Com. v. Tran, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOMMY T. TRAN :
:
Appellant : No. 1658 EDA 2019
Appeal from the Judgment of Sentence Entered December 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003556-2017
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 14, 2020
Tommy T. Tran appeals from the judgment of sentence entered after he
pleaded guilty to one count each of Aggravated Assault, Possession of a
Firearm Not To Be Carried Without a License, Criminal Conspiracy, and
Burglary, and two counts each of Unlawful Restraint and Robbery.1 He
challenges the discretionary aspects of his sentence and claims prosecutorial
misconduct at sentencing. We affirm.
The facts giving rise to Tran’s guilty plea are as follows:
On February 10, 2017, around 1:50 in the morning, Tommy
Tran [(“Tran”)] along with two other co-defendants entered
a home at 2101 South 66th Street in the city and county of
Philadelphia. N.T. 9/28/2017 at 9. The males encountered
two elderly females in the home: Huyen Nguyen and Tntien
Pham (Complainants). Id. at 10. [Tran] encountered Ms.
Nguyen in the kitchen, where he placed a gun to her head
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118 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 903 3502(a)(1)(i), 2902(a)(1), and
3701(a)(1)(ii), respectively.
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and a knife to her throat, brought her upstairs, and tied her
up. N.T. 2/27/2018 at 4. A co-defendant encountered the
other complainant as she was sleeping, woke her up,
brought her to the same room as Nguyen, and tied her up
as well. Id. at 4-5. Both complainants were punched, and
Nguyen was strangled about her neck. N.T. 9/28/2017 at
10. The defendants took $5,700 in cash as well as some
jewelry from the complainants. N.T. 2/27/2018 at 6.
During the incident, the neighbors of the complainants
heard yelling and called the police. Id. at 5. Police arrived
and stopped the robbery in progress. Id. Police observed
three masked men attempting to leave the residence. N.T.
9/28/2017 at 11-12. Once in the house, police observed the
two complainants still tied up. Id. at 12. [Tran] was found
with one other co-defendant in the rear bedroom
underneath a bed, both still wearing masks. Id. His
codefendant came out from under the bed, but [Tran]
refused and was forcibly removed. Id. Police observed cash
strewn about the room and recovered several hundred
dollars as well as one of the complainant’s jewelry from
[Tran]. Id. [Tran] possessed a gun and a knife, another co-
defendant possessed a knife, and the third co-defendant
possessed a lighter shaped like a gun. N.T. 4/12/2018 at 6.
[Tran] is not licensed to carry a firearm. N.T. 9/28/2017 at
13. [Tran] was arrested and charged with Burglary and
related offenses.
Trial Ct. Op., filed 8/9/19, at 1-2 (unpaginated).
Following a sentencing hearing in February 2018, the court imposed an
aggregate sentence of 10 to 20 years in prison followed by 20 years of
probation, citing the vulnerability of the victims and the need to protect them
and the public. Tran filed a timely post-sentence motion arguing the sentence
was excessive. The trial court vacated its sentence and scheduled a hearing
for March 2018. Before the court could hold the hearing, however, Tran filed
a notice of appeal, and we quashed the appeal as interlocutory. The court then
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conducted the resentencing hearing and resentenced Tran in December 2018
to the same sentence it had original imposed.
Tran did not file a renewed post-sentence motion. Rather, in February
2019, he submitted a Motion to Dismiss arguing only that the court should
dismiss the charges due to alleged prosecutorial misconduct at Tran’s original
sentencing hearing and at his post-sentence hearing:
7. Clearly by misrepresenting [codefendant’s] role at
[Tran’s] sentencing hearing and post sentence hearing, the
prosecutor engaged in conduct which intentionally
undertake [sic] Defendant’s right to a fair sentence.
8. Accordingly, in the interest of Justice, for the foregoing
reasons, the case sub judice should be dismissed with
prejudice pursuant to the Double Jeopardy Clause of Article
1, Section 10 of the Pennsylvania State Constitution and
Commonwealth v. Minnis, 83 A.3d 1047 (Pa.Super.
2014).
Motion to Dismiss with Prejudice Based on Prosecutorial Misconduct, filed
2/4/19, at ¶¶ 7, 8 (emphasis in original). The court denied the motion by
operation of law and this timely appeal followed.
On appeal, Tran raises two issues:
1. Whether the trial court abused its discretion in imposing
an unreasonable, manifestly excessive concurrent sentence
of ten (10) to twenty (20) years, that was substantially
above the aggravated guideline range, where the court
failed to provide a contemporaneous written statement of
the reason or reasons for deviating from the guidelines, and
the sentence was grossly disproportionate to the gravity of
the offense, [Tran]’s rehabilitative needs, and the protection
of the community, thereby violating 42 Pa.C.S.A. Section
9712(b) of the sentencing code and the fundamental norms
of sentencing?
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2. Whether [Tran]’s conviction and judgment of sentence
should be vacated with prejudice, because the
Commonwealth engaged in prosecutorial misconduct,
thereby prejudicing [Tran]’s right to a fair sentencing, where
during [Tran]’s sentencing hearing the prosecutor made
egregious misrepresentation of fact with the clear explicit
purpose of persuading the lower court to impose a
heightened sentence?
Tran’s Br. at 4.
Tran’s first issue is a challenge to the discretionary aspects of his
sentence. “The right to appellate review of the discretionary aspects of a
sentence is not absolute[.]” Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa.Super. 2014) (en banc). An appellant wishing review of such an
issue must clear four hurdles. The appellant must (1) have preserved the issue
either by raising it at the time of sentencing or in a post-sentence motion; (2)
have filed a timely notice of appeal; (3) set forth a concise statement of
reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f);
and (4) raise a substantial question about the appropriateness of the
sentence. Commonwealth v. Baker, 72 A.3d 652, 662 (Pa.Super. 2013).
Here, Tran failed to preserve his sentencing claim in an objection at the
re-sentencing hearing or in a motion to modify the sentence. “Objections to
the discretionary aspects of a sentence are generally waived if they are not
raised at the sentencing hearing or in a motion to modify the sentence
imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).
Indeed, Tran did not file anything he captioned as a post-sentence motion
after his re-sentencing. Rather, he filed what he styled as a Motion to Dismiss.
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However, even that filing did not challenge his sentence, but rather alleged
that the trial court should dismiss his case because of prosecutorial
misconduct. In any event, that filing could not have preserved any challenge
to the sentence, as it would have been untimely. See Commonwealth v.
Feucht, 955 A.2d 377, 383 (Pa.Super. 2008) (“To preserve issues concerning
the discretionary aspects of sentencing, a defendant must raise them . . . in
a timely post-sentence motion.”).
Although Tran did make such an argument in his post-sentence motion
challenging his original sentence, that is not the operative sentence. Rather,
he is now subject to the judgment of sentence imposed after his resentencing
hearing. Although the “new” sentence is for the same terms of imprisonment
and probation as the original sentence, Tran’s challenge to the original
sentence cannot be used as a challenge to the new sentence. This is not a
mere technicality. By not making an appropriate objection or post-sentence
motion against the “new” sentence, Tran deprived the trial court of the
opportunity to reconsider its sentence in light of any new information or
arguments presented at the resentencing hearing. Tran has waived his
sentencing claim.
Next, Tran claims that the Assistant District Attorney (“ADA”) committed
prosecutorial misconduct when making her argument during the original
sentencing hearing. He alleges that the ADA’s misrepresentation of a
codefendant’s involvement amounted to prosecutorial misconduct and
influenced the court to impose a harsher sentence.
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Even assuming the argument is properly before us in this appeal, as the
alleged misstatements occurred at hearings before the court resentenced
Tran, Tran waived the claim by failing to make a contemporaneous objection.
See Commonwealth v. Spotz, 18 A.3d 244, 277-78 (Pa. 2011) (concluding
that appellant waived claim of prosecutorial misconduct by failing to raise
contemporaneous objection). See also N.T., Sentencing, 4/24/17, at 7-9.
Moreover, Tran’s claims of prosecutorial misconduct do not hold up, as the
Commonwealth ably explains. See Com. Br. at 19-24. We affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2020
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