Com. v. Crawford, J.

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2018
• Docket: 649 MDA 2018
• Status: Unpublished

Opinion

J-S69029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN NEWKIRK CRAWFORD : : Appellant : No. 649 MDA 2018

Appeal from the Judgment of Sentence Entered March 27, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000719-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2018

John Newkirk Crawford appeals from the judgment of sentence, entered

in the Court of Common Pleas of Lackawanna County, following his convictions

for possession of a controlled substance,1 possession of drug paraphernalia,2

and tampering with physical evidence.3 After our review, we affirm.

On March 13, 2017, police attempted to stop a Chevrolet sedan after it

failed to heed a stop sign. The pursuit escalated into a chase. During the

chase, the sedan turned down a narrow, one-lane roadway where the

arresting officer observed an unknown individual discard a black plastic bag

out of the front passenger window in close proximity to the door. Based on ____________________________________________

1 35 P.S. § 780-113 (a)(16).

2 35 P.S. § 780-113 (a)(32).

3 18 Pa.C.S.A. § 4910(1). J-S69029-18

the officer’s experience dealing with discarded contraband, and because of the

difficulty involved in driving down a narrow alleyway, he concluded that the

bag could only have been discarded by the passenger and not the driver. The

bag was tossed from the window in such a fashion that the arresting officer

didn’t think “there would be any way to really discard that bag out of that car

without me seeing it.” N.T. Trial, 12/6/2017, 23–24. The sedan ultimately

came to a stop, and the officer arrested Crawford, who was sitting in the

passenger seat. Later, other officers recovered the discarded black plastic

bag, which contained 47 glassine packets of suspected heroin. Testing by the

State Police Crime Lab revealed the presence of Fentanyl.

Following a trial, presided over by the Honorable Michael J. Barrasse,

the jury found Crawford guilty of possession of a controlled substance,

possession of drug paraphernalia, and tampering with physical evidence.

Crawford filed a motion for reconsideration, stating “the sentence imposed is

harsh and extreme.” Motion for Reconsideration, 3/27/18, at 2. After this

motion was denied, Crawford filed a timely Pa.R.A.P 1925(b) concise

statement of matters complained on appeal on May 4, 2018, challenging, inter

alia, “[w]hether the verdicts on possession with intent to deliver, delivery of

a controlled substance, and possession of a controlled substance-cocaine

charges were supported by sufficient evidence?” Pa.R.A.P. 1925(b)

Statement, 5/14/18. Notably, Crawford was not convicted of any of these

crimes. The court’s June 15, 2018 Rule 1925(a) opinion affirmed Crawford’s

judgment of sentence, specifically addressing the sufficiency of the evidence

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supporting the correct crimes for which Crawford was convicted. Crawford

filed an amended Rule 1925(b) on August 30, 2018, listing the correct

convictions. This appeal followed.

On appeal, Crawford challenges whether the three verdicts were

supported by sufficient evidence, whether the trial court imposed an

unreasonable and excessive sentence, and whether the trial court failed to

state on the record the reasons for each sentence.

The Commonwealth asserts Crawford failed to preserve his challenges

to the sufficiency of evidence underpinning his convictions as well as the trial

court’s failure to articulate the reasoning behind Crawford’s sentences, but

concedes that Crawford preserved his challenge to the reasonableness of his

sentence. Upon review, we agree.

“‘[I]n 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 Pa.R.A.P. 1925. Any issues not

raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.’”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). When challenging

the sufficiency of the evidence, this bright-line rule exists as a mandate to

state “the element or elements upon which the appellant alleges [] the

evidence was insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982

(Pa. Super. 2016) (citing Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.

Super. 2013)). The need for specificity is heightened where “‘the appellant

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was convicted of multiple crimes, each of which contains numerous elements

that the Commonwealth must prove beyond a reasonable doubt.’” Garland,

supra (quoting Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009)). This Court is barred from reviewing issues that were not raised in a

Rule 1925(b) statement even if the trial court correctly assessed and

addressed those same issues in its Pa.R.A.P. 1925(a) opinion. See Castillo,

888 A.2d at 398–99, 403; see also Commonwealth v. Dowling, 778 A.2d

683, 686 (Pa. Super. 2001) (“When a court has to guess what issues an

appellant is appealing, that is not enough for meaningful review”). Should the

need arise, Rule 1925(b)(2) allows appellants to amend or supplement their

statements—however, the court may only allow such filings for good cause

shown. Commonwealth v. Woods, 909 A.2d 372, 378 (Pa. Super. 2006).

On May 4, 2018, Crawford’s attorney filed a Rule 1925(b) statement

challenging the sufficiency of the evidence, however, it not only failed to

include any of the elements Crawford wished to challenge, it failed to mention

any of the crimes for which Crawford was convicted. This mandates waiver of

his sufficiency claims. Stiles, 143 A.3d at 982. In its June 15, 2018 Rule

1925(a) opinion, the trial court correctly assumed that Crawford intended to

challenge the sufficiency of the crimes he was convicted of and addressed

those issues on the merits. This, however, cannot remedy the initial failure

to file an adequate Rule 1925(b) statement. Castillo, 888 A.2d at 398–99,

403; Dowling, 778 A.2d at 686. Moreover, Crawford’s amended Rule

1925(b) statement cannot preserve his sufficiency claims, as he not only filed

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in an untimely fashion, he neither attempted to show good cause to amend,

see Woods, 909 A.2d at 378, nor specified the elements he intended to

challenge, see Stiles, 143 A.3d at 982.

Crawford also raises two challenges to the discretionary aspects of his

sentence—namely, whether the court imposed “unreasonable and excessive

sentences” and whether the court failed to state “reasons for the sentences”

on the record. Appellant’s Brief, at 4. We note that discretionary aspect of

sentencing challenges must be raised in a post-sentence motion during the

sentencing proceedings. Commonwealth v. Reeves, 778 A.2d 691, 692

(Pa. Super. 2001).

Crawford preserved his claim regarding unreasonable and excessive

sentencing in his post sentence motion. Pa.R.Crim.P. 720. However, his

assertion that the trial court failed “to state on the record reasons for the

sentences” first appears in his Rule 1925(b) statement. This claim, therefore,

is waived.4 Miklos, 159 A.3d at 970. Thus, Crawford has preserved one issue

for our consideration: “Whether the trial court imposed harsh, unreasonable

and excessive sentences?” Appellant’s Brief at 4.

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4 We note that Crawford has waived all of his claims save one. Such failure approaches the limits of per se ineffective assistance of counsel. Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005). However, absent special circumstances not present here, ineffective assistance of counsel claims must be deferred to PCRA review. Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013); see also Commonwealth v. Bomar, 826 A.2d 831, 855–56 (Pa. 2003) (finding exception where trial court has developed claim of ineffectiveness below by having trial counsel testify in post-trial motions).

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There is not an absolute right to appellate review of discretionary

aspects of a sentence—it must be considered a petition for permission to

appeal. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.

Super. 2014). An appellant must satisfy the following four-part test to invoke

this Court’s jurisdiction when challenging the discretionary aspects of a

sentence:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted).

Crawford raised his claim in a timely motion to reconsider sentence and

also filed a timely notice of appeal. He has also included a separate Pa.R.A.P

2119(f) statement in his brief. Lastly, this Court must assess whether

Crawford raised a substantial question to invoke our review. We conclude he

has not.

A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge's actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”

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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

This Court “cannot look beyond the statement of questions presented

and the prefatory [Rule] 2119(f) statement to determine whether a

substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10

(Pa. Super. 2013) (citation omitted). A claimant can raise a substantial

question by alleging a standard-range sentence is excessive, however this

Court is not required to “accept bald allegations of excessiveness.”

Commonwealth v. Mouzon, 812 A.2d 617, 627–28 (Pa. 2002). When

appellants allege a standard-range sentence is excessive, he or she must point

to “the specific provision of the Sentencing Code or the fundamental norm

underlying the sentencing process that the trial court violated in imposing the

sentence” in order to raise a substantial question. Commonwealth v.

Trippett, 932 A.3d 188, 202 (Pa. Super. 2007); see also Commonwealth

v. Reynolds, 835 A.2d 720, 732–33 (Pa. Super. 2003).

Crawford’s Rule 2119(f) statement regarding the excessiveness of his

sentence is limited to the assertion that “none of the facts surrounding the

commission of the crimes necessitated such harsh sentences that fell in the

high end of the standard sentence ranges.” Brief of Appellant, 9. This

assertion of excessiveness fails to point to a portion of the Sentencing Code

or a fundamental norm underlying the sentencing process, and as such, fails

to raise a substantial question necessary to permit discretionary review. See

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Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004)

(defendant did not raise substantial question by merely asserting sentence

was excessive when he failed to refer to any section of Sentencing Code

potentially violated by sentence).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/2018

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