Commonwealth v. Tejada , 2015 Pa. Super. 2 ( 2015 )

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2015 PA Super 2COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NICHOLAS TEJADA, :
:
Appellant : No. 2279 EDA 2013
Appeal from the Judgment of Sentence March 25, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0006216-2012
and CP-51-CR-0006219-2012
BEFORE: DONOHUE, WECHT and PLATT*, JJ.
OPINION BY DONOHUE, J.: FILED JANUARY 06, 2015
Nicholas Tejada (“Tejada”) appeals from the March 25, 2013 judgment
of sentence entered by the Philadelphia County Court of Common Pleas
following his convictions of two counts of criminal conspiracy to commit
robbery.1 Upon review, we find his challenges to the sufficiency and weight
of the evidence to be without merit as the evidence presented at trial
supported a finding that he was the individual who committed the robberies
in question. We find his evidentiary challenge waived in part, as one of the
arguments raised on appeal was not raised before the trial court, and find
the other argument is meritless. Lastly, we conclude that he waived his
challenges to the discretionary aspects of his sentence based upon his failure
to raise the specific arguments below that he now makes on appeal, having
1
18 Pa.C.S.A. § 903(a)(1), 3701(a)(1)(ii).
*Retired Senior Judge assigned to the Superior Court.
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raised them for the first time in his concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). In so
holding, we recognize that the three-judge panel decisions in
Commonwealth v. Egan, 679 A.2d 237 (Pa. Super. 1996), and
Commonwealth v. Clinton, 683 A.2d 1236 (Pa. Super. 1996), finding
discretionary aspects of sentencing claims can be preserved when raised for
the first time in a 1925(b) statement, were overruled by implication by the
en banc panel of this Court in Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278 (Pa. Super. 2004) (en banc). We therefore affirm Tejada’s
judgment of sentence.
The trial court provided the following summary of the facts adduced at
trial:
On January 2, 2012 the first victim, Emily Orton,
arrived home from work at about 10:15 pm. (N.T.
11/7/2012 at 25-26). She parked her car near the
intersection of 9th and Kimball Streets in
Philadelphia. (Id.) While walking on the sidewalk,
she noticed [Tejada] and another male about ten
feet away from her. (Id. at 26-28). They were
walking directly toward her. (Id.) [Tejada]’s co-
conspirator smiled at her and looped around behind
her while [Tejada], with his face partially covered,
pressed a gun against this victim’s stomach and
demanded “give me your purse, ma’am.” (Id. at 30-
32). [Tejada] snatched the victim’s purse from her
body and entered the backseat of an older black,
beat-up Honda which made an incredibly loud noise
as it drove away. (Id. at 33, 37). Inside the victim’s
purse was her purple wallet with ID cards, credit
cards, and $60 United States currency. (Id. at 37-
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38). The victim contacted the police and returned to
her apartment. (Id. at 38).
Twenty minutes later, the second and third victims,
Irene Thurston and Stacie Evans, respectively, had
parked their cars and greeted each other near the
corner of 4th and Emily Streets. (Id. at 77-78). Both
victims noticed an old beat-up Honda with a long
white scratch and a loud muffler. (Id.) With four
Hispanic men inside, this vehicle passed them while
travelling on Emily Street. (Id.) As the two victims
continued to chat, the car turned around the block.
(Id.) Alarmed, Ms. Thurston noticed two men
walking across an empty lot toward her and Ms.
Evans. (Id. at 81-82). Terrified, Ms. Thurston
observed [Tejada], armed with a gun, run toward
Ms. Evans. (Id. at 83). Also terrified that [Tejada]
was brandishing a gun, Ms. Evans quickly dropped
her purse. (N.T. 11/8/12 at 13). [Tejada] grabbed
the purse. (Id.) Inside Ms. Evan’s [sic] purse was
her license, credit cards, two checkbooks, a
necklace, a digital camera, and $5-10 in United
States currency. (Id. at 20). Nothing was taken from
Ms. Thurston. (N.T. 11/7/12 at 86). The two victims
immediately called the police. (N.T. 11/8/12 at 20).
In response to the flash information and radio calls
for the above incidents, Officers Padilla and Brown
drove to the area of 2200 S. Mildred St. (Id. at 95).
The officers witnessed [Tejada] exiting the driver
seat of the above-mentioned Honda, while the co-
conspirator exited the passenger seat. (Id. at 96).
Officer Padilla stopped [Tejada] while Officer Brown
chased the co-conspirator on a foot; the co-
conspirator was eventually apprehended. (Id. at 97
98). The officers recovered victim Evans[’] license on
the ground next to the front passenger door of the
Honda as well as two pocketbooks in the backseat.
(Id. at 99-100).
The officers escorted all three victims to the area of
2200 S. Mildred Street, at which time they all
identified the black Honda as the car they had seen
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at their respective robbery locations. (Id. at 23, N.T.
11/7/2012 at 39-42, 87-91). Ms. Orton did not
identify [Tejada], but her belongings were all
recovered in the back of the black Honda. (N.T.
11/7/2012 at 39-42). Ms. Evans[’] purse, along with
most of her belongings, was [sic] recovered in the
back seat of the car. (N.T. 11/8/2012 at 23). Ms.
Thurston identified [Tejada] as the perpetrator
brandishing the firearm at 4th and Emily Streets.
(N.T. 11/7/2012 at 87-91). Officer Padilla discovered
that the owner of the Honda resided at 2241 Darien
Street, and that other men might have run into the
house. (N.T. 11/8/2012 at 101). While the officer
was standing outside the house, the co-conspirator
opened the door and asked what was going on. He
allowed Officer Padilla to enter the house to look for
other suspects. (Id. at 105). Officer Padilla and her
supervisor searched the house and discovered Ms.
Evan’s [sic] checkbooks in an upstairs bedroom. (Id.
at 106).
Trial Court Opinion, 12/26/13, at 3-5.
On November 15, 2012, a jury convicted Tejada of two counts of
conspiracy to commit robbery, but acquitted him of two counts each of
robbery, carrying a firearm without a license, carrying a firearm on public
streets in Philadelphia, and possessing an instrument of crime.2 On March
25, 2013, the trial court sentenced Tejada to four to eight years of
incarceration for each count of conspiracy to run consecutively for an
aggregate prison sentence of eight to sixteen years.
Tejada filed post-sentence motions on March 27, 2013, which the trial
court denied on July 29, 2013. On August 7, 2013, Tejada filed a timely
2
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6106(a)(1), 6108, 907(a).
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notice of appeal followed by a court-ordered 1925(b) statement. The trial
court thereafter filed a responsive opinion pursuant to Pa.R.A.P. 1925(a).
On appeal, Tejada raises the following issues for our review, which we
have reordered for ease of disposition:
I. Under the Sixth and Fourteenth Amendments of the
U.S. Constitution as well as Article I, § 9 of the
Pennsylvania Constitution, was the evidence
insufficient to sustain [Tejada’s] [c]onspiracy
convictions?
II. Under the Sixth and Fourteenth Amendments of the
U.S. Constitution as well as Article I, § 9 of the
Pennsylvania Constitution, were [Tejada’s]
[c]onspiracy convictions against the weight of the
evidence?
III. Under the Sixth and Fourteenth Amendments of the
U.S. Constitution as well as Article I, § 9 of the
Pennsylvania Constitution, did the [t]rial [c]ourt err
in permitting a prosecution witness to “identify”
[Tejada’s] arrest photograph?
IV. Under the Fifth, Eighth, and Fourteenth Amendments
of the U.S. Constitution as well as Article I, §§ 9, 13
of the Pennsylvania Constitution, did the [t]rial
[c]ourt abuse its discretion in sentencing [Tejada]?
Tejada’s Brief at 5.3 On October 31, 2014, we issued a memorandum
decision affirming the judgment of sentence. We granted Tejada’s motion
for reconsideration to clarify that the holdings in Egan and Clinton (finding
preserved discretionary aspects of sentencing claims raised for the first time
3
Apart from passing references to the constitutional provisions asserted in
the statement of the issues raised, Tejada makes no argument regarding the
constitutionality of his trial, convictions, or sentencing. We therefore confine
our analysis to the arguments raised and developed.
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in a 1925(b) statement) are no longer good law in the wake of Melendez-
Rodriguez.
Tejada’s first issue on appeal challenges the sufficiency of the evidence
to convict him of conspiracy to commit robbery. “Whether sufficient
evidence exists to support the verdict is a question of law; our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Murray, 83 A.3d 137, 151 (Pa. 2013). We review the evidence in the light
most favorable to the verdict winner to determine whether there is sufficient
evidence to allow the jury to find every element of a crime beyond a
reasonable doubt. Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super.
2014).
In applying the above test, we may not weigh the
evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and
circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any
doubts regarding a defendant’s guilt may be resolved
by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond
a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
Id. (citation omitted).
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Tejada does not claim that no robberies occurred or that there was not
a conspiracy to commit them; rather, he states that the evidence was
insufficient to prove that he was a party to the conspiracy – that he was
anything more than merely present at the time the robberies occurred.4
Tejada’s Brief at 38-46. The trial court found that the evidence presented,
including Ms. Thurston’s identification of Tejada both at the scene and at
trial as the individual who robbed Ms. Evans, was sufficient to sustain his
convictions of conspiracy to commit robbery. Trial Court Opinion, 12/26/13,
at 10-11.
The record reflects that Ms. Orton was the victim of an armed robbery
at 10:15 p.m. on January 2, 2012. N.T., 11/7/12, at 25, 31-32. The
gunman had a scarf over his face and hair and was thus unidentifiable, but
Ms. Orton was able to describe him as relatively short (only a little taller
than her five foot four inch-frame), Latino, with lighter skin and an average
build. Id. at 40. The gun used to perpetrate the robbery was described as
small – .22 caliber – and the robbers departed in an older model, “beat up”
4
A conviction of conspiracy requires proof that “1) the defendant entered
into an agreement with another to commit or aid in the commission of a
crime; 2) he shared the criminal intent with that other person; and 3) an
overt act was committed in furtherance of the conspiracy.”
Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation
omitted), aff’d, __ A.3d __, 2014 WL 7090082 (Pa. Dec. 15, 2014); see
also 18 Pa.C.S.A. § 903(a), (d). The underlying offense for both
conspiracies was robbery, which requires proof, in relevant part, that in the
course of committing a theft, the defendant threatened another with or
intentionally put another in fear of immediate serious bodily injury. 18
Pa.C.S.A. § 3701(a)(1)(ii).
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black Honda with a loud muffler. Id. at 31, 33, 37. When asked to identify
the robber later that night, she observed that Tejada was of the same
height, build, skin tone and ethnicity as the gunman. Id. at 42. She also
identified the car that police observed Tejada exiting at the beginning of
their investigation as the same black Honda that she observed the robbers
flee in after the robbery. Id. at 41. The car contained several of the items
that had been stolen from her. Id. at 42.
At around 10:35 p.m., in a location approximately ten minutes from
the first crime scene, a scratched black Honda with a loud muffler drove past
Ms. Evans and Ms. Thurston, who were conversing with each other outside.
Id. at 76-77, 78-79; N.T., 11/8/12, at 66. As the car drove past, Ms.
Thurston observed the front passenger, describing him as a light-skinned
Latino male with braids in his hair and wearing a shirt with red trim. N.T.,
11/7/12, at 80. Ms. Thurston subsequently saw two men coming towards
them. Id. at 82. The shorter man pulled a mask over his face and
approached Ms. Evans. Id. He was carrying a small gun. Id. at 83. Ms.
Thurston was able to observe him for approximately five seconds in good
lighting conditions. Id. at 86. As a taller man with a long object came
towards her, she ran away and did not reunite with Ms. Evans until she saw
the loud, black Honda driving away a short time later. Id. at 82-83, 85, 86.
When taken to identify the perpetrators of the robbery, Ms. Thurston
identified Tejada as the man with the gun who robbed Ms. Evans. Id. at 90.
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She described him as being approximately five feet six inches tall, light-
skinned, Latino, having braids in his hair, shadow on his face and red trim
around his collar.5 Id. at 88-89. This matches the general description
Tejada provided of himself to police. N.T., 11/8/12, at 153-54. Both Ms.
Thurston and Ms. Evans identified the car police observed Tejada exiting to
be the Honda they heard and saw at the time of the robbery. Id. at 22-23;
N.T., 11/7/12, at 88. Ms. Evans also observed in the car several items that
were stolen from her. N.T., 11/8/12, at 23, 25-26.
Although Ms. Thurston identified Tejada as the perpetrator of Ms.
Evans’ robbery on the night it occurred, she was unable to identify him
either at the preliminary hearing or at trial. The record reflects that at the
time of trial, Tejada had changed his appearance and no longer had long,
braided hair. N.T., 11/8/12, at 96. The Commonwealth provided Ms.
Thurston the arrest photograph of Tejada taken on the night of the
5
We disagree with Tejada’s statement throughout his appellate brief that
Ms. Thurston identified the other robbery suspect as having red trim on his
collar. See Tejada’s Brief at 12, 42, 49, 52. Contrary to Tejada’s claims,
she did not indicate that it was anyone other than Tejada who had the red
trim. When asked if she identified the two perpetrators of the robbery, Ms.
Thurston responded, “Yes, the one with the red trim around their [sic]
collar,” and was then asked questions about her identification of the gunman
who robbed Ms. Evans. N.T., 11/7/12, at 88-89. She testified that the
gunman had his hair in braids, was shorter than the other perpetrator,
Latino, and had light skin. Id. at 89-90. Furthermore, as noted above, Ms.
Thurston stated that the man she observed riding in the black Honda with
the red trim on his collar had braids. Id. at 80. Tejada was the only
suspect with braids in his hair. N.T., 11/9/12, at 70.
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robberies, and she readily identified him as the gunman responsible for the
robbery of Ms. Evans.6 N.T., 11/7/12, at 99.
We disagree with Tejada’s assertion that Commonwealth v.
Grillasco, 415 A.2d 1241 (Pa. Super. 1979), “is controlling,” as it is readily
distinguishable. See Tejada’s Brief at 42. In Grillasco, the witnesses
identified the defendant from a photo array that they were shown
approximately a month after the crimes were committed. Grillasco, 415
A.2d at 1242. At trial, which occurred approximately two years after the
crimes, the witnesses were unable to identify the defendant as the
perpetrator. Although he looked similar to the perpetrator, his appearance
had changed, and they testified that they could not say with certainty that
he was the person responsible. Id. at 1242-43. Following his conviction,
6
Tejada refers to the fact that Ms. Thurston testified only that she
recognized the “picture,” not that she recognized “the male in the picture.”
See Tejada’s Brief at 42. The exchange between the Commonwealth and
Ms. Thurston occurred as follows:
Q. Do you recognize that picture?
A. Yes, I do.
Q. Tell me.
A. This is the guy with the gun.
Q. Tell me what you recognize in that picture.
A. His braids and his jawline.
* * *
Q. Did you see that person on Mildred Street?
A. Yes.
N.T., 11/7/12, at 99. Despite the phrasing by the Commonwealth, it is clear
that Ms. Thurston recognized Tejada, the person in the photograph, as the
gunman that perpetrated Ms. Evans’ robbery.
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the defendant appealed and we reversed, finding that the photographic
identification made two years prior to trial, which was the only evidence that
linked the defendant to the crimes, was insufficient to prove his guilt beyond
a reasonable doubt. Id. at 1243.
In the case at bar, there was far more evidence presented that
connected Tejada to the robberies than a single photo identification that was
remote from both the time of the crime and the time of trial. One witness
identified Tejada in person as the perpetrator of one of the robberies on the
night the robbery occurred, and he fit the physical description provided by
another victim. At trial, the Commonwealth presented a photograph of
Tejada from the night of the robberies and a witness identified him as being
the perpetrator. Furthermore, when police began their investigation, Tejada
was exiting the vehicle that the victims identified as the getaway car and
which contained some of the proceeds of the robberies. As detailed above,
the direct and circumstantial evidence presented sufficiently proved Tejada’s
involvement in the conspiracies to rob Ms. Orton and Ms. Evans.
In his arguments, Tejada attempts to parse the record in his own favor
and urges us to find that the evidence was insufficient to prove that he was
involved in these robberies on that basis. When viewed in the light most
favorable to the Commonwealth, as our standard of review requires, we
agree with the trial court that direct and circumstantial evidence presented
at trial sufficiently proves that Tejada was the gunman in both of the
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robberies. Thus, we have no basis for reversing his convictions of
conspiracy to commit robbery.
In his second issue on appeal, Tejada contends that the trial court
abused its discretion by finding that the verdict was not against the weight
of the evidence. Tejada’s Brief at 46-50. Like his sufficiency claim, Tejada
challenges the weight of the evidence to support a finding that he was a
party to the conspiracies to commit robbery. Tejada states that neither Ms.
Orton nor Ms. Evans identified him as a participant in the robbery and that
Ms. Thurston “was not certain” he was the gunman. Tejada’s Brief at 49.
Furthermore, because Ms. Thurston failed to identify him at the preliminary
hearing or in person at trial, and when identifying him from his arrest photo,
stated for the first time that she recognized his “jawline,” her identification
of him was too weak to warrant his conviction.7 Id. at 48-50.
The trial court found that the jury’s verdict was supported by the
evidence and did not shock its sense of justice. Trial Court Opinion,
12/26/13, at 11-12. It found that Ms. Thurston’s identification of Tejada
was unwavering and that the jury was free to make its credibility
7
Tejada also once again points to Ms. Thurston’s testimony that she
recognized “the picture” as opposed to “the male in the picture” when she
identified him at trial using his arrest photo and claims that Ms. Thurston
identified the other robbery suspect as having red trim on his collar, not
Tejada. Tejada’s Brief at 49-50. As we have already determined that these
arguments are meritless, we need not address them again. See supra
nn.5-6.
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determinations and disregard any alleged inconsistencies in the testimony.
Id. at 12.
We review a weight of the evidence claim according to the following
standard:
A claim alleging the verdict was against the weight of
the evidence is addressed to the discretion of the
trial court. Accordingly, an appellate court reviews
the exercise of the trial court’s discretion; it does not
answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the
[jury] is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses, and a new trial based on a weight of the
evidence claim is only warranted where the [jury’s]
verdict is so contrary to the evidence that it shocks
one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation
omitted).
The record reflects that although Ms. Orton was unable to identify the
gunman that robbed her, the circumstantial evidence proved that Tejada
was the perpetrator of her robbery. He matched the height, build, skin tone
and ethnicity she provided, which also matched the description of the same
attributes provided by Ms. Thurston. See N.T., 11/7/12, at 40, 42, 89; N.T.,
11/8/12, at 153-54. Ms. Thurston positively identified Tejada as the person
who robbed Ms. Evans approximately twenty minutes after the robbery of
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Ms. Orton. N.T., 11/7/12, at 90. When police took Ms. Thurston to identify
the participants, she pointed out the two individuals to police. Id. at 89.
Although she testified that she was one hundred percent sure about her
identification of the taller man with the long object that approached her, and
she did not use such strong language in her identification of Tejada, she did
not give any indication that she was not certain of her identification of him.
See id. at 90. To the contrary, she testified that his braids and his height
triggered her ability to identify him as the person who robbed Ms. Evans.
Id.As the police arrived to investigate the robberies, they observed
Tejada exiting the vehicle identified by all of the victims as the getaway car
for the robbers. Id. at 88; N.T., 11/8/12, at 22-23. Ms. Thurston and Ms.
Evans also saw the vehicle just prior to the robbery of Ms. Evans with a
person fitting Tejada’s description and Ms. Thurston’s description of the
perpetrator of Ms. Evans’ robbery riding in the front seat. N.T., 11/7/12, at
76-77, 78-79, 80. Police recovered several items stolen from both Ms.
Orton and Ms. Evans in the vehicle. Id. at 42.
The jury was made aware that Ms. Thurston did not identify Tejada at
the preliminary hearing and observed Ms. Thurston’s inability to identify him
in person at trial. N.T., 11/7/12, at 91-92. The jury was also aware that
Ms. Thurston noticed Tejada’s jawline for the first time at trial when asked to
make an identification from his arrest photograph. Id. at 121. It was
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therefore the role of the jury to determine Ms. Thurston’s credibility with
respect to her identification of Tejada. See Karns, 50 A.3d at 165. The
jury’s decision to credit her testimony does not render the verdict contrary
to the evidence presented. See Commonwealth v. Sanchez, 36 A.3d 24,
39 (Pa. 2011) (“Issues of witness credibility include questions of[, inter alia,]
inconsistent testimony[.]”).
We find no abuse of discretion in the trial court’s determination that
the verdict was not against the weight of the evidence. As such, Tejada is
due no relief on this issue.
Tejada next asserts that the trial court erred by permitting Ms.
Thurston to identify Tejada as the perpetrator of Ms. Evans’ robbery using
his arrest photograph. Tejada’s Brief at 50-56. Tejada advances two
arguments in support of this claim: (1) the photograph was the fruit of the
unlawful show-up identification that occurred on the night of the robbery and
(2) using the photograph to identify Tejada in court itself was improper. Id.
at 53-56.
Beginning with his first argument, we note that this was not the basis
for Tejada’s objection to the admission of the photograph at trial. Rather,
Tejada confined his arguments at trial to the suggestiveness of the
photograph itself because of his belief that Ms. Thurston was “not sure”
about her identification of Tejada on the night of the robberies and that the
photograph was “not sanitized,” as it was clear on the face of the
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photograph that it was an arrest photograph. See N.T., 11/7/12, at 93-98.
He never mentioned that he believed it was the fruit of an illegal show up
identification on the night of the robberies. It is axiomatic that “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a); see also Commonwealth v. Truong, 36
A.3d 592, 598 (Pa. Super. 2012) (“New legal theories cannot be raised on
appeal.”), appeal denied, 57 A.3d 70 (Pa. 2012). Thus, Tejada waived the
first argument made in support of this claim on appeal.
Turning to his second argument, the trial court found that Tejada’s
arrest photo was relevant and admissible, as Tejada changed his appearance
prior to trial. Trial Court Opinion, 12/26/13, at 14. We agree, as it has long
been the law “that where there has been a change in the appearance of a
defendant, witnesses may identify him from photographs.”
Commonwealth v. Duca, 165 A. 825, 827 (Pa. 1933).
Tejada reiterates his belief that Ms. Thurston was unsure on the night
of the crime whether Tejada was the person who robbed Ms. Evans,
rendering the use of the photograph to identify him in court improper.
Tejada’s Brief at 55. As we have previously stated, however, the record
does not support his contention that Ms. Thurston was unsure when she
identified him as the robber. Tejada further states that the Commonwealth
never asked Ms. Thurston if she was able to identify him in person at trial,
and thus, the use of the photograph was impermissible. Id. at 56. The
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record belies this contention as well. See N.T., 11/7/12, at 91-92 (in
response to the Commonwealth’s question of whether she can “identify
anybody in court today” from the night of the robbery, Ms. Thurston stated,
“No, I’m sorry.”).
“The admission of evidence is committed to the sound discretion of the
trial court, and our review is for an abuse of discretion.” Commonwealth
v. Valcarel, 94 A.3d 397, 398 (Pa. Super. Ct. 2014) (citation omitted).
Finding no abuse of discretion, this issue does not warrant relief.
Tejada’s final issue on appeal challenges discretionary aspects of the
trial court’s sentence.8 This Court does not review such issues as a matter
of right. “An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
The appellant must satisfy all of the following:
8
In his statement of questions involved, Tejada invokes the Eighth
Amendment to the United States Constitution and Article I, Section 13 of the
Pennsylvania Constitution, both of which prohibit the imposition of cruel (and
in the case of the Eighth Amendment, unusual) punishments. This would
suggest that he was challenging the legality of his sentence. See
Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014)
(“claims pertaining to the Eighth Amendment's Cruel and Unusual
Punishment Clause also pertain to the legality of the sentence and cannot be
waived”). As noted hereinabove, Tejada does not develop his constitutional
claim in the argument section of his brief; to the contrary, he concedes that
he is challenging the discretionary aspects of his sentence. Tejada’s Brief at
22 (“Appellant challenges the discretionary aspects of his sentence.”). Thus,
we do not address the legality of Tejada’s sentence.
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(1) the appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014).
Our review of the record reveals that although Tejada raised in his
1925(b) statement all of the arguments he now seeks for us to review in
support of his discretionary aspects of sentencing claim, he failed to do so at
sentencing or in his post-sentence motion. See Post-Sentence Motions,
3/27/13, at ¶ 2 (challenging only the purported excessiveness of his
sentence). In response to the Commonwealth’s claim that the arguments
raised on appeal, which go beyond a mere claim of excessiveness, 9 are
therefore waived, Tejada relies upon the holding of Commonwealth v.
Egan, and states that because the trial court addressed the sentencing
arguments in its Rule 1925(a) opinion, they are not waived. Tejada’s Reply
Brief at 6.
9
Tejada raises four discretionary aspects of sentencing claims on appeal:
(1) the sentencing court erroneously applied the sentencing guidelines; (2)
the sentencing court was “dismissive” of his apology given at sentencing; (3)
the trial court did not properly weigh the mitigating evidence and Tejada’s
rehabilitative needs in fashioning the sentence; and (4) the trial court erred
by applying the deadly weapon enhancement to his sentence. See Tejada’s
Brief at 26-37.
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In Egan, this Court reviewed the appellant’s discretionary sentencing
claim that the trial court erred by failing to state its reasons on the record
for imposing the sentence despite the fact that the appellant failed to raise
the argument either at sentencing or in a post-sentence motion. Egan,
679 A.2d at 237-38. The Court did so because the appellant raised the
claim in his 1925(b) statement, the trial court addressed it in its written
opinion, and the issue raised, although considered a “discretionary aspect of
sentencing” issue, was not a matter within the trial court’s discretion, but
was a statutory mandate. Id. at 239; see 42 Pa.C.S.A. § 9721(b) (“In
every case in which the court imposes a sentence for a felony or
misdemeanor […] the court shall make as a part of the record, and disclose
in open court at the time of sentencing, a statement of the reason or
reasons for the sentence imposed.”).
Later that same year we decided Commonwealth v. Clinton. As in
Egan, the appellant in Clinton raised discretionary sentencing claims on
appeal that he failed to raise either at sentencing or in a post-sentence
motion. Clinton, 683 A.2d at 391. The Court recognized the holding in
Egan, but found that it was inapplicable, as the sentencing issues raised by
Clinton “bear on the exercise of discretion by the trial court in choosing what
sentence to impose and thus are unlike the challenge in Egan.” Id. at 392.
The Clinton Court found that where the issues raised assail the trial court’s
exercise of discretion in fashioning the defendant’s sentence, the trial court
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must be given the opportunity to reconsider the imposition of the sentence
either through the defendant raising the issue at sentencing or in a post-
sentence motion. Id. The failure to do so results in waiver of those claims.
Id.
In 2004, an en banc panel of this Court decided Commonwealth v.
Melendez-Rodriguez. In that case, the defendant failed to object to the
admission of certain photographs presented at trial, but included a claim in
his 1925(b) statement that the trial court erred by admitting the
photographs. Melendez-Rodriguez, 856 A.2d at 1288. The trial court
addressed this contention in its 1925(a) opinion. Id.In an attempt to overcome a finding of waiver, the appellant relied
upon case law that held: “When an issue is waived for failure to comply with
post-trial procedural rules but the trial court chooses to overlook the error
and addresses the issue, an appellate court is bound to do likewise.”
Commonwealth v. Miller, 765 A.2d 1151, 1155 (Pa. Super. 2001) (quoting
Commonwealth v. Perez, 664 A.2d 582, 585 (Pa. Super. 1995)); see
Melendez-Rodriguez, 856 A.2d at 1288. The Melendez-Rodriguez Court
found that Miller and Perez were not good law and did not save an issue
from waiver when the issue was not raised first in the trial court. In
reaching this conclusion, we made clear that issues must be raised prior to
trial, during trial, or in a timely post-sentence motion to be preserved for
appeal. Melendez-Rodriguez, 856 A.2d at 1288-89. In direct contrast to
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the Egan and Clinton decisions, the Melendez-Rodriguez Court found
that “a party cannot rectify the failure to preserve an issue by proffering it in
response to a Rule 1925(b) order.” Id. at 1288 (citation omitted).
We are bound by the clear holding in the en banc panel’s decision in
Melendez-Rodriguez. See Pa.R.A.P. 3103(b) (“An opinion of the court en
banc is binding on any subsequent panel of the appellate court in which the
decision was rendered.”). The portion of the holdings in Egan and Clinton,
finding discretionary aspects of sentencing claims can be preserved when
raised for the first time in a 1925(b) statement, which are contrary to the
decision in Melendez-Rodriguez, were overruled by implication.
As Tejada preserved none of the arguments in support of his
discretionary aspects of sentencing claim at sentencing or in his post-
sentence motion, they are not subject to our review. See Buterbaugh, 91
A.3d at 1265; Baker, 72 A.3d at 662; see also Commonwealth v. Rush,
959 A.2d 945, 949 (Pa. Super. 2008) (“for any claim that was required to be
preserved, this Court cannot review a legal theory in support of that claim
unless that particular legal theory was presented to the trial court”).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2015
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