Com. v. Rosser, A.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2018
• Docket: 1312 EDA 2017
• Status: Unpublished

Opinion

J-S07027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY ROSSER : : Appellant : No. 1312 EDA 2017

Appeal from the Judgment of Sentence June 26, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003178-2009 CP-51-CR-0008922-2012

BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY PANELLA, J. FILED JULY 23, 2018

Anthony Rosser was on probation when police arrested him for selling

cocaine. At the Commonwealth’s request, the court conducted a probation

violation hearing and, based on the evidence presented, namely the drug

arrest, found Rosser in violation of his probation. The court later resentenced

him to a term of incarceration 3½ to 10 years. In this nunc pro tunc appeal,

he raises two issues. We find both waived.

He first argues the Commonwealth presented insufficient evidence to

prove he violated his probation. In support of his claim he relies primarily on

the testimony of the two witnesses he presented at the hearing, ignoring

completely the ample evidence the Commonwealth presented. Putting that

aside, we find this claim waived; it was, as Rosser concedes, see Appellant’s

Brief, at 8 n.1, not raised in his Rule 1925(b) statement. “Any issues not raised J-S07027-18

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

v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation omitted). See also

Pa.R.A.P. 1925(b)(4)(vii). And waiver applies even where, as here, the trial

court addressed the issue in its Rule 1925(a) opinion. See Castillo, 888 A.2d

at 780. See also 20A West’s Pa. Prac., Appellate Practice § 1925:1 Overview

of Rule 1925.

Rosser next argues the court imposed too severe a sentence. To review

a challenge to the discretionary aspects of sentencing, he must present a

substantial question for our review. To do that Rosser “must, pursuant to

Pennsylvania Rule of Appellate Procedure 2119(f), articulate the manner in

which the sentence violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular fundamental norm

underlying the sentencing process.” Commonwealth v. Shugars, 895 A.2d

1270, 1274 (Pa. Super. 2006) (citations and internal quotation marks

omitted). “We examine” his “Rule 2119(f) statement to determine whether a

substantial question exists.” Id. (citation omitted). “The statement shall

immediately precede the argument on the merits with respect to the

discretionary aspects of the sentence.” Pa.R.A.P. 2119(f).

Here, Rosser’s Rule 2119(f) statement does not set forth a substantial

question for our review; it merely sets forth our scope and standard of review

and quotes 42 Pa.C.S.A. § 9771(c) Limitation on sentence of total

confinement. See Appellant’s Brief, at 14. And in his statement of the

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question presented, he simply lists several mitigating factors. See id., at 15.

Thus, Rosser has failed to present a substantial question for our review.

It is in the “ARGUMENT” section of his brief where Rosser explains his

position is that “many compelling mitigating factors were not truly

considered,” Appellant’s Brief, at 18, by the sentencing court and that the

court “did not consider,” Id., at 19, other mitigating factors. “[W]e,” however,

“cannot look beyond the statement of questions presented and the prefatory

[Rule] 2119(f) statement to determine whether a substantial question exists.”

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citation omitted). See also Commonwealth v. Tuladziecki, 522 A.2d 17,

19 (Pa. 1987) (“Superior Court may not, however, be permitted to rely on its

assessment of the argument on the merits of the issue to justify post hoc a

determination that a substantial question exists.”); Commonwealth v.

Flores, 921 A.2d 517, 524 (Pa. Super. 2007), overruled in part, and on other

grounds, by Pa.R.Crim.P.1925(c)(4) (“We will not assess the argument section

of the brief in hopes that we might justify retrospectively a determination that

a substantial question exists.”)

In any event, his claim that the sentencing court failed to adequately

consider mitigating factors of record would not raise a substantial question for

our review. See Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa.

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Super. 2013).1 And his claim that the court completely failed to consider

certain other mitigating factors is belied by the record. Specifically, he claims

the court failed to consider his alleged extensive health problems. Rosser’s

counsel, however, methodically detailed for the court these same health

problems at sentencing. See N.T., Sentencing, 6/26/15, at 5-6.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/18

____________________________________________

1 Rosser also sets forth sentencing guidelines and complains about how the sentence imposed “was a complete departure” from those guidelines. Appellant’s Brief, at 19. “Sentencing [g]uidelines,” however, “do not apply to sentences imposed following a revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (citation omitted).

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