Judge Ruggero Aldisert of the Third Circuit wrote something in 1982 that has been quoted in Pennsylvania appellate opinions ever since. Reflecting on his tenure on the federal bench, he observed that it is rare for a brief to show that a trial court committed more than one or two reversible errors, and then he remarked: when he reads an appellant’s brief containing ten or twelve points, a presumption arises that there is no merit to any of them. Not an irrebuttable presumption, he added. But a presumption nonetheless. See United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982) (quoting Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility—A View from the Jaundiced Eye of One Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)). Our Superior Court has quoted the passage approvingly many times over.
Kenneth Sullivan Smith raised eight issues on appeal. He lost every one of them.
And then the Superior Court vacated his entire sentence anyway — on a ground nobody briefed, nobody argued, and nobody preserved.
Commonwealth v. Smith, 2026 PA Super 145 (filed July 8, 2026), is worth reading. First, it teaches about sentencing law in drug-delivery-resulting-in-death cases. And second, it teaches about effective appellate presentation.
What Happened
Smith was the target of a Pennsylvania State Police drug trafficking investigation that began after an April 2020 overdose death in Pike County. Police worked a confidential informant, recorded Smith on a vehicle camera talking about his distribution network, and eventually arrested him after a controlled buy. A search warrant for the car he arrived in produced 46 bricks of heroin cut with fentanyl and Smith’s iPhone.
The phone extraction, and the victim’s phone, and a series of recorded jail calls, produced the rest. Facebook messages between Smith and the victim discussing drugs. A photograph on a co-defendant’s phone of Smith’s hand holding glassine packets stamped “Antrax” and “Pussycat” — the same stamps found in the victim’s bedroom. A message Smith sent a friend around midnight, hours before the victim was found dead, saying six people had “gone down” on those bags and that they’d turned out to contain carfentanil. And a jail call in which Smith asked his co-defendant what had happened to “that kid” he’d sent him to handle, before answering his own question.
Smith was charged at two dockets — one for the possession with intent to deliver (PWID) arrest, one for the drug delivery resulting in death (DDRD). He cycled through the public defender, private counsel, and appointed counsel, then represented himself for roughly nine months, then had counsel appointed again for trial. The jury convicted him on all ten counts. The court sentenced him to an aggregate 35 years, 4 months to 87 years, 6 months.
The Eight Issues
Here is the full menu of issues served up on appeal:
(1) Standby counsel wasn’t appointed quickly enough. (2) The court refused to appoint an investigator. (3) The cellphone warrant was overbroad. (4) The vehicle-camera recording should have been excluded. (5) Unverified text messages were admitted. (6) Trial counsel was barred from relitigating issues Smith had raised pro se. (7)The two dockets should have been severed. (8) And the Commonwealth failed to prove causation for DDRD.
The results, in order: meritless, meritless, waived, meritless, waived, waived, meritless, meritless.
Three of eight issues were disposed of on preservation grounds. Issue five — the text messages — died because Smith’s Rule 1925(b) statement simply repeated the issue verbatim without identifying which messages he meant or which absent declarants he was talking about. The trial court said it couldn’t assess the claim. The Superior Court agreed.
Issue six — three sentences long, no citation to authority — was waived under Pa.R.A.P. 2119(a) for want of development. The reply brief didn’t fix it.
And issue three, the suppression claim, was waived because Smith’s pro se omnibus motion did not state the grounds and supporting facts with the particularity Pa.R.Crim.P. 581(D) requires.
That last one deserves close attention, because it was the good issue.
The Issue That Might Have Won
Judge Bowes concurred. She would have reached the merits of the suppression claim, and on the merits, she would have found the warrant unconstitutionally overbroad.
Some background. An overbroad warrant is one that authorizes the seizure of an entire category of material when probable cause supported only a subset of it. The constitutional problem is that it becomes a general warrant — a license to rummage. The analysis is the same whether the space searched is a filing cabinet or a phone: courts first determine what items probable cause actually covered, then measure the warrant’s description against that scope. An unreasonable gap between the two requires suppression. And because overbreadth is assessed on the face of the affidavit, it is a legal question, not an evidentiary one.
The saving device, in the digital-search cases, is self-limiting language. A warrant may authorize police to search all the data on a phone so long as it permits them to seize only evidence of the crime for which probable cause existed.
The warrant in Smith’s case had no such language. It authorized seizure of every username, password, contact, call log, voicemail, text, chat, email, document, photo, video, note, GPS location, browser history, bookmark, and stored file on the phone. No time limitation. No subject-matter limitation. The Cellebrite extraction reached back to 2017 — years before the alleged conspiracy — and swept in Smith’s communications with his own criminal-defense attorney and his personal-injury attorney, along with explicit photographs of his fiancée, which were then disseminated in discovery to co-defendants and their counsel.
Judge Bowes would have held the warrant facially overbroad and the denial of suppression erroneous. She then found the error harmless beyond a reasonable doubt, because the incriminating material was substantially duplicated by the victim’s phone, the jail calls, the vehicle recording, and third-party phone records. So Smith loses either way.
But note where the majority landed. It found the claim waived, then added a footnote agreeing with Judge Bowes that any error was harmless “to the extent the claim is properly before us.” What it did not do is endorse her overbreadth analysis. Practitioners should be careful here: Smith is not an overbreadth holding. Judge Bowes’s discussion is a concurrence, and the majority’s harmlessness nod is dicta on a waived claim.
Which brings us back to Aldisert. Smith had a real Fourth Amendment argument — a warrant that authorized the seizure of a decade of a man’s digital life to investigate a two-month drug conspiracy, and that in fact hoovered up his privileged attorney communications. One judge on the panel thought it was a winner on the law. It was issue number three of eight, and it died on a preservation defect in a pro se motion that was not properly presented.
Aldisert’s presumption was not a comment on aesthetics. It was a comment on cost. Every issue you add is attention taken from the issue that could win.
What Actually Got Smith Relief
Now here is the part of Smith that will matter.
Having affirmed all ten convictions, the Superior Court said it was troubled by the sentences. Not because anyone raised it. Because the court read the bills of information and noticed three problems.
The elements test. Pennsylvania’s merger statute is unforgiving. Crimes do not merge for sentencing unless two things are true: they arise from a single criminal act, and all the statutory elements of one offense are contained within the other. Merger is not about whether the sentences feel duplicative. It’s about the statutes.
Run DDRD through that filter. Under 18 Pa.C.S. § 2506(a), a person commits DDRD when he intentionally delivers a controlled substance in violation of § 780-113(a)(14) or (a)(30) of the Controlled Substance Act, and another person dies as a result of using it. Subsection (a)(30) is PWID. The DDRD statute incorporates it by reference. DDRD is PWID plus a death.
The court held that Smith’s PWID conviction at the DDRD docket should have merged into his DDRD conviction. That appears to be the first precedential statement of the point; the only prior authority was a 2019 non-precedential memorandum, Commonwealth v. Reese, which reasoned the same way and which is citable for persuasive value under Pa.R.A.P. 126(b).
Section 906. Smith was also sentenced separately on conspiracy to commit PWID and conspiracy to commit DDRD. Section 906 of the Crimes Code says a person may not be convicted of more than one inchoate crime “for conduct designed to commit or culminate in the commission of the same crime.” 18 Pa.C.S. § 906. “Convicted,” for these purposes, means sentenced — not found guilty. Commonwealth v. Jacobs, 39 A.3d 977, 983 (Pa. 2012) (plurality). Because the bills of information showed a single agreement with a single co-conspirator to distribute the same heroin/fentanyl over the same window, the two conspiracy sentences could not both stand.
Simple possession. At the other docket, the concurrent sentence for knowing or intentional possession should have merged into the PWID sentence, because both rested on the same act of possession. Commonwealth v. Knupp, 290 A.3d 759, 777 (Pa. Super. 2023).
Because vacating even one of the consecutive terms disturbs the sentencing scheme, the court vacated both judgments of sentence and remanded for resentencing at both dockets.
The reason the court could do this without anyone asking is that a merger claim, and a § 906 claim, go to the legality of the sentence. Legality-of-sentence claims cannot be waived, and an appellate court may raise them on its own.
Sit with the irony. Eight preserved-or-not issues, drafted and briefed and argued, produced nothing. The relief came from the one category of claim that appellate counsel could not have forfeited by failing to raise.