Commonwealth v. Rivera

OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered following appellant’s plea of guilty to a charge of delivery of heroin. The sole question before us is whether the trial court abused its discretion by failing to consider the alternatives to incarceration. We conclude that this appeal has not been properly presented, and consequently, must be dismissed.

Where a party appeals a discretionary aspect of the sentence, the brief must set forth a substantial question regarding the appropriateness of the sentence and, in a separate section, a “concise statement of the reasons relied upon for allowance of appeal.” Commonwealth v. Tulad-ziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987), citing, Pa.R.App.P. 2116(b) and 2119(f). As in Tuladziecki, appellant’s brief fails to satisfy the procedural requirement of Rule 2119(f). Therefore, in accordance with Tuladziecki, the appeal is dismissed.¹

Appeal dismissed. Judgment of sentence affirmed. Jurisdiction is relinquished.

HOFFMAN, J., files a concurring opinion. WIEAND, J., files a dissenting opinion.

1 . Unlike my esteemed colleague, Judge Hoffman, I would not permit appellant to amend his brief in order to comply with Tuladziecki The Supreme Court in Tuladziecki did not give the appellant a second chance. Likewise, we should not do so, especially upon our own initiative.

I agree with my distinguished colleague, Judge Wieand, that Rule 2119 is procedural, not jurisdictional. We differ, however, in our views of the purpose and effect of that Rule. In my view, Rules 2116 and 2119 do not alter an appellant’s right to appeal from a discretionary aspect of the sentence. Rather, the Rules merely effectuate 42 Pa.C.S. § 9781(b). In giving effect to § 9781 through Rule 2119(f), our Supreme Court has made clear that an appellate court may not assess the merits of the issue presented in justifying a post hoc determination that the appeal should be allowed. Tuladziecki, 513 Pa. at 511, 522 A.2d at 19. Yet, this is precisely what the dissent has done.

If an appellant fails to comply with Rule 2119(f), we should not determine whether a substantial question exists regarding a discretionary aspect of sentencing. Although this Court has, on occasion, excused procedural violations, where an appellant fails to comply with Rule 2119(f), "[appellant] has in effect obtained an appeal as of right from the discretionary aspects of a sentence.” Tuladziecki, 513 Pa. at 511, 522 A.2d at 19. For this reason, I would not find the matter was waived by appellee’s failure to object to the Rule 2119(f) violation.