Com. v. Fill, R.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2018
• Docket: 319 WDA 2017
• Status: Unpublished

Opinion

J-S75009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD ALEXANDER FILL : : Appellant : No. 319 WDA 2017

Appeal from the Judgment of Sentence January 23, 2017 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000082-2016

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 30, 2018

Appellant, Richard Alexander Fill, appeals from the judgment of

sentence entered on January 23, 2017, in the Erie County Court of Common

Pleas. We affirm.

In its Pa.R.A.P. 1925(a) opinion, the trial court provided the following

factual and procedural history:

Appellant was convicted after a non-jury trial on November 7, 2016 of Assault on a Law Enforcement Officer, Criminal Mischief, Simple Assault, Recklessly Endangering … Another Person, Possession of a Controlled Substance, and Possession of Drug Paraphernalia.1 1 18 Pa.C.S.A. §2702.1; 18 Pa.C.S.A. §3304(a)(5); 18 Pa.C.S.A. §2701(a)(3); 18 Pa C.S.A. §2705; 35 [P.S.] §780-113(a)(16); [and] 35 [P.S.] §780- 113(a)(32), respectively.

On January 23, 2017, Appellant was sentenced to 5 to 10 years for Assault on a Law Enforcement Officer and 6 to 24 months for Criminal Mischief. The Simple Assault and Reckless J-S75009-17

Endangerment counts were merged with the Assault on a Law Enforcement Officer count. Appellant also received 12 months of probation for Possession of a Controlled Substance and 12 months of probation for Possession of Drug Paraphernalia.

Trial Court Opinion, 4/7/17, at 1.

On February 6, 2017, the trial court held Appellant’s restitution

hearing. At the hearing, Appellant stated that he wished to file post-

sentence motions. N.T., 2/6/17, at 7. The trial court relayed Appellant’s

desire to file post-sentence motions to Appellant’s trial counsel, and the

court noted its concern that the time for filing post-sentence motions may

have expired. Id. at 9. Trial counsel responded: “We have that marked as

something that needs to be filed right away.” Id. However, the record does

not reflect the filing of a post-sentence motion, a petition to file a post-

sentence motion nunc pro tunc, or a petition seeking relief pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Rather, the

record reveals that trial counsel filed Appellant’s notice of appeal eight days

later on February 14, 2017.

That same day, the trial court directed Appellant to comply with

Pa.R.A.P. 1925(b) and file a concise statement of errors complained of on

appeal. Trial counsel filed Appellant’s Pa.R.A.P. 1925(b) statement on March

6, 2017.1 In Appellant’s Pa.R.A.P. 1925(b) statement, trial counsel asserted

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1 During the pendency of this appeal and while he remained represented by trial counsel, Appellant filed pro se documents with the trial court seeking an (Footnote Continued Next Page)

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that the verdicts were against the weight of the evidence and challenged the

discretionary aspects of Appellant’s sentence averring that the trial court

imposed an excessive sentence.2 Pa.R.A.P. 1925(b) Statement, 3/6/17.3

Both of Appellant’s issues required Appellant to present them to the

trial court in the first instance to properly preserve them for appeal. “A

weight of the evidence claim must be preserved either in a post-sentence

motion, by a written motion before sentencing, or orally prior to sentencing.”

See Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017)

(citation omitted). Moreover, it is well settled that an appellant does not

have an automatic right to appeal the discretionary aspects of his sentence.

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

_______________________ (Footnote Continued)

explanation of the status of his case, illustrating his difficulty contacting trial counsel, noting his desire to appeal, and informing the trial court that he wished to proceed with new counsel. Letters, 2/16/17, 2/27/17. The record reveals that current counsel entered his appearance on March 20, 2017. 2 An allegation that the sentence imposed was excessive is a challenge to the discretionary aspects of a sentence. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (citations omitted). 3 In his brief on appeal, Appellant’s current counsel also included a challenge to the sufficiency of the evidence. Appellant’s Brief at 13. However, because this issue was not contained in Appellant’s Pa.R.A.P. 1925(b) statement, we conclude that it was waived on appeal. See Commonwealth v. Perez, 103 A.3d 344, 347 n.1 (Pa. Super. 2014) (it is well-settled that issues that are not included in the appellant’s Pa.R.A.P. 1925(b) statement are deemed waived) (citing Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”)).

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appellant challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d 162, 170 (citing Commonwealth v. Evans, 901 A.2d 528

(Pa. Super. 2006)).

In this case, Appellant did not file post-sentence motions or preserve

his challenge to the weight of the evidence in a written motion or orally prior

to sentencing. Accordingly, Appellant has waived his challenge to the weight

of the evidence. Giron, 155 A.3d at 638. Additionally, Appellant failed to

raise his challenge to the discretionary aspects of his sentence at the

sentencing hearing or in a post-sentence motion. Thus, Appellant waived his

challenge to the discretionary aspects of his sentence. Moury, 992 A.2d at

170. Accordingly, because Appellant waived his issues on appeal, we affirm

the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2018

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