Com. v. Konopki, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JENNIFER R. KONOPKI
Appellant No. 1683 EDA 2013
Appeal from the Judgment of Sentence April 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002756-2009
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 21, 2015
Appellant, Jennifer R. Konopki, appeals from the April 19, 2013
aggregate judgment of sentence of 10 to 20 years’ incarceration, plus two
years’ probation, imposed after a jury found her guilty of aggravated
assault, robbery, kidnapping, criminal conspiracy, and possession of an
instrument of crime (PIC).1 After careful review, we affirm.
The trial court summarized the facts of this case as adduced at trial in
the following manner.
On October 24, 2008, [] Appellant, Joseph
Holmes, Brandon Lee, and Naimah Fisher were in
Holmes’s residence at 8064 Forrest Avenue in
Philadelphia. [] Appellant told Holmes and Lee that
she knew a way for them to acquire money from a
man that she used to escort who had $30,000 in his
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1
18 Pa.C.S.A. §§ 2702(a), 3701(a)(1)(ii), 2901(a)(1), 903, and 907(a),
respectively.
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bank account. She devised a plan to tell the man
that she needed him to drive her and her son back to
their residence in Wilkes-Barre. [] Appellant,
Holmes, and Lee then left the residence, but Fisher
stayed at the house along with [] Appellant’s child.
Shortly thereafter, [] Appellant called Robert
Moir (the Complainant) on the phone. [] Appellant
asked him to pick her up in Philadelphia and drive
her and her baby home. The Complainant agreed to
help, and he met [] Appellant at 10th and Filbert
Streets. [] Appellant entered the Complainant’s car
without her child. Before entering the car, []
Appellant asked the Complainant to stop at a K-Mart
department store. They stopped at K-Mart where
the Complainant bought [] Appellant a car seat,
diapers, and baby clothes. [] Appellant then asked
the Complainant to drive her to 3846 North 8th
Street to pick up her baby. When they arrived at the
address at about 4:30 p.m., [] Appellant asked the
Complainant to come in to meet her uncle. The
Complainant complied. When the Complainant
entered the house, Joseph Holmes and Brandon Lee
immediately pushed him to the floor. One man
pointed a gun at the Complainant. Holmes and Lee
then covered the Complainant’s head with a
pillowcase. Holmes and Lee carried him from the
first floor down to the basement by his chest, belt,
and legs perpendicular to the stairs so that the
Complainant was looking down at the steps.
In the basement, Holmes and Lee took off the
Complainant’s shirt, socks, and shoes. They tied the
Complainant’s legs to a chair, handcuffed, and
gagged him. After the Complainant was tied up, one
man hit the Complainant with a gun on the right side
of his forehead, and punched him in the stomach.
The punch was so hard that the chair leg broke and
the Complainant fell to the floor. Holmes and Lee
shouted at the Complainant and demanded his
bankcard Personal Identification Number (PIN). []
Appellant then came down to the basement and
urged the Complainant to tell Holmes and Lee
his PIN or they would kill him. As a result, the
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Complainant gave them his PIN number. As they left
the basement, one of the men told the Complainant
that they would return and cut his toes off one at a
time until he gave them his retirement fund. []
Appellant, Holmes, and Lee then went upstairs
and left the house while the Complainant was
still gagged, bound to a chair, and lying on the
floor.
Approximately five minutes after [] Appellant,
Holmes, and Lee left, a third man entered the
basement and told the Complainant that he would let
him go. This man removed the pillowcase from the
Complainant’s head, untied the ropes holding his
legs, gave him back his sweatshirt, and put his shoes
back on. The Complainant’s handcuffs could not be
removed since the man could not find the handcuff
key. The man nonetheless took the Complainant
upstairs to the front door and told him to leave. The
Complainant walked to a nearby corner store, where
a customer called the police.
At approximately 7:00 p.m., Philadelphia Police
Officers Joseph Moore and Bruce Cleaver responded
to the call and found the Complainant at the corner
store bleeding from the head and back. The
Complainant’s hands were cuffed behind his back,
and his wrists were bleeding. The Complainant’s
clothes were ripped and partially off him, his lens
from his glasses was cracked, and there was dried
blood on his body and clothes. The Complainant told
Officer Moore that he had been kidnapped and
robbed by several black males. The Complainant
also gave a description of [] Appellant, a description
of his car, and the address where he had been taken
to. The officers put the Complainant in the back of a
police SUV and drove him down the block to 3846 N.
8th Street. A few minutes later, as the officers
traveled northbound on 8th Street with the
Complainant, Officer Moore saw [] Appellant,
Holmes, and Lee in the Complainant’s car driving
southbound on 8th Street. [] Appellant was the
driver. After [] Appellant parked, the officers
investigated the suspects. The Complainant
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subsequently positively identified each as his
assailants. Upon their arrests, officers confiscated
$610 from Holmes and four $100 ATM withdrawal
receipts (in the Complainant’s name) from Lee. The
officers also recovered a Tec-9 semi-automatic
handgun loaded with 26 live rounds from the trunk
of the Complainant’s car. The Complainant identified
the gun as the one used to beat and rob him. Later,
Fire Department personnel used a bolt cutter to cut
the handcuffs off the Complainant’s wrists.
Trial Court Opinion, 5/2/14, at 3-6 (emphasis in original, footnotes omitted).
Appellant was arrested and charged on October 26, 2008, with
criminal conspiracy, aggravated assault, robbery, kidnapping, theft by
unlawful taking, theft by receiving stolen property, possession of a firearm
without a license, PIC, terroristic threats, unlawful restraint, carrying a
firearm on public streets in Philadelphia, simple assault, reckless
endangerment of another person, false imprisonment, and unauthorized use
of a motor vehicle.2 All charges were bound over to the court of common
pleas, and the Commonwealth filed an information on March 13, 2009. The
matter proceeded to an initial trial date on October 20, 2009 before Judge
Stephen R. Geroff, at which time one of Appellant’s co-defendants requested
a continuance, and the Commonwealth declined to sever Appellant’s case.
Trial was subsequently continued on various dates, as discussed in
more detail infra, by various judges before whom the case was assigned.
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2
18 Pa.C.S.A. §§ 903, 2702(a), 3701(a)(1)(i), 2901(a)(1), 3921(a),
3925(a), 6106(a)(1), 907(a), 2706(a)(1), 2902(a)(1), 6108, 2701(a), 2705,
2903(a), and 3928(a), respectively.
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Meanwhile, on June 8, 2010, Appellant filed a motion to sever her case from
her co-defendants and a motion in limine. On March 2, 2011, Appellant
filed a motion to dismiss for violation of Pennsylvania Rule of Criminal
Procedure 600. A hearing on Appellant’s motion to dismiss was held on
March 18, 2011, at the conclusion of which Judge Glenn B. Bronson denied
the motion. Appellant filed a motion to suppress on April 4, 2012.
Ultimately, a new trial date was set for October 22, 2012. On that
date, Appellant filed an amended motion to dismiss for violation of Rule 600.
On October 22, 2012, Judge Glynnis Hill denied Appellant’s outstanding
motion to sever and deferred decision on Appellant’s amended motion to
dismiss. Thereafter jury selection commenced. On October 24, 2012 the
jury was empaneled, opening arguments were delivered, and testimony
commenced. Sometime thereafter, Appellant absconded, and she failed to
appear for the scheduled resumption of the trial on October 31, 2012. On
November 1, 2012, a bench warrant was issued for Appellant’s arrest. The
trial resumed in abstentia on November 5, 2012.3 On November 8, 2012,
the trial court denied Appellant’s amended motion to dismiss. On November
9, 2012, the jury found Appellant guilty of the afore-stated charges.4 On
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3
Appellant was subsequently apprehended and following a hearing on
December 3, 2012, the trial court found Appellant guilty of criminal
contempt and sentenced her to two and one-half months to five months’
incarceration.
4
The remaining charges were nolle prossed.
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April 19, 2013, Judge Hill sentenced Appellant to an aggregate term of
incarceration of 10 to 20 years.5 On April 29, 2013, Appellant filed post-
sentence motions, which the trial court denied by order entered on May 30,
2013. Appellant filed a timely notice of appeal on June 13, 2013.6
On appeal, Appellant raises the following issues for our review.
1. Whether the [trial] court abused its discretion by
refusing to grant [A]ppellant’s post-sentence motion
requesting arrest of judgment, where there had been
a clear violation of [A]ppellant’s right to a prompt
trial under Pa.R.Cr.P. 600?
2. Whether the [trial] court had abused its discretion
in refusing to grant a new trial where it had refused
[A]ppellant’s motion for a severance, refused to
grant a mistrial and refused to give an essential
requested instruction to the jury?
3. Whether the [trial] court abused its discretion in
refusing to grant [A]ppellant’s motion for reduction
of sentence?
Appellant’s Brief at 3.
Appellant, in her first issue, charges the trial court with an abuse of
discretion in denying her various motions to dismiss her case for the
Commonwealth’s violation of her speedy trial rights under Rule 600.
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5
Specifically, Appellant received 10 to 20 years’ incarceration each for
aggravated assault, robbery, and kidnapping to run concurrent to one
another. Appellant received a consecutive two years’ probation for
conspiracy.
6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Appellant’s Brief at 5. To address this issue we observe the following
standards.
“When reviewing a trial court’s decision in a Rule 600 case, an
appellate court will reverse only if the trial court abused its discretion.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).
Judicial discretion requires action in conformity
with law, upon facts and circumstances judicially
before the court, after [a] hearing and due
consideration. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the
evidence or the record, discretion is abused.
The proper scope of review … is limited to the
evidence on the record of the Rule 600 evidentiary
hearing, and the findings of the trial court. An
appellate court must view the facts in the light most
favorable to the prevailing party.
…
So long as there has been no misconduct on
the part of the Commonwealth in an effort to evade
the fundamental speedy trial rights of an accused,
Rule 600 must be construed in a manner consistent
with society’s right to punish and deter crime. In
considering these matters …, courts must carefully
factor into the ultimate equation not only the
prerogatives of the individual accused, but the
collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en
banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).
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We recognize that the courts of this Commonwealth employ a three-
step analysis to determine whether Rule 600 requires dismissal of the
charges against a defendant.
The first step in determining whether a
technical violation of Rule 600 […] has occurred is to
calculate the “mechanical run date.” The mechanical
run date is the date by which trial must commence
under the relevant procedural rule. [T]he
mechanical run date is ascertained by counting the
number of days from the triggering event - e.g., the
date on which … the criminal complaint was filed - to
the date on which trial must commence under Rule
[600]. Pa.R.Crim.P. [600(A)(3)].
Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal
citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second
step, we must “determine whether any excludable time exists pursuant to
Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.
Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third
step, “[w]e add the amount of excludable time, if any, to the mechanical run
date to arrive at an adjusted run date.” Id.
It is well settled that any delay occasioned by a defendant is
excludable time in the calculation of the adjusted run date. Pa.R.Crim.P.
600(C)(2), (3); Preston, supra. Furthermore, delays not attributable to a
defendant but where the Commonwealth is found to have acted with due
diligence in attempting to commence a timely trial but was prevented by
circumstances beyond its control, is also considered excusable time.
Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989 A.2d 883,
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899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 131 S. Ct. 332
(2010).
“Due-diligence is a fact-specific concept that is
determined on a case-by-case basis. Due diligence
does not require perfect vigilance and punctilious
care, but rather a showing by the Commonwealth
that a reasonable effort has been put forth.”
Commonwealth v. Booze, 953 A.2d 1263, 1273
(Pa. Super. 2008) (quotations and quotation marks
omitted). “Judicial delay may justify postponing trial
beyond the adjusted run date if the Commonwealth
was prepared to commence trial prior to the
expiration of the mandatory period but the court was
unavailable because of ‘scheduling difficulties and
the like.’” Preston, 904 A.2d at 14 (citation
omitted).
Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012)
Because the Commonwealth cannot control the
calendar of a trial court, delay occasioned by the
court’s unavailability is usually excusable. However,
the Commonwealth may, under some circumstances
(e.g. a prolonged judicial absence), have a duty to
seek other courtrooms to try the case. The extent of
this duty depends on the specifics of each case. The
guiding principle is, again, that the Commonwealth
must exercise due diligence by putting forth a
reasonable effort in light of the particular case facts.
Along similar lines, delays caused by administrative
decisions of the court, decisions over which the
Commonwealth has no control, are generally
excused.
Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011) (citations
omitted). Any time prior to trial, a defendant may move the trial court for
dismissal of the charges if the Commonwealth has violated the Rule.
Pa.R.Crim.P. 600(G).
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At the November 8, 2012 hearing on Appellant’s amended motion to
dismiss, the parties stipulated to an exhibit describing the relevant time
periods from the docket. N.T., 11/8/12, at 105. The mechanical run date
for this case under Rule 600 was October 25, 2009, 365 days from the filing
date of the criminal complaint. The parties agreed that the periods from
October 20, 2009 to June 14, 2010 and from August 15, 2011 to April 16,
2012 were excludable due to Appellant’s waiver of her speedy trial rights for
those continuances, a total of 482 days. Appellant’s Brief at 8-9;
Commonwealth Brief at 15-18. This created an adjusted run date of
February 22, 2011.
In contention are the two periods from June 14, 2010 to August 15,
2011 and from April 16, 2012 to October 22, 2012. Appellant’s Brief at 8-9;
Commonwealth brief at 15-18; Trial Court Opinion, 5/2/14, at 14. The trial
court determined that these delays were the result of circumstances beyond
the Commonwealth’s control through which the Commonwealth proceeded in
good faith, being ready for trial. Id.; see also N.T., 11/8/12, at 110-113.
Appellant concedes that the postponements from June 14, 2010 to August
15, 2011 and from April 16, 2012 to October 22, 2012 were the result of
judicial unavailability and scheduling concerns. Appellant’s Brief at 7.
Nevertheless Appellant argues, “[t]he Commonwealth must do everything
reasonable within its [power] to guarantee that a trial begins on time, and
has the burden of demonstrating by a preponderance of the evidence that it
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exercised due diligence.” Id., quoting Commonwealth v. Ramos, 936
A.2d 1097, 1102 (Pa. Super. 2007), quoting Commonwealth v. Matis, 712
A.2d 10, 16 (Pa. 1998), appeal denied, 948 A.2d 803 (Pa. 2008). As an
example, Appellant cites the language in Riley, supra holding the
Commonwealth may be required to seek alternatives in the face of
prolonged court unavailability. Id. at 10. “When judge’s calendar is so
overcrowded and the court must continue a jury trial for months, the
situation constitutes a functional equivalent of ‘a prolonged judicial
absence’”. Id. at 10, quoting Riley, supra. “Appellant maintains that the
Commonwealth has a duty to seek other judges who could try the case for
the same reason it should have the duty whenever a defendant’s jury trial
demand causes the next date to be beyond the adjusted run-date[] on that
particular judge’s calendar.” Id. at 11.
The trial court determined the contested delays were occasioned by
the unavailability of the trial court due to involvement with other cases and
scheduling congestion. Trial Court Opinion, 5/2/14, at 14. It further found
the Commonwealth exercised due diligence. We conclude the trial court’s
findings are supported by the record.7
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7
Because of our disposition within, we do not address whether additional
excludable time was incurred by the timing of Appellant’s various motions.
“In Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578 (1999), the
Pennsylvania Supreme Court recognized that the time period during which a
defendant’s pretrial motion is pending is not necessarily excludable for
(Footnote Continued Next Page)
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Pertaining to the first contested period, the parties agree the inability
to proceed at the scheduled trial date of June 14, 2010, was the result of
then presiding Judge Linda Carpenter’s unavailability due to her connection
to another trial. Appellant’s Brief at 8; N.T., 3/18/11, at 7. Thereafter, as
reflected in the docket, Judge Carpenter, again unavailable, referred
Appellant’s outstanding pretrial motions to Judge Karen Shreeves-Johns.
Judge Shreeves-Johns granted co-defendant’s request for a continuance and
referred the cases back. At the new appointed date before Judge Bronson,
counsel for co-defendant was again unavailable. At the subsequent
scheduling conference, a date of August 15, 2011 before Judge James
Murray Lynn, was determined to be the “earliest possible date” for trial.
Pertaining to the second contested period, on April 16, 2012, the newly
assigned Judge Hill was presiding on another trial and co-defendant’s
counsel was again unavailable. October 22, 2012 was selected as the next
available date for trial. It is not contested the Commonwealth was ready to
proceed at the time of each continuance. Appellant’s Brief at 9.
We agree with the trial court that under these circumstances, the
Commonwealth exercised due diligence. This was not a case, as referenced
in Riley of prolonged unavailability of the court. The instant case confronted
a crowded court calendar, where the presiding judges were occupied with
_______________________
(Footnote Continued)
purposes of Rule 600.” Commonwealth v. Lynn, 815 A.2d 1053, 1058-
1059 (Pa. Super. 2003).
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other duties, not absent from the court. We reject Appellant’s attempt to
equate court congestion as the “functional equivalent” of prolonged judicial
absence. See Appellant’s Brief at 10.
The passage from Riley, quoted by Appellant relative to the
Commonwealth’s duty to seek another court room or judge in the face of
judicial absence, stems from the case of Commonwealth v. Hawk, 597
A.2d 1141 (Pa. 1991). Therein, delay in bringing Hawk to trial occurred
because the trial judge was absent due to illness and vacation for five
weeks. Id. at 1145. Instantly, it was not the absence of the assigned judge
that occasioned the delays, but the full schedule of the court. This is not a
case where the Commonwealth failed to exercise due diligence in the face of
judicial absence. Rather, at each pertinent date the Commonwealth was
ready to proceed but prevented by circumstances beyond its control.
“Where the Commonwealth was prepared to proceed throughout the
pendency of a case, it demonstrated that it was prosecuting the defendant’s
case with due diligence.” Commonwealth v. Robbins, 900 A.2d 413, 415
(Pa. Super. 2006) (citation omitted). At each continuance, a scheduling
conference with all parties participating settled on the earliest available date
for trial. See Lynch, supra at 125 (citing cases holding the Commonwealth
cannot control the trial court’s calendar, and trial courts are not required to
adjust their schedule to meet Rule 600 deadlines).
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Neither does the Commonwealth’s refusal to sever Appellant’s case,
when faced with a co-defendant’s unavailability, implicate its due diligence.
“On the contrary, this Court has held that the Commonwealth is not required
to sever a defendant’s case from a co-defendant’s when faced with a
possible Rule 600 violation.” Commonwealth v. Kearse, 890 A.2d 388,
394 (Pa. Super. 2005) (citation omitted), appeal denied, 906 A.2d 1196 (Pa.
2006). Under these circumstances, we discern no error or abuse of
discretion by the trial court in denying Appellants motions to dismiss for
violation of Rule 600.8
Appellant’s second question presented for appeal incorporates four
distinct issues raised in her Rule 1925(b) statement. See Appellant’s
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8
Both Appellant and the trial court discuss whether or not Appellant suffered
prejudice from any delay. See Appellant’s Brief at 13; Trial Court Opinion,
5/2/14, at 12. However, we note Appellant has only raised the alleged
violation of Rule 600 as an issue on appeal, not a constitutional speedy trial
claim.
When evaluating Rule 600, there need be no
discussion of whether a defendant is prejudiced
because prejudice is shown simply by proving that
the defendant suffered 365 days of non-excludable
pretrial delay under facts showing that the
Commonwealth did not exercise due diligence.
Instead, a prejudice analysis is proper when
evaluating whether the delay violated the
defendant’s right to a speedy trial guaranteed by the
Sixth Amendment to the United States Constitution
and by Article I, Section 9 of the Pennsylvania
Constitution.
Kearse, supra at 395.
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Concise Statement of Errors Complained of on Appeal, 9/3/13, at ¶¶ D, F, G,
and H. All the claims impugn the trial court for failure to grant her post-
sentence motions, to declare a mistrial, and grant a new trial. The specific
issues raised include; 1) a challenge to the trial court’s refusal to sever
Appellant’s case from co-defendant’s; 2) a challenge to the trial court’s
decision to proceed with the trial in abstentia, following Appellant’s failure to
appear; 3) a challenge to the trial court’s refusal to declare a mistrial when a
co-defendant testified in a manner contradictory to Appellant counsel’s
opening statement; and 4) a challenge to the trial court’s refusal to give a
requested point for charge to the jury. Id.; Appellant’s Brief at 14-16.
Prior to addressing the merits of Appellant’s claim, we must first
address the Commonwealth’s claim that Appellant has waived these issues
“for lack of development and support.” Commonwealth’s Brief at 28. Upon
review, we conclude the four issues encompassed by Appellant’s second
question on appeal are waived for failure to sufficiently argue her positions
in her appellate brief. Relative to each sub-issue, Appellant cites to no
authority in support of her bald assertions of error, fails to address the
authority relied on by the trial court and Commonwealth, and provides no
cogent analysis or development of her claims. See Appellant’s Brief at 14-
16. Our Supreme Court held such briefing deficiencies result in waiver of an
issue on appeal. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (stating, “where an appellate brief fails to provide any discussion of a
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claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived”), cert.
denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010).9
In her final issue, Appellant alleges the trial court “abused its
discretion by denying [her] post-sentence motion requesting reconsideration
of sentence ….” Appellant’s Brief at 16. Specifically, Appellant claims the
trial court failed “to give sufficient weight to [A]ppellant’s mental state at the
time of the commission of the crimes and that the person who committed
the crimes… was a changed person.” Id. at 18.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281
(Pa. 2013).
An appellant challenging the discretionary
aspects of [her] sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence …; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
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9
Even absent waiver, we agree with the trial court’s discussion of the merits
of Appellant’s claims as expressed in its May 2, 2014 opinion. Trial Court
Opinion, 5/2/14, at 17-23.
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substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
quotation marks and citations omitted).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
A substantial question exists only when the appellant
advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2)
contrary to the fundamental norms which underlie
the sentencing process.
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal
quotation marks and citations omitted), appeal denied, 63 A.3d 774 (Pa.
2013). “If the Rule 2119(f) statement … provided fails to demonstrate a
substantial question, this Court may refuse to accept the appeal.”
Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011)
(citation omitted).
Instantly, Appellant preserved her issue in her post-sentence motion
and included a Rule 2119(f) statement in her appellate brief. In her Rule
2119(f) statement, Appellant attempts to couch her issue in the guise of the
sentences imposed being “inconsistent with the Sentencing Code, and/or
were contrary to the fundamental norms which underlie the sentencing
process, and/or may have been based in part on impermissible factors.”
Appellant’s Brief at 16. Beyond this bald assertion, Appellant does not
articulate with any specificity in her Rule 2119(f) statement the reasons why
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the sentence was improper. “[W]here [an] appellant’s Rule 2119(f)
statement contains no factual averments which suggest that the sentencing
scheme as a whole has been compromised… the petition for permission to
appeal must be denied.” Commonwealth v. Williams, 562 A.2d 1385,
1389 (Pa. Super. 1989) (en banc). Accordingly, on this basis alone we could
deny Appellant’s petition. Nevertheless, Appellant’s argument makes clear
her contention is that the trial court failed to adequately consider various
mitigating factors. See Appellant’s Brief at 16-19. “An argument that the
sentencing court failed to adequately consider mitigating factors in favor of a
lesser sentence does not present a substantial question appropriate for our
review.” Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super.
2011) (citations and footnote omitted). Therefore, we conclude Appellant
has failed to raise a substantial question and deny permission to appeal.
To recapitulate, we conclude the trial court did not abuse its discretion
in denying Appellant’s motions for dismissal based on Rule 600, as trial
commenced within 365 days after accounting for all excludable and
excusable delays. We further conclude Appellant has waived the various
issues related to the denial of her post-sentence motion for new trial for lack
of development in her Appellate brief. Finally, we conclude Appellant has
failed to raise a substantial question in her challenge to the discretionary
aspects of her sentence. Accordingly, we affirm the April 19, 2013 judgment
of sentence.
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Judgment of sentence affirmed.
Judge Wecht joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2015
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