabilitate [him], protect the public[,] and vindicate the authority

of the lower court.” Id. at 15, 18-21. He emphasizes the Commonwealth’s

probation recommendation and contends the municipal court “categorically

disregarded the material evidence that [he] is amenable to treatment and

community supervision,” such as the testimony of his former employer and

his mother, which demonstrated that he had community and familial support

and two job prospects. Id. at 25. Under these circumstances, Atkinson

argues, the court’s imposition of a state sentence “indicates its ill-will and

partiality toward” him and its desire to punish him for his homicide acquittal.

Id. at 25-26. Atkinson claims the court’s ill-will, desire to punish, and faulty

conclusion that he could not be supervised in the community was further

evidenced by its statement “in disbelief and partial dismay” that Atkinson “was

looking down the barrel of a murder charge with a gun” and sat in jail for “38

months.” Id. at 31 (quoting N.T., 3/12/2024, at 20). Atkinson argues that

the municipal court violated Berry by considering his homicide acquittal when

fashioning his sentence and violated his due process rights by indirectly

• 15 - J-S41019-25

reversing the jury’s verdict and ignoring his presumption of innocence and

double jeopardy rights. Id. at 22, 25-26, 30.

Analysis

As Atkinson correctly recognizes, a defendant’s arrest history, without

resultant convictions, is an impermissible factor for courts to consider at

sentencing. Berry, 323 A.3d at 655. In Berry, a sentencing court imposed

a sentence for sexual abuse that departed significantly upward from the

standard guideline sentencing range despite Berry’s prior record score of zero.

Id. at 649-52. While the court acknowledged that Berry had no prior

convictions or juvenile adjudications, the court explained that it was “taking

into account” Berry’s previous contacts with the criminal justice system

nonetheless, insinuating that Berry’s prior record score of zero was an

“anomaly.” Id. at 651-52. Our Supreme Court determined that the

sentencing court erred by relying upon prior arrests that did not result in

convictions as a sentencing consideration. As it explained, “evidence of a

defendant’s arrest record is inadmissible and irrelevant in nearly every

criminal law context[,]” including sentencing, as “a sizeable percentage of

arrests do not lead to convictions.” Id. at 648, 653 (citation omitted). “The

fact of an arrest may generate speculation, but ultimately means nothing.”

Id. at 654. The Berry Court concluded that the decision to impose a sentence

of incarceration must be based on evidence with probative value, and without

a conviction, the mere fact that a person has been arrested has none. Id.

• 16 - J-S41019-25

The Court observed that it similarly recognized in Commonwealth v.

Cottle that the “decision to revoke probation” and impose a “revocation

sentence of incarceration” must “be based on evidence of probative value,”

and therefore cannot be supported by the fact that a probationer was “subject

to an arrest while on probation.” Id. at 654 (citing Commonwealth v.

Cottle, 426 A.2d 598, 601 (Pa. 1981)).

Our review of the record in the instant case does not support Atinkson’s

claim that the municipal court ran afoul of Berry (or Cottle). Neither the

municipal court’s comments at sentencing nor its Rule 1925(a) opinion

indicated that the court considered Atkinson’s homicide arrest as a factor to

justify incarcerating him or in calculating the length of his sentence. As the

municipal court points out, it had already chosen to sentence Atkinson to

probation twice in June and December 2022, even doing so over the

Commonwealth’s objection, after Atkinson had been acquitted of the homicide

charges in April 2022. Municipal Court Opinion, 4/21/2025, at 6-7. It was

only when Atkinson possessed a loaded ghost gun and resisted arrest by

fleeing that the municipal court decided that Atkinson was not amenable to

probation and needed a state sentence of incarceration on top of his federal

sentence. Id. The court emphasized that it had given Atkinson a chance with

probation twice, but Atkinson chose to disregard the court’s recent

admonishment at his December 2022 sentencing hearing and committed “his

most serious offense to date” several months later. Id. at 8.

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The court explained that while it “found some evidence of mitigation”

from the testimony of the probation officer and Atkinson’s former employer

and mother, Atkinson

continued to show no true effort to be rehabilitated despite the
sincere testimony of the above individuals who testified on his
behalf. Despite having twice given [Atkinson] probationary
sentences, the second of which was followed by a strong
admonition by [the municipal court, Atkinson] only weeks later
was stopped and found to be in possession of a ghost gun with 11
live bullets, including one in the firing chamber. [Atkinson’s]
background demonstrated a persistent and disturbing pattern of
disregarding laws, law enforcement officials, prison rules,
aggressive and physical interactions while incarcerated, and most
recently of possessing illegal firearms and fleeing police.

Id. at 11. The court contended that its sentence was “within the sentencing

guidelines for this offense”9 and less than the maximum sentence that it could

have imposed. Id. at 12. It defended the consecutive nature of the sentences

as being within its discretion and “given after careful consideration of all

appropriate factors including the severity of the offense, [Atkinson’s]

---

9 Neither the completed Pennsylvania Sentencing Guideline forms nor the
transcript from Atkinson’s June 2022 sentencing were included in the certified
record. Atkinson’s arguments below and on appeal do not mention, let alone
discuss, the Resentencing Guidelines, and he does not challenge the municipal
court’s assertion. The lone mention of the Resentencing Guidelines appears
in the Scope and Standard of Review section of Atkinson’s Brief. See
Atkinson’s Brief at 2 (citing 42 Pa.C.S. § 9781(c)(3) (directing this Court to
vacate an “unreasonable” sentence outside of the sentencing guidelines). He
makes no argument that would support our consideration of whether his
sentence was, in fact, outside of the guidelines. As such, we do not consider
this further. See Pa.R.A.P. 2119(a)-(c); see also Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (“This Court will not act as counsel and
… develop arguments on behalf of an appellant.”).

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amenability to rehabilitation, [Atkinson’s] likelihood of committing another

crime, and most importantly, the safety and protection of the community.”

Id. at 13.

None of the court’s comments identified by Atkinson in his brief support

his argument that the sentence imposed was to punish him for the crimes the

jury acquitted him of committing. Indeed, the comments are consistent with

the court’s explanation at the hearing. After Atkinson’s counsel protested at

the hearing regarding the court’s mention of Atkinson’s prior murder charges,

the court explained that it mentioned Atkinson’s prior charges because it

believed that the experience of being incarcerated for a lengthy period

awaiting a homicide trial, finally being acquitted by a jury and released, and

then being on probation for crimes he committed during his thirty-eight-month

incarceration, would have motivated Atkinson to forgo criminal activity,

especially carrying a ghost gun. See N.T., 3/12/2024, at 26. Neither Berry

nor Cottle require a court to sentence a defendant in a vacuum. Instead,

they prohibit drawing an inference adverse to the defendant from the mere

fact of an arrest. See Berry, 323 A.3d at 652 (mere fact that Berry had prior

experiences with the criminal justice system—an impermissible factor—cannot

undercut his prior record score of zero); Cottle, 426 A.2d at 601 (court erred

by imposing a maximum incarceration sentence for technical violations of

probation, in part, because the probationer had been arrested during

probation and without establishing any of the statutory criteria for sentencing

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a probationer to incarceration upon revocation). The municipal court’s focus

was not on the unproven conduct, but on Atkinson’s experience of being

incarcerated and facing serious charges, followed by the decision to carry a

ghost gun after finally regaining his liberty, subject to the supervision of

probation. Furthermore, unlike the technical violations at issue in Cottle,

which required consideration of more subjective factors to incarcerate, section

9771(c) authorized the municipal court to select incarceration because

Atkinson had been convicted of another crime. 42 Pa.C.S. § 9771(c).

The court’s comments at sentencing and in its Rule 1925 opinion

indicate that it considered the pertinent factors in sections 9721(b) when

deciding that Atkinson should be incarcerated. See N.T., 3/12/2024, at 26-

27; Municipal Court Opinion, 4/21/2025, at 6-9, 11-13. Nothing in the record

indicates that the court “categorically” refused to consider mitigating factors;

rather, it simply afforded them less weight than Atkinson wanted. This is not

an abuse of discretion. See Commonwealth v. Proctor, 156 A.3d 261, 274

(Pa. Super. 2017).

Because the resentence is within the statutory limits and sufficiently

explained on the record, the court’s decision to sentence Atkinson to a period

of incarceration and to issue the sentences consecutively is “peculiarly within

the judge’s discretion.” Pasture, 107 A.3d at 27-28. As Atkinson does not

present an argument that the municipal court erroneously applied the

Resentencing Guidelines, sentenced outside the guidelines, or was clearly

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unreasonable pursuant to subsection (c)(2), we must affirm Atkinson’s

sentence. See 42 Pa.C.S. § 9781(c).

Judgment of sentence affirmed.

Date: 2/27/2026

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