Com. v. Golston, D. ( 2018 )

J-S25007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWAYNE A. GOLSTON :
:
Appellant : No. 910 WDA 2017
Appeal from the Judgment of Sentence May 22, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002218-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 30, 2018
Appellant, Dwayne A. Golston, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas, following his jury trial
convictions for forgery, access device fraud, identity theft, receiving stolen
property, and possessing instruments of crime.1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises three issues for our review:
APPELLANT AVERS AND BELIEVES THAT THE [COURT]
ERRED WHEN IT DENIED APPELLANT’S OMNIBUS PRE-
TRIAL MOTIONS AND THEREBY RULED THAT APPELLANT’S
CONSTITUTIONAL RIGHTS HAD NOT BEEN VIOLATED BY
THE MILLCREEK TOWNSHIP POLICE DEPARTMENT (MPD),
SPECIFICALLY THAT THE STOP AND/OR SEARCH OF
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1 18 Pa.C.S.A. §§ 4101(a)(2); 4106(a)(1)(ii); 4120(a); 3925(a); 907(a),
respectively.
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APPELLANT WAS CONSTITUTIONAL (I.E., THAT THE
MILLCREEK TOWNSHIP POLICE DEPARTMENT HAD
REASONABLE SUSPICION AND/OR PROBABLE CAUSE).
WHETHER THE VERDICT GOES AGAINST THE SUFFICIENCY
OF THE EVIDENCE BECAUSE THE COMMONWEALTH’S
PRIMARY WITNESSES TESTIFIED AND/OR PRESENTED
EVIDENCE OF WHAT WAS UNCHARGED CONDUCT INSIDE
THE BRANCH OF ERIE BANK, AND THE COMMONWEALTH
PRESENTED NO WITNESSES OR EVIDENCE OF THE
ALLEGED CONDUCT INSIDE THE BRANCH OF PNC BANK,
ESPECIALLY WITH REGARDS TO THE FOLLOWING
CHARGES: A) FORGERY (F2)—COUNT ONE; B) ACCESS
DEVICE FRAUD (F3)—COUNT TWO; C) RECEIVING STOLEN
PROPERTY (F3)—COUNT THREE; D) IDENTITY THEFT (F3)—
COUNT FOUR; AND/OR E) INSTRUMENTS OF CRIME (M1)—
COUNT FIVE[.]
APPELLANT AVERS AND BELIEVES THAT THE [COURT]
ERRED AT TIME OF SENTENCING WHEN THE TRIAL COURT
IMPOSED A PERIOD OF INCARCERATION, WHICH WAS AN
AGGRAVATED RANGE SENTENCE, AND IMPOSED
SUBSEQUENT CONSECUTIVE TERMS OF PROBATION
AND/OR SUPERVISION THAT EXCEEDS TEN (10) YEARS,
WHICH IS MANIFESTLY EXCESSIVE, CLEARLY
UNREASONABLE AND INCONSISTENT WITH THE
OBJECTIVES OF THE SENTENCING CODE. SPECIFICALLY,
SECTION 9721(B) OF THE SENTENCING CODE STATES
THAT CONFINEMENT SHALL BE CONSISTENT WITH THE
PROTECTION OF THE PUBLIC, THE GRAVITY OF THE
OFFENSE AND THE REHABILITATIVE NEEDS OF THE
DEFENDANT. APPELLANT ARGUES THAT THE POLICIES OF
SECTION 9721(B) COULD HAVE BEEN ACHIEVED WITHOUT
IMPOSING SUCH A LENGTHY MINIMUM AGGREGATE
SENTENCE.
(Appellant’s Brief at 3).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable William R.
Cunningham, we conclude Appellant’s issues merit no relief. The trial court
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opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed August 22, 2017, at 4-13) (finding:
(1) employees at Erie Bank told Officer Caldwell that African American man
wearing tan sports coat and derby-style hat had tried, for second time, to cash
savings bonds with identification card that could not be verified; Erie Bank
employees told officer that suspect was walking west; Officer Caldwell knew
PNC bank was nearby, so he drove there and observed black male with tan
sports coat and derby-style hat; Officer Caldwell had reasonable suspicion for
investigative detention, approached Appellant, and asked what he was doing;
after learning of Appellant’s failure to cash savings bonds at Erie Bank and at
PNC Bank, officer asked Appellant for his identification, which Appellant
produced; when officer attempted to verify it, it came back as white female
with different name and address than listed on identification card; officer
asked Appellant about savings bonds; Appellant handed one over; officer
verified that name and social security number on savings bond belonged to
81-year-old white male resident of Arizona; Appellant then admitted his real
identity and claimed he had found savings bonds on top of urinal in restaurant
in Chicago; at this point, officer had probable cause to arrest Appellant; court
properly denied suppression motion; (2) after failed attempts at banks in Ohio
and Illinois, Appellant travelled to Pennsylvania to try to cash savings bonds
belonging to Arizona resident, Mr. Peele; Appellant secured false identification
card in Ohio so he could pass himself off as Mr. Peele; Appellant signed
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identification card as Mr. Peele and wrote on and/or signed at least one of
savings bonds; no evidence showed Mr. Peele authorized Appellant to write
on his savings bonds; Appellant claimed he found savings bonds in bathroom
of restaurant in Chicago or near dumpster of restaurant, or in projects of Ohio;
whichever version of Appellant’s story jury believed demonstrated Appellant
knew or had reason to know savings bonds were stolen; Commonwealth
presented sufficient evidence to sustain each of Appellant’s convictions; (3)
Appellant challenges excessive nature of his sentence,2 which does not raise
substantial question under circumstances of this case; moreover, court
considered Appellant’s character, prior record, seriousness of offenses, impact
of offenses on Victim, and reviewed pre-sentence investigation report; court
stated reasons for sentence imposed on record at time of sentencing; court
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2 Appellant filed pro se correspondence on May 30, 2017, within ten days of
sentencing, stating he wanted to challenge the discretionary aspects of his
sentence. The court forwarded the correspondence to counsel, consistent with
Pa.R.Crim.P. 576(a)(4) (stating in any case in which defendant is represented
by counsel, if defendant submits for filing written motion, notice or document
that has not been signed by defendant’s attorney, clerk of courts shall accept
it for filing and forward copy of time stamped document to defendant’s
attorney and attorney for Commonwealth within 10 days of receipt). Counsel
asserted in Appellant’s Pa.R.A.P. 1925(b) statement that the court
erroneously denied Appellant’s post-sentence motions, but the certified record
and docket entries show counsel did not file a post-sentence motion on
Appellant’s behalf. Consequently, Appellant’s discretionary aspects of
sentencing issue is waived. See Commonwealth v. Griffin, 65 A.3d 932(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (explaining
objections to discretionary aspects of sentence are waived if they are not
raised at sentencing hearing or in timely filed post-sentence motion). Even if
Appellant had preserved his sentencing challenge, we would agree with the
trial court’s conclusion that his claim merits no relief.
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did not abuse sentencing discretion). Accordingly, we affirm on the basis of
the trial court’s opinion regarding Appellant’s first and second issues.
Appellant’s third issue on appeal is waived; even if Appellant had preserved
this claim, we would affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2018
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