Com. v. Rivera, J.

J-A28021-25

                                   2026 PA Super 68



  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  JONATHAN RIVERA                              :
                                               :
                       Appellant               :   No. 226 MDA 2025

     Appeal from the Judgment of Sentence Entered September 10, 2024
    In the Court of Common Pleas of Bradford County Criminal Division at
                      No(s): CP-08-CR-0000606-2018


BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and LANE, J.

OPINION BY McLAUGHLIN, J.:                              FILED: APRIL 10, 2026

       Jonathan Rivera appeals from the judgment of sentence entered

following his convictions for four counts of corruption of minors (course of

conduct), three counts of indecent assault (person less than 13 years of age),

two counts of indecent exposure, and one count each of attempted indecent

assault (person less than 13 years of age) and endangering the welfare of a

child (“EWOC”).1 We affirm.

       After Rivera’s first trial in 2019, a jury convicted Rivera of the above

crimes. The convictions stemmed from multiple instances of sexual abuse

against four minor girls, S.M., S.C., C.P., and G.R. Rivera was sentenced to

an aggregate sentence of eight to 52 years’ incarceration.

____________________________________________


1 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 3126(a)(7), 3127(a), 901, 3126(a)(7), and

4304(a)(1), respectively.
J-A28021-25



      Rivera appealed and ultimately, the Pennsylvania Supreme Court found

constitutional errors in the first trial and granted Rivera a new trial. See

Commonwealth v. Rivera, 296 A.3d 1141, 1142 (Pa. 2023).

      The second trial commenced on April 1, 2024. The Commonwealth

proceeded with the same charges at the second trial as the first, except for

the corruption of minors count involving complainant S.C., which was

downgraded from a third-degree felony to a first-degree misdemeanor. The

Commonwealth’s evidence at the second trial included the testimony of the

four girls and video and audio recordings of their informal disclosures and

forensic interviews. It also presented the testimony of a forensic interviewer,

a paramedic, G.R.’s mother, G.R.’s father, S.M.’s mother, C.P.’s father, and

Sergeant Christopher Higdon. Rivera testified on his own behalf and offered

the testimony of his mother, his sister, his former girlfriend, and C.P.’s

mother.

      After the second trial, a jury convicted Rivera of all 11 charges. At the

second sentencing hearing, the trial court, which had presided over both trials

and the first sentencing hearing, imposed an aggregate sentence of 10 years

and three months to 64 years of incarceration. The sentence was an increase

of two years and three months over the minimum sentence imposed after the

first trial, and an increase of 12 years to the original maximum sentence.

Rivera was found to qualify as a Sexually Violent Predator (SVP) prior to the

second sentencing hearing. This appeal followed.

      Rivera raises the following issues:

                                     -2-
J-A28021-25


         1. Did the trial court engage in sentencing vindictiveness in
            violation of Mr. Rivera’s due process rights when it
            imposed a longer sentence following Mr. Rivera’s appeal
            and retrial?

         2. Was Mr. Rivera’s sentence for corruption of minors,
            regarding complainant S.M., as a third-degree felony in
            violation of the state and federal ex post facto
            prohibitions as the offense date predated the effective
            date of 18 Pa.S.C.[A.] § 6301(a)(1)(ii)?

Rivera’s Br. at 4.

      Rivera’s first issue on appeal is that “[i]n sentencing [him] to a longer

sentence after his retrial than what it had imposed following his first trial, the

trial court engaged in sentencing vindictiveness in violation of [his] due

process rights.” Id. at 17. He points out that “there is a presumption of

sentencing vindictiveness any time a judge imposes a longer sentence after a

successful appeal and retrial than that it had imposed at the first sentencing

proceeding” and “[t]hat presumption is only rebutted if the court states on the

record objective information concerning identifiable conduct on the part of the

defendant occurring after the time of the original sentencing proceeding that

supports a longer sentence.” Id. Rivera argues that the court failed to identify

any conduct by him that occurred after the original sentencing proceeding that

could justify the increase in sentence. Id. He maintains that “[t]he information

the trial court relied upon to justify the lengthier sentence was information on

the record and known prior to the first sentencing proceeding.” Id. He

highlights that

         the information presented at Mr. Rivera’s second trial was
         the same as that presented at his first trial. The same

                                      -3-
J-A28021-25


          witnesses were called. There was no new information
          presented about Mr. Rivera’s offense [sic] conduct. At the
          second sentencing hearing, there was no new information
          presented about Mr. River[a]’s conduct post-dating the first
          sentencing proceeding. There was no change in his criminal
          history; he had committed no offenses between the first
          sentencing proceeding and the second sentencing
          proceeding; there was no evidence that he had a poor
          disciplinary record while incarcerated.

Id. at 22-23.

       Rivera asserts that the court improperly imposed a longer sentence due

to his decision to appeal his original conviction and proceed to a second trial.

He stresses that he was merely exercising his due process rights. In Rivera’s

view, the court engaged in sentencing vindictiveness in violation of his due

process rights when it imposed a longer sentence.

       A challenge to a sentence as presumptively vindictive in violation of due

process rights implicates the legality of a sentence. Commonwealth v.

Prinkey, 277 A.3d 554, 564, 567-68 (Pa. 2022).2 Therefore, our standard of



____________________________________________


2 Rivera treated this claim as a challenge to the discretionary aspects of the

sentence. However, our Supreme Court in Prinkey clarified that such a claim
is a challenge to the legality of the sentence. Prinkey, 277 A.3d at 564, 567-
68; see also Commonwealth v. McFarland, No. 498 WDA 2022, 2023 WL
8370237, at *4 (Pa.Super. filed Dec. 4, 2023) (unpublished mem.) (citing
Prinkey and noting that “in the past this Court has considered a claim
asserting judicial vindictiveness in resentencing to be a challenge to the
discretionary aspects of sentencing,” but “more recent decisions” consider
such a claim challenges the legality of the sentence); Commonwealth v.
Lowman, No. 279 EDA 2023, 2023 WL 6862058, at *2 & *2 n.5 (Pa.Super.
filed Oct. 18, 2023) (unpublished mem.) (same); Commonwealth v. Neidig,
No. 1455 MDA 2021, 2023 WL 2770781, at *5 (Pa.Super. filed Apr. 4, 2023)
(unpublished mem.) (same).

                                           -4-
J-A28021-25



review “is de novo and our scope of review is plenary.” Commonwealth v.

Asbury, 299 A.3d 996, 998 (Pa.Super. 2023).

      Courts “may not punish an appellant for exercising appellate rights.”

Commonwealth v. Speight, 854 A.2d 450, 455 (Pa. 2004). “When a due

process violation is raised regarding resentencing, this [C]ourt must satisfy

itself that an increase in a sentence is not the result of judicial vindictiveness.”

Commonwealth v. Barnes, 167 A.3d 110, 123 (Pa.Super. 2017) (en banc),

overruled on other grounds by Commonwealth v. Cruz, 320 A.3d 1257

(Pa.Super. 2024) (en banc). A presumption of vindictiveness arises when the

court imposes a more severe sentence upon a defendant after a new trial. Id.

Additionally, “[w]here the same trial judge imposes a greater penalty upon

resentencing than previously was imposed, a presumption of vindictiveness

attaches.” Commonwealth v. Ali, 197 A.3d 742, 762 n.12 (Pa.Super. 2018).

      As this Court explained in Barnes:

      In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23
      L.Ed.2d 656 (1969), overruled on other grounds by Alabama
      v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989),
      the United States Supreme Court remarked:

            Due process of law . . . requires that vindictiveness
         against a defendant for having successfully attacked his first
         conviction must play no part in the sentence he receives
         after a new trial. And since the fear of such vindictiveness
         may unconstitutionally deter a defendant’s exercise of the
         right to appeal or collaterally attack his first conviction, due
         process also requires that a defendant be freed of
         apprehension of such a retaliatory motivation on the part of
         the sentencing judge.

           In order to assure the absence of such a motivation, we
         have concluded that whenever a judge imposes a more

                                       -5-
J-A28021-25


        severe sentence upon a defendant after a new trial, the
        reasons for his doing so must affirmatively appear. Those
        reasons must be based upon objective information
        concerning identifiable conduct on the part of the defendant
        occurring after the time of the original sentencing
        proceeding. And the factual data upon which the increased
        sentence is based must be made part of the record, so that
        the constitutional legitimacy of the increased sentence may
        be fully reviewed on appeal.

     Pearce, 395 U.S. at 725-26, 89 S.Ct. 2072 . . . Thus, under
     Pearce, whenever a trial court imposes upon a defendant a more
     severe sentence following resentencing, the reasons for such
     sentence must be made a part of the record. Absent evidence that
     a sentencing increase is justified due to objective information
     concerning a defendant’s case, the presumption of vindictiveness
     cannot be rebutted.

Barnes, 167 A.3d at 123-24 (cleaned up).

     This Court has further recognized that

        the Pearce Court held the presumption of vindictiveness
        may be rebutted where the trial court places on the record
        non-vindictive reasons for the increased sentence, such as
        “objective information concerning identifiable conduct on
        the part of the defendant occurring after the time of the
        original sentencing proceeding.” Barnes, 167 A.3d at 123
        (quoting Pearce, 395 U.S. at 726, 89 S.Ct. 2072).

           Further, in Texas v. McCullough, 475 U.S. 134, 106
        S.Ct. 976, 89 L.Ed.2d 104 (1986), which expanded the
        Pearce Court’s approach to resentencing and due process,
        the High Court held the presumption could also be overcome
        by other forms of objective information or legitimate
        sentencing concerns that were not presented to or
        considered by the trial court at the original sentencing
        hearing. McCullough, 475 U.S. at 1[42], 106 S.Ct. 976.

Ali, 197 A.3d at 762.




                                   -6-
J-A28021-25



     More recently, in Prinkey, the Pennsylvania Supreme Court explained

that the Pearce presumption of vindictiveness is still valid. However, our

Supreme Court observed:

            Subsequent [United States] Supreme Court decisions
        narrowed the reach of Pearce’s presumption of
        vindictiveness. In Alabama v. Smith, the Supreme Court
        held that the Pearce presumption “does not apply in every
        case where a convicted defendant receives a higher
        sentence on retrial.” 490 U.S. [794, 799, (1989)]. In the
        Smith Court’s view, Pearce was not designed to prevent
        the imposition of an increased sentence following retrial “for
        some valid reason associated with the need for flexibility
        and discretion in the sentencing process.” Id. Thus, the
        Court held that the Pearce presumption applies only in
        “circumstances . . . in which there is a ‘reasonable likelihood’
        [. . .] that the increase in sentence is the product of actual
        vindictiveness on the part of the sentencing authority.” Id.
        (citing United States v. Goodwin, 457 U.S. 368, 373, 102
        S.Ct. 2485, 73 L.Ed.2d 74 (1982)). “Where there is no . . .
        reasonable likelihood [of vindictiveness], the burden
        remains upon the defendant to prove actual vindictiveness.”
        Id.

Prinkey, 277 A.3d at 565. The Prinkey Court concluded:

        [T]he Pearce presumption will not apply when the
        resentencing that results in a higher sentence follows some
        post-appeal occurrence that makes it likely that the court
        obtained new details about the defendant’s moral character
        and suitability for rehabilitation. Where no such event
        occurs, yet the defendant’s new sentence is higher than the
        original sentence, the Pearce presumption applies with full
        vigor. And when it does, it acts as a “prophylactic” measure
        that forbid[s] . . . the imposition of a greater punishment
        than was imposed after the first trial, absent specified
        findings.

Id. (cleaned up).



                                     -7-
J-A28021-25



        Here, Rivera was first tried by a jury, convicted, and sentenced to an

aggregate sentence of eight to 52 years’ incarceration. He filed a direct appeal

and our Supreme Court reversed and granted Rivera a new trial. After the new

trial, the original sentencing judge presided over Rivera’s resentencing hearing

and imposed a harsher sentence. We thus conclude that a presumption of

vindictiveness attached in this matter.

        We next consider whether the trial court rebutted the presumption of

vindictiveness. Pearce and its progeny hold that the presumption of

vindictiveness is controlling unless the new sentence was based upon

“objective information concerning identifiable conduct on the part of the

defendant occurring after the time of the original sentencing proceeding,”

Barnes, 167 A.3d at 123 (quoting Pearce); “objective information or

legitimate sentencing concerns that were not presented to or considered by

the trial court at the original sentencing hearing,” Ali, 197 A.3d at 762 (citing

McCullough); or “new details about the defendant’s moral character and

suitability for rehabilitation.” Prinkey, 277 A.3d at 565. There also must be a

reasonable likelihood that the increase in sentence is the product of actual

vindictiveness on the part of the sentencing judge. Id. Therefore, contrary to

Rivera’s contention, a court’s justification for imposing a lengthier new

sentence is not limited to only “identifiable conduct on the part of the

defendant occurring after the time of the original sentencing proceeding.”

Rivera’s Br. at 23 (quoting Barnes, 167 A.3d at 123; Pearce, 395 U.S. at

726).

                                      -8-
J-A28021-25



      Here, the court explained that, at the second sentencing hearing, there

was additional objective information available to the court:

         This information includes (i) [Rivera’s] recent designation as
         an SVP and the expert opinion related thereto, (ii) the
         greater, known, and more specific impact on the victims and
         their families which is no longer speculative, and (iii)
         [Rivera’s] unconvincing, unbelievable and fabricated
         testimony at trial, recognizing it was again given in an
         attempt to assert [his] innocence, but which nonetheless
         demonstrates his continuing denial and lack of remorse in
         the face of credible, consistent, and corroborating evidence
         of his guilt.

             The [c]ourt’s imposition of a lengthier sentence had
         nothing to do with [Rivera’s] exercise of his appeal rights,
         which resulted in a new trial, except to the extent that, as a
         result of those appeals, an additional five years has passed.
         Rather, the imposition of the sentence had everything to do
         with the appropriate sentencing factors, viewed afresh in
         light of the new and more detailed information. The
         sentence was appropriate and based on information gleaned
         from (i) the second trial at which all of the girls, now five
         (5) years older, testified, (ii) the SVP hearing, at which an
         expert in the determination of sexually violent predators
         testified, and (iii) the second sentencing hearing, at which
         the victims and their families shared their devastation.
         Given this new information, and for the reasons stated on
         the record at the sentencing hearing and in the sentencing
         order, the imposition of an aggregate sentence of ten (10)
         years and three (3) months to sixty-four (64) years is
         appropriate and justified, notwithstanding the fact it
         exceeds the eight (8) year to fifty-two (52) year sentence
         imposed by this [c]ourt in 2019.

Trial Court Opinion Re: Post-Sentence Motion and Motion for Reconsideration

of Sentence, filed 1/17/25, at 42-43.

      Upon review, we find no evidence in the record to support Rivera’s claim

that the court was vindictive in sentencing him after his second trial. The trial


                                      -9-
J-A28021-25



court expressly disavowed any vindictive purpose in resentencing Rivera both

in its opinion and at the sentencing hearing. See id. at 42; N.T. Sentencing,

9/10/24, at 19. Instead, the court considered the sentencing factors “afresh”

and additionally considered Rivera’s recent designation as an SVP “based on

the determination that he engaged in predatory conduct due to a mental

abnormality, and is likely to continue to engage in such conduct,” the new

testimony of the victims and the significant impact of the crimes on them, and

Rivera’s lack of remorse. See N.T. Sentencing at 21, 24-25; Ali, 197 A.3d at

759 (stating that “upon resentencing the trial court was permitted to start

‘afresh’ and re-evaluate the sentencing factors”). The record thus supports

the conclusion that the presumption of vindictiveness was rebutted. No relief

is due.

      Rivera’s second issue concerns his corruption of minors felony conviction

regarding complainant, S.M. He argues the subsection of 18 Pa.C.S.A. § 6301

for which he was convicted became effective on December 6, 2010. He notes

that before December 6, 2010, that subsection did not exist and the maximum

gradation for a violation of Section 6301 was a first-degree misdemeanor.

Rivera maintains that the evidence presented at trial showed that any offense

involving S.M. occurred prior to December 2010. He therefore maintains that

in sentencing him for a violation of Section 6301 as a third-degree felony, the

trial court violated the state and federal ex post facto prohibitions.

      Before addressing the merits of Rivera’s claim, we first must determine

whether the issue is preserved for our review. “Issues not raised in the lower

                                     - 10 -
J-A28021-25



court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a). A review of the record indicates that Rivera raised this issue for the

first time in his Pa.R.A.P. 1925(b) statement. Claims raised for the first time

in a Rule 1925(b) statement are waived. Commonwealth v. Coleman, 19

A.3d 1111, 1118 (Pa.Super. 2011). However, one exception is a challenge

implicating the legality of an appellant’s sentence. Commonwealth v. Seals,

___ A.3d ___, 2026 PA Super 29, 2025 WL 4234323, *7 (Pa.Super. filed Feb.

17, 2026) (en banc). “A challenge to the legality of a sentence can be appealed

as of right and cannot be waived[.]” Id.

      In Prinkey, our Supreme Court outlined four broad types of legality

challenges:

         (1) a claim that a sentence was imposed pursuant to a
         facially unconstitutional sentencing statute; (2) an assertion
         that statutory preconditions to the court’s sentencing
         authority were not present; (3) a challenge alleging a
         violation or nonfulfillment of a substantive, constitutional
         restriction upon the court’s authority to impose the
         sentence; and (4) an argument that the statutory support
         for the conviction is void ab initio.

Prinkey, 277 A.3d at 556.

      A challenge to an ex post facto violation falls within the third category

of legality challenges, as it alleges a violation of a substantive, constitutional

restriction upon the court’s authority to impose the sentence. Since such a

claim implicates the legality of a sentence, it cannot be waived. Accordingly,

we proceed to the merits of Rivera’s claim.




                                     - 11 -
J-A28021-25



      “[T]he determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa.Super. 2010) (citation omitted) (alteration in original).

      “Article I, Section 17 of the Pennsylvania Constitution prohibits the

enactment of any ex post facto law.” Commonwealth v. Carey, 249 A.3d

1217, 1228 (Pa.Super. 2021). “A criminal law is deemed ex post facto if two

critical elements are met: it must be retrospective, that is, it must apply to

events occurring before its enactment, and it must disadvantage the offender

affected by it.” Id. (citation and internal quotation marks omitted). “[C]entral

to the ex post facto prohibition is a concern for the lack of fair notice and

governmental restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated.” Commonwealth v.

McGarry, 172 A.3d 60, 68 (Pa.Super. 2017) (citation omitted, emphasis

removed, alteration in original).

      Here, S.M. testified at trial that she was born in March 2003 and lived

in Scranton, Pennsylvania from ages five to nine. N.T. Trial, 4/2/24 AM

Session, at 132. She stated that Rivera abused her during that time. Id. at

132-33, 140. S.M. recalled that the abuse began shortly after her younger

sister was born in 2009. Id. at 140. She stated that the abuse ended when

she moved from Pennsylvania to Georgia at the age of nine. Id. at 139. S.M.

testified that the incidents occurred “after school, so during the afternoon” in




                                     - 12 -
J-A28021-25



the living room at her residence, except for one incident that occurred at night

in her bedroom. Id. at 134-35, 143-44.

      In S.M.’s forensic interview, which was taken when she was 12 years

old and played for the jury at the trial, she stated that the abuse began when

she was six years old. Id. at 155. She said that the abuse occurred during the

summer between kindergarten and first grade. Id. at 155-56, 163-64. S.M.

stated that the abuse “didn’t go beyond the summer.” Id. at 163.

      Rivera testified that any alleged abuse of S.M. could not have happened

in 2009 because he was living in Illinois:

         [Defense Counsel] Could th[e alleged abuse] have ever
         happened in 2009?

         [Rivera] Absolutely not.

         Q And why is that?

         A I didn’t live in the state of Pennsylvania, at the time. I
         lived in the state of Illinois. Ah, Cicero, and um I ended up
         actually, at that time, I actually only had a permit, I didn’t
         [sic] a driver’s license. And that’s where I got my driver’s
         license in the state of Illinois is where I actually got my first
         license.

         Q And, how long did you work in Illinois?

         A I wasn’t working very much.

         Q How long did you stay in Illinois?

         A For about a year.

         Q A year?

         A Yes, about a year.

         Q So now we’re up to 2010?

         A Correct.


                                      - 13 -
J-A28021-25



N.T. 4/3/24 AM Session, at 133-34.

      A review of the record indicates that there were multiple incidents of

abuse by Rivera that occurred over a period of time at S.M.’s residence in

Pennsylvania. S.M. testified that the abuse stopped when she moved to

Georgia at the age of nine. Since S.M was born in March 2003, she turned

nine in March 2012. Thus, there is support in the record that at least some of

the incidents occurred after the December 6, 2010 effective date of 18

Pa.C.S.A. § 6301. See Commonwealth v. Wood, 208 A.3d 131, 137

(Pa.Super. 2019) (en banc) (stating the effective date of a statute is the

relevant date for ex post facto determinations). Rivera himself testified that

he did not move to Pennsylvania until 2010. To the extent that S.M.’s

testimony at trial was inconsistent with her statements at the forensic

interview as to when the events occurred, the jury, as factfinder, was free to

believe all, none or part of the evidence and to determine the credibility of the

witnesses. See Commonwealth v. Talbert, 129 A.3d 536, 545-46

(Pa.Super. 2015). Accordingly, the court did not violate Rivera’s rights under

the ex post facto clause when it sentenced him under Section 6301.

      Judgment of sentence affirmed.




                                     - 14 -
J-A28021-25


Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 04/10/2026




                           - 15 -