J-S51026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUZ ENID APONTE,

                            Appellant                 No. 3409 EDA 2016


         Appeal from the Judgment of Sentence September 19, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001062-2016


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 18, 2017

       Appellant, Luz Enid Aponte, appeals from the judgment of sentence

entered on September 19, 2016, in the Monroe County Court of Common

Pleas. We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

              On April 8, 2016, Stroud Area Regional Police received a
       call from NYPANET.com, a business located in East Stroudsburg,
       regarding a theft. Michael Jarvis, the business’s accountant,
       reported that he noticed a check written to Appellant for $877.36
       paid out from the general expense account rather than through
       payroll.   The check was signed using the signature “A.
       Rodriguez.” Appellant, who had worked at the business as [a]
       bookkeeper since May 2013, admitted to Jarvis that she issued
       the check to herself and forged Angela Rodriguez’s signature.
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*
    Former Justice specially assigned to the Superior Court.
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     Jarvis subsequently looked into the business’s account and saw
     that 83 checks were issued to Appellant over a three (3) year
     period from 2014 to 2016 totaling $46,310.92, none of which
     were authorized. Each check was signed using the signatures of
     either Fred Budetti, the owner, or Angela Rodriguez, an
     employee authorized to sign checks. Both Budetti and Rodriguez
     relayed to Jarvis that they did not the sign the checks and their
     signatures were forged.       After further investigation, Jarvis
     learned that Appellant would issue checks to herself and change
     the check images in the computer system so it appeared as if
     the check had been paid to one of their vendors/payees.

           Appellant was charged by Criminal Information with two
     counts of Forgery - Unauthorized Act in Writings1, three counts
     of Theft by Unlawful Taking - Movable Property2, and one count
     of Tamper with/Fabricate Physical Evidence3. On June 22, 2016,
     Appellant pled guilty to one count each of Forgery -
     Unauthorized Act in Writing, a felony of the second degree, Theft
     by Unlawful Taking - Movable Property, a felony of the third
     degree, and Tamper with/Fabricate Physical Evidence, a
     misdemeanor of the second degree.
           1
               18 Pa.C.S.A. § 4101(a)(2)
           2
               18 Pa.C.S.A. § 3921(a)
           3
               18 Pa.C.S.A. § 4910 (1)

           On September 19, 2016, at Appellant’s sentencing hearing,
     we heard a statement from Appellant and oral argument from
     both defense counsel4 and counsel for the Commonwealth.
     Additionally, prior to sentencing, we read the presentence
     investigation report (“PSI”) prepared by the Adult Probation
     Office. After carefully considering Appellant’s statement and
     arguments of counsel, as well as the PSI, we sentenced
     Appellant to incarceration in a state correctional institution for a
     total aggregate sentence of not less than 35 months nor more
     than 72 months. Because Appellant was RRRI eligible, her
     alternate minimum sentence was 26 months and 7 days. We
     imposed consecutive sentences on each count, all within the
     aggravated range and within the statutory limits.
           4
            At sentencing, the Monroe County Public Defender’s
           Office represented Appellant.




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           Appellant, through the Monroe County Public Defender’s
     Office, filed a Motion to Reconsider Sentence on September 26,
     2016, claiming that Appellant believes the sentence is excessive.
     We denied Appellant’s Motion without a hearing on September
     26, 2016.5 On October 25, 2016, Jeffrey G. Velander, Esq.
     entered his appearance on behalf of Appellant. On October 26,
     2016, Attorney Velander filed a Notice of Appeal to the
     Pennsylvania Superior Court, citing our September 19, 2016
     sentencing Order as the matter to be appealed. We ordered a
     Concise Statement to be filed within 21 days, which was timely
     received. Also on October 26, Attorney Velander filed [a] Motion
     for Leave to File an Amended Post-Sentence Motion, as well an
     Amended Post-Sentence Motion. We denied both without a
     hearing.6
           5
              The trial court has discretion in determining
           whether a hearing is required. Pa.R.Crim.P. 720
           (B)(2)(b).
           6
             Appellant subsequently filed a second Notice of
           Appeal on November 21, 2016, in which she appeals
           this Court’s denial of her Motion for Leave to File an
           Amended Post-Sentence Motion and Amended Post-
           Sentence Motion. That appeal is docketed at 3680
           EDA 2016 and this Court’s 1925(a) Statement on
           those issues is due by January 27, 2016. We will
           address those issues in a subsequent 1925(a)
           Statement.

Trial Court Opinion, 12/21/16, at 1-3.

     As   noted,   Appellant   filed   a   timely   post-sentence   motion   for

reconsideration of her sentence on September 26, 2016, claiming only that

the sentence was excessive.     See Pa.R.Crim.P. 720(A)(1) (stating that a

written post-sentence motion shall be filed no later than ten days after

imposition of sentence).   The trial court denied Appellant’s post-sentence

motion that same day. Thus, Appellant had until October 26, 2016, in which

to file a timely appeal to this Court.        Pa.R.Crim.P. 720(A)(2)(a).     At

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11:51 A.M., on October 26, 2016, Appellant filed a motion for leave to file an

amended post-sentence motion and an amended post-sentence motion,

seeking to amend the original post-sentence motion to include specific

reasons for appealing the discretionary aspects of her sentence. However,

at 3:09 P.M. that same day, Appellant also filed a timely notice of appeal

from the judgment of sentence. The filing of that appeal, which is presently

before this Court, divested the trial court of jurisdiction to consider the

October 26, 2016 motions.1          See Commonwealth v. Pearson, 685 A.2d

551, 556-557 (Pa. Super. 1996) (pursuant to Pa.R.A.P. 1701(a), once a

notice of appeal is filed, the trial court is divested of jurisdiction to act

further in the matter); see also Commonwealth v. Melvin, 103 A.3d 1, 58

(Pa. Super. 2014) (once an appeal is filed, the trial court has no jurisdiction

to modify its sentence) (citations omitted).

       On October 27, 2016, the trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

within twenty-one days. Therefore, Appellant’s Pa.R.A.P. 1925(b) statement

was due on or before Thursday, November 17, 2016. Appellant did not file

her Pa.R.A.P. 1925(b) statement until November 21, 2016. It appears the
____________________________________________


1
  In its opinion, the trial court points out that it denied Appellant’s October
26, 2016 motion for leave to file an amended post-sentence motion and
amended post-sentence motion and that Appellant filed an appeal from the
order denying those motions. Trial Court Opinion, 12/21/16, at 3. That
appeal, docketed at 3680 EDA 2016, was dismissed on May 3, 2017, due to
Appellant’s failure to file a brief.



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trial court overlooked the lateness of Appellant’s filing, and it issued an

opinion pursuant to Pa.R.A.P. 1925(a) on December 21, 2016.

      On appeal, Appellant presents the following issues for this Court’s

consideration:

      1. Did the Post Sentence Motion filed by the Public Defender’s
      Office of Monroe County citing an “excessive” sentence, coupled
      with the rejected Amended Post Sentence Motion, Nunc Pro
      Tunc, create a claim sufficient for this Court to consider the
      discretionary aspects of Appellant’s sentence?

      2. Did the Honorable Trial Court abuse its discretion in
      sentencing Appellant to serve three consecutive terms of
      imprisonment at the highest aggravated range of the Sentencing
      Guidelines where the reasons cited by the Court were that she
      had been convicted of embezzlement-related offenses in New
      York State and Pennsylvania on two prior occasions, a fact which
      is taken into account by the Guidelines in assessing a prior
      record score?

Appellant’s Brief at 6.

      Underlying both issues is a challenge to the discretionary aspects of

Appellant’s sentence. More specifically, Appellant challenges the imposition

of aggravated range sentences based on her prior convictions in both her

rejected amended post-sentence motion and her second issue, supra.

      It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).     Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

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      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

              [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).

Id. at 170.

      With respect to the four-part test, we conclude that Appellant satisfied

the first and third prongs in that she filed a timely notice of appeal and

included a Pa.R.A.P. 2119(f) statement in her brief.      However, Appellant’s

first issue on appeal relates to the preservation of her challenge to the

discretionary aspects of her sentence, specifically, the second prong of the

test set forth in Moury. In her brief on appeal, Appellant concedes that her

specific challenge was not included in the boilerplate post-sentence motion

filed by prior counsel on September 26, 2016, and that this failure could

result in dismissal of the appeal. Appellant’s Brief at 17, 19.

      After review, we conclude that Appellant’s prior counsel’s failure to

include Appellant’s challenge in her post-sentence motion is fatal to the

appeal because the omission of this specific claim results in waiver.     See


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Commonwealth v. Reeves, 778 A.2d 691, 692-693 (Pa. Super. 2001) (by

failing to raise the specific claim that the trial court failed to state reasons

for sentence on the record in post-sentence motion, the trial court was

deprived of opportunity to consider the claim; thus, the claim was waived on

appeal).     Additionally, we note that while the trial court addressed

Appellant’s issue in its opinion, we are not permitted to overlook Appellant’s

failure to properly preserve this issue.   See Commonwealth v. Tejada,

107 A.3d 788, 799 (Pa. Super. 2015) (holding, inter alia, that where a

challenge to the discretionary aspects of a sentence is not raised in a timely

post-sentence motion, that issue is waived; the fact that the trial court

addressed the issue in its Pa.R.A.P. 1925(a) opinion does not preserve the

issue); see also Commonwealth v. Schrader, 141 A.3d 558, 564 (Pa.

Super. 2016) (holding that despite the trial court addressing the appellant’s

challenge to the discretionary aspects of his sentence in its Pa.R.A.P.

1925(a) opinion, the appellant’s challenge was waived for failing to properly

raise it before the trial court).

      For the reasons set forth above, we conclude that Appellant has

waived her challenge to the discretionary aspects of her sentence.

Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

      P.J.E. Stevens joins the Memorandum.

      Judge Bowes concurs in the result.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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