Com. v. Long, F.

J-A29018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN D. LONG :
:
Appellant : No. 3214 EDA 2017
Appeal from the Judgment of Sentence March 16, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002941-2016
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
CONCURRING/DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED
JUNE 26, 2019
I concur with the Majority’s affirming of Appellant’s convictions.
However, I respectfully disagree that Appellant is entitled to relief on his claim
that his right to allocution was violated, and therefore, it is unnecessary to
vacate Appellant’s judgment of sentence and remand for resentencing on this
basis.
As the Majority indicates, Pa.R.Crim.P. 704(C)(1) provides, in relevant
part, that “[a]t the time of sentencing, the judge shall afford the defendant
the opportunity to make a statement.” Pa.R.Crim.P. 704(C)(1). It is the
sentencing court’s obligation to inform the defendant of his right to speak prior
to sentencing. Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918(1989). However, errors pertaining to the right of allocution may be waived
____________________________________
* Former Justice specially assigned to the Superior Court.
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for appellate review where not properly challenged in the trial court. See
Commonwealth v. Hardy, 99 A.3d 577 (Pa.Super. 2014).
In the case sub judice, immediately after the trial court announced
Appellant’s sentence, defense counsel informed the trial court that Appellant
wished to read a statement of allocution. N.T., 3/16/17, at 78. The trial court,
indicating that it would fully consider the statement and make any necessary
changes to Appellant’s sentence, permitted Appellant to read his statement.
Id. at 78-80. As Appellant read his statement, he began looking in the
courtroom for the victim and the family; however, they had already left the
courtroom. Id. at 79-80. After Appellant concluded his statement, the trial
court specifically stated it considered Appellant’s statement, indicated that the
statement did not change the court’s sentence, and confirmed Appellant’s
aggregate sentence was ten years’ incarceration to be followed by seven years
of probation. Id. at 80-81. Defense counsel presented no objection
pertaining to a violation of Appellant’s right to allocution.
Thereafter, in his post-sentence motion, Appellant complained the trial
court violated his right to allocution by not giving him an opportunity to make
a statement prior to sentencing when the victim and family members were
still in the courtroom. Specifically, Appellant suggested the trial court failed
to provide him “with an opportunity to assert his Constitutional right to
allocute and address the complaining witness[;]” “by the time he was finally
permitted allocution, [Appellant] turned to address the family but they had
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already left[;]” and “the fact that [Appellant] was not permitted his right to
allocution and not able to apologize to the family when they were still in the
room, is a violation of [Appellant’s] right to allocution and should result in a
new sentencing hearing.” Appellant’s Post Sentence Motion, filed 3/27/17, at
¶ 6.
However, Appellant is mistaken that his right of allocution extends to
the victim and family. Rather, “[t]he significance of allocution lies in its
potential to sway the court toward leniency prior to imposition of sentence.”
Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa.Super. 2003) (bold
added). Therefore, based on the arguments presented to the trial court with
regard to Appellant’s allocution issue, Appellant is not entitled to relief on
appeal, and I dissent on this basis. I concur in all other respects.
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