Com. v. Sosa, J.

J-A20001-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUAN C. SOSA, :
:
Appellant : No. 195 EDA 2014
Appeal from the Judgment of Sentence December 9, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0006214-2012
BEFORE: DONOHUE, SHOGAN and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 28, 2015
Appellant, Juan C. Sosa (“Sosa”), appeals from the judgment of
sentence entered on December 9, 2013 by the Court of Common Pleas of
Philadelphia County, Criminal Division, following his convictions of robbery,
criminal conspiracy, robbery of a motor vehicle, firearms not to be carried
without a license, carrying firearms on public streets or public property in
Philadelphia, receiving stolen property, possessing instruments of crime, and
altering or obliterating marks of identification.1 For the reasons that follow,
we affirm.
The trial court summarized the facts of this case as follows:
Valentin Palillero … was the owner and a delivery
driver for San Lucas Pizza. On January 1, 2012, at
around 11:30 p.m., [Palillero] received a pizza order
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3702(a), 6106(a)(1), 6108, 3925(a),
907(a), 6117(a).
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to be delivered to 2219 Reese Street. [Palillero]
drove the order to 2219 Reese Street in his red Ford
Explorer, but upon arrival the same caller instructed
him to take the order to a different address. As the
different address did not exist, [Palillero] returned to
2219 Reese Street. Upon [Palillero]’s return, a
heavyset individual was waiting, sitting on the steps
in front of 2219 Reese Street. After [Palillero]
reached into the backseat to secure the receipt with
the order and then turned around, two other
individuals pressed a gun to [Palillero]’s head. They
ordered him to exit the car and hand over his
money, cards, wallet and phone. One perpetrator
drove away in the red Ford Explorer, and the other
two fled on foot. [Palillero] walked back to his pizza
shop and called the police. While patrolling the area
in search of the carjackers, Police Officer Gerson
Padilla located the red Ford Explorer parked on the
2200 block of Mildred Street. A plainclothes police
unit set up surveillance in the event someone would
return to the vehicle, but no one did.
The following night, in response to flash information
and radio calls for an unrelated incident, Officer
Padilla drove to the area of 2200 Mildred [Street].
The investigation took them into [Sosa]’s house
located at 2241 Darien Street[.] [Sosa] was inside,
along with the keys to the red Ford Explorer, pizza
boxes from San Lucas Pizza, and a black Beretta
firearm in [Sosa]’s bedroom. (Id. at 57, 101-102,
113).
Trial Court Opinion, 6/30/14, at 4 (record citations omitted).
Police arrested Sosa that same evening. On September 23, 2013,
following trial, a jury found Sosa guilty of the above referenced crimes. On
December 9, 2013, the trial court sentenced Sosa to a total of twelve to
twenty-four years of incarceration. On December 17, 2013, Sosa filed a
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timely post-sentence motion, which the trial court denied the same day. On
December 27, 2013, Sosa filed a timely notice of appeal.
On January 2, 2010, the trial court ordered Sosa to file a concise
statement of the errors complained of on appeal pursuant to Rule 1925(b) of
the Pennsylvania Rules of Appellate Procedure. On January 10, 2014, Sosa
requested an extension for filing his Rule 1925(b) statement because he had
yet to receive his sentencing transcripts. That same day, the trial court
granted Sosa the extension, making his Rule 1925(b) statement due on
February 13, 2014. On February 7, 2014, Sosa filed a timely Rule 1925(b)
statement in which he raised issues challenging the sufficiency of the
evidence to support his robbery, robbery of a motor vehicle, and conspiracy
convictions and alleging that his verdict was against the weight of the
evidence. See Pa.R.A.P. 1925(b) Statement, 2/7/14, at 1-2. Additionally,
in his Rule 1925(b) statement, Sosa “respectfully reserv[ed] the right to
supplement and amend this [Rule] 1925(b) [s]tatement” because he had yet
to receive his sentencing transcripts. Id. at 2. On March 26, 2014, Sosa
filed an untimely supplemental Rule 1925(b) statement in which he raised an
additional sufficiency of the evidence claim relating to his firearms not to be
carried without a license conviction and several discretionary aspects of
sentencing claims. See Supplemental Pa.R.A.P. 1925(b) Statement,
3/26/14, at 1-4.
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On appeal, Sosa now raises the following issues for our review and
determination:
I. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, was the
evidence insufficient to sustain [Sosa]’s
[r]obbery convictions and [c]onspiracy
conviction?
II. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, were [Sosa]’s
convictions against the weight of the evidence?
III. Under the Sixth and Fourteenth Amendments
of the U.S. Constitution as well as Article I, § 9
of the Pennsylvania Constitution, was the
evidence insufficient to sustain [Sosa]’s
conviction for 18 Pa.C.S.A. § 6106(a)(1)?
IV. Under the Fifth, Eighth, and Fourteenth
Amendments of the U.S. Constitution as well
as Article I, §§ 9, 13 of the Pennsylvania
Constitution, did the [t]rial [c]ourt abuse its
discretion in sentencing [Sosa]?
Sosa’s Brief at 4.
For his first issue on appeal, Sosa challenges the sufficiency of the
evidence for his robbery, robbery of a motor vehicle, and criminal conspiracy
convictions. In reviewing a challenge to the sufficiency of the evidence, our
standard of review is as follows:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
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evidence. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish
guilt to a mathematical certainty. Any doubt about
the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability
of fact can be drawn from the combined
circumstances.
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Accordingly, the fact that the evidence establishing a
defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment
for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the
respective elements of a defendant’s crimes beyond
a reasonable doubt, the appellant’s convictions will
be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted).
Sosa argues that the evidence was insufficient to identify him as the
heavyset man who was sitting outside of 2219 Reese Street when Palillero
pulled up to that address for the second time. Sosa’s Brief at 30-35. Sosa
also argues that there is no evidence proving that he played any part in
Palillero’s robbery. Id. at 31-34. Sosa does not contest that the two men
who approached Palillero with a gun and stole his vehicle committed robbery
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and robbery of a motor vehicle. Therefore, Sosa’s arguments require us to
determine whether the evidence presented proved that he was the heavyset
individual referred to above and if so, whether he can be linked to Palillero’s
robbery as a coconspirator.
The Pennsylvania Crimes Code defines criminal conspiracy as follows:
(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit
a crime if with the intent of promoting or facilitating
its commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or
(2) agrees to aid such other person or persons
in the planning or commission of such crime or
of an attempt or solicitation to commit such
crime.
18 Pa.C.S.A. § 903(a). This Court has long held that this requires proof of
“(1) an intent to commit or aid in an unlawful act, (2) an agreement with a
co-conspirator and (3) an overt act in furtherance of the conspiracy.”
Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013)
(quoting Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super.
2001)). “This overt act need not be committed by the defendant; it need
only be committed by a co-conspirator.” Commonwealth v. Murphy, 795
A.2d 1025, 1038 (Pa. Super. 2002) (quotations and citation omitted).
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The essence of a criminal conspiracy is a common
understanding, no matter how it came into being,
that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof
of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for
proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where
it is demonstrated that the relation, conduct, or
circumstances of the parties, and the overt acts of
the co-conspirators sufficiently prove the formation
of a criminal confederation. The conduct of the
parties and the circumstances surrounding their
conduct may create a web of evidence linking the
accused to the alleged conspiracy beyond a
reasonable doubt. Even if the conspirator did not act
as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-
conspirators in furtherance of the conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)
(quoting Commonwealth v. Johnson, 719 A.2d 778, 784–85 (Pa. Super.
1998) (en banc)).
We conclude that the evidence, when viewed in the light most
favorable to the Commonwealth as the verdict winner, establishes that Sosa
was the heavyset male present at the scene of the crime when the robbery
of Palillero took place and links him to the robbery as a coconspirator. The
certified record on appeal reflects the following. When Palillero returned to
2219 Reese Street, he encountered a heavyset individual sitting in front of
the house whose face Palillero was unable to see. N.T., 9/17/13, at 40-41.
Sosa’s arrest report indicates that he is six feet tall and weighs 280 pounds.
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Biographical Information Report, 1/2/12, at 1. Assuming the heavyset
individual was the person who placed the pizza order, Palillero turned to the
backseat of his vehicle to determine the total cost of the order. N.T.,
9/17/13, at 41-42. Palillero then felt someone place a gun against the back
of his head. Id. Two individuals, who Palillero described as short and thin,
then removed him from his vehicle and demanded his cash, wallet, and
cellphone, and car keys. Id. at 42, 70-71. One of these two individuals
then got into Palillero’s red Ford Explorer and drove away. Id. at 43. The
other individual, along with the heavyset person described above, ran away
from the scene. Id.
Later that evening, police found Palillero’s red Ford Explorer parked on
the 2200 block of Mildred Street, behind Sosa’s house. N.T., 9/18/13, at 38,
43-49; N.T., 9/19/13, at 55. Police eventually obtained a warrant to search
Sosa’s home. See id. at 99. During the search, police recovered the keys
to Palillero’s red Ford Explorer, pizza boxes from Palillero’s pizza shop, a
firearm resembling the one used during the robbery of Palillero, and a black
scarf resembling the one worn by one of the assailants during the robbery.
Id. at 113; N.T., 9/17/13, at 51-56.
Therefore, the evidence, viewed in the light most favorable to
Commonwealth, creates the reasonable inference that Sosa was the
heavyset individual who was sitting outside of 2219 Reese Street while
Palillero was robbed, who fled the scene of the robbery with one of the other
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assailants, taking the items stolen from the robbery to his home. Although
the evidence reveals that Sosa did not actually take anything from Palillero’s
person, it sufficiently proves that Sosa was present during the robbery and
that he agreed to aid his coconspirators in robbing Palillero by making him
believe Sosa ordered the pizza and by helping them flee and conceal the
items taken from Palillero. Thus, the evidence reveals the intent to commit
an unlawful act, an agreement with the coconspirators to engage in that
unlawful act, and overt acts in furtherance of the conspiracy. See Thoeun
Tha, 64 A.3d at 710. Accordingly, the evidence is sufficient to sustain
Sosa’s robbery, robbery of a motor vehicle, and criminal conspiracy
convictions.
We disagree with Sosa that In Interest of G.G., 714 A.2d 467 (Pa.
Super. 1998), is instructive in this case and supports his sufficiency
challenge. In G.G., while the victim was walking home from school, G.G.’s
coconspirator called for him to come across the street. Id. at 474. The
victim complied and the coconspirator then told the victim that he wanted to
see what was in the victim’s pockets and bag. Id. The victim opened his
bag and the coconspirator and G.G. both peered into the bag. Id. The
coconspirator took a geometric compass from the victim. Id. The
coconspirator and G.G. then left the scene. Id. During the entire incident,
G.G. did not speak or make any threatening physical movements. Id.
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Our Court held that the evidence was insufficient to sustain G.G.’s
conspiracy conviction because there was no evidence of any agreement
between G.G. and the coconspirator or that G.G. acted in furtherance of a
conspiracy. Id. at 474-75. G.G., however, is readily distinguishable from
the instant matter. Significantly, here, the police recovered the items taken
from Palillero during the robbery from Sosa’s home. Additionally, given the
way in which Palillero was lured away from and then back to 2219 Reese
Street and that upon his return to 2219 Reese Street, he understood the
heavyset individual to be the person who had ordered the pizza, it is
reasonable to infer that Sosa played a role in luring Palillero into the
robbery. Therefore, because G.G. is inapplicable to the instant matter, this
argument does not entitle Sosa to any relief.
For his second issue on appeal, Sosa argues that his conviction was
against the weight of the evidence. The Commonwealth contends that Sosa
has waived his weight of the evidence claim for failing to state with
specificity why the verdict was against the weight of the evidence in his
post-sentence motion. Commonwealth’s Brief at 23-24. A “boilerplate”
post-sentence motion that “‘the verdict was against the weight of the
evidence,’ will preserve no issue for appellate review unless the motion goes
on to specify … why the verdict was against the weight of the evidence.”
Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983) (en
banc) (emphasis in the original). Here, in his post-sentence motion, Sosa
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merely averred that “[a] new trial is appropriate because the verdict is
against the weight of the evidence.” Post-Sentence Motion, 12/17/13, at
¶¶ 7-9. Accordingly, we conclude that Sosa has not preserved his weight of
the evidence claim for appellate review.
Even if Sosa had preserved his weight of the evidence claim, it is
nonetheless meritless. Our standard of review when presented with a
weight of the evidence claim is different from that applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).
Therefore, “an appellate court reviews the exercise of the trial court’s
discretion; it does not answer for itself whether the verdict was against the
weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135-
36 (Pa. 2011). Importantly, “a new trial based on a weight of the evidence
claim is only warranted where the jury’s verdict is so contrary to the
evidence that it shocks one’s sense of justice.” Id.
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Sosa argues that Jesus Crisantos (“Crisantos”) was not a credible
witness. Crisantos gave a police statement linking Sosa to the robbery of
Palillero and the charge of firearms not to be carried without a license. See
N.T., 9/18/13, at 168-70; N.T., 9/19/13, at 53. Sosa contends that
Crisantos was not a credible witness because, at trial, Crisantos recanted the
statement he gave to police, because Crisantos was in prison for a conviction
of crimen falsi, and because Crisantos received immunity for any
involvement he may have had in Palillero’s robbery by testifying at Sosa’s
trial. Sosa’s Brief at 24-26. Sosa asserts that the unreliable statement
Crisantos gave to police is the only evidence linking Sosa to the robbery.
Id. at 26.
We conclude that the trial court did not abuse its discretion in finding
that the verdict was not against the weight of the evidence. The jury heard
testimony about Crisantos’ prior crimen falsi conviction, about Crisantos
receiving immunity for testifying against Sosa, and that Crisantos was
recanting the statement he gave to police. N.T., 9/18/13, at 148-53, 174-
75. Ultimately, the jury determined that, despite these potential problems
with Crisantos as a witness, the statement he gave to police was credible.
“It is well established that this Court is precluded from reweighing the
evidence and substituting our credibility determination for that of the fact-
finder.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014). “The weight of the evidence is a matter exclusively for the finder of
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fact, who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses.” Commonwealth v. Gonzalez,
109 A.3d 711, 723 (Pa. Super. 2015). As the fact-finder, the jury had the
responsibility of determining whether these factors affected Crisantos’
credibility as a witness. By convicting Sosa, the jury demonstrated that it
believed the statement Crisantos gave to police and that it did not find
credible his recantation of that statement.
Moreover, our review of the certified record reveals that Crisantos’
statement was not the only evidence linking Sosa to the robbery. See
supra, pp. 7-9. Based on our review of the record, the trial court did not
abuse its discretion in finding that the verdict was not against the weight of
the evidence.
Before discussing the merits of the third and fourth issues Sosa raises
on appeal, we must address the allegations of waiver relating to those issues
raised by the Commonwealth. The Commonwealth asserts that the trial
court did not authorize Sosa’s untimely supplemental Rule 1925(b)
statement and that consequently, Sosa has waived any issue raised in his
supplemental Rule 1925(b) statement that he did not include in his timely
Rule 1925(b) statement. See Commonwealth’s Brief at 28. Sosa responds
by pointing out that the trial court stated that his supplemental Rule 1925(b)
statement was timely. Sosa’s Reply Brief at 7.
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It is well settled that “in order to preserve their claims for appellate
review, [a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to Rule 1925.
Any issues not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also
Pa.R.A.P. 1925(b)(4)(vii). Additionally, this Court has held that “the waiver
analysis set forth in Lord applied not only to cases where an appellant failed
to file a concise statement or omitted appellate issues from a concise
statement, but also to cases where he filed a court-ordered statement in an
untimely manner.” Commonwealth v. Lane, 81 A.3d 974, 979-80 (Pa.
Super. 2013), appeal denied, 92 A.3d 811 (Pa. 2014).
Importantly, our Court has held that “an appellant’s mere language in
an initial, timely 1925(b) statement unilaterally reserving additional time in
which to file an untimely 1925(b) statement will not suffice to preserve
future issues raised in any untimely statement, even when the reason for
such action is the result of the unavailability of transcripts.”
Commonwealth v. Woods, 909 A.2d 372, 377-78 (Pa. Super. 2006). This
Court explained,
[A]n appellant cannot simply include in a timely
Pa.R.A.P. 1925(b) statement a “reservation of right”
or other informal request to file an untimely,
supplemental Pa.R.A.P. 1925(b), no matter what the
reason might be for such a request. Rather, in order
to file an untimely initial or supplemental Pa.R.A.P.
1925(b) statement, an appellant must file a separate
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petition seeking an extension of time or permission
to file a Pa.R.A.P. 1925(b) statement nunc pro tunc.
Such action will guarantee the trial court will take
explicit action[.]
Id. at 377 n.10.
According to this Court in Woods, to preserve issues raised in what
otherwise would be considered an untimely Rule 1925(b) statement, an
appellant must file a petition with the trial court, “setting forth good cause
for an extension of a specific amount of time in which to file the statement,
and obtain an order granting the request for the extension before the issues
raised in an untimely 1925(b) statement will be preserved for appeal to this
Court.” Id. at 378. Alternatively, “an appellant who has filed a timely
Pa.R.A.P. 1925(b) statement, and then for good cause shown discovers that
additional time is required to file a supplemental Pa.R.A.P. 1925(b)
statement, may file a separate petition seeking permission to file a
supplemental Pa.R.A.P. 1925(b) statement nunc pro tunc.” Id. at 378 n.11.
Here, on January 2, 2010, the trial court ordered Sosa to file a Rule
1925(b) statement. On January 10, 2014, the trial court granted Sosa’s
request for an extension for filing his Rule 1925(b) statement because he
had yet to receive his sentencing transcripts, making his Rule 1925(b)
statement due on February 13, 2014. On February 7, 2014, Sosa timely
filed his Rule 1925(b) statement. In his Rule 1925(b) statement, Sosa
“respectfully reserv[ed] the right to supplement and amend this [Rule]
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1925(b) [s]tatement” because he had yet to receive his sentencing
transcripts. See Pa.R.A.P. 1925(b) Statement, 2/7/14, at 2. Sosa did not,
however, file the requisite petition for an extension of time for filing an
otherwise untimely Rule 1925(b) statement under Woods or receive an
order granting such a request. See Woods, 909 A.2d at 377-78. On March
26, 2014, Sosa untimely filed his supplemental Rule 1925(b) statement.
Sosa contends that Woods is not applicable to this case because of
the 2007 revisions to Rule 1925. Sosa’s Reply Brief at 10-11. We disagree.
Rule 1925(b)(2) currently states,
Upon application of the appellant and for good cause
shown, the judge may enlarge the time period
initially specified or permit an amended or
supplemental Statement to be filed. Good cause
includes, but is not limited to, delay in the
production of a transcript necessary to develop the
Statement so long as the delay is not attributable to
a lack of diligence in ordering or paying for such
transcript by the party or counsel on appeal. In
extraordinary circumstances, the judge may allow for
the filing of a Statement or amended or
supplemental Statement nunc pro tunc.
Pa.R.A.P. 1925(b)(2). Thus, given the similarities between Rule 1925(b)(2)
and the rule set forth in Woods, we conclude that Woods is applicable to
this case.
Following the filing of his timely Rule 1925(b) statement, Sosa did not
request any further extension and there is no order in the record indicating
that the trial court again enlarged the time period for filing his Rule 1925(b)
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statement or permitted Sosa to file an amended or supplemental statement.
Rather, Sosa merely “respectfully reserv[ed] the right to supplement and
amend this [Rule] 1925(b) [s]tatement” in his timely Rule 1925(b)
statement so that he could unilaterally file a supplemental Rule 1925(b)
statement. See Pa.R.A.P. 1925(b) Statement, 2/7/14, at 2. Sosa’s attempt
to unilaterally file a supplemental Rule 1925(b) statement is expressly
prohibited by Woods and not in accordance with the procedure for seeking
permission to file a supplemental statement set forth in Rule 1925(b)(2).
See Woods, 909 A.2d at 377-78; Pa.R.A.P. 1925(b)(2).
Rule 1925(c)(3), however, further provides:
If an appellant in a criminal case was ordered to file
a Statement and failed to do so, such that the
appellate court is convinced that counsel has been
per se ineffective, the appellate court shall remand
for the filing of a Statement nunc pro tunc and for
the preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3). In Commonwealth v. Burton, 973 A.2d 428
(Pa. Super. 2009) (en banc), an en banc panel of this Court expanded the
rule set forth in Rule 1925(c)(3) to include not only the failure to file a Rule
1925(b) statement, but the untimely filing of a 1925(b) statement as well.
Id. at 432-33. Under Burton, both the failure to file a Rule 1925(b)
statement and the untimely filing of a Rule 1925(b) statement are per se
ineffective assistance of counsel. Id. The panel explained:
The complete failure to file the 1925 concise
statement is per se ineffectiveness because it is
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without reasonable basis designed to effectuate the
client’s interest and waives all issues on appeal.
Likewise, the untimely filing is per se ineffectiveness
because it is without reasonable basis designed to
effectuate the client’s interest and waives all issues
on appeal. Thus[,] untimely filing of the 1925
concise statement is the equivalent of a complete
failure to file. Both are per se ineffectiveness of
counsel from which appellants are entitled to the
same prompt relief.
The view that Rule 1925(c)(3) does not apply to
untimely 1925 concise statements would produce
paradoxical results. The attorney who abandons his
client by failing to file a 1925 concise statement
would do less of a disservice to the client than the
attorney who files a 1925 concise statement beyond
the deadline for filing. Clients each victimized by per
se ineffectiveness would be treated differently; the
abandoned client would receive remand, “the more
effective way to resolve such per se ineffectiveness,”
whereas the client whose lawyer files the 1925
concise statement late would be consigned to filing
under the Post Conviction Relief Act, 42 Pa.C.S.A. §
9541 et seq.
Rule 1925(c)(3) was adopted by the Supreme Court
to avoid unnecessary delay in the disposition on the
merits of cases which results from per se
ineffectiveness of appellant’s counsel. To accomplish
the manifest purpose of the rule untimely filing of a
1925 concise statement ought to have no more
severe consequence than a complete failure to file.
Thus, if there has been an untimely filing, this Court
may decide the appeal on the merits if the trial court
had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal. If the
trial court did not have an adequate opportunity to
do so, remand is proper.
Id. (footnote omitted).
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Although this case does not present a scenario in which Sosa’s
untimely filing of his supplemental Rule 1925(b) statement would waive all
issues on appeal, it nonetheless represents per se ineffective assistance of
counsel on the part of Sosa’s post-trial/appellate counsel. See id.; Pa.R.A.P.
1925(c)(3). The untimely filing of Sosa’s supplemental Rule 1925(b)
statement was without a reasonable basis designed to effectuate Sosa’s
interest because it needlessly resulted in the waiver of all the issues raised
in that statement that Sosa did not raise in his timely Rule 1925(b)
statement. Sosa’s post-trial/appellate counsel easily could have, and should
have, requested another extension or permission to file a supplemental
statement from the trial court pursuant to Rule 1925(b)(2) because he had
yet to receive Sosa’s sentencing transcripts. See Pa.R.A.P. 1925(b)(2).
Moreover, if we do not apply Burton in this case, it would have the
anomalous result of putting Sosa in a better position had his post-
trial/appellate counsel not filed the timely but incomplete Rule 1925(b)
statement.
Therefore, because the actions of Sosa’s post-trial/appellate counsel
were per se ineffective, we decline to find waiver of Sosa’s third and fourth
issues on the basis that Sosa’s supplemental Rule 1925(b) statement was
untimely. Additionally, because the trial court had adequate opportunity to
and did indeed prepare an opinion addressing the issues raised in Sosa’s
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supplemental Rule 1925(b) statement, we may address the merits of Sosa’s
third and fourth issues. See Burton, 973 A.2d at 432-33.
For his third issue on appeal, Sosa argues that the evidence was
insufficient to sustain his conviction for firearms not to be carried without a
license under section 6106(a)(1) of the Crimes Code because police only
recovered a firearm from Sosa’s “abode.” Sosa’s Brief at 36-37. Sosa
contends that there is no evidence that he ever carried a firearm outside his
place of abode. Id. at 36.
Section 6106(a)(1) provides as follows:
(a) Offense defined.--
(1) Except as provided in paragraph (2), any
person who carries a firearm in any vehicle or
any person who carries a firearm concealed on
or about his person, except in his place of
abode or fixed place of business, without a
valid and lawfully issued license under this
chapter commits a felony of the third degree.
18 Pa.C.S.A. § 6106(a)(1) (footnote omitted).
The certified record on appeal reflects that there is sufficient evidence
to sustain Sosa’s conviction under section 6106(a)(1). The certified record
reveals that Crisantos told police the following:
We were driving around. I was sitting in the back of
the car. Carlos said “yo, yo, yo” and told Nick to pull
the car over. Nick pulled over. Carlos and Danny
got out of the car.
* * *
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It was quick. Carlos and Danny came back and said
“go, go, go.” I seen Carlos with a gun. It looks like
he had duct tape around it. Nick drove to Mildred
Street right behind Key School. I hopped out of the
car and we went inside Carlos’ house on Mildred
Street. I was in the kitchen. Carlos came running
into the house throwing shit yelling, the cops, the
cops. I went to the front door. I seen a female cop
coming up to the door. I knew why the cops were
there.
N.T., 9/19/13, at 53.
Sosa asserts that Crisantos’ statement is not evidence of his crimes
because Crisantos’ statement refers to a “Carlos,” who Sosa maintains is
some other unidentified individual. Sosa’s Brief at 32. However, when Sosa
was arrested he told police that his name was Carlos Sosa. N.T., 9/19/13,
at 52. Therefore, viewing the evidence in the light most favorable to the
Commonwealth, we conclude that the “Carlos” that Crisantos refers to in his
police statement is indeed Sosa. Thus, the certified record reflects that Sosa
carried a firearm outside his place of abode and the evidence is therefore
sufficient to sustain his conviction under section 6106(a)(1).
For his fourth issue on appeal, Sosa challenges the discretionary
aspects of his sentence. Despite declining to find waiver of this issue based
on Rule 1925(b), we must nevertheless conclude that Sosa has waived this
issue on appeal because as the Commonwealth points out, Sosa failed to
challenge the discretionary aspects of his sentence during sentencing or in a
post-sentence motion. See Commonwealth’s Brief at 27-29. It is well
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settled that “‘issues challenging the discretionary aspects of a sentence must
be raised in a post-sentence motion or by presenting the claim to the trial
court during the sentencing proceedings. Absent such efforts, an objection
to a discretionary aspect of a sentence is waived.’” 2 Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (quoting
Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011)). “[A]
party cannot rectify the failure to preserve an issue by proffering it in
response to a Rule 1925(b) order.” Commonwealth v. Tejada, 107 A.3d
788, 799 (Pa. Super. 2015). (quotations and citation omitted).
2
Our determination that Sosa has waived his discretionary aspects of
sentencing claims is required even though the trial court conceded that it
improperly sentenced Sosa:
(1) [Sosa]’s conviction for Conspiracy to Commit
Robbery was treated as having an Offense Gravity
Score (OGS) of 10 when it should have been a 9,
and (2) [Robinson] was sentenced using the Deadly
Weapon Enhancement for Use, when he should have
been sentenced using the Deadly Weapon
Enhancement for Possession.
Trial Court Opinion, 6/30/14, at 11.
We note that neither of the above sentencing claims present legality
issues, and are therefore waivable. See Commonwealth v. Lamonda, 52
A.3d 365, 371 (Pa. Super. 2012) (en banc) (finding that a claim that the
trial court wrongly applied an offense gravity score was a claim challenging
the discretionary aspects of a sentence); Commonwealth v. Stokes, 38
A.3d 846, 857-58 (Pa. Super. 2011) (holding that claims involving the
application of the deadly weapon enhancement are claims challenging the
discretionary aspects of a sentence).
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Sosa argues that because his post-trial/appellate counsel was not his
trial counsel and his post-trial/appellate counsel had not received his
sentencing transcripts before post-sentence motions were due that post-
trial/appellate counsel preserved his discretionary aspects of sentencing
claims by raising them in his Rule 1925(b) statement. Sosa’s Reply Brief at
2-6. Despite Sosa’s change of counsel, our law is clear that an appellant
cannot raise issues for the first time in Rule 1925(b) statement. See
Tejada, 107 A.3d at 799. Moreover, Sosa’s post-trial/appellate counsel
could have petitioned the trial court to allow the filing of post-sentence
motions nunc pro tunc. See Commonwealth v. Moore, 978 A.2d 988, 991
(Pa. Super. 2009). (“To be entitled to file a post-sentence motion nunc pro
tunc, a defendant must, within 30 days after the imposition of sentence,
demonstrate sufficient cause, i.e., reasons that excuse the late filing. ...
When the defendant has met this burden and has shown sufficient cause,
the trial court must then exercise its discretion in deciding whether to permit
the defendant to file the post-sentence motion nunc pro tunc.”).
Accordingly, Sosa is not entitled to any relief.
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Judgment of sentence affirmed.
Wecht, J. joins the Memorandum.
Shogan, J. files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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