Com. v. Faux, S. ( 2018 )

J. A15036/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT FAUX, : No. 1395 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, August 9, 2017,
in the Court of Common Pleas of Wyoming County
Criminal Division at No. CP-66-CR-0000160-2017
BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 09, 2018
Scott Faux appeals the August 9, 2017 judgment of sentence in which
the Court of Common Pleas of Wyoming County sentenced him to a term of
imprisonment of 16 to 36 months for possession of a controlled substance
(heroin).1 After careful review, we affirm.
The facts, as stated by the trial court, are as follows:
On January 17, 2017 Wyoming County Detective
David A. Ide along with Troopers from Pennsylvania
State Police and Tunkhannock Borough Police
obtained a search warrant and executed same for the
residence of Timothy Egan. Upon arrival at Egan’s
residence[,] he was advised of the existence of the
search warrant. As the search of the residence began,
in the presence of Egan, his cell phone continually
rang. Egan subsequently advised that he did sell
heroin to the Confidential Informant the previous
date, mentioning the Confidential Informant by name.
1 35 P.S. 780-113(a)(16).
J. A15036/18
Egan further identified a white male and female in the
small dark colored car, who delivered the heroin to his
residence the previous night as [appellant] and his
girlfriend.
While continuing the search, Egan’s [sic] received a
text message from [appellant], making
arrangement [sic] for the delivery of heroin from
[appellant] to Egan. Egan consented to cooperating
with the officers and texted [appellant] confirming the
arrangement for [appellant] to deliver heroin to Egan
at Egan’s residence in the next twenty minutes.
[Appellant] advised via text he was in the Wal-Mart
parking lot and was concerned because he observed
marked police cars at the entrance of Egan’s trailer
park.
The officers then proceeded to Wal-Mart and located
[appellant], in his small dark colored vehicle.
[Appellant] was approached and advise [sic] of the
nature of the investigation. At which point [appellant]
made voluntary statements implicating himself in the
use of heroin and the sale of heroin to Egan.
[Appellant] was advised of his Miranda[2] warnings
and verbally waived same. [Appellant] then stated he
was obtaining heroin from a male in the Cook’s Trailer
Park and that he was delivering same to Egan in
Diamonds Trailer Park. [Appellant] was then taken
into custody and transported to the Pennsylvania
State Police Barracks, for violations of the conditions
of his parole supervision.
Detective Ide had previous knowledge of [appellant]
being on State Parole for heroin use and past
delivers [sic] and he therefor [sic] contacted
[appellant’s] State Parole Agent to advise him of the
above.
As a result, on or about June 1, 2017 [appellant] was
charged with 35 Ps.C.S.A. [sic] 113(a)[(]30[)]
Criminal Conspiracy to Commit/Manufacture, Deliver
or Possession with Intent to Deliver graded a felony;
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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18 Pa.C.S.A. § 7512(a) Criminal use of
Communication Facility graded a felony in the third
degree; and 35 Pa.C.S.A. [sic] 113(a)[(]16[)]
Criminal Attempt/Possession of Controlled Substance
graded a misdemeanor.
[Appellant] plead [sic] guilty on July 7, 2017 to count
three, Criminal Attempt/Possession of a Controlled
Substance, second offense. After review of an
extensive Pre Sentence Investigation report
[appellant] was sentenced on August 9, 2017 to pay
the cost of prosecution, pay a fine in the amount of
$500.00, be committed to the Department of
Corrections for confinement in a state institution for a
period of note [sic] less than sixteen months nor more
than thirty-six months and stand committed until the
same is complied with. [Appellant] shall receive credit
for prior confinement in the amount of one hundred
. . . ninety-five (195) days. [Appellant] shall be
eligible for an RRRI minimum sentence of twelve (12)
months. [Appellant] shall obtain a drug and alcohol
evaluation and follow any and all recommended
treatment plans until satisfactorily discharged.
Trial court opinion, 10/23/17 at 1-3 (citation omitted).
On September 8, 2017, appellant filed a notice of appeal. On
September 11, 2017, the trial court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied with the order on September 26, 2017. The trial court
filed its Pa.R.A.P. 1925(a) opinion on October 23, 2017.
Appellant raises the following issues for this court’s review:
1. Did the [trial c]ourt err and abuse its discretion
by failing to consider the sentencing guidelines
as required by law and failing to provide
adequate reasons for its imposition of sentence
at the highest end of the sentencing guidelines?
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2. Did the [trial c]ourt err and abuse its discretion
by failing to consider the sentencing code as a
whole in its deviation from the sentencing
guidelines and its imposition of an unreasonable
and excessive sentence at the highest end of the
sentencing guidelines?
3. Did the [trial c]ourt err and abuse its discretion
by failing to consider or give appropriate weight
to the circumstances of the offense,
[appellant’s] background, mitigating
circumstances, and/or refusing to reduce the
sentence imposed of [not less than] sixteen
(16) months nor more than thirty-six (36)
months?
Appellant’s brief at 4-5.
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will. In
more expansive terms, our Court recently offered: An
abuse of discretion may not be found merely because
an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review
is that the sentencing court is in the best position to
determine the proper penalty for a particular offense
based upon an evaluation of the individual
circumstances before it.
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Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An 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 at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging the discretionary
aspects of his sentence. First, appellant timely filed his notice of appeal.
However, the Commonwealth points out that appellant did not raise his
sentencing claim either at the sentencing hearing or by filing a timely
post-sentence motion. A review of the record confirms that appellant did not
preserve the issues before the trial court that he now raises before this court.
As a result, these issues are waived. See Commonwealth v. Nischan, 928
A.2d 349, 355 (Pa.Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007)
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(“an appellant can seek to appeal discretionary sentencing issues only after
preserving them during the sentencing hearing or in post-sentence motions”),
citing Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2018
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