Com. v. Hunter, B.

J-S92033-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRANDON DEMON HUNTER, :
:
Appellant : No. 858 WDA 2016
Appeal from the Judgment of Sentence September 21, 2015
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0002215-2014
BEFORE: SHOGAN, MOULTON, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 10, 2017
Brandon Demon Hunter (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to firearm not to be carried without a
license. Upon review, we affirm.
The trial court summarized the factual history underlying Appellant’s
guilty plea as follows.
On July 8, 2015, Appellant appeared before the Honorable
Ernest J. DiSantis, Jr., and pled guilty to the aforementioned
offense. In exchange, the Commonwealth [nolle prossed] the
remaining counts.
On September 21, 2015, Appellant appeared before the
Honorable Shad Connelly and was sentenced to a term of 18 to
36 months’ incarceration, consecutive to his sentence at Docket
No. [CP-25-CR-0002216-2014]. All credit for time served was
applied to Docket No. 2216 of 2014. On October 1, 2015,
Appellant filed a motion for modification of sentence, which was
denied by Judge Connelly on October 2, 2015.
*Retired Senior Judge assigned to the Superior Court.
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On January 21, 2016, Appellant filed a pro se filing, which
[the trial c]ourt treated as a PCRA petition. PCRA counsel was
appointed, [and] subsequently filed a supplemental PCRA
petition. On May 18, 2016, [the trial court] granted PCRA relief,
only as it related to reinstating his direct appellate rights nunc
pro tunc.
Appellant filed a timely notice of appeal nunc pro tunc on
June 15, 2016. In response, [trial court] directed Appellant to
file a concise statement of matters complained of on appeal
[(CSECA)]. Appellant timely complied on July 8, 2016[.]
Trial Court Opinion 7/25/2016, at 1-2 (citations and unnecessary
capitalization omitted).
On appeal, Appellant challenges the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his [or her] sentence
must invoke this Court’s jurisdiction by satisfying a four-part
test:
We 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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
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Instantly, Appellant timely filed a post-sentence motion in which he
requested a modification of his sentence, as well as a notice of appeal.
Additionally, Appellant included a 2119(f) statement in his brief, and raised
the following issues: (1) “[T]he sentencing scheme was compromised in that
the sentencing court failed to afford due weight and consideration to
mitigating factors presented by [A]ppellant[,]” and (2) “[T]he [trial court]
failed to proffer a legally sufficient statement on the record in support of the
imposition of a consecutive sentence.” Appellant’s Brief at 4. We must now
determine whether Appellant has raised a substantial question for our
review.
Initially, we find Appellant’s issue concerning the alleged inadequate
contemporaneous statement offered by the trial court, waived for failure to
include it in his concise statement of errors complained of on appeal. It is
well-settled that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See also
Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa. Super. 2006) (“[A]s a
general rule, the failure to raise an issue in an ordered Rule 1925(b)
statement results in the waiver of that issue on appeal.”).
Our Pennsylvania Rules of Appellate Procedure and our case law
set forth the well-established requirements for preserving a
claim for appellate review. “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). This requirement bars an appellant from
raising “a new and different theory of relief” for the first time on
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appeal. Commonwealth v. York, [] 465 A.2d 1028, 1032 ([Pa.
Super.] 1983).
Similarly, our Supreme Court has made it clear that “[a]ny
issues not raised in a [Rule] 1925(b) statement will be deemed
waived.” Commonwealth v. Castillo, [] 888 A.2d 775, 780
([Pa.] 2005) (citation and quotation omitted). See also
Pa.R.A.P.1925(b)(4)(vii) (“Issues not included in the Statement
... are waived.”).
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016).
Consequently, we now consider Appellant’s remaining arguments.
Upon review, we find Appellant’s issue that the “[trial] court failed to afford
due weight and consideration to mitigating factors presented by
[A]ppellant[,]” Appellant’s brief at 4, does not raise a substantial question
for our review. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.”) (quoting Commonwealth v. Downing, 990 A.2d
788, 794 (Pa. Super. 2010)); Commonwealth v. Zirkle, 107 A.3d 127, 133
(Pa. Super. 2014) (“[W]e have held that a claim that a court did not weigh
the factors as an appellant wishes does not raise a substantial question.”).1
1
As recognized by this Court in Commonwealth v. Dodge,
[w]e are, of course, mindful that it is apparent that this Court’s
determination of whether an appellant has presented a
substantial question in various cases has been less than a model
of clarity and consistency[.] Compare Commonwealth v.
Montalvo, [641 A.2d 1176, 1186 (Pa. Super 1994)] (“allegation
that the sentencing court ‘failed to consider’ or ‘did not
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Moreover, the sentencing court had the benefit of a pre-sentence
investigation report (PSI). “Where the sentencing court had the benefit of a
[PSI], we can assume the sentencing court ‘was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.’” Commonwealth v.
Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)).
adequately consider’ facts of record” does not present
substantial question); Commonwealth v. Rivera, [637 A.2d
1015, 1016 (Pa. Super. 1994)] (same); Commonwealth v.
Nixon, 718 A.2d 311, 315 (Pa. Super. 1998), overruled on other
grounds by Commonwealth v. Mouzon, [812 A.2d 617 (Pa.
2002)] (“ordinarily, allegations that a sentencing court ‘failed to
consider’ or ‘did not adequately consider’ various factors” does
not raise a substantial question)[.] … with Commonwealth v.
Boyer, 856 A.2d 149, 151–152 (Pa. Super. 2004) (finding
substantial question where defendant argued “that his sentence
was manifestly excessive and that the court erred by considering
only the serious nature of the offenses and failing to consider
mitigating factors such as his age (19) at sentencing, his
rehabilitative needs, his limited education, his years of drug
dependency, and his family dysfunction.”); Commonwealth v.
Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (failure to consider
mitigating factors and excessive sentence raised substantial
question); Commonwealth v. Ventura, 975 A.2d 1128, 1133
(Pa. Super. 2009) (“Ventura further asserts that the trial court
imposed his sentence based solely on the seriousness of the
offense and failed to consider all relevant factors, which has also
been found to raise a substantial question.”); Commonwealth
v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (failure to
consider rehabilitative needs and the protection of society in
fashioning a sentence raises a substantial question).
Dodge, 77 A.3d 1263, n.8 (Pa. Super. 2013).
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Lastly, we acknowledge that Appellant attempts to argue that the trial
court erred in ordering his sentences to run consecutively versus
concurrently. Appellant’s Brief at 2. To the extent this issue was properly
preserved and adequately argued, we find that Appellant has again failed to
raise a substantial question for our review. It is well-settled that a
claim of excessive sentence, premised on the trial court’s
imposition of consecutive sentences [], does not raise a
substantial question for our review. See Commonwealth v.
Pass, 914 A.2d 442, 446 (Pa. Super. 2006) (setting forth long-
standing precedent that any challenge to the exercise of
discretion enjoyed by a trial court in imposing a sentence either
consecutively or concurrently fails to raise a substantial
question)[.]
Commonwealth v. Ahmad, 961 A.2d 884, n.7 (Pa. Super. 2008).
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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