Com. v. Green, C. ( 2022 )

J-S33036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES DALLAS D GREEN :
:
Appellant : No. 2069 EDA 2021
Appeal from the Judgment of Sentence Entered September 8, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002204-2019
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 28, 2022
Charles Dallas D Green (“Green”) appeals from the judgment of
sentence imposed after he pleaded guilty to third-degree murder, robbery,
and possessing an instrument of crime (“PIC”).1 We affirm.
On the morning of March 7, 2019, Green and Michael Warren (“Warren”)
got into a fight at a subway station. During the altercation, Green chased and
fatally stabbed Warren. Police arrested Green shortly after the stabbing, and
he later gave statements admitting that he and Warren had fought over
money that Warren owed him. Green entered open guilty pleas to the above-
mentioned offenses, and on September 8, 2021, the trial court sentenced him
to eighteen and one-half to thirty-seven years of incarceration for third-degree
murder, a consecutive nine and one-half to nineteen years of incarceration for
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1 See 18 Pa.C.S.A. §§ 2502(c), 3701(a)(1)(i), 907(a).
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robbery, and no further penalty for PIC.2 Green did not file a post-sentence
motion,3 but timely appealed. Both he and the trial court complied with
Pa.R.A.P. 1925.
Green raises the following issue on appeal:
Whether the court’s sentencing was inconsistent with the
Sentencing Code[,] 42 Pa.C.S.[A. §] 9721(b) and/or contrary to
the fundamental norms which buttress the sentencing process?
Green’s Brief at 5.
Green’s issue presents a challenge to the discretionary aspects of his
sentence. A challenge to the discretionary aspects of a sentence does not
entitle an appellant to review as of right. See Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). Rather, such a challenge must be
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2 Green’s prior record score was “RFEL” and the sentences for robbery and
third-degree murder were on the low-end of the standard range minimum
sentences called for by the deadly weapon used matrix. See Commonwealth’s
Sentencing Memorandum, 9/1/21, at 3.
3 Green apparently filed a document five days after sentencing, and the trial
court regarded that document as a post-sentence motion. See Trial Court
Opinion, 1/24/22, at 3. However, the document appears to be a copy of a
pre-sentencing memorandum because it was dated September 7, 2021, one
day before sentencing, and contained a recommended sentence without
stating the sentence imposed by the trial court. See Memorandum of Law,
filed 9/13/21, at 1-2. Green’s counsel, who had signed the memorandum of
law and filed the appeal, did not reference a post-sentence motion. Rather,
Green’s counsel suggests that after sentencing, Green filed the document of
law pro se, see Green’s Brief at 7, which would render the filing a legal nullity.
See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016)
(noting that we “will not accept a pro se motion while an appellant is
represented by counsel; indeed, pro se motions have no legal effect and,
therefore, are legal nullities”) (internal citation omitted). Under these
circumstances, we conclude that Green did not timely file a post-sentence
motion.
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considered a petition for permission to appeal. See Commonwealth v.
Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019). Before reaching the
merits of a discretionary sentencing issue,
[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, see
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).
Moury, 992 A.2d at 170 (internal citation and brackets omitted). The failure
to object to a sentence at the hearing or in a post-sentence motion waives a
challenge to the discretionary aspects of a sentence. See Commonwealth
v. Padilla-Vargas, 204 A.3d 971, 975-76 (Pa. Super. 2019). Further, if the
appellant fails to include a Rule 2119(f) statement in his brief, and the
Commonwealth objects, this Court cannot review the issue. See
Commonwealth v. Dawson, 132 A.3d 996, 1005 (Pa. Super. 2015).
Following our review, we conclude that Green waived his issue
challenging the discretionary aspects of his sentence. Green did not file a
proper post-sentence motion preserving his claims. See Padilla-Vargas, 204
A.3d at 975-76; see also footnote 2, supra. Moreover, Green’s brief does not
contain a separate Rule 2119(f) statement, and the Commonwealth has
objected to this omission. See Dawson, 132 A.3d at 1005; see also
Commonwealth’s Brief at 5. Accordingly, as we are precluded from reviewing
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the merits of Green’s sole issue in this appeal, we affirm the judgment of
sentence. See Dawson, 132 A.3d at 1005.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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