Com. v. Cook, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID M. COOK
Appellant No. 198 EDA 2016
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003068-2013
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 30, 2016
Appellant David M. Cook appeals the judgment of sentence entered in
the Court of Common Pleas of Bucks County on December 16, 2015,
following the revocation of his parole.1 Following a review of the record, we
dismiss the appeal. As shall be discussed more fully infra, in his counseled
appellate brief, Appellant failed to comply substantially with the
requirements set forth in Pa.R.A.P. 2111-2140; therefore, we are unable to
conduct meaningful review.
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1
The cover page of Appellant’s brief incorrectly indicates he is appealing the
January 4, 2016, Order denying his post-sentence motion for reconsideration
of sentence. The caption correctly reflects that the appeal is taken from the
judgment of sentence entered on December 16, 2015.
*Former Justice specially assigned to the Superior Court.
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Because a detailed recitation of the facts is not necessary to our
disposition, we briefly note that the instant matter arises following the trial
court’s revocation of Appellant’s parole due his direct and technical violations
thereof after he was found guilty of simple assault, disorderly conduct and
harassment on August 26, 2015. On December 16, 2015, a parole violation
hearing was held following which Appellant was sentenced to serve the
entirety of his back time of parole of nineteen (19) months and eighteen
(18) days consecutive to his remaining sentences without eligibility for
parole.2 On December 24, 2015, Appellant filed his “Motion to Modify and
Reconsider Sentence” wherein he averred the aforementioned sentence “was
excessive in this it exceeds what is necessary to protect the public and
rehabilitate [Appellant].” See Motion to Modify and Reconsider Sentence,
filed 12/24/16, at ¶ 6. The trial court denied Appellant’s motion in its Order
filed on January 4, 2016. Appellant filed a timely notice of appeal on
January 21, 2016, challenging the discretionary aspects of his sentence.
Initially, we note that appellate briefs must materially conform to the
requirements of the Pennsylvania Rules of Appellate Procedure and this
Court may quash or dismiss an appeal if a defect in the brief is substantial.
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2
On August 27, 2015, Appellant received a sentence of one (1) to two (2)
years in prison on the Simple Assault conviction and a consecutive sentence
of ninety (90) days imprisonment on the Disorderly Conduct conviction. The
trial court also found Appellant to be in contempt of a PFA Order that was
active at the time of the assault for which he was sentenced to a consecutive
term of six (6) months’ incarceration.
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Commonwealth v. Adams, 882 A.2d 496, 497 (Pa.Super. 2005); Pa.R.A.P.
2101. Our review of Appellant’s brief exposes substantial violations of the
Rules of Appellate procedure.
In the “Scope and Standard of Review” portion of his appellate brief,
Appellant fails to state the appropriate scope and standard of review, for
while his is an appeal of the discretionary aspects of his sentence for a
parole violation, he cites this Court’s scope of review of appeals from a
judgment of sentence imposed following probation revocation. See
Pa.R.A.P. 2111(a)(3); Brief for Appellant at 5. In addition, Appellant
purports to appeal from the January 4, 2016, order denying his post-
sentence motion for reconsideration of sentence;3 however, in a criminal
context, an appeal properly lies from the judgment of sentence, not an order
denying post-sentence motions. See Commonwealth v. Dreves, 839 A.2d
1122, 1125 n.1 (Pa.Super. 2003) (en banc) (in a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of a
post-sentence motion); Brief for Appellant at 4.
Next, Appellant presents the following statement of the question
presented:
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3
Specifically, although Appellant is a male, Appellant purports to appeal
“her” denial of post-sentence motions. See Brief for Appellant at 4.
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A. Whether the trial court abused its discretion by imposing a
sentence that was excessive in that it exceeds what is necessary
to protect the public and rehabilitate Appellant.
Brief for Appellant at 5.
Appellant’s assertion the trial court’s sentence exceeded that which is
necessary to protect the public and rehabilitate him is a challenge to the
discretionary aspects of the sentence. Commonwealth v. Caldwell, 117
A.3d 763, 768 (Pa.Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015)
(stating claim the trial court failed to consider a defendant’s rehabilitative
needs and the consecutive imposition of his sentences resulted in an
excessive sentencing scheme challenges the discretionary aspects of
sentence). Challenges to the discretionary aspects of one’s sentence are not
appealable as of right, and in order for this Court to reach the merits of such
claims, Appellant first must have satisfied a four-part test. An essential
element of this test is a consideration of whether his appellate brief has a
fatal defect for his failure to comply with Pa.R.A.P. 2119(f).
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011).
Rule 2119 provides in relevant part that:
f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of the sentence.
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Pa.R.A.P. 2119(f) (emphasis added). In this regard, this Court has
explained:
[t]he concise statement must specify where the sentence falls in
relation to the sentencing guidelines and what particular
provision of the code it violates. Additionally, the statement
must specify what fundamental norm the sentence violates and
the manner in which it violates that norm. If the statement
meets these requirements, we can decide whether a substantial
question exists.
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (internal
quotations and citations omitted). In the matter sub judice, Appellant
nowhere includes a separate designation pursuant to Pa.R.A.P. 2119(f).
In Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super.
2006) this Court indicated we may review an appellant’s discretionary
aspects of sentence claims in instances where the Commonwealth has not
objected to his or her failure to include a Rule 2119(f) statement in the
appellate brief; however, we also stated “we need not do so.” Id. citing
Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super. 2005) see also
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004) (finding
that “when the appellant has not included a Rule 2119(f) statement and the
appellee has not objected, this Court may ignore the omission and
determine if there is a substantial question that the sentence imposed was
not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua
sponte, i.e., deny allowance of appeal”); Pa.R.A.P. 2119(f).
Notwithstanding, the Note to Pa.R.A.P. 2111(d) states the 2008
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amendments to Pa.R.A.P. 2119(f) “recognize that, while Pa.R.A.P. 2119(f)
does not apply to all appeals, an appellant must include the reasons for
allowance of appeal as a separate enumerated section immediately before
the Argument section if he or she desires to challenge the discretionary
aspects of a sentence.” Pa.R.A.P. 2111(d) note (emphasis added). Indeed,
this Court also has determined that “we cannot look beyond the statement
of questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa.Super. 2012) (citation omitted). As such, when
considered along with the other shortcomings of his appellate brief,
Appellant’s failure to include a Pa.R.A.P. 2119(f) statement constitutes a
fatal defect. 4
Lastly, Appellant has failed to attach the requisite concise statement
and trial court opinion to his appellate brief. See Pa.R.A.P. 2111(d)(stating
“there shall be appended to the brief of the appellant a copy of the
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4
Even assuming, arguendo, Appellant properly had averred in a Rule
2119(f) concise statement that his sentence was excessive and failed to take
into consideration his rehabilitative needs, such a claim fails to raise a
substantial question, for generally, a bald claim of excessiveness based upon
the trial court’s alleged inadequate consideration of mitigating factors or
resulting from the imposition of consecutive sentences fails to raise a
substantial question. See Commonwealth v. Austin, 66 A.3d 798, 808
(Pa.Super. 2013); Commonwealth v. Johnson, J., 961 A.2d 877, 880
(Pa.Super. 2008). Herein, Appellant devotes just three paragraphs of
argument to develop what constitutes a bald allegation the trial court abused
its discretion.
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statement of errors complained of on appeal, filed with the trial court
pursuant to Pa.R.A.P. 1925(b)”); Pa.R.A.P. 2111(b) (providing “[t]here shall
be appended to the brief a copy of any opinions delivered by any court or
other government unit below relating to the order of other determination
under review, if pertinent to the questions involved”). In the “Statement of
the Case” portion of his brief Appellant references his concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) filed on
February 4, 2016, and indicates that document is attached to his brief as
Exhibit “A.” Appellant further claims the trial court’s responsive opinion was
filed on February 23, 2016, and is attached as Exhibit “B.” To the contrary,
Exhibit “A” is a statement of matters complained of on appeal filed on
December 21, 2015, wherein Appellant raises five, distinct issues. Exhibit
“B” is a trial court Opinion filed on April 18, 2016, which addresses those
issues.
We find the aforementioned substantial omissions and defects preclude
meaningful review. Accordingly, we suppress Appellant’s brief and dismiss
his appeal. See Adams, supra at 497-98; Pa.R.A.P. 2101.
Appeal dismissed.
Judge Stabile joins the memorandum.
Judge Solano concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2016
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