Com. v. Fill, R. ( 2018 )

J-S75009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD ALEXANDER FILL :
:
Appellant : No. 319 WDA 2017
Appeal from the Judgment of Sentence January 23, 2017
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000082-2016
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 30, 2018
Appellant, Richard Alexander Fill, appeals from the judgment of
sentence entered on January 23, 2017, in the Erie County Court of Common
Pleas. We affirm.
In its Pa.R.A.P. 1925(a) opinion, the trial court provided the following
factual and procedural history:
Appellant was convicted after a non-jury trial on November
7, 2016 of Assault on a Law Enforcement Officer, Criminal
Mischief, Simple Assault, Recklessly Endangering … Another
Person, Possession of a Controlled Substance, and Possession of
Drug Paraphernalia.1
1
18 Pa.C.S.A. §2702.1; 18 Pa.C.S.A. §3304(a)(5);
18 Pa.C.S.A. §2701(a)(3); 18 Pa C.S.A. §2705; 35
[P.S.] §780-113(a)(16); [and] 35 [P.S.] §780-
113(a)(32), respectively.
On January 23, 2017, Appellant was sentenced to 5 to 10
years for Assault on a Law Enforcement Officer and 6 to 24
months for Criminal Mischief. The Simple Assault and Reckless
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Endangerment counts were merged with the Assault on a Law
Enforcement Officer count. Appellant also received 12 months of
probation for Possession of a Controlled Substance and 12
months of probation for Possession of Drug Paraphernalia.
Trial Court Opinion, 4/7/17, at 1.
On February 6, 2017, the trial court held Appellant’s restitution
hearing. At the hearing, Appellant stated that he wished to file post-
sentence motions. N.T., 2/6/17, at 7. The trial court relayed Appellant’s
desire to file post-sentence motions to Appellant’s trial counsel, and the
court noted its concern that the time for filing post-sentence motions may
have expired. Id. at 9. Trial counsel responded: “We have that marked as
something that needs to be filed right away.” Id. However, the record does
not reflect the filing of a post-sentence motion, a petition to file a post-
sentence motion nunc pro tunc, or a petition seeking relief pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Rather, the
record reveals that trial counsel filed Appellant’s notice of appeal eight days
later on February 14, 2017.
That same day, the trial court directed Appellant to comply with
Pa.R.A.P. 1925(b) and file a concise statement of errors complained of on
appeal. Trial counsel filed Appellant’s Pa.R.A.P. 1925(b) statement on March
6, 2017.1 In Appellant’s Pa.R.A.P. 1925(b) statement, trial counsel asserted
____________________________________________
1
During the pendency of this appeal and while he remained represented by
trial counsel, Appellant filed pro se documents with the trial court seeking an
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that the verdicts were against the weight of the evidence and challenged the
discretionary aspects of Appellant’s sentence averring that the trial court
imposed an excessive sentence.2 Pa.R.A.P. 1925(b) Statement, 3/6/17.3
Both of Appellant’s issues required Appellant to present them to the
trial court in the first instance to properly preserve them for appeal. “A
weight of the evidence claim must be preserved either in a post-sentence
motion, by a written motion before sentencing, or orally prior to sentencing.”
See Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017)
(citation omitted). Moreover, it is well settled that an appellant does not
have an automatic right to appeal the discretionary aspects of his sentence.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). An
_______________________
(Footnote Continued)
explanation of the status of his case, illustrating his difficulty contacting trial
counsel, noting his desire to appeal, and informing the trial court that he
wished to proceed with new counsel. Letters, 2/16/17, 2/27/17. The record
reveals that current counsel entered his appearance on March 20, 2017.
2
An allegation that the sentence imposed was excessive is a challenge to
the discretionary aspects of a sentence. Commonwealth v. Ahmad, 961
A.2d 884, 886 (Pa. Super. 2008) (citations omitted).
3
In his brief on appeal, Appellant’s current counsel also included a challenge
to the sufficiency of the evidence. Appellant’s Brief at 13. However,
because this issue was not contained in Appellant’s Pa.R.A.P. 1925(b)
statement, we conclude that it was waived on appeal. See Commonwealth
v. Perez, 103 A.3d 344, 347 n.1 (Pa. Super. 2014) (it is well-settled that
issues that are not included in the appellant’s Pa.R.A.P. 1925(b) statement
are deemed waived) (citing Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”)).
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appellant challenging the discretionary aspects of his 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, 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 162, 170 (citing Commonwealth v. Evans, 901 A.2d 528
(Pa. Super. 2006)).
In this case, Appellant did not file post-sentence motions or preserve
his challenge to the weight of the evidence in a written motion or orally prior
to sentencing. Accordingly, Appellant has waived his challenge to the weight
of the evidence. Giron, 155 A.3d at 638. Additionally, Appellant failed to
raise his challenge to the discretionary aspects of his sentence at the
sentencing hearing or in a post-sentence motion. Thus, Appellant waived his
challenge to the discretionary aspects of his sentence. Moury, 992 A.2d at
170. Accordingly, because Appellant waived his issues on appeal, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2018
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