Com. v. Lay, R.

• Court: Superior Court of Pennsylvania
• Decided: March 20, 2025
• Docket: 3125 EDA 2023
• Status: Unpublished

Opinion

J-S02025-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RACHAEL LAY : : Appellant : No. 3125 EDA 2023

Appeal from the Judgment of Sentence Entered October 24, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004646-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RACHAEL LAY : : Appellant : No. 3126 EDA 2023

Appeal from the Judgment of Sentence Entered October 24, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004647-2012

BEFORE: LAZARUS, P.J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 20, 2025

Rachael Lay (“Appellant”) appeals from the Judgment of Sentence

entered in the Philadelphia County Court of Common Pleas following a

Violation of Probation (“VOP”) hearing. She contends the sentence is

manifestly excessive. After careful review, we affirm.

In 2011, Appellant stole her father’s guns and gave them to an individual

in exchange for cocaine. On July 14, 2014, Appellant entered an open guilty J-S02025-25

plea at Docket No. 4646-2012 to one count each of Theft Unlawful Taking-

Movable Property (“Theft)1 and Penalties – Sales to Ineligible Transferee

(“Ineligible Transferee”).2 At docket number 4647-2012, she pled guilty to

one count each of Theft Unlawful Taking – Movable Property, Firearms not to

be Carried without a License,3 Carry Firearms in Public in Philadelphia, 4 and

Ineligible Transferee. The court deferred sentencing pending presentence

investigation (“PSI”) and mental health evaluations.

On January 21, 2015, the court sentenced Appellant at Docket No.

4646-2012, to 11½ to 23 months’ incarceration for the Theft conviction and a

concurrent term of 5 years’ probation on the Ineligible Transferree conviction.

That same day, the court sentenced Appellant at Docket No. 4647-2012 to

concurrent terms of 5 years’ probation for each of the convictions of Theft,

Firearms not to be Carried without a License, Carry Firearms In Public in

Philadelphia, and Ineligible Transferee. The court ordered the sentence

imposed at Docket No. 4647 to run consecutive to the probationary term

imposed at Docket No. 4646. The court granted credit for time served and

ordered a Forensic Intensive Recovery (“FIR”) evaluation.

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1 18 Pa.C.S. §3931(a).

2 18 Pa.C.S. § 6111(g)(2).

3 18 Pa.C.S. § 6106(a)(1).

4 18 Pa.C.S. § 6108.

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Appellant continued to struggle with her drug addiction, leading her to

homelessness and subsequent probation violations, with the court imposing

new sentences of probation, rehabilitation, and incarceration, the details of

which are immaterial to our disposition.

Relevant to the instant appeal, on March 28, 2023, the court ordered

Alcohol and other drugs (“AOD”) supervision with GPS monitoring. On May

16, 2023, the court issued a bench warrant as Appellant failed to appear and

failed to comply with the conditions of probation. On August 1, 2023, following

a hearing, the court revoked Appellant’s probation and deferred sentencing

pending a new presentence investigation and mental health evaluation.

On October 24, 2023, after reviewing Appellant’s “long and torturous”

history of drug abuse and the numerous efforts that the court and others

extended to assist her in treating her drug addiction, the court sentenced

Appellant at Docket No. 4646 to a term of 2 to 5 years’ incarceration on the

Theft conviction and no further penalty on the Ineligible Transferee conviction.

At Docket No. 4647, the court sentenced Appellant to 2 to 5 years’

incarceration on the Theft conviction and a concurrent term of one to 7 years’

incarceration on the Ineligible Transferree conviction. The court imposed no

further penalty on the firearms convictions and ordered the periods of

confinement to run concurrent with one another, for an aggregate sentence

of 2 to 7 years’ incarceration. See N.T. VOP Hr’g, 10/24/23, at 38-42.

Appellant filed a timely post-sentence motion for reconsideration,

asserting only that she wanted to present further mitigating evidence to the

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court. On November 27, 2023, the court granted the motion in part and

amended the sentence to include credit for time served.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

Did the trial court abuse its discretion by imposing a two to seven year aggregate sentence on a technical probation violation when such sentence is excessive and is not consistent with the gravity of [Appellant’s] violation, the need for public protection, or her need for rehabilitation?

Appellant’s Br. at 6-7.

When an appellant challenges a sentence imposed after the court has

revoked probation, this Court “can review the validity of the revocation

proceedings, the legality of the sentence imposed following revocation, and

any challenge to the discretionary aspects of the sentence imposed.”

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015). Appellant

raises only a challenge to the discretionary aspects of her sentence.

“Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011). To invoke this Court’s jurisdiction, an appellant

challenging the discretionary aspects of her sentence must demonstrate that

she (1) filed a timely notice of appeal; (2) preserved the issue at sentencing

or in a motion to reconsider and modify sentence; (3) provided a statement

pursuant to Pa.R.A.P. 2119(f) in her brief; and (4) presented a substantial

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question that the sentence appealed from is not appropriate under the

Sentencing Code. Id. at 1064. “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.” Com. v. Moury, 992 A.2d

162, 170 (Pa. Super. 2010).

Here, Appellant timely filed her notice of appeal and included a Rule

2119 Statement in her brief. However, our review of the certified record

indicates that she did not assert that her sentence was manifestly excessive

at sentencing or in her post-sentence motion. Accordingly, Appellant has not

invoked our jurisdiction and, therefore, we may not address the issue she

raises in this appeal.

Judgment of Sentence affirmed.

Date: 3/20/2025

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