Com. v. Mazyck, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM MATTHEW MAZYCK :
:
Appellant : No. 1134 MDA 2019
Appeal from the Judgment of Sentence Entered June 6, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002699-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 22, 2020
Kareem Matthew Mazyck (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to selling a non-controlled substance
represented as a controlled substance.1 We affirm.
The trial court explained:
These charges stemmed from a November 19, 2018[] incident
wherein a confidential informant (hereinafter “C.I.”) informed
Lackawanna County Detectives that he/she could purchase crack
cocaine from the Appellant. Specifically, the Appellant agreed to
meet the C.I. via text message and sell him/her a quantity of crack
cocaine. The C.I. and the Appellant planned to meet at the Fast
Lane Gas Station in Dunmore, Pennsylvania. Lackawanna County
Detectives conducted surveillance at the meet location, and
observed a blue Chevy Cobalt appear. Outfitted with a covert
audio listening device, the C.I. identified the blue Chevy Cobalt as
the Appellant’s vehicle. Next, the C.I. entered the Appellant’s
vehicle with $200 [] of pre-recorded serialized U.S. currency.
Subsequently, the C.I. exited the vehicle, and signaled completion
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1 35 P.S. § 780-113(a)(35)(ii).
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of the drug transaction. Based upon that signal, the detectives
initiated a traffic stop. Immediately, detectives conducted a
custodial arrest of the Appellant, and detained his passenger.
Detectives provided Miranda warnings to both the Appellant and
his passenger. Simultaneously, the C.I. handed Detective Corey
Condrad a plastic bag containing a quantity of suspected crack
cocaine purchased from the Appellant. The C.I. identified the
Appellant as the supplier of the [suspected] crack cocaine. Upon
a custodial search of the Appellant, detectives recovered an
iPhone, and $200 of the pre-recorded serialized U.S. currency.
Trial Court Opinion, 6/22/20, at 2-3 (citations omitted).
Appellant pled guilty on February 8, 2019 to selling a non-controlled
substance represented as a controlled substance.2 On May 7, 2019, the trial
court sentenced Appellant to 21 to 46 months of incarceration, followed by 2
years of probation. On June 6, 2019, the trial court issued an order sua sponte
modifying Appellant’s sentence to 21 to 48 months of incarceration, followed
by 1 year of probation.3 That same day, in what appears to be a result of
mixed signals or miscommunication between the trial court and Appellant,
Appellant filed a notice of appeal from the May 7, 2019 judgment of sentence.
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2 The suspected crack cocaine was sent to a laboratory where it was
determined to be soap. See N.T., 5/7/19, at 3.
3 The trial court explained it modified the sentence after it “recognized an
obvious and patent mistake in [Appellant’s] sentence as the original sentence
exceeded the five (5) year maximum pursuant to 35 P.S. § 780-113(j).” Trial
Court Opinion, 6/22/20, at 3; see also Commonwealth v. Coleman, 226
A.3d 598, 604 n.6 (Pa. Super. 2020) (“A trial court may sua sponte correct a
patent or obvious mistake.”) (citing, inter alia, Pa.R.Crim.P. 720); see also
Id. at 604 n.7 (“A trial court may correct an illegal sentence sua sponte, even
where a defendant has started serving that sentence.”) (citations omitted).
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On June 14, 2019, Kevin McNicholas, Esq., filed a motion to withdraw
as Appellant’s counsel. On June 21, 2019, the trial court received and
docketed an untitled “Pro Se Filing” from Appellant; it also granted Attorney
McNicholas’ motion to withdraw.
On June 26, 2019, the trial court appointed Ryann D. Loftus, Esq. to
represent Appellant. On July 3, 2019, Appellant timely appealed from the
June 6, 2019 judgment of sentence.4 Both Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant presents two issues:
1. Whether the trial court erred and abused its discretion in
sentencing Appellant in the aggravated range based upon
impermissible factors, namely factors related to separate criminal
matters for which the Appellant had not been convicted or was
otherwise punished?
2. Whether the Sentence imposed by the trial court was harsh,
excessive and an abuse of discretion in light of the Sentencing
Guidelines and under the facts and circumstances of the case?
Appellant’s Brief at 4.5
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4 As directed by this Court, on August 9, 2019, Appellant filed a praecipe to
strike the notice of appeal from the May 7, 2019 judgment of sentence. In
response, we issued an order on August 21, 2019 striking Appellant’s appeal
at 944 MDA 2019.
5 Appellant’s Rule 1925(b) statement raises an additional claim. See Rule
1925(b) Statement, 7/17/19, at *1. However, we do not address the claim
because Appellant does not raise it in his brief. See Commonwealth v.
Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011)
(refusing to address claim appellant raised with trial court but subsequently
abandoned in brief).
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Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted).
Here, Appellant filed a timely notice of appeal and included in his brief
a Rule 2119(f) concise statement. See Appellant’s Brief at 9-10. However,
Appellant failed to preserve his claims by raising them at sentencing or in a
timely post-sentence motion. We thus find that the claims are waived.
The Rules of Appellate Procedure state: “Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). “To preserve issues concerning the discretionary aspects of
sentencing, a defendant must raise them during sentencing or in a timely
post-sentence motion.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.
Super. 2008) (citations omitted). “Moreover, a party cannot rectify the failure
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to preserve an issue by proffering it in response to a Rule 1925(b) order.”
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa. Super. 2017)
(citations and emphasis omitted). This Court will not overlook waiver simply
because the trial court substantively addressed the issue in its 1925(a)
opinion. See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278,
1287-89 (Pa. Super. 2004) (en banc).
The record indicates that Appellant failed to raise his claims at
sentencing6 or in a timely post-sentence motion.7 See Trial Court Opinion,
6/22/20, at 3. “[W]here the issues raised assail the trial court’s exercise of
discretion in fashioning the defendant’s sentence, the trial court must be given
the opportunity to reconsider the imposition of the sentence either through
the defendant raising the issue at sentencing or in a post-sentence motion.”
Commonwealth v. Cramer, 195 A.3d 594, 610 (Pa. Super. 2018) (citation
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6See N.T., 5/7/19, at 1-5; see also Commonwealth Brief at 4 (“Appellant did
not object to his sentence at the sentencing hearing.”).
7 The only filing by Appellant between the June 6, 2019 judgment of sentence
and his July 3, 2019 notice of appeal was the untitled “Pro Se Filing,” docketed
on June 21, 2019. As Appellant was still represented by Attorney McNicholas,
the filing was a legal nullity. See Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa. Super. 2007) (citation omitted). Moreover, it was untimely
under Pennsylvania Rule of Criminal Procedure 720(A)(1) (“[A] written post-
sentence motion shall be filed no later than 10 days after imposition of
sentence.”); Commonwealth v. Wrecks, 931 A.2d 717, 719-20 (Pa. Super.
2007) (“An untimely post-sentence motion does not preserve issues on
appeal.”) (citation omitted).
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omitted). “[T]he failure to do so results in waiver of those claims.” Id.(citations omitted). Accordingly, we are constrained to find waiver.
We further note that Appellant’s issues would not merit relief even in
the absence of waiver. The trial court provided a detailed and thorough
explanation for sentencing Appellant in the aggravated-range. Trial Court
Opinion, 6/22/20, at 9-12. The court reasoned:
[A]s required by 42 Pa.C.S. § 9721(b), this [c]ourt upheld a duty
to protect the community and exhibited serious concern for the
Appellant’s continued criminal behavior while incarcerated. This
Court relied on several factors that led to the Appellant’s
aggravated range sentence on Count II.
Specifically, consideration of the particular facts of the
offense as well as the individual circumstance involving the
Appellant’s parole status, and his participation in a drug
transaction with another parolee in his vehicle. (Notes to
Testimony, May 7, 2019 p. 4). First, the Appellant’s parole status
demonstrates an inability to rehabilitate or reform. See
Commonwealth v. Harmon, 523 Pa. 643, 565 A.2d 1168 (Pa.
1989)(trial court used fact that appellant was on work release
when he committed second offense as an aggravating factor for
sentencing); See also Commonwealth v. Penrod, 578 A.2d
486, 491 (Pa. Super 1990)(finding that prompt or recent
recidivism is an aggravating factor at the time of sentencing,
because it gives “rise to an inference of intransigence rather than
mere relapse following sincere attempts to reform.”);
Commonwealth v. Eck, 654 A.2d 1104, 1106-07 (Pa. Super.
1995)(considering information that crime committed while
defendant was on probation as aggravating sentencing factor).
Second, the Appellant minimized his role in the underlying
offense, citing that “he sold some soap to a confidential
informant.” (Notes to Testimony May 7, 2019 p. 3). Of concern to
this [c]ourt is the Appellant’s characterization of the offense. The
Appellant fails to appreciate the wrongfulness of his actions in that
he arranged and participated in a pseudo drug transaction to
recoup a profit with another parolee in his vehicle. Id. For all
intents and purposes the Appellant acted as if he were delivering
a controlled substance, hence re-engaging in criminal conduct. As
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counsel for the Appellant stated: “According to [Appellant], the
confidential informant owed him some money and he thought ---
he was having trouble collecting it and thought it would be the
best way to recoup the money.” Id. Based on these facts and
circumstances, this [c]ourt found that the Appellant cannot stop
engaging in criminal behavior or conform his conduct to the
requirements of the law.
This [c]ourt also referenced and considered the Appellant’s
two prison misconducts pending the imposition of sentence. The
pre-sentence investigative report cited two misconducts: one on
December 10, 2018 for violation of prison rules and staff
instructions, and the second, more egregious and assaultive in
nature, committed on April 10, 2019 involved abusive language,
physical striking, creating a disturbance, and throwing hot water
on a prison guard necessitating emergency restraints for the
Appellant, and medical care for the prison guard. On both
occasions, the Lackawanna County Prison conducted internal
hearings, and determined the Appellant to be guilty of both
misconducts. As a result, the pre-sentence investigative report
cited that the Appellant received restrictive housing placement for
a total of seventy-one (71) days. At the time of sentencing, the
Appellant minimized his role in this disturbance, and the
seriousness of his conduct, alleging the prison guard as the
aggressor. (Notes to Testimony, May 7, 2019 p. 2, 4). . . .
Clearly, the Appellant demonstrated that he is a poor candidate
for rehabilitation by his failure to comply with the rules and
regulations of the prison.
This [c]ourt believes the Appellant’s behavior in prison
combined with his prior assaultive criminal history as highlighted
in the pre-sentence investigative report beginning as a juvenile
and then twice as an adult shows no regard, no rehabilitation, and
is indicative of the Appellant’s mindset. Therefore, in consideration
of public safety, this Court believed the citizens of Pennsylvania
should not be subjected to a criminal such as the Appellant living
among them. The Appellant is assaultive and incapable of
peacefully living a law-abiding life. Notwithstanding, a review of
the sentencing transcript reveals that this Court considered the
Appellant’s prison misconducts not as the sole factor, but as one
factor among others illustrating the Appellant’s inability to
rehabilitate that led to the aggravated range sentence on Count
II. See Commonwealth v. Anderson, 830 A.2d 1013 (Pa.
Super. 2003)(holding that the trial court offered sufficient reasons
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for sentence for controlled substance offenses in aggravating
circumstances range, stating that offenses were committed at
time when prior fines and costs were not paid and when defendant
remained on supervision from previous conviction, and
defendant’s conduct while incarcerated in jail was not in
accordance with conduct that would be expected of somebody
incarcerated.). Accordingly, this Court is not precluded from
considering the above factors as aggravating circumstances when
it imposed the Appellant’s sentence.
Therefore, fully aware of the Appellant’s criminal history, the
information contained in the pre-sentence investigative report,
the applicable sentencing guidelines, the Appellant’s statements
at sentencing as well as the punitive, deterrent, rehabilitative, and
protective purposes of sentencing, this Court weighed all factors
accordingly, and for compelling reasons imposed an aggravated
range sentence on Count II within the statutory maximum.
Trial Court Opinion, 6/22/20, at 9-12.
Consistent with the foregoing, Appellant is not entitled to relief, and we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2020
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