Com. v. Brown, W. ( 2015 )

J-A11022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE BROWN,
Appellant No. 2587 EDA 2014
Appeal from the Judgment of Sentence of July 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011431-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 22, 2015
Appellant, Wayne Brown, appeals from the judgment of sentence
entered on July 11, 2014. We affirm.
The trial court ably explained the underlying facts of this case:
[At approximately 11:40 a.m. on June 18, 2013,
Philadelphia] Police Sergeant Tamika Allen went to the 700
block of North 41st [Street] to investigate drug sales. From
a confidential location, Sergeant Allen observed [Appellant]
sitting on the steps of 731 [North] 41st Street. . . .
At 11:50 a.m., and then again at about 12:05 p.m.,
Sergeant Allen observed [Appellant] engage in two [] drug
related sales with two individuals consisting of brief
conversations followed by [Appellant’s] acceptance of
[United States] currency in exchange for small items.
Sergeant Allen relayed her observations to [backup]
officers[,] who stopped the two persons who received small
items from [Appellant. The police] found the first individual
to be in possession of small packets filled with what testing
revealed to be heroin.
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Police apprehended [Appellant] following the 12:05 p.m.
transaction and recovered [18] packets containing heroin
from [Appellant’s] shoes. Six of the packets contained
identical markings to the packets confiscated from the first
individual who received small items from [Appellant]. Police
also confiscated $329.00 in a search incident to his arrest.
...
On May 9, 2014, following a waiver trial before [the trial
c]ourt, [Appellant] was found guilty of possession with
intent to deliver a controlled substance and knowing and
intentional possession of a controlled substance.[1]
Trial Court Opinion, 11/10/14, at 1-2.
The trial court held a sentencing hearing on July 11, 2014. Prior to the
imposition of sentence, Appellant’s counsel argued that the trial court should
sentence Appellant “below the guideline range” because: Appellant is 52
years old; Appellant has been receiving treatment for his drug problem; and,
although Appellant “did [receive] a DUI in 2012, . . . his prior contact [with
the criminal justice system] before that [wa]s over 23 years ago.” N.T.
Sentencing, 7/11/14, at 8-9. The trial court sentenced Appellant to serve a
term of three to ten years in prison. Appellant did not object to the trial
court’s sentence following the imposition of sentence. See id. at 14.
Following Appellant’s sentencing hearing, it appears as though
Appellant’s privately-retained trial counsel, Michael J. Farrell, Esquire,
abandoned Appellant. See Trial Court Opinion, 11/10/14, at 2 n.2.
Nevertheless, on August 7, 2014, Appellant filed a timely, pro se notice of
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1
35 P.S. § 780-113(a)(30) and (16), respectively.
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appeal; and, on September 2, 2014, Appellant filed an untimely, pro se
motion for reconsideration of his sentence.
On September 5, 2014, Stanley R. Krakower, Esquire, entered his
appearance on behalf of Appellant. Attorney Krakower prosecuted the
current appeal on Appellant’s behalf.2
Appellant raises the following claims in his counseled brief to this
Court:
[1.] Did Appellant raise the discretionary sentence issue
before the trial court, thus satisfying Rule 302(a) of the
[Pennsylvania] Rules of Appellate Procedure?
[2.] Does Appellant submit a statement of reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of his sentence[?]
[3.] Does Appellant submit reasons why his sentence is
“manifestly excessive” and too severe, under all the
circumstances?
Appellant’s Brief at 2.
Appellant raised one substantive claim on appeal: that “his sentence
is ‘manifestly excessive’ and too severe, under all the circumstances.” Id.
This is a challenge to the discretionary aspects of Appellant’s sentence.
“[S]entencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
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2
See Commonwealth v. Cooper, 27 A.3d 994, 1006-1007 (Pa. 2011)
(holding that an appellant’s pro se notice of appeal was not a legal nullity,
even though it was filed while he was represented by counsel, because to
hold otherwise would result in the appeal being quashed).
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Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, [42 Pa.C.S.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant did not preserve his discretionary aspects
of sentencing claim at the trial court level, as Appellant did not object to his
sentence following its imposition and Appellant did not file a timely motion to
reconsider and modify his sentence. Thus, Appellant waived his
discretionary aspects of sentencing claim on appeal.3, 4, & 5
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3
Within this appeal, Appellant claims that he preserved his discretionary
aspects of sentencing claim because he asked for mitigation before the trial
court imposed the sentence. Therefore, according to Appellant, he raised his
discretionary aspects of sentencing claim to the trial court. See Appellant’s
Brief at 3. Appellant’s claim fails because, at the time Appellant requested
mitigation, the trial court did not yet impose its sentence; thus, the trial
court did not yet exercise its discretion in sentencing Appellant. Since
(Footnote Continued Next Page)
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
_______________________
(Footnote Continued)
Appellant’s substantive claim on appeal is that the trial court abused its
discretion by “failing to consider” certain mitigating factors at sentencing –
and since this claim could only logically ripen after the trial court imposed
Appellant’s sentence – Appellant did not preserve his discretionary aspects
of sentencing claim by requesting mitigation before the trial court imposed
the sentence.
4
Appellant also contends that the trial court should have considered his
untimely, pro se motion for reconsideration of his sentence. However,
Appellant filed his motion for reconsideration after he filed his notice of
appeal and more than 30 days after his sentence was imposed. Therefore,
the trial court did not have jurisdiction to consider Appellant’s motion for
reconsideration or to grant Appellant any relief on the motion. See
Pa.R.A.P. 1701(a) (“[e]xcept as otherwise prescribed by these rules, after an
appeal is taken . . . , the trial court . . . may no longer proceed further in the
matter”); Commonwealth v. Dasilva, 655 A.2d 568 (Pa. Super. 1995)
(“[a]s a general rule, a trial court may not modify a final order beyond the
[30] day statutory time limit set forth in 42 Pa.C.S.A. § 5505”).
5
Since it appears as though Appellant’s trial counsel abandoned Appellant
after sentencing, Appellant might be entitled to post-conviction collateral
relief under Pennsylvania’s Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546.
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