A defendant filed two documents on the same day. The first, in the morning, asked the trial court for permission to file late post-sentence motions. The second, in the afternoon, was a notice of appeal. Both went in on day thirty — the last day to appeal.
The second filing erased the first.
That is the practical lesson of Commonwealth v. McAllister, 2026 PA Super 172 (Pa. Super. filed Aug. 3, 2026). The court affirmed a caregiver’s convictions for stealing from the elderly woman she looked after, but the part of the opinion most likely to reach other cases has nothing to do with theft.
The Case in Short
Shabnam McAllister was Usha Gulati’s caregiver from 2017, when Ms. Gulati was about eighty. Ms. Gulati had trouble writing and trouble seeing, so Ms. McAllister filled out every field on her checks and Ms. Gulati signed her name.
When Ms. Gulati’s son reviewed her bank statements in August 2021, he found checks beyond the agreed weekly pay. A detective then went through every check drawn on the account from 2018 through 2021 and found more than fifty-two weekly wage checks in each of three years — 211 in a span that at most covered 156 weeks. Interviewed, Ms. McAllister admitted she “wrote herself more checks than she deserved,” said she could justify the difference, and never followed up.
The trial court convicted her of theft by deception, 18 Pa.C.S. § 3922(a)(1), and financial exploitation of an older adult or care-dependent person, 18 Pa.C.S. § 3922.1(a), and sentenced her to fourteen months to ten years with $113,400 in restitution. The court declined to count thousands of dollars in smaller miscellaneous checks, finding there was “some evidence” that money went to Ms. Gulati’s expenses.
The Filing Sequence
Sentencing was January 29, 2025. Post-sentence motions are due in ten days, Pa.R.Crim.P. 720(A)(1); a notice of appeal in thirty, Pa.R.A.P. 903(a). New counsel entered his appearance on day thirty and filed both a motion for leave to file post-sentence motions nunc pro tunc — Latin for “now for then,” meaning permission to file late and be treated as timely — and a notice of appeal.
At 11:47 a.m., when the nunc pro tunc motion was filed, the trial court still had power to grant it. Under 42 Pa.C.S. § 5505 and Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en banc), a court has discretion to allow late post-sentence motions if no appeal has been taken and it acts within thirty days of sentence.
At 3:25 p.m., the notice of appeal was filed. Under Pa.R.A.P. 1701(a), once an appeal is taken the trial court “may no longer proceed further in the matter.”
So the order granting the nunc pro tunc request days later, the motions filed under it, and the order denying them were all legal nullities.
The consequence split along one line. A sufficiency claim — that the evidence could not support the conviction as a matter of law — may be raised for the first time on appeal, so it survived. A discretionary aspects of sentence claim must be raised at sentencing or in a timely post-sentence motion. Commonwealth v. Cartrette, 83 A.3d 1030, 1043 (Pa. Super. 2013) (en banc). With the motions void, that claim was waived.
Sufficiency and Corpus Delicti
The evidence was enough. The absence of any regular increase in the checks “undermined the credibility” of the claimed raise; checks written directly to contractors cut against the theory that sloppy reimbursement accounting explained the gap; and 211 wage checks in 156 weeks “easily gave rise to a reasonable inference” of systematic theft. Circumstantial proof suffices, and the fact-finder may believe all, part, or none of any witness.
One point here is worth mentioning. Ms. McAllister argued her admission to the detective should not have counted under the corpus delicti rule — the requirement that the Commonwealth show a crime actually occurred before a defendant’s own confession can be used against her. Counsel never raised it at trial, so it was waived. But the court added an independent reason, drawing on Commonwealth v. Lassends (Pa. Super. filed Mar. 2, 2026): an unpreserved corpus delicti claim cannot be used to shrink the record on a sufficiency challenge. A corpus problem is evidentiary and its remedy is a new trial; a sufficiency failure means discharge. Sufficiency review takes in everything the fact-finder received.
Section 9717
At sentencing, the prosecutor stated there was a 12-month mandatory minimum under 42 Pa.C.S. § 9717 because the victim was over 60, and defense counsel agreed to “the application of the mandatory.” That premise moved the standard guideline range from six-to-fourteen months up to twelve-to-fourteen.
The statute is unusual. It reaches “[a] person under 60 years of age” convicted of a listed offense “when the victim is over 60 years of age and not a police officer,” and for theft by deception sets a term of “not less than 12 months, but the imposition of the minimum sentence shall be discretionary with the court where the court finds justifiable cause and that finding is written in the opinion.”
A mandatory minimum whose imposition is discretionary. The Superior Court has addressed this provision as applied to theft by deception in one precedential opinion, Commonwealth v. Littlehales, 915 A.2d 662 (Pa. Super. 2007) — which neither party cited. The Littlehales panel divided. The majority read it to require a written finding of justifiable cause before imposing the twelve months. Former Judge Joyce, dissenting, read it the other way: twelve months apply unless the court finds justifiable cause to go lower and says so in writing.
Littlehales also classified a § 9717 challenge as a discretionary-aspects claim rather than a legality-of-sentence claim. That classification is what required preservation, and preservation is what was missing. The panel noted there “may be reasons for distinguishing” Littlehales given more recent developments in legality-of-sentence law, but it declined to build the argument for counsel who had not cited the case. In a closing footnote, the court renewed Judge Joyce’s 2007 call for the Legislature to revisit the statute, nineteen years on.