Commonwealth v. Foster

OPINION BY

BOWES, J.:

¶ 1 Oliver Foster appeals from the November 30, 2006 judgment of sentence of five to ten years imprisonment that was imposed after he was convicted of robbery. We conclude that Appellant, as an unarmed coconspirator in an armed robbery, was improperly sentenced pursuant to 42 Pa.C.S. § 9712(a). We therefore vacate the judgment of sentence and remand for re-sentencing.

¶ 2 On January 16, 2006, an arrest warrant was issued for Appellant based upon an incident that occurred on January 6, 2006. Appellant was charged with robbery, conspiracy, two counts of theft, possession of an instrument of crime, reckless endangerment, terroristic threats, carrying an unlicensed firearm, and carrying a firearm on a public street in Philadelphia. On October 11, 2006, the matter proceeded to a nonjury trial. The victim, Roger Snyder, testified as follows. At 8:40 p.m. on January 6, 2006, he was at home in his apartment located on 8777 Glenloch Place, Philadelphia, when Appellant, whom Mr. Snyder had known for three years, arrived with a man identified only as Darryl.¹ Appellant, in accordance with his routine, knocked on Mr. Snyder’s window, and the victim allowed him to enter. Darryl, who had been hiding from view, followed Appellant into the apartment. Darryl approached the victim and said, “Come on, let’s go. We’re going to the ATM machine.” N.T., 10/11/06, at 19. Darryl then raised his jacket, displaying “an automatic [gun] in his waistband.” Id. Appellant just “stood back. He didn’t say anything or do anything.” Id.

¶ 3 Mr. Snyder retrieved his jacket, and the three men went outside. Appellant walked ahead while Darryl lagged behind to walk next to Mr. Snyder. Ten minutes later, they arrived at an ATM machine. Darryl demanded the victim’s ATM card, which Darryl placed into the machine. Darryl instructed the victim to “[pjunch in your numbers.” Id. at 21. Mr. Snyder did as told, and Darryl extracted $100 and then an additional $800 from Mr. Snyder’s account. At that point, Darryl’s brother arrived in a large silver Jeep or Hummer, and Darryl said to Appellant, “[T]his is my brother.” Id. at 22. Darryl entered the car and left the scene. Appellant did not enter the vehicle; instead, he started to walk along with Mr. Snyder. “Then all of a sudden [Appellant] took off.” Id.

¶ 4 Philadelphia Detective Sarah Valentino was assigned to investigate the matter. After Appellant was arrested, he gave her a statement in which he admitted that he took a man known as “D” to the victim’s home. Id. at 30. He explained that he owed “D” money, which “D” wanted repaid, and that Appellant took “D” to the victim’s house because the victim owed Appellant $115. Appellant continued that once they arrived at Mr. Snyder’s home, “D” told Mr. Snyder that he had a gun, looked through the victim’s wallet, and took a MAC card. Appellant admitted that they then went to a nearby ATM machine and that “D” forced Mr. Snyder to withdraw money. Appellant also acknowledged that after the robbery, “D” entered a vehicle and left the area. Appellant informed the detective that following the incident, he walked Mr. Snyder “back to his house and told him I was sorry.” Id. at 31. Appellant claimed that he was unaware that “D” was carrying a firearm when they entered Mr. Snyder’s home.

(a) Mandatory sentence. — Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.

¶ 5 The Commonwealth introduced into evidence the transaction receipts for the withdrawals and established that the ATM machine at the Washington Savings Bank located at 8729 Frankford Avenue had been utilized. Based on this evidence, the trial court found Appellant guilty of robbery, conspiracy, theft, and possession an instrument of crime and acquitted him of the remaining charges. The case proceeded to sentencing on November 30, 2006.

¶ 6 Appellant, who was forty-five years old, had no prior convictions. The sentencing guidelines called for twenty-two to thirty-six months incarceration plus or minus twelve months. However, the sentencing court did not consider the guidelines because the Commonwealth invoked 42 Pa.C.S. § 9712(a),² which is the mandatory minimum sentencing provision applicable to commission of certain crimes, including robbery, while in visible possession of a firearm.

¶ 7 At the time of Appellant’s sentencing, prevailing Superior Court authority provided that unarmed co-conspirators were subject to the provisions of section 9712(a), even when they did not possess the firearm used during the commission of the crime. Kg., Commonwealth v. Chiari, 741 A.2d 770 (Pa.Super.1999). Accordingly, Appellant, who admittedly was not visibly in possession of a firearm during the robbery, was sentenced under 42 Pa.C.S. § 9712(a) to five to ten years imprisonment. This appeal followed.

¶ 8 Four months after Appellant was sentenced, on March 29, 2007, our Supreme Court issued its decision in Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007). In Dickson, the Court overruled Superior Court case law and held that section 9712(a) does not apply to an unarmed co-conspirator when his accomplice visibly possessed the firearm used to facilitate the crime. Appellant’s Pa.R.A.P.1925(b) statement was filed after the Dickson decision; in that statement, he challenged application of section 9712(a) based upon that case. He now asks us to reverse his judgment of sentence and to remand this case for sentencing without imposition of the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712(a).

¶ 9 The issue that we confront is whether the holding in Dickson can be applied herein. For the reasons that follow, resolution of this question hinges on whether Appellant’s challenge to application of section 9712(a) relates to the legality of his sentence or to the discretionary aspects of it. Appellant did not raise any objection to application of section 9712(a) at sentencing or in a post-sentence motion. Claims relating to the discretionary aspects of a sentence are waived if not raised either at sentencing or in a post-sentence motion. See Commonwealth v. Shugars, 895 A.2d 1270 (Pa.Super.2006). Even if properly preserved, such a claim also is waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement’s absence. Id.

¶ 10 If the sentencing claim herein is found to relate to the discretionary aspects of his sentence, Appellant’s inclusion of the issue in his Pa.R.A.P.1925(b) statement will not save it from being waived because Appellant failed to raise it in the court below, as required by Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa.Super.2004) (en banc) (fact that an issue is included in a Pa.R.A.P.1925(b) statement does not obviate its waiver under Pa.R.A.P. 302(a)).

¶ 11 On the other hand, claims pertaining to the legality of sentence are non-waivable, may be leveled for the first time on appeal, and our jurisdiction need not be invoked in a Pa.R.A.P. 2119(f) statement. Commonwealth v. Dickson, supra at 99 (“challenges to sentences based upon their legality” are not subject to waiver); see also Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super.2007) (en banc) (“A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained [as] long as the reviewing court has jurisdiction.”). In fact, such a claim is not even waived by a party’s failure to include it in a Pa.R.A.P.1925(b) statement. Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super.2001) (Commonwealth did not waive position that trial court erred in failing to impose mandatory minimum sentence under recidivist statute, 42 Pa.C.S. § 9714, even though claim was not included in Commonwealth’s Pa.R.A.P.1925(b) statement).

¶ 12 This dichotomy in treatment of sentencing issues derives from language in 42 Pa.C.S. § 9781(a) and (b).³ Under subsection (a) of section 9781, “The defendant or the Commonwealth may appeal as of right the legality of the sentence.” However, under subsection (b) of that section, our jurisdiction must be invoked with a petition for allowance of appeal when the issue involves the discretionary aspects of a sentence. In addition, the petition must raise a substantial question as to the appropriateness of the sentence.

¶ 13 We respectfully observe that the appellate courts of Pennsylvania have struggled with the concept of whether a sentencing claim relates to the legality of sentence or the discretionary aspects of it. See Commonwealth v. Dickson, supra (“While this Court is clear on the non-waivability of challenges to sentences based upon their legality, we continue to wrestle with precisely what trial court rulings implicate sentence legality.”); see also McCray v. Pennsylvania Dept, of Corrections, 582 Pa. 440, 872 A.2d 1127, 1138 (2005) (Saylor J., concurring) (cited in Dickson and commenting upon the “prevailing uncertainty concerning the breadth of the legality-of-sentence exception to general principles of waiver”). We must stress at the onset that in Dickson, the majority of the Court specifically found that the defendant had preserved at sentencing his objection to application of the mandatory minimum sentence imposed in section 9721(a). Consequently, the majority did not address the question of whether that defendant’s challenge related to the discretionary aspects or legality of sentence.⁴

¶ 14 Thus, we must closely examine controlling Supreme Court precedent for guidance in answering the question posed. Certain sentencing issues unequivocally relate to the legality of sentence. Any claim pertaining to whether a sentence exceeds the lawful maximum falls into that category. Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005). In Shiffler, the Supreme Court held that application of the three strikes law, 42 Pa.C.S. § 9714, which imposes a mandatory minimum sentence when a defendant has committed prior crimes of violence, relates to legality of sentence because the application of section 9714 increases the lawful maximum sentence that could otherwise be imposed for a defendant’s criminal conviction.

¶ 15 Similarly, an argument premised upon double jeopardy-merger principles is considered to relate to the legality of sentence. Commonwealth v. Andrews, 564 Pa. 321, 768 A.2d 309, 313 (2001). As the Supreme Court noted therein, “[T]he double jeopardy prohibition against multiple punishment for the same offense serves to ‘prevent the sentencing court from prescribing greater punishment than the legislature intended.’ Missouri v. Hunter, 459 U.S. 359, 366 [103 S.Ct. 673, 74 L.Ed.2d 535] (1983). As a result, such challenges have been treated as implicating the legality of the sentence.”

¶ 16 Along the same lines, “It seems to be a settled question in Pennsylvania that Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ]- based challenges raise questions related to the legality of a sentence, and not the discretionary aspects of it.” Commonwealth v. Gordon, 596 Pa. 231, 942 A.2d 174, 175 (2007). In the Apprendi setting, a defendant asserts that the maximum sentence to which he was subject was unconstitutionally increased based upon the existence of a fact that should have been submitted to a jury rather than determined by the sentencing court. Thus, if a defendant were to prevail on an Apprendi violation, he would have been sentenced in excess of the sentence that should otherwise have been imposed within constitutional parameters. See Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800 (2004) (Justice (now Chief Justice) Castille concurring).

¶ 17 It is thus settled law that any allegation relating to whether a sentence exceeds the lawful maximum is a legality-of-sentence question. However, there is other relevant Supreme Court authority wherein the sentencing averment did not involve a position that the sentence exceeded the lawful maximum. Specifically, our Supreme Court has indicated that the application of a mandatory minimum sentencing provision relates to the legality of sentence. In Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280, 1284 (2000), the Court addressed this issue in the context of a trial court’s belated addition of mandatory minimum fines contained in 18 Pa. C.S. § 7508, the sentencing provision applicable to drug trafficking. In that case, the trial court neglected to impose a mandatory fine outlined in section 7508 for a drug-trafficking conviction. The trial court, in its Pa.R.A.P.1925(a) statement, asked this Court to remand so that the oversight could be corrected. We complied with that request, and after remand and imposition of the fine, the defendant was granted allowance of appeal. The defendant challenged our decision to remand for re-sentencing because the Commonwealth had never objected to the trial court’s failure to impose a fine.

¶ 18 In Vasquez, our Supreme Court ruled that since the sentence originally imposed omitted the mandatory fine, it was illegal. It continued that claims involving the legality of a sentence are not subject to waiver. The Supreme Court opined, “When a trial court imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction.” Id. at 1284. We must observe that in the statute under consideration in Vasquez, 18 Pa.C.S. § 7508, the Commonwealth has the right to appellate review when a sentencing court refuses to apply the section, and we are required to vacate the sentence and remand if the trial court fails to apply that mandated sentence. 18 Pa.C.S. § 7508(d).

¶ 19 Our Supreme Court engaged in a similar analysis in the earlier decision of Commonwealth v. Smith, 528 Pa. 380, 598 A.2d 268 (1991). In Smith, the Supreme Court held that the trial court’s failure to apply the recidivist sentencing provision of 42 Pa.C.S. § 9714 cannot be waived. It based this ruling upon language in section 9714(f) which states, as does section 7508(d), that if “a sentencing court shall refuse to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court.” 42 Pa.C.S. § 9714(f). Thus, under Vasquez and Smith, the trial court’s failure to impose a mandatory minimum sentence required by sections 7508 and 9714 is accorded status as a non-waivable legality-of-sentence challenge.

¶20 We also find guidance in our Supreme Court’s decision in In re M.W., 555 Pa. 505, 725 A.2d 729 (1999). Therein, the juvenile defendant in a delinquency proceeding challenged the amount of restitution ordered by a juvenile court. Restitution was entered after the juvenile entered a negotiated plea agreement and was adjudicated delinquent based upon commission of the offense of criminal trespass. During the incident, M.W. and others caused extensive damage to the property in question. The juvenile averred that restitution was improper since it was not possible to attribute the resultant damage to him, as opposed to the other perpetrators involved in the trespass incident.

¶21 The juvenile prevailed before this Court, and after being granted allowance of appeal, the Commonwealth contended to the Supreme Court that the issue had been waived because the juvenile had not included a Pa.R.A.P. 2119(f) statement in his brief and the question raised related to the discretionary aspects of sentence. The Supreme Court disagreed, opining that “the issue presented in this case centers upon the juvenile court’s statutory authority to order restitution; thus, it implicates the legality of the dispositional order.” Id. at 731. That Court continued that since “M.W. was challenging the legality of the order, as opposed to the trial court’s exercise of discretion in fashioning it[,] he would not have been required to include a statement of the reasons relied upon for allowance of appeal in his Superior Court brief.” Id. It elaborated as follows:

We recognize that there has been some confusion as to whether an appeal of an order of restitution implicates the legality or the discretionary aspects of a particular sentence in a criminal proceeding. See In the Interest of Dublin-ski, 695 A.2d 827, 828-29 (Pa.Super.1997) (collecting cases). Where such a challenge is directed to the trial court’s authority to impose restitution, it concerns the legality of the sentence; however, where the challenge is premised upon a claim that the restitution order is excessive, it involves a discretionary aspect of sentencing. See generally Walker, 446 Pa.Super. at 55, 666 A.2d at 307. While the Superior Court has referred to the discretionary aspects and legality of sentence dichotomy in connection with review of proceedings under the Juvenile Act, see, e.g., Dublinski, 695 A.2d at 828-29, this Court has not had occasion to determine whether the statutory constraints regarding the discretionary aspects of sentencing apply to the review of dispositional orders in juvenile proceedings. This issue need not be resolved in this case, however, since, as noted, MW.’s challenge implicated the legality of the dispositional order.

Id. at 731 n. 4. Thus, a defendant’s challenge to the trial court’s authority to impose a sentence under a statute has been held to involve the legality of sentence rather than the discretionary aspects of it.

¶22 Superior Court decisional law is necessarily consistent with the approach of our Supreme Court. We have held that the Commonwealth can assert for the first time on appeal that the trial court erred by refusing to apply 42 Pa.C.S. § 9712(a), the mandatory minimum sentencing provision at issue herein. Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super.2008). The non-waivable nature of a Commonwealth appeal in this context rests upon language in 9712(d) that is the same as section 7508(d) and 9714(f). Section 9712(d) states, “If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court.” Subsection (d) requires us to vacate and remand for imposition of a sentence in accordance with section 9712(a) if applicable.

¶ 23 This Court has also held that a defendant’s challenge to the application of a mandatory minimum sentence relates to the legality of sentence. In Commonwealth v. Harley, 924 A.2d 1273, 1277 (Pa.Super.2007), the defendant claimed that he was improperly sentenced to a mandatory minimum sentence under 18 Pa.C.S. § 7508. He asserted that the Commonwealth failed to prove that he possessed the requisite quantity of drugs necessary to invoke the mandatory minimum. Although he sought a lesser mandatory minimum, he did not aver that his sentence exceeded the lawful maximum sentence for the crime in question. Therein, we opined, “Ordinarily, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the sentence.” Id. at 1277 (quoting Commonwealth v. Littlehales, 915 A.2d 662, 664 (Pa.Super.2007)).

¶ 24 Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super.2007), further comports with this legality approach. In that case, the defendant challenged application of the mandatory minimum drug trafficking provision of 18 Pa.C.S. § 7508. He argued both that the government failed to establish the weight of drugs he possessed and that it did not prove that he constructively possessed certain drugs found in a vehicle. We characterized these challenges to the imposition of the mandatory minimum sentence as “nonwaivable challenge[s] to the legality of the sentence.” Id. at 880, 881. We observed that this result flows from the fact that courts do not have authority to avoid imposing the mandatory minimum, assuming certain factual predicates apply. Id. (quoting Littlehales, supra at 664).

¶ 25 In Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super.2007), the defendant was sentenced under the mandatory minimum sentencing provisions of the Motor Vehicle Code, 75 Pa.C.S. § 3806, which imposes increased sentences based upon prior convictions for Driving Under the Influence of Alcohol. He was sentenced based upon two prior DUI convictions but contended that he only had one for purposes of application of that statute. We noted that this averment was a “challenge to a sentencing court’s application of a mandatory sentencing provision” and depicted it as implicating “the legality, not discretionary, aspects of sentencing.” Id. at 216 (citing Vasquez, supra).

¶ 26 Additionally, in Commonwealth v. Bongiomo, 905 A.2d 998 (Pa.Super.2006), the defendant complained about the trial court’s decision to impose a mandatory minimum sentence under 18 Pa.C.S. § 6317, the “drug-free school zones” provision. The defendant maintained that the statute was improperly applied in that the Commonwealth did not establish that his sale of drugs occurred in an area within two hundred and fifty feet of a playground. We stated, “Challenges to a trial court’s application of a mandatory sentencing provision implicate the legality of sentence.” Id. at 1002 (citing Commonwealth v. Lewis, 885 A.2d 51, 55 (Pa.Super.2005) (same)).

¶ 27 Since those were panel decisions of this Court, we must analyze the import of the recent en banc decision in Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super.2007), on the viability of those decisions. In Robinson, the defendant claimed that the trial court had unconstitutionally increased his sentence based upon vindictiveness. The defendant had not included a Pa.R.A.P. 2119(f) statement in his brief, and the Commonwealth argued that the issue had been thereby waived. This Court agreed and held that the challenge related to the discretionary aspects of a sentence rather than its legality. In arriving at this conclusion, we expressly observed that the defendant was “essentially claiming that the court exercised its discretion in a way that is harsh, unreasonable, and motivated by impermissible factors .... These are the very hallmarks of a claim that implicates the discretionary aspects of a sentence.” Id. at 21 (emphasis is original).

¶28 The allegation in'the present case is in direct opposition to the sentencing allegation at issue in Robinson. Appellant herein is not complaining about the sentencing court’s exercise of discretion. Indeed, as noted by the sentencing court herein, it lacked any discretion in the imposition of Appellant’s sentence, and it refused to apply the guidelines or consider any mitigating factors raised by Appellant, including his lack of prior record score and age. See N.T. Sentencing, 11/30/06, at 6 (“the law requires this sentence based upon this conviction”); see also id. at 4 (defense counsel conceded that guidelines and existence of zero prior record score were “irrelevant” due to application of mandatory five to ten year sentence).

¶ 29 We are aware that the Robinson Court appears to suggest that only claims involving a sentence that exceeds the lawful maximum can be characterized as involving the legality of sentence. Id. at 21. However, the question of whether application of a mandatory minimum statute relates to a sentence’s legality simply was not before this Court in Robinson. Perhaps for this reason the Robinson Court failed to discuss our Supreme Court’s decisions in Vasquez and Smith, which expressly hold that application of a mandatory minimum sentence relates to the “legality of sentence.” The Robinson Court also did not consider In re M.W., supra, a Supreme Court decision that expressly states that a defendant’s challenge to the trial court’s “authority” to impose a sentence under a statute relates to the legality of sentence.

¶ 30 Thus, under the Supreme Court decision in In re M.W. and the Superior Court panel decisions in Harley, Johnson, Stafford, and Bongiomo, a defendant’s complaint that the trial court’s application of a mandatory minimum sentencing provision was erroneous constitutes a challenge to the legality' of sentence. Under Supreme Court authority, a Commonwealth’s assertion of error by a trial court in failing to apply a mandatory minimum sentence relates to its legality, even though, as noted, the Commonwealth’s position in that regard clearly does not pertain to whether the sentence exceeded the lawful maximum.

¶ 31 Our analysis cannot be complete without an examination of the fact that in the mandatory minimum sentencing cases of Vasquez, Smith, and Diamond, the statutes construed afforded the Commonwealth but not the defendant “the right to appellate review” of a trial court’s failure to impose the mandatory minimum. We must determine whether that language connotes that the Commonwealth’s appeal from the failure to impose a mandatory minimum sentence relates to the legality of sentence while a defendant’s appeal is not accorded the same status.

¶ 32 Even though the “right to appellate review” is not conferred upon a defendant by subsection (d), the defendant is accorded an all-encompassing “right to appeal ... the legality of sentence” in section 9781(a) of the Sentencing Code. If, as held by our Supreme Court in Vasquez and Smith, “application of a mandatory minimum sentence” is a non-waivable challenge to the “legality of a sentence,” then this holding, as does all precedent, must apply to all litigants similarly situated. See Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 739 (2001) (quoting Lonchar v. Thomas, 517 U.S. 314, 323-24, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996)) (“result of following ... precedent is to ‘reduce uncertainty, avoid unfair surprise, minimize disparate treatment of similar cases, and thereby help all litigants’ ”).

¶ 33 If the sentencing court imposed a mandatory minimum sentence that was not authorized by statute, then the court lacked the power to impose such a sentence. Such an averment falls within In re M.W., supra. Appellant herein questions the statutory authority of the trial court to impose the mandatory minimum sentence of section 9712(a) in that he did not visibly possess a firearm. Since section 9712(a), under Dickson, cannot be applied unless the defendant visibly possessed a weapon, Appellant’s sentence is not within the legal parameters of that statute. We therefore hold that Appellant’s challenge relates to the legality of his sentence and cannot be waived. We further find that Appellant’s sentence is illegal and should be remanded for correction. We therefore vacate the judgment of sentence and remand for re-sentencing without application of section 9712(a).

¶ 34 Appellant’s Petition to Remand for Filing of Motion for Modification of Sentence Nunc pro Tunc denied as moot. Judgment of sentence vacated. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 35 Justice FITZGERALD files a Concurring Statement. Judge SHOGAN files a Dissenting Opinion.

1 . Appellant's arrest warrant indicates that the victim did not report the crime until January 16, 2006, due to an illness.

2 . That section provides:

3 . Those subsections state:

(a) Right to appeal. — The defendant or the Commonwealth may appeal as of right the legality of the sentence.

(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

4 . In a dissent, Justice (now Chief Justice) Castille and Justice Eakin opined that the sentence fell within the statutory limits and the defendant’s challenge did not relate to legality of sentence. They also concluded that the defendant had not preserved the issue and that it should not be addressed.