Com. v. Waller, D.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2026
• Docket: 1829 EDA 2024
• Status: Unpublished
• Author: Stabile

Opinion

J-S39010-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAMEN WALLER : : Appellant : No. 1829 EDA 2024 :

Appeal from the Judgment of Sentence Entered June 3, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0013848-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAMEN WALLER : : Appellant : No. 1830 EDA 2024 :

Appeal from the Judgment of Sentence Entered June 4, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0013849-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT : OF PENNSYLVANIA : v. : : : DAMEN WALLER : : Appellant : No. 1831 EDA 2024 :

Appeal from the Judgment of Sentence Entered June 4, 2024 In the Court of Common Pleas of Philadelphia County J-S39010-25

Criminal Division at No: CP-51-CR-0013850-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAMEN WALLER : : Appellant : No. 1832 EDA 2024 :

Appeal from the Judgment of Sentence Entered June 4, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0001795-2019

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED MAY 20, 2026

Appellant, Damen Waller, challenges the judgments of sentence entered

in the four above-captioned cases by the Court of Common Pleas of

Philadelphia County (trial court), following a probation violation hearing. In

2023, Appellant entered guilty pleas in these four cases, and he received

probationary sentences. Thereafter, in 2024, he was charged with violating

the terms of his probation, and the probationary sentences were revoked. The

trial court then sentenced him to an aggregate prison term of four to 10 years.

Appellant now argues that the judgments of sentence should be vacated

because the trial court failed to consider statutorily mandated sentencing

factors; he also contends that his sentence is excessive. Finding that

Appellant has failed to preserve his challenges to the discretionary aspects of

his sentence, we affirm.

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In November of 2014, Appellant was implicated in a conspiracy to steal

credit cards from various victims to make numerous unauthorized purchases

in Philadelphia. The Commonwealth charged Appellant in three cases, which

were consolidated for trial purposes.

In case number CP-51-CR-0013848-2014 (case 13848), Appellant was

charged with forgery, access device fraud, theft, receiving stolen property,

and theft by deception. In case number CP-51-CR-0013849-2014 (case

13849), he was charged with forgery, access device fraud, theft, receiving

stolen property, and theft by deception. In case number CP-51-CR-0013850-

2014 (case 13850), he was charged with conspiracy, forgery, access device

fraud, theft, receiving stolen property, and theft by deception.

On June 19, 2015, Appellant negotiated a global guilty plea as to all

three cases. As to each of the forgery counts, he was sentenced to concurrent

prison terms of one to three years; as to the access device fraud charges, he

was sentenced to three years of reporting probation, to be served

consecutively to the prison terms, but concurrent to each other. No further

penalty was imposed as to the remaining counts

While serving probation in those cases, on November 4, 2018, Appellant

was charged in two more cases, CP-51-CR-0001795-2019 (theft by unlawful

taking and forgery) (case 1795), and MC-51-CR-28258-2019 (access device

fraud) (case 28258). He pleaded guilty in both cases on April 26, 2019, while

also pleading guilty to probation violations in cases 13848, 13849, and 13850.

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In cases 1795 and 28258, Appellant was sentenced to concurrent prison

terms of 11.5 to 23 months. In addition, he received two years of probation

in case 28258, and a concurrent three years of probation in case 1795. As to

cases 13848, 13849, and 13850, Appellant was also sentenced to an

aggregate term of 11.5 to 23 months of incarceration, followed by three years

of probation, to be served concurrently with probation in cases 1795 and

28258.

Once released from custody in April 2020, Appellant absconded. In

September 2022, he was arrested and charged again in two more criminal

cases with multiple counts of theft by unlawful taking. He was found guilty of

those offenses in November 2022, and sentenced to concurrent incarcerative

terms of six to 12 months. Later, in April 2023, Appellant was yet again found

guilty of theft by unlawful taking in two more cases and sentenced to two

concurrent terms of 11.5 to 23 months of incarceration.

Finally, on June 3, 2024, the trial court held a probation violation

hearing, at the end of which, Appellant was found to be in direct and technical

violation of the probationary terms imposed on April 26, 2019, in cases 13848,

13849, 13850, 1795, and 28258. Before imposing the new sentence, the trial

court recounted Appellant’s lengthy criminal history, his lack of compliance

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with the court’s conditions, and his high likelihood of committing new criminal

offenses. See N.T. Hearing, 6/3/2024, at 13-14.1

Appellant was initially sentenced to an aggregate prison term of four to

14 years as to all five cases. In case 13848, the trial court sentenced Appellant

to a prison term of two to four years; in cases 13849 and 13850, he was

sentenced to a total term of two to seven years in each case, to be served

concurrently with each other and with case 13848; and in case 1795, he was

sentenced to a term of two to seven years, to be served consecutively to the

sentences in the other cases. No further penalty was imposed in case 28258.

See id., at 14.

A day after the sentencing, on June 4, 2024, the trial court reconvened

to modify the seven-year maximum terms imposed as to the respective third-

degree felony counts in cases 13849 (forgery and access device fraud), 13850

(forgery, access device fraud, and conspiracy to commit forgery), and 1795

(forgery). See N.T. Hearing, 3/4/2025, at 3. Appellant already had served

incarcerative portions of those sentences prior to the periods of probation

which he was found to have violated, so the trial court determined that it

would be proper to sentence him to five-year maximum sentences to each of

the third-degree felony counts.

____________________________________________

1 The trial court did not discuss a pre-sentence investigation report (PSI) or a

sentencing guidelines scoresheet, as neither document was prepared in advance of the hearing.

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The seven-year maximum sentences imposed in each of those three

cases were therefore reduced to maximum five-year terms. The sentences in

cases 13848, 13849, and 13850 remained concurrent with each other, and

consecutive to the sentence in case 1795. No further penalty was imposed in

case 28258. As a result, the aggregate sentence became four to 10 years for

all five cases. See N.T. Hearing, 6/4/2024, 2-3.2

Appellant timely filed separate notices of appeal for each of the four

cases identified in the caption above. However, prior to the filing of those

notices, Appellant did not object to the sentences; nor did he file a post-

sentence motion or a motion for reconsideration. After the appeals were filed,

the trial court entered a 1925(a) opinion giving the reasons why the

judgments of sentence should be upheld.

As to the four cases now under review,3 Appellant now presents two

issues which concern the discretionary aspects of his sentence:

1. Whether the sentencing court abused its discretion by imposing sentences after a probation violation that were not based upon the gravity of the violation, the extent of appellant’s record, his prospect of rehabilitation, nor an assessment of the mitigating and aggravating factors as noted in 42 Pa.C.S. Section 9721 of the Sentencing Code. ____________________________________________

2 We note that the trial court erroneously calculated a total aggregate sentence of four to 12 years at the resentencing, and in its 1925(a) opinion. See N.T. Hearing, 3/4/2025, at 3; Trial Court 1925(a) Opinion, 12/26/2025, at 1. The correct sentencing range is evident in the judgments of sentence, so no corrective action is needed at this juncture.

3 Appellant does not seek review of the judgment of sentence entered in MC-

51-CR-0028258-2019.

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2. Whether the trial court abused its discretion by entering manifestly excessive sentences to such a degree that the imposition of consecutive, nearly maximum sentences establishes evidence of the court’s bias or animus toward appellant.

Appellant’s Brief, at 7.

Appellant’s first claim is that the trial court abused its discretion by

sentencing him without due consideration of the mandatory factors

enumerated in section 9721 of the Sentencing Code. See 42 Pa.C.S.A. §

9721.

At the outset, we note that Appellant has not preserved this ground for

review. Appellant’s claim implicates a discretionary aspect of his sentences,

which is not reviewable as of right. See Commonwealth v. Antidormi, 84

A.3d 736, 759 (Pa. Super. 2014). Rather, an appellant challenging the

discretionary aspects of his sentence must invoke this Court's jurisdiction by

satisfying a four-part test to determine:

(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 [see Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [I]f the appeal satisfies each of these four requirements we will then proceed to decide the substantive merits of the case.

Id. (quoting Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa. Super.

2013)).

It is not sufficient for a Rule 2119(f) statement to refer generally to the

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trial court’s failure to sufficiently give its reasons for sentencing a defendant

outside of the sentencing guidelines. Rather, the 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).”

Commonwealth. v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003) (quoting

Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000)).

Here, Appellant timely filed his notices of appeal, and his brief includes

a Rule 2119(f) statement. However, he failed to timely raise his present

claims before the trial court in the first instance, thereby waiving the claims

for purposes of appeal.

Appellant did preserve his challenges to the discretionary aspects of his

sentence with a contemporaneous objection, a post-sentence motion, or a

motion for reconsideration of his sentence. Further, his Rule 2119(f)

statement does not specify where his sentences fall in relation to the statutory

sentencing guidelines. Thus, the claim was waived. See Pa.R.A.P. 302

(providing that “issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”); see also Commonwealth v. Reeves,

778 A.2d 691, 692–693 (Pa. Super. 2001) (holding that appellant waived

claim that trial court omitted reasons for sentence on the record, as lack of an

objection or post-sentence motion specifying omissions deprived trial court of

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opportunity to consider the issue). 4

Even if Appellant had preserved his challenge to the discretionary aspects

of his sentence, we would find that no relief is due. The standard of review

for such claims is well-settled:

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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the 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.

Antidormi, 84 A.3d at 760 (citation omitted).

“When imposing sentence, a court is required to consider ‘the particular

circumstances of the offense and the character of the defendant.’”

Commonwealth v. McClendon, 589 A.2d 706, 712–13 (Pa. Super.

1991) (en banc) (quoting Commonwealth v. Frazier, 500 A.2d 158, 159

(Pa. Super. 1985)). “In considering these factors, the court should refer to

the defendant's prior criminal record, age, personal characteristics and

potential for rehabilitation.” Id.

Section 9721 (b) of the Sentencing Code requires the trial court to

fashion a sentence which is consistent “with the protection of the public, the

gravity of the offense as it relates to the impact on the life of the victim and

4 Such a claim may qualify as a substantial question if the procedural requirements for doing so are satisfied. See Commonwealth v. Roane, 204 A.3d. 998 (Pa. Super. 2019).

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on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S.A. § 9721(b). “In every case in which the court imposes a sentence

for a felony or misdemeanor, modifies a sentence, resentences a person

following revocation of probation or resentences following remand, the court

shall make as a part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence imposed.”

Id.

When revoking a defendant’s probation, and imposing a new sentence,

the trial court may impose the maximum sentence permitted by law at the

time the defendant had received probation. See 42 Pa.C.S.A. § 9771(b)-(c);

204 Pa.Code § 303.1(b); see also Commonwealth v. Pasture, 107 A.3d

21, 27 (Pa. 2014). The trial court “need not undertake a lengthy discourse

for its reasons for imposing a sentence or specifically reference [the

sentencing statute], but the record as a whole must reflect the sentencing

court’s consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

On review of the record in a criminal case in which a defendant was

sentenced outside of the statutory sentencing guidelines, this Court must

consider the reasonableness of the sentence with regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

“[E]ven though the unreasonableness inquiry lacks precise boundaries

. . . rejection of a sentencing court's imposition of sentence on

unreasonableness grounds would occur infrequently, whether the sentence is

above or below the guideline ranges, especially when the unreasonableness

inquiry is conducted using the proper standard of review.” Commonwealth

v. Walls, 926 A.2d 957, 964 (Pa. 2007).

Here, at Appellant’s sentencing, the trial court expressly evaluated the

circumstances of Appellant’s lengthy criminal history, as well as his specific

rehabilitative needs. Significantly, the trial court emphasized that Appellant

is a repeat felony offender, with an “extraordinary” record of “at least 29

arrests and 14 arrests, six distinct aliases . . . [and] virtually all of his crimes

involve dishonesty.” Id., at 13.

Moreover, as detailed by the trial court, Appellant has a history of failing

to avail himself of supervised release. He once absconded, and he has

repeatedly committed new criminal offenses while serving probation. The trial

court found that Appellant was not amenable to supervision, that he was “very

likely to reoffend,” and that “society needs to be protected from his persistent

stealing of credit and identity.” Id., at 13-14.

The trial court further addressed Appellant’s rehabilitative needs by

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ordering him to undergo a dual-diagnosis evaluation to determine his

treatment needs; Appellant must also attend vocational training, life skills

training, and counseling in order to be eligible for parole. See id., at 15.

Accordingly, even had Appellant preserved a challenge to the

discretionary aspects of his sentence, we would find that his claim has no

merit because the trial court sufficiently took into account the protection of

the public, the gravity of the offenses, and Appellant’s rehabilitative needs.

Moreover, we do not find that the sentences were unreasonable. Although

the trial court sentenced Appellant above the statutory guidelines, the

sentences in three of the four cases were made concurrent, rather than

consecutive, which ultimately resulted in a far more lenient sentence than the

maximum term permitted by law.

Appellant’s second claim is that his judgments of sentence must be

vacated because the sentences are excessive. He maintains that the

imposition of the maximum possible sentences, one of which was made

consecutive, demonstrates the trial court’s “bias or animus” toward him. See

Appellant’s Brief, at 15.

As discussed above, however, Appellant has failed to successfully invoke

this Court’s jurisdiction to consider his challenge to the discretionary aspects

of his sentence. “A challenge to an alleged excessive sentence is a challenge

to the discretionary aspects of a sentence.” Commonwealth v. Ahmad, 961

A.2d 884, 886 (Pa. Super. 2008). “Absent such efforts, an objection to a

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discretionary aspect of a sentence is waived.” Id. (quoting Commonwealth

v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006)).

Judgments of sentence affirmed.

Date: 5/20/2026

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