Com. v. Mahan, R.

• Court: Superior Court of Pennsylvania
• Decided: March 18, 2025
• Docket: 1440 EDA 2024
• Status: Unpublished

Opinion

J-A06033-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD ELLIOT MAHAN : : Appellant : No. 1440 EDA 2024

Appeal from the Judgment of Sentence Entered April 11, 2024 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-64-CR-0000149-2013

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 18, 2025

Richard Elliot Mahan appeals from the April 11, 2024 aggregate

judgment of sentence of 42 to 180 months’ imprisonment imposed after he

pled guilty to possession with intent to deliver a controlled substance (“PWID”)

and tampering with or fabricating physical evidence. 1 After careful review, we

affirm the judgment of sentence.

The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: On May 9, 2023, Appellant was charged

with multiple counts of PWID and related offenses in connection with his

participation in several controlled buys with a Confidential Informant and the

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 4910(1), respectively. J-A06033-25

subsequent traffic stop of his vehicle. Appellant began convulsing while in

police custody and ultimately acknowledged to officers that he had swallowed

approximately 1.5 grams of cocaine during the course of the traffic stop. See

notes of testimony, 3/7/24 at 4-5.

From May 9, 2023 through October 9, 2023, Appellant was represented

by William D. Thompson, Esq. (“Attorney Thompson”). Appellant was initially

scheduled to enter a guilty plea on October 9, 2023, but the plea was

rescheduled for November 9, 2023. On that date, Appellant indicated to the

trial court that he was firing Attorney Thompson. Andrew J. Katsock, III, Esq.

(“Attorney Katsock”) entered his appearance on behalf of Appellant on

November 17, 2023.

Thereafter, on January 29, 2024, Appellant filed an omnibus pre-trial

motion to suppress the physical evidence as well as his statements to police.

Following argument, the trial court denied Appellant’s suppression motion as

untimely on February 29, 2024, noting that he waived all his suppression

issues by failing to comply with Pa.R.Crim.P. 579. On March 7, 2024,

Appellant pled guilty to one count each of PWID methamphetamine in excess

of ten grams and tampering with or fabricating physical evidence. As noted,

the trial court sentenced Appellant to an aggregate term of 42 to 180 months’

imprisonment on April 11, 2024. Appellant received credit for time-served

from March 7, 2023 to April 11, 2024.

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On April 21, 2024, Appellant filed a timely post-sentence motion to

modify or reduce his sentence that was denied by the trial court the following

day. This timely appeal followed on May 22, 2024. On May 23, 2024, the

trial court directed Appellant to file a concise statement of errors complained

of on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant

filed his timely Rule 1925(b) statement on June 13, 2024, and the Honorable

Janine Edwards filed her Rule 1925(a) opinion on July 9, 2024.

Appellant raises the following issues for our review:

1. Did the trial court abuse its discretion by denying [Appellant’s] omnibus pre-trial motions?

2. Did the trial court err and abuse its discretion by failing to consider the sentencing guidelines as required by law and failing to provide adequate reasons for its imposition of sentence at the highest end of the sentencing guidelines?

3. Did the trial court err and abuse its discretion by failing to consider the sentencing code as a whole in its deviation from the sentencing guidelines and its imposition of an unreasonable and excessive sentence at the highest end of the sentencing guidelines?

4. Did the trial court err and abuse its discretion by failing to consider or give appropriate weight to the circumstances of the offense, [Appellant’s] background, mitigating circumstances, and/or refusing to reduce the aggregate sentence imposed of 42 months to 180 months?

Appellant’s brief at 4-5 (extraneous capitalization and parentheticals omitted).

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Appellant first argues that the trial court abused its discretion in denying

his omnibus pre-trial suppression motion as untimely under Rule 579. Id. at

10-12.

We review the trial court’s determination that a suppression motion was

untimely for an abuse of discretion. Commonwealth v. Micklos, 672 A.2d

796, 802 (Pa.Super. 1996) (en banc), appeal denied, 686 A.2d 1309 (Pa.

1996). “A mere error of judgment does not constitute an abuse of discretion.

Rather, a trial court abuses its discretion if in reaching a conclusion[,] the law

is overridden or misapplied, or the judgment exercised is manifestly

unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by

the evidence or the record[.]” Id. at 803 (citations omitted).

Pennsylvania Rule of Criminal Procedure 579 provides, in relevant part,

as follows:

(A) Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.

Pa.R.Crim.P. 579(A) (emphasis added).

If a defendant files an untimely omnibus pretrial motion, the

defendant’s suppression issues “shall” be deemed waived “[u]nless the

opportunity [to raise the issue(s)] did not previously exist” or the court

excuses the defendant’s tardiness in the “interests of justice[.]” Pa.R.Crim.P.

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581(B). However, “[c]ourts are reluctant to excuse untimely motions arguing

issues that the defendant could have timely raised by the original due date.”

Commonwealth v. Westlake, 295 A.3d 1281, 1287 (Pa.Super. 2023)

(citations omitted).

Here, the trial court found that Appellant’s suppression motion was

untimely and that he waived all his suppression issues by failing to comply

with Rule 579(A):

[Appellant] filed a waiver of court arraignment on May 19, 2023. [Appellant’s] omnibus pre-trial motion containing the motions to suppress was filed eight (8) months and ten (10) days later on January 29, 2024. [Appellant] did not provide any justification for [his] failure to comply with Rule 579 in the omnibus motion or during oral argument on February 29, 2024. At argument, Attorney Katsock, who represented [Appellant] since November 2023, has only stated that [Appellant’s] prior counsel of record failed to file such a motion. Therefore, [Appellant] waived the suppression issues, and this Court properly dismissed [Appellant’s] untimely motions to suppress.

Trial court opinion, 7/9/24 at 5 (extraneous capitalization omitted).

Upon review, we find that the record fully supports the trial court’s

determination that Appellant’s omnibus pre-trial suppression motion was

untimely filed. Appellant has provided no valid explanation under Rule 579 to

justify his decision to file his suppression motion more than 8 months after

waiver of arraignment, and 73 days after Attorney Katsock became his counsel

of record. Accordingly, no relief is due.

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Appellant’s remaining claims challenge whether the trial court abused

its discretion in fashioning his sentence. Specifically, Appellant argues that

his sentence “was unreasonable and excessive” and that the trial court failed

to consider various mitigating factors, including the circumstances of the

offense; the impact the sentence will have on him and his family; his

background and history of alcohol abuse; and his capacity to change and

rehabilitate himself. Appellant’s brief at 4-5, 13-24.

“Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super.

2014) (citation omitted), appeal denied, 117 A.3d 297 (Pa. 2015). Appellant

must “establish, by reference to the record, that the sentencing court ignored

or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.”

Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017) (citation

omitted), appeal denied, 184 A.3d 944 (Pa. 2018).

Where an appellant challenges the discretionary aspects of his sentence,

as is the case here, the right to appellate review is not absolute.

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal

denied, 206 A.3d 1029 (Pa. 2019). On the contrary, an appellant challenging

the discretionary aspects of his sentence must invoke this Court’s jurisdiction

by satisfying the following four-part test:

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(1) whether the appeal is timely; (2) whether appellant preserved his issue; (3) whether appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

Instantly, the record reveals that Appellant filed a timely notice of

appeal and preserved his sentencing claim in his post-sentence motion to

modify or reduce his sentence. Appellant has also included a statement in his

brief that comports with the requirements of Pa.R.A.P. 2119(f). See

Appellant’s brief at 8. Accordingly, we must determine whether Appellant has

raised a substantial question.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538

(Pa. 2013). “A substantial question exists only when 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).

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“This Court repeatedly has held that a claim of inadequate consideration

of mitigating factors does not raise a substantial question for our review.”

Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa.Super. 2021) (citations

omitted). In Commonwealth v. Caldwell, 117 A.3d 763 (Pa.Super. 2015),

appeal denied, 126 A.3d 1282 (Pa. 2015), a panel of this Court reiterated

that, “ordinarily, a claim that the sentencing court failed to consider or accord

proper weight to a specific sentencing factor does not raise a substantial

question.” Id. at 769. Likewise, an assertion that the trial court failed to

consider the defendant’s background, use of alcohol, or rehabilitative needs

does not raise substantial question. See Commonwealth v. Cannon, 954

A.2d 1222, 1228-1229 (Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa.

2009).

Based on the foregoing, we find that Appellant’s argument fails to raise

a substantial question, and, therefore, he has not preserved his challenge to

the discretionary aspects of sentencing.

In reaching this decision, we note that courts in this Commonwealth

have also held that a claim that a sentence was unduly excessive – in

conjunction with an assertion that the court failed to consider mitigating

factors – may raise a substantial question. See e.g., Commonwealth v.

Johnson, 125 A.3d 822, 826 (Pa.Super. 2015). Alternatively, even if

Appellant had raised a substantial question for this Court’s consideration, we

would find no abuse of discretion. The record belies Appellant’s claim that the

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trial court failed to thoroughly consider and weigh numerous mitigating factors

in fashioning his sentence. As the trial court properly noted in its Rule 1925(a)

opinion, it considered Appellant’s extensive criminal history and seven prior

convictions; his “family history, difficult childhood, and extensive drug and

alcohol history[;]” his rehabilitative needs; the need to protect the public; and

the seriousness of the offense. See trial court opinion, 7/9/24 at 3-4. The

record further reflects that the trial court was in possession of a presentence

investigation (“PSI”) report and considered its findings. Id. at 4. Where the

trial court has the benefit of a PSI report, “we shall . . . presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

Accordingly, for all the foregoing reasons, we affirm the April 11, 2024

judgment of sentence.

Judgment of sentence affirmed.

Date: 3/18/2025

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