Com. v. Gaither, K.

J-S07039-26

2026 PA Super 99

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KEITH BAMBAM GAITHER :

:

Appellant : No. 285 MDA 2025

Appeal from the Judgment of Sentence Entered January 30, 2025

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0005734-2022

BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.

OPINION BY BENDER, P.J.E.: FILED: MAY 14, 2026

Keith Bambam Gaither (“Appellant”) appeals from the judgment of

sentence of a $300 fine imposed following his non-jury trial convictions for

two counts of summary harassment. We vacate Appellant’s judgment of

sentence and remand for further proceedings.

While Appellant initially raised a sufficiency of the evidence challenge,

he has abandoned that claim on appeal. We therefore only briefly summarize

the facts underlying his convictions. Appellant and his wife were long-term

occupants of a Motel 6, as were Daniel Goodnough, Goodnough’s fiancée Kacy

Bitner, and their son, C.B. In the weeks leading up to the harassment incident,

“[t]here had been an ongoing period of strife between the parties[.]” Trial

Court Opinion, 8/1/25, at 4. On October 22, 2024, Bitner overheard Appellant

“speaking to a downstairs neighbor [and] making threats to kill ... Bitner, ...

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Goodnough, C.B., and ... Bitner’s dog.” Id. at 5. Bitner began recording

Appellant, who noticed Bitner and “backed [her] up against the railing” and

threatened her. Id. A third party intervened, and, in the ensuing melee,

Appellant threw punches at Goodnough and Bitner. Id.

The Commonwealth charged Appellant with two counts of simple assault

and two counts of summary harassment, with Goodnough and Bitner named

as the respective victims. The Commonwealth later withdrew the simple

assault charges, and the trial court held a bench trial on the summary

offenses. The trial court opined that there was animosity between the parties

but “agree[d] with the Commonwealth that [Appellant] ... went a little bit too

far,” specifically by “continuing to punch the victims after they were already

on the ground[.]” N.T. 1/30/25, at 54. The parties opted to proceed

immediately to sentencing, and the trial court imposed a fine of $150 at each

conviction plus costs of prosecution.

Appellant filed a timely notice of appeal and complied with the trial

court’s order to file a Rule 1925(b) statement, focusing, as previously stated,

on the sufficiency of the evidence supporting the convictions. Appellant now

raises an alternative issue on appeal concerning a non-waivable challenge to

his sentence: “Did the lower court violate 42 Pa.C.S. § 9726(c) and thus craft

an illegal sentence by imposing $300 in discretionary fines without evidence

that [Appellant] could afford to pay them?” Appellant’s Brief at 4. Appellant

requests that we simply “vacate these fines.” Id. at 12. The Commonwealth

filed a letter conceding that the trial court erred but pointed out that “the

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proper remedy is for a remand” to hold a hearing on Appellant’s ability to pay.

Letter, 1/13/26.

The Commonwealth’s agreement with Appellant is not dispositive as this

Court is duty-bound to determine whether the trial court did, in fact, commit

legal error. See Commonwealth v. Brown, 196 A.3d 130, 147 (Pa. 2018)

(setting forth general rule that appellate courts “refuse[] to act on concessions

of error without conducting appropriate judicial review”). As explained infra,

this issue pertains to the legality of sentence, and, upon review, we agree with

the parties that the sentence is illegal. We therefore remand for further

proceedings consistent with this memorandum.

Appellant was convicted of two counts of harassment, 18 Pa.C.S.

§ 2709(a)(1). Subject to an exception not applicable here, “an offense under

subsection (a)(1) ... shall constitute a summary offense.” Id. (c)(1). Section

2709 does not contain any penalty provisions, and thus the default provisions

apply. Section 9721 of the Sentencing Code instructs the trial court to

“consider and select one or more of the following alternatives” as the

appropriate punitive sanction, one of which is a fine. 42 Pa.C.S. § 9721(a)(5).

In turn, subsection (b) provides the general standards for “selecting from the

alternatives set forth in subsection (a)[.]” Id. § 9721(b).

Additionally, Section 9726 explicitly corroborates that a fine alone is an

authorized punishment. 42 Pa.C.S. § 9726(a) (“The court may, as authorized

by law, sentence the defendant only to pay a fine, when, having regard to the

nature and circumstances of the crime and to the history and character of the

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defendant, it is of the opinion that the fine alone suffices.”). A trial court may

impose “a fine not exceeding ... $300, when the conviction is of a summary

offense for which no higher fine is established.” 18 Pa.C.S. § 1101(7).

Because the harassment does not require a mandatory fine and does not

establish a higher amount, the trial court’s authority to impose a fine was

discretionary. Here, the trial court used that discretion to select a fine as the

appropriate punishment, and imposed half of the maximum fine at each count.

While the foregoing language is all presented in terms of a trial court’s

discretion, and would therefore normally require Appellant to raise and

preserve this issue at the trial court level, Section 9726 imposes a critical legal

limitation on that discretion:

The court shall not sentence a defendant to pay a fine unless it

appears of record that:

(1) the defendant is or will be able to pay the fine; and

(2) the fine will not prevent the defendant from making restitution

or reparation to the victim of the crime.

42 Pa.C.S. § 9726(c).

In Commonwealth v. Boyd, 73 A.3d 1269, 1273-74 (Pa. Super. 2013)

(en banc), we held that Section 9726(c) “requires that it be ‘of record’ that

the defendant can pay discretionary fines.1 Therefore, an argument that there

was no evidence of the defendant’s ability to pay constitutes a claim that the

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1 This statute does not apply to mandatory fines. See Commonwealth v.

May, 271 A.3d 475, 481 (Pa. Super. 2022) (holding that “[Section] 9726(c)

does not apply to mandatory fines”).

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fine was imposed in direct contravention of a statute.” Id. Thus, whether the

record supports a finding that Appellant had ability to pay implicates the

legality of Appellant’s sentence.2

We agree that there is a “complete absence of evidence of [Appellant’s]

ability to pay” and the sentence is therefore illegal. Id. The Boyd Court made

clear that the statute “does not require the sentencing court to credit any

specific testimony. Nor does it require that the sentencing court hold a

hearing on the issue.” Id. at 1274. Thus, in Boyd, a pre-sentence report

which “contain[ed] significant information regarding Boyd’s educational

history, employment history, and existing assets … provided the sentencing

court with an evidentiary basis upon which to impose a fine.” Id. Here, since

the court did not order a pre-sentence investigation there is no comparable

record evidence. The only support regarding his ability to pay would be by

implication, e.g. the fact that Appellant had been represented by private

counsel at trial. As the record must support a finding of an ability to pay, we

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2 The Boyd Court reached this conclusion by applying the lead opinion in

Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (OAJC). Subsequently,

our Supreme Court adopted the Foster lead opinion in Commonwealth v.

Barnes, 151 A.3d 121, 125 (Pa. 2016). Therefore, “pursuant to Barnes, we

now recognize, in relevant part, a claim that a sentence was ‘imposed without

the fulfillment of statutory preconditions to the court’s sentencing authority’

as a challenge to the legality of a sentence.” Commonwealth v. Seals, ___

A.3d ___, 2026 WL 739101 at *10 (Pa. Super. filed Feb. 17, 2026).

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do not find that an “implicit” finding is warranted.3 See also Commonwealth

v. Ford, 217 A.3d 824, 827 (Pa. 2019) (holding that agreement to pay fine

as part of plea agreement does not constitute adequate factual support for

ability to pay fine).

Finally, we decline to simply vacate the fines without further proceedings

as suggested by Appellant. If Appellant is able to pay the fines, his sentence

is legal.

Judgment of sentence vacated. Case remanded for resentencing on

fines. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/14/2026

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3 To the extent the employment of a private attorney would tend to support

an implicit finding Appellant could pay the $300 fine, we note that Appellant

is now represented by the York County Public Defender’s Office and that

Appellant was granted in forma pauperis status for purposes of appeal. See

Order, 5/23/25. Additionally, before the bench trial Appellant requested

continuances to obtain counsel, and he represented at one of these hearings

that he had recently “just got out of being out of the homeless status” and

was focused on “get[ting] my kids from being homeless.” N.T., 3/27/23, at

2.

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