Com. v. Jaison, B. ( 2019 )

J-S38038-19, J-S38039-19 & J-S38040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY JAISON, :
:
Appellant : No. 1605 EDA 2018
Appeal from the Judgment of Sentence August 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007540-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY JAISON, :
:
Appellant : No. 1606 EDA 2018
Appeal from the Judgment of Sentence August 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007541-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY JAISON, :
:
Appellant : No. 1607 EDA 2018
Appeal from the Judgment of Sentence August 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007545-2016
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38038-19, J-S38039-19 & J-S38040-19
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 17, 2019
Appellant, Billy Jaison, appeals from the judgments of sentence for his
convictions, following a bench trial, of forgery‒altered writing, conspiracy,
identity theft, access device fraud, and theft by unlawful taking of movable
property.1 Appellant challenges the aggregate punishment imposed of 2½ to
5 years of imprisonment followed by 45 years of probation. We affirm.
On March 9, 2016, Appellant was charged at CP-51-CR-0007540-2016
(No. 7540-2016), CP-51-CR-0007541-2016 (No. 7541-2016), and CP-51-CR-
0007545-2016 (No. 7545-2016) relating to three incidents during November
and December 2015 in which Appellant allegedly surreptitiously took personal
property in the form of a wallet or cash from another person on a Southeastern
Pennsylvania Transit Authority (SEPTA) bus. On August 15, 2016, the
Commonwealth filed a notice pursuant to Rule of Criminal Procedure 582
stating its intention to try each of the three matters in a joint trial. Appellant
waived his right to trial by jury, and a non-jury trial was conducted on May
17, 2017.
At trial, Diane Dobkin testified that she boarded a crowded No. 42 SEPTA
bus on November 24, 2015 in Center City Philadelphia. N.T., 5/17/17, at 8.
Appellant was jostled during the ride, and, when she exited the bus near a
hospital in West Philadelphia, she noticed that her wallet containing various
credit and bank cards was missing from her purse. Id. at 9-10. Ms. Dobkin
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1 18 Pa.C.S. §§ 4101(a)(1), 903, 4120(a), 4106(a)(1), and 3921(a),
respectively.
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was later informed that her Macy’s credit card was subsequently used and that
her debit card had been used at a 7-Eleven store. Id. at 13-15.
Edward Patrick O’Hara testified that on December 3, 2015 he withdrew
$600 from a bank near Frankford Avenue in Philadelphia and placed the money
in his front right pant pocket along with $100 that he already had on him. Id.
at 17-18. Mr. O’Hara then boarded a No. 3 SEPTA bus; as he was stepping
into the bus, he felt a tug on his pant pocket, and when he checked his pocket
a few seconds later, he discovered that all of the money in his pocket was
gone. Id. at 18-21.
Leah Zindel testified that on December 26, 2015 she boarded a No. 17
SEPTA bus in Center City Philadelphia and that she was jostled and bumped
during the ride by several men. Id. at 24-26. Within a few blocks, Ms. Zindel
realized that her wallet was gone. Id. at 27. Ms. Zindel was subsequently
informed that her credit card was used later that day at the Macy’s in Center
City Philadelphia. Id. at 28, 31-33.
Detective Jason Connor of SEPTA Transit Police testified at the trial.
Detective Connor stated that he took statements from Ms. Dobkin, Mr. O’Hara,
and Ms. Zindel. Id. at 54, 64-65, 75-76. Detective Connor reviewed video
from the No. 3 bus that Mr. O’Hara boarded on December 3, 2015 and the No.
17 bus that Ms. Zindel boarded on December 26, 2015; in addition, Detective
Connor obtained receipts and videos from a 7-Eleven store on November 24,
2015 and Macy’s Center City Department Store on December 26, 2015,
corresponding to the dates and times of the unauthorized use of Ms. Dobkin’s
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debit card and Ms. Zindel’s credit card. Id. at 55, 65, 76. Through his review
of these videos, Detective Connor was able to identify Appellant as being on
the same bus as Mr. O’Hara and Ms. Zindel and in close proximity to their
persons. Id. at 65-69, 78-82. Detective Connor further observed Appellant
as the individual who engaged in the unauthorized use of Ms. Dobkin’s debit
card at 7-Eleven and Ms. Zindel’s credit card at Macy’s. Id. at 55-59, 70, 87,
97-103. In addition, Detective Connor personally observed Appellant at
SEPTA’s Jefferson Station on December 26, 2015 while conducting a pick-
pocketing investigation; through his later review of surveillance video,
Detective Connor determined that Appellant was wearing the same clothing
and with the same individual as when he was on the bus with Ms. Zindel and
using her credit card at Macy’s. Id. at 87-93. Based on his observations and
investigation, Detective Connor obtained a search warrant of Appellant’s
home; through that search he collected several distinctive articles of clothing
and apparel that Appellant was seen wearing in that video. Id. at 105-08.
Pennsylvania State Parole Officer John Hampton testified that he had
met with Appellant approximately twice per month during the course of the
prior two years. Id. at 39-40. Mr. Hampton stated that Detective Connor
asked him to review the five surveillance videos that had been obtained in this
case; Mr. Hampton was able to identify Appellant in each of these videos based
on his body language, facial appearance, distinctive articles of clothing, and a
bag that Appellant carried during each visit. Id. at 40-48.
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At the conclusion of trial, the trial court found Appellant guilty of the
above stated offenses.2 On August 3, 2017, the trial court sentenced
Appellant to 2½ to 5 years of imprisonment on the forgery‒altered writing
charge at docket number No. 7540-2016 and consecutive 5 year terms of
probation on the remaining nine charges in the three cases for an aggregate
probationary term of 45 years.
On August 7, 2017, Appellant filed timely motions for reconsideration of
the sentence at each docket number. The trial court denied the motion at No.
7540-2016 on October 6, 2017, but Appellant failed to file a timely notice of
appeal from this order. Appellant filed a PCRA petition on November 15, 2017
at No. 7540-2016 requesting that he be permitted to file a notice of appeal in
this case nunc pro tunc. The PCRA petition also noted that the motions for
reconsideration of the sentences at No. 7541-2016 and No. 7545-2016
remained outstanding. On November 16, 2017, the trial court entered orders
denying the motions for reconsideration at No. 7541-2016 and No. 7545-
2016. Appellant again failed to file a timely notice of appeal as to either of
these orders, and instead filed PCRA petitions on April 3, 2018 seeking the
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2Appellant was convicted of forgery‒altered writing, conspiracy, identity theft,
access device fraud, and theft by unlawful taking of movable property at No.
7540-2016; theft by unlawful taking of movable property at No. 7541-2016;
and forgery‒altered writing, identity theft, access device fraud, and theft by
unlawful taking of movable property at No. 7545-2016. The trial court found
Appellant not guilty of a count of receipt of stolen property, 18 Pa.C.S. §
3925(a), at each docket number and an additional conspiracy count at No.
7541-2016.
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reinstatement of his appellate rights. On May 24, 2018, the PCRA court
reinstated Appellant’s direct appeal rights at each of the three docket
numbers. On May 29, 2018, Appellant filed notices of appeal as to each case.3
Appellant raises the following issue on appeal:
Whether the trial court abused its discretion when the court failed
to provided adequate reasons on the record for the sentence and
failed to consider all of the relevant factors.
Appellant’s Brief, No. 1605 EDA 2018, at 9; Appellant’s Brief, No. 1606 EDA
2018, at 8; Appellant’s Brief, No. 1607 EDA 2018, at 9 (extraneous
capitalization omitted). Specifically, Appellant contends that the trial court
failed to adhere to the requirements of Section 9721 of the Sentencing Code
that it make “a statement of the reason or reasons for the sentence imposed”
on the record at the sentencing hearing addressing the general sentencing
factors of “the protection of the public, the gravity of the offense as it relates
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3 On August 2, 2018, the trial court entered an order at No. 7540-2016
directing Appellant to file a concise statement of matters complained of on
appeal within 21 days pursuant to Rule of Appellate Procedure 1925(b).
Appellant did not file a Rule 1925(b) statement. No Rule 1925(b) order was
issued at either of the two docket numbers. The trial court issued its opinion
on December 12, 2018. In the opinion, the trial court stated that the matters
should be remanded for appointment of new appellate counsel because
Appellant’s counsel, who represented him throughout the trial and continues
to represent him in this appeal, failed to file timely notices of appeal as
requested by his client and failed to respond to the trial court’s Rule 1925(b)
order. Trial Court Opinion, 12/12/18, at 7-8. On January 17, 2019, Appellant
filed an application in each of the three appellate matters seeking remand so
that he could file Rule 1925(b) statements. This Court entered orders
remanding the matters, and Appellant then filed his Rule 1925(b) statements
on February 25, 2019. On February 27, 2019, the trial court issued a
supplemental opinion in which it stated that it was relying on the reasoning
stated in its prior opinion.
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to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Furthermore,
citing Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003),
Appellant argues that the trial court failed to consider his age, his
employment, education, and family histories, and the nature of the crimes he
committed and that there is no indication in the record that the trial court
considered a pre-sentence report.
A challenge to the discretionary aspect of a sentence is not appealable
as of right. Commonwealth v. Akhmedov, ___ A.3d ___, 2019 PA Super
232, *31 (filed July 29, 2019).
Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code
Id. (citation omitted). A substantial question is present where the appellant
advances an argument that the sentence was inconsistent with a specific
provision of the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Id. at *32.
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While Appellant included Rule 2119(f) statements in his appellate briefs
and raised a substantial question for our review,4 Appellant failed to preserve
this issue by raising it before the trial judge therefore precluding our review
of his appellate issue. “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. Padilla-
Vargas, 204 A.3d 971, 975-76 (Pa. Super. 2019) (citation omitted); see also
Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015)
(discretionary sentencing challenge must be presented to trial court at
sentencing or in post-sentence motion to be preserved). An appellant cannot
cure the waiver of an issue by including the challenge to the discretionary
aspects of a sentence in his Rule of Appellate Procedure 1925(b) concise
statement. Padilla-Vargas, 204 A.3d at 976.
Appellant did not object to his sentence at the sentencing hearing. While
Appellant filed a post-sentence motion for reconsideration of the sentence, the
sole ground that he asserted is that his “sentence is manifestly excessive as
grossly disproportionate to his crimes” and he did not assert the trial court
failed to state the reasons for his sentence on the record or that the trial court
failed to consider the relevant sentencing factors. Post-Sentence Motion, No.
7540-2016, ¶3; Post-Sentence Motion, No. 7541-2016, ¶3; Post-Sentence
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4 See Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super.
2013) (en banc) (claim that sentencing court failed to consider factors set
forth in Section 9721(b) presents a substantial question).
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Motion, No. 7545-2016, ¶3. Accordingly, because Appellant failed to raise the
issue he presents in this current appeal to the trial court either at the
sentencing hearing or in a post-sentence motion, this appellate issue is
waived. Padilla-Vargas, 204 A.3d at 975-76; Tejada, 107 A.3d at 799.
Furthermore, Appellant has not argued on appeal that his sentence was
manifestly excessive or grossly disproportionate to his crimes – the issue
raised in his post-sentence motion – and therefore this issue is also waived.
Commonwealth v. Gould, 187 A.3d 927, 934 n.7 (Pa. Super. 2018).
Even if this issue had been preserved, we would find it meritless.
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,
the appellant 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.
Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation
omitted). Contrary to Appellant’s claim in his brief, the trial court stated its
reasons for the sentence imposed at the sentencing hearing, addressing each
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of the Section 9721 sentencing factors of protection of the public, 5 gravity of
the offense,6 and rehabilitative needs of the defendant.7
Furthermore, this case is distinguishable from Parlante. In that case,
the 21-year old defendant was initially convicted of forgery and then
repeatedly violated probation, including for arrests related to drug possession
and underage drinking and four technical violations. 823 A.2d at 928. On her
sixth violation, the trial court sentenced the defendant to an aggregate four
to eight year term of imprisonment. Id. This Court found that the trial court
abused its discretion because it did not consider all relevant factors, including
the defendant’s age, family history, rehabilitative needs, her pre-sentence
investigative report (PSI), and the fact that all convictions and arrests were
for non-violent crimes. Id. at 930.
In the instant matter, by contrast, the record reflects that the trial court
ordered a PSI, and Appellant acknowledged in his post-sentence motion that
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5 N.T., 8/3/17, at 13-14 (“I think that really the only hope for the citizens is
to keep you off the street for quite a while. . . . So you’re going to get a hit
from this one and after you do this again you’ll get [an]other hit, and frankly
we won’t have to watch for you every time you get on a bus or walk down the
street.”).
6 N.T., 8/3/17, at 14 (“I don’t usually go along with the Commonwealth
recommendation, they tend to be a little heavy-handed, but I really don’t think
there’s much of anything positive I can gain from looking at your record and
your continued conduct.”).
7 N.T., 8/3/17, at 13 (“I don’t think I’ve ever seen a guy with so many arrests
and convictions. You got at least one adult arrest for every year of your life.
You’ve got a dozen probation violations, so getting another hit from a back
judge doesn’t seem to stop you.”).
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the trial court’s sentencing of him was accomplished with the benefit of the
report. Post-Sentence Motion, No. 7540-2016, ¶2; Post-Sentence Motion, No.
7541-2016, ¶2; Post-Sentence Motion, No. 7545-2016, ¶2. “Where the
sentencing court had the benefit of reviewing a PSI, we must presume that
the sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Knox, 165 A.3d 925, 930 (Pa. Super.
2017) (citation omitted). The trial court recognized Appellant’s age at the
time of sentence, 55, and that he had an unceasing record of 55 contacts with
the criminal justice system spanning his adult life, a dozen probation
violations, and 30 convictions for various property offenses, including robbery.
N.T., 8/3/17, at 6, 13. The record thus reflects that the trial court was
cognizant of the Appellant’s ample criminal record and background and
provided sufficient reasons for the sentence imposed.
Based on the foregoing, Appellant is not entitled to relief.
Judgments of sentence affirmed.
Judge Ott joins the Memorandum.
Judge Dubow Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/19
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