Com. v. Gonzalez, J.

J-S42008-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JULIO GONZALEZ :

:

Appellant : No. 559 MDA 2025

Appeal from the Judgment of Sentence Entered February 18, 2025

In the Court of Common Pleas of Union County Criminal Division at

No(s): CP-60-CR-0000225-2020

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 24, 2026

Appellant, Julio Gonzalez, appeals from the judgment of sentence

entered on February 18, 2025, following his jury trial convictions for one count

of attempted homicide, one count of discharging a firearm into an occupied

structure, and two counts of aggravated assault.1 We affirm.

Following a three-day trial in November 2024, a jury found Appellant

guilty of the foregoing offenses, which arose from a drive-by shooting. See

Trial Court Opinion, 6/13/2025, at 3. In sum, Appellant fired a handgun at

two men on a front porch of a rowhouse residence located along Market Street

in Union County, Pennsylvania. During the episode, bullets fired by Appellant

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1 18 Pa.C.S.A. §§ 901(a)(criminal attempt), 2501(criminal homicide), 2707.1

(discharge of a firearm into an occupied structure), and 2702(a)(1)

(aggravated assault), respectively. We note that in this case, there were two

alleged victims. At the end of trial, the Commonwealth orally motioned to nol

pros criminal charges related to one of the victims and the jury found

Appellant not guilty of several other charged offenses.

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entered two occupied homes and inflicted serious bodily injury on two male

victims. On November 21, 2024, the jury convicted Appellant of the foregoing

crimes. On February 3, 2025, the trial court sentenced Appellant to 20 to 40

years of incarceration for attempted homicide, 5½ to 20 years of incarceration

for one count of aggravated assault, and 3½ to 7 years of incarceration for

unlawful discharge of a firearm into an occupied structure. The trial court

ordered these sentences to run consecutively to each other for an aggregate

sentence of 29 to 67 years of incarceration. Furthermore, the trial court

determined that Appellant’s second conviction for aggravated assault merged

with attempted murder for sentencing purposes; hence, no sentence was

imposed for that conviction. Appellant filed a timely post-sentence motion on

February 6, 2025. “On February 14, 2025, the [trial c]ourt issued a corrected

sentencing [o]rder for the purpose of adding a period of statutorily required

reentry supervision which had been inadvertently omitted from the original

sentencing order.” Id. at 1. Thereafter, while still maintaining jurisdiction,

the trial court entered another corrected sentencing order on February 18,

2025.2 On April 7, 2025, the trial court denied Appellant’s post-sentence

motion. This timely, counseled appeal resulted.3

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2 As such, this direct appeal lies from the second amended judgment of

sentence. See Commonwealth v. Garzone, 993 A.2d 1245, 1254 n.6 (Pa.

Super. 2010).

3 On April 25, 2025, Appellant filed a timely notice of appeal. On May 13,

2025, the trial court directed Appellant to file a concise statement of errors

(Footnote Continued Next Page)

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On appeal, Appellant presents the following issues for our review:

1. Whether the [trial] court erred in considering evidence not part

of the record in determining the sentence to be imposed?

2. Whether the [trial] court erred in imposing consecutive

sentences[, which culminated] in an unreasonable and

excessive aggregate sentence?

3. Whether the [trial] court erred in failing to comply with 42

Pa.C.S.A. § 5947[, in granting immunity to two witnesses who

were called to testify by the Commonwealth]?

Appellant’s Brief at 6 (complete capitalization and suggested answers

omitted).

Appellant’s first two appellate issues implicate the discretionary aspects

of sentencing. First, Appellant argues that the trial court relied upon

impermissible factors, more specifically, “considered evidence that was not

[of] record” when, prior to imposition of sentence, the trial judge stated:

[Y]ou put innocent women and children at risk to settle a beef.

Again, it is a miracle no one died. That’s all I’m going to say.

Id. at 14 (record citation omitted). Appellant claims that, at trial, there was

no “mention of individuals, including children, being at the residence when the

shots were allegedly fired by” Appellant. Id. at 15. Next, while conceding

that he received standard-range sentences under the Pennsylvania

Sentencing Guidelines for each conviction, Appellant argues that the

imposition of consecutive sentences “resulted in an unreasonable and

____________________________________________

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 30, 2025,

Appellant complied timely. The trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a) on June 13, 2025.

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excessive sentence.” Id. at 15. Appellant further argues that the trial court

failed to consider mitigating factors such as his character, prior criminal

record, age, or potential for rehabilitation as required under 42 Pa.C.S.A.

§ 9721. Id. at 16-17.

We have stated:

With respect to our standard of review, we have held that

sentencing is a matter vested in the sound discretion of the

sentencing judge, whose judgment will not be disturbed absent

an abuse of discretion. Moreover, pursuant to statute, [an

a]ppellant does not have an automatic right to appeal the

discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b). Instead, [an a]ppellant must petition this Court for

permission to appeal the discretionary aspects of his sentence.

As this Court has explained:

[t]o reach the merits of a discretionary sentencing issue, we

conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, Pa.R.A.P. 902,

903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify

sentence, Pa.R.Crim.P. [708(E)]; (3) whether appellant's

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether

there is a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

Commonwealth v. Laughman, 314 A.3d 569, 571 (Pa. Super. 2024).

Here, Appellant complied with the first three requirements. Appellant

preserved both sentencing issues in a timely post-sentence motion, and

Appellant filed a timely notice of appeal. On appeal, Appellant complied with

Pa.R.A.P. 2119(f). See Appellant’s Brief at 10-13. As such, we must decide

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whether Appellant has presented a substantial question for each of the two

sentencing issues presented.

This Court has recently reiterated:

“The imposition of consecutive, rather than concurrent, sentences

may raise a substantial question in only the most extreme

circumstances.” Commonwealth v. Aulisio, 253 A.3d 338, 344

(Pa. Super. 2021) (citation omitted). However, we have concluded

that a defendant raised a substantial question where he averred

“that the imposition of consecutive sentences violated the express

provisions of the Sentencing Code and that the aggregate

sentence of sixty years’ incarceration was contrary to the

fundamental norms which underlie the sentencing process.” Id.

(citation omitted); see also Commonwealth v. Swope, 123

A.3d 333, 340 (Pa. Super. 2015) (“This Court has held that an

excessive sentence claim—in conjunction with an assertion that

the court failed to consider mitigating factors—raises a substantial

question.”) (citations omitted); [Commonwealth v.] Smithton,

631 A.2d [1053,] 1055 [(Pa. Super. 1993)] (concluding the

appellant raised a substantial question where he asserted the trial

court relied on an impermissible sentencing factor, i.e., victim

impact testimony from alleged victims [of crimes for] which the

appellant was acquitted).

Based upon the foregoing, [an a]ppellant's challenge to the

imposition of consecutive sentences as unduly excessive,

combined with [a claim that the trial court either failed to

adequately consider mitigating factors or wrongly considered

impermissible factors], raises a substantial question. See Aulisio,

253 A.3d at 344; Swope, 123 A.3d at 340; Smithton, 631 A.2d

at 1055[.]

Commonwealth v. Jennings, -- A.3d. --, 2026 WL 194389, at *20-21 (Pa.

Super. 2026) (en banc) (original brackets omitted). As such, we will review

Appellant’s sentencing claims.

First, Appellant contends that the trial court erred when it imposed

sentence after noting, without record support, that women and children were

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put at risk during the instant criminal episode. Appellant’s Brief at 15. To

support his contention, Appellant points out there was no “trial testimony” or

“reference to women and children being inside the residence” in the

presentence investigation report (PSI report) used at sentencing. Id.

Instead, Appellant suggests that the “sentencing court [made] an

unsubstantiated inference that [it] drew on its own.” Id. Finally, Appellant

suggests that the sentencing court improperly determined that Appellant’s

prior record score did not accurately reflect his past criminal conduct.4 Id. at

11 and 16.

In Jennings, supra we stated:

the proper standard of review when considering whether to affirm

the sentencing court's determination is an abuse of discretion. An

abuse of discretion is more than a mere error of judgment; thus,

a sentencing court will not have abused its discretion unless the

record discloses that the judgment exercised was manifestly

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

In more expansive terms, our Court recently offered: An abuse of

discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a result of

manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly

deferential standard of appellate review is that the sentencing

court is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual

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4 This contention, however, was neither presented in Appellant’s concise

statement pursuant to Rule 1925(b) nor addressed by the trial court in its Rule

1925(a) opinion. As such, Appellant waived this portion of his argument and

we may not address it. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not include in

the [concise s]tatement … are waived.”); see also Pa.R.A.P. 302(a) (“Issues

not raised in the trial court are waived and cannot be raised for the first time

on appeal.”).

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circumstances before it. Simply stated, the sentencing court

sentences flesh-and-blood defendants, and the nuances of

sentencing decisions are difficult to gauge from the cold transcript

used upon appellate review. Moreover, the sentencing court

enjoys an institutional advantage to appellate review, bringing to

its decisions an expertise, experience, and judgment that should

not be lightly disturbed. Even with the advent of the sentencing

guidelines, the power of sentencing is a function to be performed

by the sentencing court.

Sentencing Code Section 9721(b) directs trial courts to adhere to

the general principle that the sentence imposed should call for

total confinement consistent with “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.” 42 Pa.C.S.A. § 9721(b). The weighing of factors under

Section 9721(b) is exclusively for the sentencing court, and an

appellate court may not substitute its own weight of those factors.

Further, in imposing a sentence, the trial judge may determine

whether, given the facts of a particular case, a sentence should

run consecutive to or concurrent with another sentence being

imposed.

We additionally recognize that

[w]here pre-sentence reports exist, we shall presume that

the sentencing judge was aware of relevant information

regarding the defendant's character and weighed those

considerations along with mitigating statutory factors. A

[PSI] constitutes the record and speaks for itself. Moreover,

we state clearly that sentencers are under no compulsion to

employ checklists or any extended or systematic definitions

of their punishment procedure. Having been fully informed

by the presentence report, the sentencing court's discretion

should not be disturbed. This is particularly true, in those

circumstances where it can be demonstrated that the judge

had any degree of awareness of the sentencing

considerations, and there we will presume also that the

weighing process took place in a meaningful fashion. It

would be foolish, indeed, to take the position that if a court

is in possession of the facts, it will fail to apply them to the

case at hand.

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Jennings, at *21-22 (original brackets, quotations, and case citations

omitted).

Moreover,

prior to imposing sentence [a] sentencing judge may

appropriately conduct an inquiry broad in scope, largely unlimited

either as to the kind of information he may consider, or the source

from which it may come.

Nevertheless, the discretion of a sentencing judge is not

unfettered; a defendant has the right to minimal safeguards to

ensure that the sentencing court does not rely on factually

erroneous information, and any sentence predicated on such false

assumptions is inimicable [sic] to the concept of due process.

Commonwealth v. Melvin, 172 A.3d 14, 25 (Pa. Super. 2017) (brackets in

original; citation omitted); see also Commonwealth v. Griffin, 804 A.2d 1,

17 (Pa. Super. 2002)(“[I]t [is] improper for a court to sentence pursuant to

facts dehors the record in contradiction to the indictment.”); see also

Commonwealth v. Cowan, 418 A.2d 753, 753 (Pa. Super. 1980) (“If the

court relies on improper considerations or information, ... new sentencing is

required.”).

Here, upon review of the record, we conclude that the trial court did not

rely upon improper sentencing facts dehors the record or in contradiction to

the indictment and, thus, Appellant’s first appellate issue lacks merit. Initially,

we note that Appellant was indicted and tried for discharging a firearm into an

occupied structure. “A person commits an offense if he knowingly,

intentionally or recklessly discharges a firearm from any location into an

occupied structure.” 18 Pa.C.S.A. § 2707.1(emphasis added). “Occupied

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structure” is defined as “[a]ny structure, vehicle or place adapted for overnight

accommodation of persons or for carrying on business therein, whether or not

a person is actually present.” 18 Pa.C.S.A. § 2707.1(d). At trial, Officer Dan

Baumwell testified regarding his observations of the scene. See N.T.,

11/19/2024, at 33-98. Officer Baumwell estimated that he responded to the

shootings within three to four minutes after receiving an emergency telephone

call. Id. at 35. Officer Baumwell testified that 1702 and 1704 West Market

Street were both occupied when he arrived. Id. at 36-37. More specifically,

when asked to name the specific individuals inside, Officer Baumwell testified

as follows:

1702 [housed] Nelida Rosa-Cubero and her five-year-old niece.

They were inside the residence at the time. [At] 1704, the two

gentlemen [were] on the porch, the two victims on the porch, and

then inside [were] Marilyn Grobes, and her two-year old daughter

[and] another female, Cierrra Vorrath, was also inside the

residence.

Id. at 36. Inside the residence at 1704 Market Street, the television was on

and food was cooking in the kitchen and set out on a table, and, on the front

porch there was “a little sippy cup, a water bottle that was empty, and a bunch

of sidewalk chalk because the little girl had been out there just prior.” Id. at

37. Hence, the trial court’s statements at sentencing that “innocent women

and children [were] at risk” and “it [was] a miracle no one died” were

adequately supported by the record. Accordingly, Appellant’s claim that the

trial court sentenced him pursuant to facts dehors the record or in

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contradiction to the indictment, is belied by the record. As such Appellant is

not entitled to relief on his first issue presented.

Next, Appellant argues that the imposition of the consecutive sentences

“resulted in an unreasonable and excessive sentence.” Appellant’s Brief at 15.

As briefly mentioned above, although Appellant concedes that each sentence

was imposed within the standard-range, he maintains that the consecutive

nature of the sentences made his aggregate sentence unreasonable and

excessive. Id. at 16. Appellant further argues that the trial court failed to

consider his character, prior criminal record, age, or potential for rehabilitation

as required under 42 Pa.C.S.A. § 9721. Id. at 16-17. He also contends that

although the trial court had the benefit of a PSI report, “the only relevant

portion of the [PSI report] that was reviewed by the [trial c]ourt on the record

[was] the calculation of the sentencing guideline sheet.” Id. at 17.

Initially, we presume that, because the trial court had the benefit of a

PSI report, it was aware of relevant information regarding Appellant’s

character and weighed those considerations along with mitigating statutory

factors. See Jennings, supra. Appellant does not cite authority, and we

have not discovered any, for the proposition that the trial court must review

the entire PSI report on the record at sentencing. Instead, we have stated

that “[i]t would be foolish, indeed, to take the position that if a court is in

possession of the facts, it will fail to apply them to the case at hand.” Id.

Moreover, in this case, the trial court specifically stated that it “reviewed the

information in the [PSI] report” and we presume it did so. N.T., 2/3/2025, at

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6. Additionally, the Commonwealth entered evidence from the PSI report into

the record prior to sentencing.5 Id. at 18-19. Further, the trial court reviewed

the sentencing guidelines, prior record score, offense gravity score, and

merger with Appellant prior to sentencing. Id. at 3-8. Finally, the trial court

gave Appellant his right to allocution. Id. at 12-18.

Regarding consecutive sentences, this Court has stated:

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5 More specifically, the Commonwealth stated:

The PSI [report] indicates that at present [Appellant] is 28 years

of age. He’ll be 29 on June [10, 2025]. Between the ages of 20

and 24, [Appellant] had already committed one, two, three, four

felonies.

* * *

In 2018[,] receiving stolen property as a felony two, firearms not

to be carried without a license as a felony three, and [an] escape

charge as a felony three in 2020. So that many felonies in the

span of four years, including one prior firearms violation. […T]he

date of the offense of the escape conviction was three days prior

to the offenses that form the basis for the charges in this case,

June 1[,] 2020.

N.T., 2/3/2025, at 18-19. The Commonwealth also argued that: 1) the facts

at trial showed that the crimes were premediated as an attempt to collect

another person’s drug debt; 2) both aggravated assault victims suffered

permanent scars; and, 3) the victims inside the residences suffered trauma.

Id. at 19. The trial court agreed opining, on the record, that Appellant’s

actions were “premediated” and not “in response to a threat” or

“spontaneous.” Id. at 21. The trial court noted that “most compelling was [a

photograph presented at trial depicting] the front porch with all the kids’ chalk

drawings on them” and that “he put innocent women and children at risk to

settle a beef.” Id. at 21-22. As such, we reject Appellant’s suggestion that

the trial court failed to consider the protection of the public, the gravity of the

offense as it relates to the impact on the life of the victims and on the

community, and Appellant’s rehabilitative needs pursuant to Section 9721.

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Although Pennsylvania's system stands for individualized

sentencing, the court is not required to impose the “minimum

possible” confinement.

Generally, Pennsylvania law affords the sentencing court

discretion to impose its sentence concurrently or consecutively to

other sentences being imposed at the same time or to sentences

already imposed. [An a]ppellant is not entitled to a “volume

discount” on his multiple convictions by the imposition of

concurrent sentences.

Commonwealth v. Brown, 249 A.3d 1206, 1216 (Pa. Super. 2021) (internal

citations and most quotations omitted). This Court has previously

determined:

Long standing precedent recognizes that the Sentencing Code

affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed. When imposing

a series of consecutive sentences, a sentencing court need not

separately explain its reasoning for each sentence, or directly

address its decision to have the sentences run consecutively. This

Court has frequently held that a court satisfies its obligations

under the Sentencing Code when it sets forth its general reasoning

and consideration of the Section 9721(b) sentencing factors

before imposing several consecutive sentences.

Commonwealth v. Reese, 285 A.3d 963, at *4 (Pa. Super. 2022)

(non-precedential memorandum).6

In this case, as previously determined, the trial court had the benefit of

a PSI report, explained its overall sentencing rationale, and properly

considered the Section 9721(b) sentencing factors before imposing Appellant’s

sentences. The sentencing court was simply not required to separately explain

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6 We may cite non-precedential decisions filed after May 1, 2019 for

persuasive value. See Pa.R.A.P. 126(b).

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its reasoning for each sentence, or directly address its decision to have the

sentences run consecutively. Moreover, Appellant is not entitled to “minimum

possible” confinement or to a “volume discount” on his multiple convictions by

the imposition of concurrent sentences. As such, we discern no abuse of

discretion in imposing consecutive sentences. Accordingly, there is no merit

to Appellant’s second claim.

Finally, Appellant claims that the trial court failed to comply with 42

Pa.C.S.A. § 5947 by failing to conduct an on-the-record colloquy of two

witnesses that were granted immunity. Appellant’s Brief at 17-20.

Specifically, Appellant challenges “the procedure utilized and employed” by

the trial court “in granting” the immunity orders. Appellant does not contest

the Commonwealth’s request for an order granting immunity to its two

witnesses. Id. at 20. In sum, Appellant contends:

In the case at bar, the witnesses that were granted immunity,

were never questioned by anyone on the witness stand prior to

being granted immunity. The [Commonwealth] proposed calling

[Mark] Parrilla and [Stephen] Reid. Counsel for both witnesses

appeared and were involved in sidebar discussions with the [trial

c]ourt where they advised the [c]ourt that it was their belief their

clients would exercise their Fifth Amendment right against

self-incrimination. The [trial c]ourt did not question the witnesses

individually about whether they would exercise their right but

merely suggested that the [trial c]ourt was advised by their

respective counsel of their desire to exercise the privilege. No one

asked questions of the two witnesses as to any facts. A boiler

plate assertion of the privilege is normally not permitted. While a

blanket privilege may be permitted when there is a complicity in

the crime, other than saying these individuals were charged, there

is nothing in the record to show complicity.

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Without establishing a foundation for the request for immunity,

the District Attorney did in fact ask the [trial c]ourt for an

immunity order.

* * *

The issue in this case is not the Commonwealth’s request for the

grant of immunity but rather, the procedure utilized and employed

in the [trial c]ourt’s granting of that order. There is nothing on

the record to establish [the witnesses] actually had a Fifth

Amendment privilege other than the representation of counsel.

There was no questioning by the [Commonwealth] or prior

defense counsel to determine whether the[grounds for asserting]

privilege actually existed. There was no questioning as to whether

any promises had been made in order to have them testify in this

matter without the grant of immunity.

Id. at 19-20.

“The Attorney General or a district attorney may request an immunity

order from any judge of a designated court, and that judge shall issue such

an order, when in the judgment of the Attorney General or district attorney []

a witness has refused or is likely to refuse to testify or provide other

information on the basis of his privilege against self-incrimination.” 42

Pa.S.C.A. § 5947(b).

“As with all questions of law, the appellate standard of review is de novo

and the appellate scope of review is plenary.” In re R.R., 57 A.3d 134, 139

(Pa. Super. 2012) (citation omitted).

Our Supreme Court has

held that the decision to seek a grant of immunity in any individual

case rests within the judgment of the prosecutor. It is up to the

executive branch of government to decide when and to whom

immunity will be granted. Furthermore, a decision as to whether

immunity should or should not be granted rests entirely within the

judgment of the Attorney General or District Attorney.

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Commonwealth v. Mulholland, 702 A.2d 1027, 1035 (Pa. 1997) (internal

citation and quotations omitted).

This Court has previously determined:

It is clear that under both our state and federal constitutions, a

criminal defendant has a right of compulsory process to obtain

witnesses in his favor. However, this right is qualified to the

extent of existing testimonial privileges of witnesses, including the

privilege against self-incrimination.

There is no formula for determining when and how the Fifth

Amendment privilege can be asserted (nor do we think one should

be created).

We are confident that trial courts can draw on their wealth of

experience and fashion procedures appropriate to the

practicalities of the case and that will allow the judge to make a

sufficiently informed decision. We are likewise confident that

lower courts will create a record sufficient to demonstrate the

propriety of permitting or denying the privilege at the same time

as preserving any Fifth Amendment right.

* * *

We acknowledge that a blanket privilege generally is not

permitted. Alternatively, a witness should not be placed on the

stand for the purpose of having him exercise his Fifth Amendment

privilege before the jury.

However, for the court to properly overrule the claim of privilege,

it must be perfectly clear from a careful consideration of all the

circumstances, that the witness is mistaken in the apprehension

of self-incrimination and the answers demanded cannot possibly

have such tendency.

Commonwealth v. Doolin, 24 A.3d 998, 1001–1002 (Pa. Super. 2011)

(internal citations, quotations, and original brackets omitted; emphasis in

original).

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Here, the trial court explained that it would colloquy the witnesses to

determine whether they were individually willing to testify. N.T., 11/18/2024,

at 167. If the witnesses invoked their right to avoid testimony under the Fifth

Amendment, the Commonwealth was prepared to offer them immunity. Id.

Later at trial, during an on-the-record sidebar, respective counsel for these

two witnesses told the court that their clients were advised to exercise their

Fifth Amendment rights against self-incrimination, unless granted immunity.

See id. at 210 (“Given the nature of the case and the charges that are still

pending, I would be advising my client[, Stephen Reid,] to exercise his Fifth

Amendment right not to incriminate himself which I imagine if the

Commonwealth still wants to call him, he’s going to make a motion to get

derivative use immunity and get a court order ordering him to testify. And,

at that point I don’t know what he’s going to do.); see also id. at 210-211

(“My client[, Mark Parrilla,] he’s been advised to plead the Fifth. My

understanding is the Commonwealth is willing to offer him immunity. My

understanding is that my client will still decline to testify.”). Both attorneys

advised their client witnesses “on the consequences of refusing to testify in

the event an order [was] entered compelling them to do so.” Id. at 212. The

trial court then colloquied each witness at an on-the-record sidebar outside

the presence of the jury. Id. at 217. Contrary to Appellant’s contention on

appeal, both men confirmed that they wished to assert their Fifth Amendment

privilege. Id. at 218-219. The Commonwealth offered immunity under

Section 5947. Id. at 219. The trial court explained to the witnesses that “if

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I grant that immunity order and you were called as a witness, you may not

refuse to testify based on the privilege against self-incrimination” and that the

testimony could not be used in a criminal case related to the charges in this

matter. Id. at 220. The trial court explained to both witnesses that, if

compelled to testify under an immunity order, further refusal to testify could

result in being held in civil or criminal contempt of court. Id. at 221. Both

witnesses testified that they understood all of the court’s instructions. Id. at

220-222. Thereafter, the trial court granted the Commonwealth’s request for

immunity and both witnesses ultimately testified at Appellant’s trial.

Upon review of the record, we discern no error of law by the trial court

in granting immunity under Section 5947. Initially, we note that decisions

regarding when and to whom immunity shall be extended rest entirely with

the Commonwealth. Moreover, our Supreme Court has noted that there is

no formula or structured procedure for determining when and how the Fifth

Amendment privilege can be asserted. Instead, trial courts may draw on their

wealth of experience to fashion procedures appropriate to the practicalities of

the case and make a sufficiently informed decision regarding the grant or

denial of immunity. In this case, the trial court created a record sufficient to

demonstrate that the Commonwealth validly invoked Section 5947 to extend

immunity to its two witnesses. The record showed that the prosecutor

requested immunity for the witnesses based upon his judgment that the

witnesses were likely to invoke their Fifth Amendment privilege and that their

testimony was needed at Appellant’s trial to further the public interest. See

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42 Pa.C.S.A. § 5947. This was all that was needed to properly invoke Section

5947. Moreover, as set forth above, the record belies Appellant’s claim that

there was no record evidence to establish the witnesses actually asserted a

Fifth Amendment privilege and that the trial court only granted immunity on

counsels’ representations. The trial court specifically colloquied each witness

on the record and they each asserted the privilege for themselves. For all of

the foregoing reasons, there is no merit to Appellant’s last appellate claim.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 03/24/2026

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