Com. v. Holder, A.
CourtSuperior Court of Pennsylvania
Date FiledOctober 27, 2026
Docket2637 EDA 2024
JudgeNichols
StatusUnpublished
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Full Opinion
J-S31037-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTWINE HOLDER :
:
Appellant : No. 2637 EDA 2024
Appeal from the Judgment of Sentence Entered October 14, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011307-2014
BEFORE: PANELLA, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 27, 2026
Appellant Antwine Holder appeals from the judgment of sentence
imposed after a jury convicted him of attempted murder, aggravated assault,
kidnapping, persons not to possess firearms, firearms not to be carried
without a license, and carrying firearms on public streets in Philadelphia. 1,2
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1 18 Pa.C.S. §§ 901(a), 2702(a)(1), 2901(a)(2), 6105(a)(1), 6106(a)(1), and
6108, respectively.
2 We note that recently, a panel of this Court concluded that 18 Pa.C.S. § 6108
was unconstitutional as applied to the appellant in that matter. See
Commonwealth v. Sumpter, 340 A.3d 977, 988 (Pa. Super. 2025). As a
new rule of law, the Sumpter decision applies retroactively to cases pending
on direct appeal so long as the issue was preserved at all stages of
adjudication. See Commonwealth v. Grooms, 247 A.3d 31, 37 n.8 (Pa.
Super. 2021). Here, Appellant did not challenge the constitutionality of
Section 6108. Therefore, Appellant has not preserved this issue, and we find
it waived in this appeal. See id.
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On appeal, Appellant challenges the discretionary aspects of his sentence.
After careful review of the record, we quash.
A prior panel of this Court summarized the relevant facts of this case as
follows:
On August 24, 2014, at approximately 12:30 A.M., Yanna Thorn
(“Thorn”) drove her girlfriend, Kendra Devine (“Devine”), to the
rear of Academy and Woodhaven Roads in Philadelphia to meet
[Appellant]. Devine planned to buy a designer bag from
[Appellant] and orchestrate a “bank scheme” with him. When
they arrived at the location, [Appellant] got in the backseat behind
Devine. Devine asked [Appellant] where the bag was. [Appellant]
responded by drawing his gun, cocking it, and saying “Y’all bit**es
know what time it is[.]” (N.T. 11/4/15, 84). [Appellant] patted
both women down and took their cell phones and money.
Dissatisfied with the amount of money, [Appellant] demanded,
“Where is the rest of the money? I’m not playing. I will kill y’all
. . . .” Devine told him that she could get more money from the
Bank of America on Walnut Street between 38th and 39th Streets.
As Thorn drove them to the bank, [Appellant] began beating
Devine’s head with his gun. He then dragged her from the front
seat to the back seat, where he continued to strike her with his
gun and fists and began to kick and stomp on her as well.
Devine—who suffers from asthma—struggled to breathe, but
[Appellant] refused to allow her to use her inhaler.
When they arrived at the bank, Devine went into the vestibule to
withdraw money, while [Appellant] held Thorn at gunpoint in the
car. Four or five minutes later, Devine returned and said that she
was unable to make a withdrawal and would have to go to a
different bank at 16th Street and JFK Boulevard. [Appellant]
warned that if she kept playing games, he would kill them. Thorn
drove to the JFK branch, but [Appellant] refused to let them out
of the car. Instead, he ordered Thorn to drive them to Uber Street
in North Philadelphia. During the course of the drive, [Appellant]
continued to beat Devine.
Once they arrived on Uber Street, [Appellant] dragged Devine
from the car and threw her to the ground. As Devine lay face
down, [Appellant] kicked her head against the tire of an adjacent
car, stomped on her upper body, and repeatedly struck her face
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with his gun. He then told Thorn to take Devine’s ATM card and
make a withdrawal. When Devine said only she had access to the
account, [Appellant] ordered Thorn to drive away or he would kill
her. Thorn drove approximately one block, and called the police.
When the police arrived, Thorn brought them to Devine.
[Appellant] was no longer on the scene.
Using Devine’s phone records, police traced [Appellant’s] phone
number to his home address, where he was arrested on
September 4, 2014. Upon executing the search warrant for the
residence, police recovered Thorn’s cell phone, two firearms,
boots and clothing matching the description Thorn had provided,
and cocaine and drug paraphernalia. A swab taken from the
bottom of [Appellant’s] boots tested positive for Devine’s DNA.
Devine had been taken from the scene of the assault to
Hahnemann University Hospital, where she remained in the
Intensive Care Unit for more than a month. She suffered from a
right subdural hemorrhage, requiring two surgeries. She was
unable to breathe or eat on her own. She received a tracheotomy,
and a feeding tube was inserted directly into her stomach. She
also suffered multiple facial fractures and chipped teeth. At the
time of trial—more than one year after the brutal assault—Devine
could no longer use her right hand, was still attending speech,
occupational, and physical therapy three times a week, was
wheelchair-bound, and was unable to use the bathroom on her
own.
Commonwealth v. Holder, 1104 EDA 2018, 2019 WL 167827, at *1-2 (Pa.
Super. filed Jan. 11, 2019) (Holder II) (unpublished mem.) (some formatting
altered).
Following a jury trial, [Appellant] was convicted of the above-
described crimes. The trial court deferred sentencing and ordered
a pre-sentence investigation report. On February 24, 2016, the
trial court sentenced [Appellant] to an aggregate term of 44 to
102 years in prison.[3] Relevant to this appeal, the trial court
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3 The February 24, 2016 sentencing order provided as follows: consecutive
terms of twenty to forty years of incarceration for attempted murder; twenty
(Footnote Continued Next Page)
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imposed a prison term of 20 to 40 years for [Appellant’s]
kidnapping conviction. On March 7, 2016, [Appellant] filed a
motion for reconsideration, which the trial court denied.
On appeal, this Court vacated [Appellant’s] sentence and
remanded for resentencing, concluding that the trial court’s
imposition of a “second strike” sentence for kidnapping violated
the statutory maximum for that crime. Commonwealth v.
Holder, [2429 EDA 2016, 2017 WL 6629033, at *1] (Pa. Super.
[filed Dec. 29,] 2017) (Holder I)(unpublished memorandum). On
remand, the trial court conducted another sentencing hearing [on
March 2, 2018], . . . modified [Appellant’s] kidnapping sentence
to 10 to 20 years, and re-imposed the same sentence for the
remaining crimes.
Id. at *2 (some formatting altered).4
Appellant filed a timely direct appeal from the amended judgment of
sentence, and Appellant’s counsel filed a petition to withdraw and an
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to forty years of incarceration for kidnapping; two to ten years of incarceration
for possession of a firearm prohibited; one to seven years of incarceration for
firearms not to be carried without a license; and one to five years of
incarceration for carrying a firearm in public in Philadelphia. See Sentencing
Order, 2/24/16, at 1. The aggravated assault conviction merged with
attempted murder for purposes of sentencing. See id. This resulted in an
aggregate sentence of 44 to 102 years of incarceration. See id. Further, at
the February 24, 2016 sentencing hearing, Appellant appeared and was
represented by Attorney Timothy Tarpey. See N.T., 2/24/16, at 4.
4 The March 2, 2018 sentencing order provided as follows: consecutive terms
of twenty to forty years of incarceration for attempted murder; ten to twenty
years of incarceration for kidnapping; two to ten years of incarceration for
possession of a firearm prohibited; one to seven years of incarceration for
firearms not to be carried without a license; and one to five years of
incarceration for carrying a firearm in public in Philadelphia. See Sentencing
Order, 3/2/18, at 1. The aggravated assault conviction merged with
attempted murder for purposes of sentencing. See id. This resulted in an
aggregate sentence of thirty-four to eighty-two years of incarceration. See
id. Further, at the March 2, 2018 resentencing hearing, Appellant appeared
and was represented by Attorney Tarpey. See N.T., 3/2/18, at 3.
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Anders/Santiago brief.5 See id. The Holder II Court affirmed Appellant’s
judgment of sentence and granted Appellant’s counsel’s petition to withdraw.
See id. at *5.
On March 20, 2019, Appellant filed a timely pro se petition pursuant to
the Post Conviction Relief Act6 (PCRA). The PCRA court appointed Kevin T.
Birley, Esq., and Attorney Birley filed a counseled PCRA petition. See PCRA
Petition, 2/24/21. In the PCRA petition, Attorney Birley argued that trial
counsel was ineffective for failing to object to the trial court’s erroneous
application of the serious bodily injury (SBI) sentencing enhancement for
attempted murder. See id. at 1. After review, the PCRA court granted
Appellant’s PCRA petition. See Order, 6/22/21.
On October 14, 2022, the trial court resentenced Appellant as follows:
consecutive terms of six to twenty years of incarceration for attempted
murder; ten to twenty years of incarceration for kidnapping; two to ten years
of incarceration for possession of a firearm prohibited; one to seven years of
incarceration for firearms not to be carried without a license; and one to five
years of incarceration for carrying a firearm in public in Philadelphia. See
Sentencing Order, 10/14/22, at 1.7 The aggravated assault conviction merged
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5 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
6 42 Pa.C.S. §§ 9541-9546.
7 At the October 14, 2022 resentencing hearing, Appellant appeared via video
conference and was represented by Attorney Birley. See N.T., 10/14/22, at
5.
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with attempted murder for sentencing purposes. See id. This resulted in an
aggregate sentence of twenty to sixty-two years of incarceration. See id. On
November 13, 2022, Attorney Birley filed a counseled direct appeal from the
October 14, 2022 judgment of sentence, which was docketed at Superior
Court number 3159 EDA 2022.
On November 29, 2022, the Pennsylvania Department of Corrections
(DOC) informed the trial court of an error and that it failed to indicate in its
sentencing order whether the sentence in the instant case was to be served
concurrently or consecutively to Appellant’s judgment of sentence at trial court
docket CP-51-CR-0011306-2014 pursuant to Pa.R.Crim.P. 705. See DOC
Letter, 11/29/22.
On December 1, 2022, while the appeal at 3159 EDA 2022 was pending,
Appellant filed a pro se PCRA petition. Further, while the appeal at 3159 EDA
2022 remained pending, on December 7, 2022, the trial court entered an
amended judgment of sentence stating that the sentence in the instant case
was to be served consecutively to the sentence imposed at trial court docket
CP-51-CR-0011306-2014. See Sentencing Order, 12/7/22, at 2. On April 19,
2023, again while the appeal at 3159 EDA 2022 remained pending, Appellant
filed an amended pro se PCRA petition.
Subsequently, on July 14, 2023, this Court entered an order
discontinuing the appeal at 3159 EDA 2022 at Appellant’s counsel’s request.
Despite the fact that the pro se PCRA petitions were filed while the appeal at
3159 EDA 2022 was still pending and without counsel filing an amended PCRA
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petition on Appellant’s behalf, on June 18, 2024, the PCRA court granted
Appellant PCRA relief and reinstated Appellant’s post-sentence motion rights
nunc pro tunc. On June 19, 2024, Appellant filed a counseled post-sentence
motion for reconsideration of sentence nunc pro tunc through current counsel,
Lawrence J. Bozzelli, Esq.
On September 25, 2024, the trial court denied Appellant’s post-sentence
motion for reconsideration of sentence nunc pro tunc, and on September 26,
2024, Appellant filed the instant counseled notice of appeal. Both the trial
court and Appellant complied with Pa.R.A.P. 1925. We entered an order on
November 24, 2025 staying consideration of this case pending the
determination of this Court’s en banc consideration of Commonwealth v.
Ramsey, 2026 EDA 2024. See Order, 11/24/25. On July 31, 2026, this Court
announced its decision in Commonwealth v. Ramsey, ---A.3d---, 2026 WL
2209742 (Pa. Super. filed July 31, 2026) (en banc). This matter is now ripe
for our consideration.
On appeal, Appellant presents the following issue:
The sentence received by [A]ppellant was so extreme as to be an
abuse of discretion and warrants a re-sentencing hearing.
Appellant’s Brief at 6 (some formatting altered).
Before we reach Appellant’s issue on appeal, we must first determine if
the appeal is properly before this Court. In his notice of appeal, Appellant
appeals from the judgment of sentence entered on October 14, 2022.
However, as stated, following an inquiry from the DOC, the trial court entered
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an amended judgment of sentence on December 7, 2022. We conclude that
the December 7, 2022 judgment of sentence is a legal nullity.
This Court has explained:
Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such
order has been taken or allowed.
42 Pa.C.S. § 5505. “Generally, 42 Pa.C.S. § 5505 precludes the
entry of an order modifying a final order more than thirty days
after its entry.” Commonwealth v. Concordia, 97 A.3d 366,
371 (Pa. Super. 2014). Nonetheless, a trial court retains the
inherent jurisdiction to correct obvious or patent errors in its
orders, even if it is outside the standard 30-day paradigm, when
warranted. See id. “An alleged error must qualify as a clear
clerical error or a patent and obvious mistake in order to be
amenable to correction.” Commonwealth v. Ellsworth, 97 A.3d
1255, 1257 (Pa. Super. 2014) (citation omitted).
[However, e]ven if there is a clear mistake, that does not relieve
the court of its obligation to give notice as required by 42 Pa.C.S.
§ 5505 to both the defendant and the district attorney of the
proposed changes and an opportunity to respond to those
changes. Not only is such a notice required by 42 Pa.C.S. § 5505,
the sentencing process must also satisfy due process, which
similarly requires a notice and opportunity to respond. See
Commonwealth v. Wright, 494 A.2d 354, 359 (Pa. 1985);
Commonwealth v. Eldred, 207 A.3d 404 (Pa. Super. 2019).
It is in accord with those mandates that we have held that a trial
court “is empowered to modify a sentence only if it notifies the
defendant and the district attorney of its intention to do so.”
Commonwealth v. Hobson, 452 A.2d 22, 23 (Pa. Super. 1982)
(citing Commonwealth v. Horsman, 361 A.2d 433 (Pa. Super.
1976)). Modification of a sentence without notifying the
defendant is inconsistent with “the accused being present at every
vital stage of the criminal process.” Commonwealth. v.
Pastorkovic, 567 A.2d 1089, 1092 (Pa. Super. 1989). Moreover,
if the sentence is modified without giving notice, it is without
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effect. See Commonwealth v. Reed, 386 A.2d 41 (Pa. Super.
1978).
Commonwealth v. Thompson, 333 A.3d 461, 469 (Pa. Super. 2025) (some
citations omitted and some formatting altered); see also Commonwealth v.
Renninger, 269 A.3d 548, 568 (Pa. Super. 2022) (en banc) (stating that
“Section 5505 of the Judicial Code permits the trial court to modify its
sentencing order but only after providing notice to the parties” (emphasis
omitted)); Commonwealth v. Lawrence, 291 A.3d 912, 913-14 (Pa. Super.
2023) (explaining that pursuant to Pa.R.A.P. 1701(a) “after an appeal is
taken, the trial court may no longer proceed further in the matter[;]
[h]owever, trial courts have the inherent power to correct patent and obvious
mistakes even if they are without jurisdiction” (citation omitted)).
Here, the DOC notified the trial court that it failed to state whether
Appellant was to serve the instant sentence consecutively to or concurrently
with a sentence at a separate trial court docket pursuant to Pa.R.Crim.P. 705.
See DOC Letter, 11/29/22. This Court has explained that the failure to
indicate whether a sentence is concurrent or consecutive under Pa.R.Crim.P.
705 is a patent error subject to correction, regardless of whether an appeal
was filed. See Commonwealth v. Moran, 823 A.2d 923, 925 (Pa. Super.
2003). However, in order for the trial court to correct this error, it is required
to provide notice to the parties. See Thompson, 333 A.3d at 469;
Renninger, 269 A.3d at 568. Here, there is no indication in the record that
the trial court provided notice to the parties before amending Appellant’s
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sentence to comply with Pa.R.Crim.P. 705. Accordingly, the amended
sentence entered on December 7, 2022 is a nullity, and the October 14, 2022
judgment of sentence remains in effect. See Thompson, 333 A.3d at 470.
Further, although Appellant filed a post-sentence motion and appeal
from the October 14, 2022 judgment of sentence after the PCRA court
reinstated Appellant’s post-sentence motion rights nunc pro tunc on June 18,
2024, the appeal at 3159 EDA 2022 was pending when Appellant filed his pro
se PCRA petition on December 1, 2022 and when he filed his pro se amended
PCRA petition on April 19, 2023.
“A PCRA petition that is prematurely filed—before the conclusion of
direct appeal—is a legal nullity and does nothing to vest jurisdiction in a court
or to preserve the filing pending a final order after conclusion of direct appeal.”
Ramsey, 2026 WL 2209742 at *9. “[T]his Court has explained [that if] a
[PCRA] petition is filed while a direct appeal is pending, the PCRA court
should dismiss it without prejudice towards the petitioner’s right to file a
petition once his direct appeal rights have been exhausted.’”
Commonwealth v. Smith, 244 A.3d 13, 16-17 (Pa. Super. 2020) (citations
and quotation marks omitted and emphasis added).
Here, Appellant’s appeal at 3159 EDA 2022 was pending when Appellant
filed his pro se PCRA petition and pro se amended PCRA petition. Therefore,
the PCRA court had no jurisdiction over Appellant’s premature PCRA petitions
before his judgment of sentence became final. See id. Accordingly,
Appellant’s PCRA petitions, as well as the PCRA court’s order reinstating
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Appellant’s post-sentence motion rights nunc pro tunc were legal nullities.
See id. For these reasons, we are constrained to quash this appeal. 8 See id.
Appeal quashed.9 Jurisdiction relinquished.
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8 Additionally, we conclude that Appellant’s pro se PCRA petition and pro se
amended PCRA petition were legal nullities on a separate basis. It is well
settled that as a general rule, hybrid representation is not permitted in this
Commonwealth, and pro se filings by an appellant who is represented by
counsel have no legal effect and are legal nullities. See Commonwealth v.
Hopkins, 228 A.3d 577, 580 (Pa. Super. 2020). Here, Appellant was
represented by Attorney Birley when he filed his pro se PCRA petitions on
December 1, 2022, and April 19, 2023. Because Appellant’s pro se PCRA
petition and pro se amended PCRA petition were legal nullities, the PCRA court
lacked authority to rule on them. See Commonwealth v. Allam, 1112 EDA
2023, 2024 WL 1270401, at *3 (Pa. Super. filed Mar. 26, 2024) (unpublished
mem.) (stating “because the motion for nunc pro tunc was a legal nullity, the
PCRA court lacked authority to rule on it” (citation omitted and some
formatting altered)). See Pa.R.A.P. 126(b) (stating this Court may rely on
unpublished decisions of this Court filed after May 1, 2019, for their persuasive
value).
9 We recognize that more than a year has passed from the date the judgment
of sentence became final, and as such, Appellant no longer has time to file a
timely PCRA petition. However, Appellant may request leave from the trial
court to file a PCRA petition nunc pro tunc. Nevertheless, we express no
opinion as to whether such petition should be granted. See Ramsey, 2026
WL 2209742 at *9 (disapproving nunc pro tunc relief on the sole basis that
the PCRA court did notice that a PCRA petition was prematurely filed, stating,
“the granting of nunc pro tunc relief requires that the petitioner demonstrate
that the court was at fault for the filing of a premature petition”); see also
Commonwealth v. Rutledge, 232 WDA 2021, 2021 WL 3030256, at *4 (Pa.
Super. filed Jul. 19, 2021) (unpublished mem.) (stating that “[u]nder the
PCRA itself, the PCRA court has the inherent authority to grant a nunc pro
tunc appeal to remedy a due process violation occurring in the prior appeal”
and that “[a]n administrative breakdown in court operations causing a PCRA
petitioner to lose his appellate rights is a constitutional violation which satisfies
the governmental interference and newly discovered fact exceptions of the
PCRA, which are set forth in 42 Pa.C.S. § 9545(b)(1)(i) and (ii), respectively”
(citations omitted)).
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Date: 10/27/2026
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