Com. v. Marchand, S. ( 2016 )


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  • J-S68008-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    STEVEN MICHAEL MARCHAND,
    Appellant                No. 1341 WDA 2015
    Appeal from the Judgment of Sentence July 27, 2015
    In the Court of Common Pleas of Venango County
    Criminal Division at No(s): CP-61-CR-0000020-2014
    BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
    MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 26, 2016
    Steven Michael Marchand (“Appellant”) appeals from the judgment of
    sentence imposed after a jury convicted him of two counts of identity theft,
    one count of conspiracy to commit identity theft, one count of theft by
    deception, one count of conspiracy to commit theft by deception, two counts
    of forgery, and one count of conspiracy to commit forgery. We affirm.
    The trial court summarized the operative facts of this case as follows:
    The charges in this case arise out of two separate transactions
    for the sale of timber. The first of these contracts was presented
    by Appellant to Frederick Clelland, a self-employed timberer,
    purportedly bearing the signature of one Sylvia Weed, the owner
    of the real property in question. Clelland in turn paid the
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S68008-16
    Appellant a substantial amount of money in consideration[1] of
    the Appellant’s acting as a broker for Sylvia Weed. It was later
    revealed that Weed never actually signed or authorized the
    contract in question.
    The second series of contracts were presented by the
    Appellant to David A. Sholtis, an employee of Sugar Grove
    Hardwood, bearing the purported signatures of James and Helen
    Berry.      Sugar     Grove    Hardwood    provided     significant
    compensation to Appellant in consideration of his acting as a
    broker for two parcels belonging to James and Helen Berry.[2]
    During the course of negotiations between Sholtis and Appellant
    for the sale of timber on a third parcel, this one purportedly
    owned by Sylvia Weed, Sholtis came to discover that, contrary
    to Appellant’s representations, the actual owners of the parcel
    were James and Helen Berry. It was moreover revealed that the
    true landowners never actually authorized any of the
    transactions, in large part because they were in fact deceased.
    Trial Court Opinion, 5/2/16, at 2–3.
    Following Appellant’s conviction on March 20, 2015, the trial court
    sentenced him on July 27, 2015, as follows:
    On Counts 1 and 4, he received concurrent sentences of twelve
    (12) months less three (3) days to twenty-four (24) months less
    one (1) day [of incarceration]. With respect to Counts 2, 6, 7
    and 8, he was sentenced to terms of probation of seven (7)
    years, to run concurrently with each other, and consecutively to
    the sentence of incarceration imposed at Counts 1 and 4. With
    respect to Counts 3 and 5, the Appellant was sentenced to terms
    of probation of seven (7) years, to run concurrent to one another
    and consecutive to the term of probation imposed on Counts 2,
    6, 7, and 8.
    ____________________________________________
    1
    Mr. Clelland paid Appellant $45,000. N.T., 3/16/15, at 9.
    2
    The first contract was for $38,000, and the second contract was for
    $25,000. N.T., 3/16/15, at 37, 39.
    -2-
    J-S68008-16
    Trial Court Opinion, 5/2/16, at 2. Also, Appellant was ordered to pay a total
    of $81,100.88 in restitution. N.T. (Sentencing), 7/27/15, at 24. This appeal
    followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.
    Appellant presents the following issues for our consideration:
    The verdict in this case was against the weight of the evidence
    when information was presented that supported his version of
    the events and the handwriting on the contracts in question
    supported his testimony
    The sentence in this case was manifestly excessive and clearly
    unreasonable when the court sentenced Mr. Marchand to a
    period of incarceration and did not take into account mitigating
    factors such as the Defendant’s background and the nature of
    the crime
    Appellant’s Brief at 2 (verbatim; full capitalization omitted).
    Appellant first raises a weight-of-the-evidence challenge, which he has
    failed to preserve for our review. A weight challenge must be raised in the
    trial court or it will be waived. Pursuant to Pa.R.Crim.P. 607, a “claim that
    the verdict is against the weight of the evidence shall be raised with the trial
    judge in a motion for a new trial: (1) orally, on the record, at any time
    before sentencing; (2) by written motion at any time before sentencing; or
    (3) in a post-sentence motion.”     A weight claim must be presented to the
    trial court while it exercises jurisdiction over a matter since “appellate review
    of a weight claim is a review of the exercise of discretion, not of the
    underlying question of whether the verdict is against the weight of the
    evidence.” Commonwealth v. Burkett, 
    830 A.2d 1034
    , 1037 (Pa. Super.
    2003).
    -3-
    J-S68008-16
    Here, the trial court found—and our review of the record confirms—
    that Appellant failed to raise his weight claim orally or in writing prior to or
    after sentencing.      Trial Court Opinion, 5/2/16, at 3.3    In fact, Appellant
    raised the evidentiary challenge for the first time in his Rule 1925(b)
    statement. Pa.R.A.P. 1925(b) Statement, 2/1/16, at ¶ 5. Accordingly, we
    hold that Appellant’s weight claim has been waived.4
    Appellant next argues that his sentence is excessive and that the
    sentencing court failed to consider mitigating factors.      Appellant’s Brief at
    12. These issues are challenges to the discretionary aspects of Appellant’s
    sentence. Commonwealth v. Samuel, 
    102 A.3d 1001
    , 1007 (Pa. Super.
    2014).
    It is well settled that there is no absolute right to appeal the
    discretionary aspects of a sentence. Commonwealth v. Finnecy, 
    135 A.3d 1028
    , 1031 (Pa. Super. 2016). Rather, where an appellant challenges the
    discretionary aspects of a sentence, the appeal should be considered a
    petition for allowance of appeal.         Commonwealth v. Johnson, 
    125 A.3d 822
    , 825 (Pa. Super. 2015).
    As we observed in Johnson:
    ____________________________________________
    3
    The record contains a post-sentence motion in which Appellant seeks only
    a hearing for consideration of after-discovered evidence. Post Sentence
    Motion, 9/28/15, at ¶¶ 3–7.
    4
    Were this challenge not waived, we would affirm on the basis of the trial
    court’s well-reasoned analysis. Trial Court Opinion, 5/2/16, at 3–5.
    -4-
    J-S68008-16
    Before we reach the merits of this [issue], we must engage in a
    four part analysis to determine: (1) whether the appeal is
    timely; (2) whether Appellant preserved his issue; (3) whether
    Appellant’s brief includes a concise statement of the reasons
    relied upon for allowance of appeal with respect to the
    discretionary aspects of sentence; and (4) whether the concise
    statement raises a substantial question that the sentence is
    appropriate under the sentencing code.
    Johnson, 125 A.3d at 825–826 (quoting Commonwealth v. Clarke, 
    70 A.3d 1281
    , 1286 (Pa. Super. 2013) (citation omitted)).
    Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
    not raised in the lower court are waived and cannot be raised for the first
    time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects
    of a sentence are generally waived if they are not raised at the sentencing
    hearing or in a motion to modify the sentence imposed. Commonwealth v.
    Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010) (citing Commonwealth v.
    Mann, 
    820 A.2d 788
     (Pa. Super. 2003)).
    Our review of the certified record reflects that Appellant waived his
    challenge to the discretionary aspects of his sentence by failing to raise the
    claim either at the sentencing proceeding or by means of a post-sentence
    motion.5 N.T. (Sentencing), 7/27/15, at 22, 25–26; Post Sentence Motion,
    ____________________________________________
    5
    At sentencing, Appellant requested a county sentence and bond pending
    appeal, both of which he received. N.T. (Sentencing), 7/27/15, at 19, 22,
    26. Appellant’s post-sentence motion does not include a challenge to the
    discretionary aspects of his sentence.
    -5-
    J-S68008-16
    9/28/15. Appellant challenged the sentence imposed for the first time in his
    Rule 1925(b) statement.          Pa.R.A.P. 1925(b) Statement, 2/1/16, at ¶ 6.
    Accordingly, Appellant’s sentencing challenge has been waived.6
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/26/2016
    ____________________________________________
    6
    Neither the Commonwealth nor the trial court responds to Appellant’s
    sentencing challenge with waiver. Were this challenge not waived, we would
    affirm on the basis of the trial court’s well-reasoned analysis. Trial Court
    Opinion, 5/2/16, at 5–8.
    -6-
    

Document Info

Docket Number: 1341 WDA 2015

Filed Date: 10/26/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024