Com. v. Tuck, H. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
HANEEF TUCK, : No. 2546 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, July 22, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004493-2015
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 05, 2019
Haneef Tuck appeals from the July 22, 2016 aggregate judgment of
sentence of 25 to 50 years’ imprisonment imposed after a jury found him
guilty of aggravated assault, burglary, criminal trespass, and two counts each
of robbery, criminal conspiracy, and theft by unlawful taking or disposition.1
After careful review, we affirm.
The trial court summarized the extensive factual history of this case in
its June 12, 2018 opinion, and we need not reiterate it here. (See trial court
Rule 1925(a) opinion, 6/12/18 at 5-17.) In sum, in the early morning hours
of February 27, 2015, appellant and three cohorts forcibly entered a tattoo
parlor owned by Kasheef Murray after observing him and Isaiah Brown win
1 18 Pa.C.S.A. §§ 2702(a)(1), 3502(a)(3), 3503(a)(1)(ii), 3701(a)(1)(i) and
(ii), 903, and 3921(a), respectively.
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several hundred dollars at the SugarHouse Casino in Philadelphia, shot Murray
in the leg, and robbed them of $795 and several other items. (Notes of
testimony, 5/17/16 at 81-84, 93-99.) On March 28, 2015, appellant was
arrested in connection with this incident and charged with robbery and related
offenses. On May 16, 2016, appellant proceeded to a jury trial alongside
co-defendant Aaron Brunson. Following a three-day trial, the jury found
appellant guilty of the aforementioned offenses.2 Following the completion of
a pre-sentence investigation report and a sentencing hearing, the trial court
sentenced appellant to an aggregate term of 25 to 50 years’ imprisonment on
July 22, 2016.3 Appellant did not file any post-sentence motions. This timely
appeal followed on August 9, 2016.4
2 Appellant was found not guilty of carrying a firearm without a license and
carrying a firearm on public streets or public property in Philadelphia, and the
Commonwealth nolle prossed the charge of persons not to possess, use,
manufacture, control, sell, or transfer firearms. See 18 Pa.C.S.A.
§§ 6106(a)(1), 6108, and 6105(a)(1), respectively.
3 Specifically, the trial court sentenced appellant as follows: 5 to 10 years’
imprisonment for aggravated assault; 5 to 10 years’ imprisonment for robbery
(Count 2), to be served consecutive to the sentence imposed for aggravated
assault; 5 to 10 years’ imprisonment for burglary, to be served consecutive to
the sentence imposed for robbery (Count 2); 5 to 10 years’ imprisonment for
criminal conspiracy (Count 8), to be served consecutive to the sentence
imposed for burglary; 5 to 10 years’ imprisonment for criminal conspiracy
(Count 13), to be served concurrently with the sentence imposed for robbery
(Count 8); and 5 to 10 years’ imprisonment for robbery (Count 15), to be
served consecutively with the sentence imposed for robbery (Count 8). (Notes
of testimony, 7/22/16 at 24-25; see also sentencing order, 7/22/16.)
4 The record reflects that appellant and the trial court have complied with
Pa.R.A.P. 1925.
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Appellant raises the following issues for our review:
I. Did the trial court err and abuse its discretion by
imposing an aggregate sentence of
25-50 years[’] imprisonment imposing five
consecutive sentences that resulted in an
aggregate sentence of 25-50 years[’]
imprisonment?
II. Did appellant’s trial counsel provide ineffective
assistance of counsel where he failed to object
to the consecutive nature of the five sentences
imposed, failed to move for reconsideration of
sentence on the grounds that the aggregate
sentence was manifestly unjust and otherwise
failed to take appropriate steps to preserve
appellant’s claim of an unfair sentence for
appellate review?
Appellant’s brief at 2.
We begin by addressing appellant’s claim that his aggregate judgment
of sentence of 25 to 50 years’ imprisonment was “manifestly excessive” and
that “the trial court abused its discretion in imposing five consecutive
sentences[.]” (Id. at 14.)
Our standard of review in assessing whether a trial court has erred in
fashioning a sentence is well settled.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
[a]ppellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
Appellant’s claims challenge the discretionary aspects of his sentence.
Where an appellant challenges the discretionary aspects of his sentence, the
right to appellate review is not absolute. See Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super. 2011). Rather, an appellant challenging the
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
[a]ppellant preserved his issue; (3) whether
[a]ppellant’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.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, appellant filed a timely notice of appeal and included a separate
statement of reasons relied upon for allowance of appeal in his brief, as
required by Pa.R.A.P. 2119(f). Appellant, however, failed to preserve his
sentencing claims by objecting at the sentencing hearing or filing a
post-sentence motion. Appellant, in turn, acknowledges his failure to do so.
(See appellant’s brief at 4.) Accordingly, these claims are waived. See
Commonwealth v. Evans, 901 A.2d 528, 533–534 (Pa.Super. 2006)
(stating, “[o]bjections to the discretionary aspects of a sentence are generally
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waived if they are not raised at the sentencing hearing or raised in a motion
to modify the sentence imposed at that hearing.” (citation omitted)), appeal
denied, 909 A.2d 303 (Pa. 2006).
Appellant next argues that his trial counsel was ineffective by failing “to
object to the consecutive nature of the five sentences imposed”; failing “to
move for reconsideration of sentence on the grounds that the aggregate
sentence was manifestly unjust”; and failing to preserve his sentencing claims
for appellate review. (Appellant’s brief at 17-18.)
We find these claims are unreviewable on direct appeal. In
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our supreme court
“h[e]ld that, as a general rule, a petitioner should wait to raise claims of
ineffective assistance of trial counsel until collateral review.” Id. at 738.
Several limited exceptions to this rule have since been recognized in this
Commonwealth. In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003),
cert. denied, 540 U.S. 1115 (2004), the supreme court recognized a limited
exception to Grant where there exists an extensive record regarding the
ineffectiveness claims, including a full hearing where counsel testified, and the
trial court authored an opinion addressing the ineffectiveness claim. Id. at
853-855. Likewise, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),
our supreme court recognized that claims of ineffective assistance of counsel
may be reviewed on direct appeal “if (1) there is good cause shown, and
(2) the unitary review so indulged is preceded by the defendant’s knowing and
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express waiver of his entitlement to seek PCRA review from his conviction and
sentence, including an express recognition that the waiver subjects further
collateral review to the time and serial petition restrictions of the PCRA.[5].”
Id. at 564 (footnotes omitted).
Here, the criteria for invoking the exceptions set forth in Bomar and
Holmes are not present. There was no evidentiary hearing conducted in this
matter wherein appellant demonstrated “good cause” for seeking unitary
review of his ineffectiveness claims nor made a knowing waiver of future
review under the PCRA, and the trial court did not address the substance of
appellant’s ineffectiveness claims in its opinion. As such, the proper
disposition is to dismiss appellant’s ineffectiveness claims without prejudice to
his right to proceed pursuant to the PCRA.
Based on the foregoing, we affirm the trial court’s July 22, 2016
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/19
5 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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