Com. v. Pope, B.

Superior Court of Pennsylvania

Com. v. Pope, B.

Superior Court of Pennsylvania·Decided March 24, 2015·No. 589 WDA 2014·Unpublished

Opinion

J. S17010/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRIAN CHRISTOPHER POPE, JR., : : Appellant : No. 589 WDA 2014

Appeal from the Judgment of Sentence March 21, 2014 In the Court of Common Pleas of Bedford County Criminal Division No(s).: CP-05-CR-0000101-2013

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 24, 2015

Appellant, Brian Christopher Pope, Jr., appeals from the judgment of

sentence entered in the Bedford County Court of Common Pleas following a

jury trial and his convictions for, inter alia, robbery,1 conspiracy,2 receiving

stolen property,3 persons not to possess firearms,4 theft,5 terroristic

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3701(a)(1)(ii). 2 18 Pa.C.S. § 903(c). 3 18 Pa.C.S. § 3925(a). 4 18 Pa.C.S. § 6105(a)(1). 5 18 Pa.C.S. § 3921(a). J. S17010/15

threats,6 and recklessly endangering another person.7 He challenges the

discretionary aspects of his aggregate sentence of nineteen to forty-one

years’ imprisonment. We affirm.

We adopt the facts and procedural history set forth in the trial court’s

decision. See Trial Ct. Op., 8/25/14, at 1-4. Appellant filed, and the court

denied, a timely post-sentence motion. Appellant timely appealed and also

filed and served a Pa.R.A.P. 1925(b) statement that same day. Two days

later, the court, in an apparent oversight, ordered Appellant to comply with

Pa.R.A.P. 1925(b).

Appellant raises the following issue:

Given the lower court’s cited justifications, did it commit an abuse of discretion in imposing consecutive, aggravated-range terms of imprisonment when sentencing [Appellant], thereby imposing an aggregate sentence too harsh relative to the underlying criminal conduct, and neglecting or failing to take adequate consideration of his rehabilitative needs?

Appellant’s Brief at 6. For his sole issue, Appellant contends the trial court

failed to consider his character, placed undue emphasis on the seriousness

of the offenses, and did not satisfy the sentencing factors. We hold

Appellant is due no relief.

This Court has stated that

6 18 Pa.C.S. § 2706(a)(1). 7 18 Pa.C.S. § 2705.

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[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching the merits of a discretionary sentencing issue:

[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).

Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted).

[T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm . . . .

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc). “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Id.

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We are aware that generally, a challenge to the trial court’s discretion

to impose its sentences concurrently or consecutively ordinarily does not

raise a substantial question. Commonwealth v. Mastromarino, 2 A.3d

581, 586-87 (Pa. Super. 2010).

In fact, this Court has recognized the imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. That is in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.) (some

punctuation and citations omitted), appeal denied, 77 A.3d 1258 (Pa. 2013).

Instantly, Appellant timely appealed, preserved his issue in his post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

See Evans, 901 A.2d at 533. Appellant’s Rule 2119(f) statement

substantially complies with Goggins. However, we point out that, generally,

a challenge to the consecutive nature of a sentence does not raise a

substantial question. See Commonwealth v. Dodge, 77 A.3d 1263, 1270

(Pa. Super. 2013) (“To make it clear, a defendant may raise a substantial

question where he receives consecutive sentences within the guideline

ranges if the case involves circumstances where the application of the

guidelines would be clearly unreasonable, resulting in an excessive

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sentence; however, a bald claim of excessiveness due to the consecutive

nature of a sentence will not raise a substantial question.” (citation

omitted)); Mastromarino, supra. Here, Appellant has raised a substantial

question to the extent he asserts that his aggregate sentence was contrary

to the fundamental norms underlying the sentencing process. See

Goggins, supra. Moreover, Appellant argues that while his sentences were

within the guidelines, the consecutive nature of the sentences renders the

aggregate term manifestly excessive. Appellant’s Brief at 11-12.

Accordingly, we examine the merits.

Assuming that Appellant has presented a substantial question, after

careful review of the record, the parties’ briefs, and the opinion of the

Honorable Travis W. Livengood, we affirm on the basis of the trial court’s

opinion. See Trial Ct. Op. at 6-10 (holding Appellant’s prior record,

including armed robbery conviction four years ago, violating supervision

twice, using firearm to rob during drug deal, and car chase on highway

involving police, justified sentence). We therefore affirm the judgment of

sentence. See Evans, 901 A.2d at 533-34.

Judgment of sentence affirmed.

Judge Shogan joins the memorandum.

President Judge Gantman concurs in the result.

Judgment Entered.

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Joseph D. Seletyn, Esq. Prothonotary

Date: 3/24/2015

-6- Circulated 03/16/2015 02:04 PM

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