J-A08008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

JAMES JOHNSON

                            Appellant                  No. 601 EDA 2016


            Appeal from the Judgment of Sentence January 6, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003956-2015


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

MEMORANDUM BY PANELLA, J.                               FILED JULY 18, 2017

        Appellant, James Johnson, appeals from the judgment of sentence

entered in the        Philadelphia County      Court of Common Pleas, which

resentenced him following his motion for reconsideration. We vacate

Appellant’s judgment of sentence and remand for resentencing.

        The relevant facts and procedural history of this case are as follows.

After Timothy Matthews and his wife got into an argument, she called her

brother, Damon Cephas, and Appellant to assist her. Matthews called 911

and left the home; he was standing on a street corner when Cephas and

Appellant approached him. Matthews attempted to run into a nearby deli,

but Cephas and Appellant dragged him outside and assaulted him. Cephas
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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also removed $40 and a cell phone from Matthews during the beating.

Appellant and Cephas told Matthews they were going to kill him in retaliation

for calling the police. After the incident, Matthews saw Appellant and Cephas

in custody, and identified them as the men who beat and robbed him.

Appellant was also wearing a hat stolen from Matthews during the beating.

       Appellant proceeded to a jury trial and the jury convicted him of

robbery, conspiracy to commit robbery, theft, receiving stolen property,

simple assault, and terroristic threats.1 On November 12, 2015, the trial

court sentenced him to an aggregate term of three to six years’

incarceration. Appellant filed a timely motion for reconsideration of his

sentence. The court held a hearing on the motion, and ultimately

resentenced Appellant to a term of four to eight years’ incarceration,

explaining that Appellant’s conduct merited an increased sentence. Appellant

filed a timely notice of appeal.

       On February 11, 2016, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant filed a Rule 1925(b) statement, but not until April 7,

2016, 56 days later. His appeal is now before this Court.

       On appeal, Appellant raises two questions for our review:



____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(iv); 903; 3921(a); 3925(a); 2701(a); and
2706(a), respectively.



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      Did the trial court [err] when it found that the Commonwealth
      presented sufficient evidence to find the Appellant guilty beyond
      a reasonable doubt?

      Did the trial court abuse [its] discretion when it increased the
      Appellant’s sentence sua sponte?

Appellant’s Brief at 3.

      Preliminarily, we must resolve a procedural issue in Appellant’s case.

The court ordered Appellant to file a Rule 1925(b) statement. Appellant

complied, but well after the 21-day limitation. Thus, Appellant’s Rule

1925(b) statement was untimely. As we outlined in Commonwealth v.

Thompson, 39 A.3d 335 (Pa. Super. 2012), in Commonwealth v. Lord,

719 A.2d 306 (Pa. 1998), our Supreme Court held that issues not raised in a

court-ordered Pa.R.A.P. 1925(b) statement are not preserved for review.

Accord Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (affirming

Lord and holding untimely filing of Rule 1925(b) statement waives issues

raised for appellate review).

      Following Lord and Castillo, Pa.R.A.P. 1925(b) was amended. The

rule now states that if an appellant “in a criminal case was ordered to file a

Statement and failed to do so, such that the appellate court is convinced

that counsel has been per se ineffective, the appellate court shall remand for

the filing of a Statement nunc pro tunc and for the preparation and filing of

an opinion by the judge.” Pa.R.A.P. 1925(c)(3). As this Court in Thompson

observed, pursuant to this subsection, when a Pa.R.A.P. 1925(b) statement

is not filed or is untimely filed, counsel will be considered ineffective per se.

See Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009);

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Commonwealth v. Scott, 952 A.2d 1190 (Pa. Super. 2008). In such

scenarios, the case will be remanded for the filing of the statement nunc pro

tunc and the preparation of a trial court opinion in response to the

statement. Where the court does have the benefit of reviewing an untimely-

filed statement and writes an opinion, we do not remand. See Thompson,

39 A.3d at 341. In Thompson, the appellant’s Pa.R.A.P. 1925(b) statement

was untimely, and the trial court was unable to author a response to the

issues raised. We therefore remanded for the trial court to discuss the issues

presented in the untimely statement.

      Here,   Appellant’s   statement    was   untimely,   but   the   trial   court

nevertheless addressed Appellant’s issues on appeal in its Rule 1925(a)

opinion. Consequently, we need not remand.

      Appellant first raises a sufficiency claim. An appellant, however, in the

Rule 1925(b) statement must identify, with particularity, the element(s) of

the crime he alleges was insufficiently supported by the evidence at trial.

See Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa. Super.

2008). Waiver applies even in instances where the Commonwealth fails to

object and the trial court addresses the sufficiency issue in its Rule 1925(a)

opinion. See Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super.

2017).

      In his Rule 1925(b) statement, Appellant baldly alleged the evidence

was insufficient to support his various convictions. Appellant failed to identify

any elements or elements of his convictions that lack record support;

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indeed, Appellant merely decries all six of his convictions as having been

supported by insufficient evidence. Thus, we find Appellant waived his

sufficiency claim for appellate review.

       Appellant also challenges the legality of his sentence on appeal.

Appellant claims the court erred by increasing his aggregate sentence sua

sponte following the post-sentence motion hearing. Appellant maintains the

sentencing court is unable to reconsider sentencing factors to craft a new

sentence without a specific request from either party to do so. We agree—

as do the Commonwealth and the sentencing court.

       “Issues relating to the legality of a sentence are questions of law….

Our standard of review over such questions is de novo and our scope of

review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.

Super. 2009) (citation omitted).

       “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.” Commonwealth v. Rivera,

95 A.3d 913, 915 (Pa. Super. 2014). “This Court has indicated that when the

Commonwealth does not file a post-sentence motion seeking modification of

a sentence, the sentencing court may not increase a sentence based upon

the defendant’s post-sentence motion.” Commonwealth v. Nickens, 923

A.2d   469,   472   (Pa.   Super.   2007)   (citation   omitted).   See   also

Commonwealth v. Broadie, 489 A.2d 218, 222 n.5 (Pa. Super. 1985)

(holding sentencing court may not raise issues sua sponte in absence of

Commonwealth’s post-sentence motion).

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J-A08008-17



      Accordingly, we are constrained to vacate Appellant’s judgment of

sentence. See Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa. Super.

2014) (holding proper action in instance where court imposed illegal

sentence that alters entire sentencing scheme is to vacate sentence and

remand for resentencing). We find that the court’s imposition of an illegal

sentence requires us to remand to the sentencing court for resentencing.

The convictions, however, are affirmed.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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