J-S49042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL ANTHONY JONES, JR.                 :
                                               :
                       Appellant               :   No. 397 MDA 2018

            Appeal from the Judgment of Sentence February 5, 2018
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0000887-2017


BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 18, 2018

        Appellant Michael Anthony Jones, Jr., appeals from the judgment of

sentence entered in the Court of Common Pleas of Adams County on February

5, 2018, following his guilty plea to a single count of Possession with Intent to

Deliver a Controlled Substance (PWID).1 Following our review, we affirm.

        On November 10, 2017, Appellant entered an open guilty plea to one

count of PWID.       Appellant’s charge arose out of the execution of a search

warrant at a home in Adams County on July 28, 2017. When officers entered

the residence, Appellant fled from the first floor and ultimately was discovered

hiding in the corner of the attic.        A search of Appellant revealed a plastic

baggie containing 14 grams of heroin in his right front pocket. Officers also

found a bundle of smaller baggies of suspected heroin in that pocket.

____________________________________________


1   35 Pa.C.S.A. § 780-113(a)(30).
____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant was arrested and charged with possession of fourteen (14) grams

of heroin with the intent to deliver. At that time, Appellant had absconded

from house arrest in Philadelphia where he had two pending robbery charges.

See Presentence Investigation Report (PSI) at 4-5.

      At the sentencing hearing held on February 5, 2018, Appellant requested

a prison sentence in the standard guideline range of nine (9) months to sixteen

(16) months and expressed his remorse for his crime.         N.T. Sentencing,

2/5/18, at 3-9.    The Commonwealth asked the trial court to impose an

aggravated-range sentence of two (2) years to four (4) years in prison in light

of Appellant’s pending robbery charges in Philadelphia and his lack of any

connection to Adams County. N.T. Sentencing, 2/5/18, at 3.

      After hearing the parties’ respective arguments and Appellant’s

statement, and having the benefit of a PSI, the trial court entered an Order

which was filed as a separate and distinct document. That Order reads, in

relevant part, as follows:

                                      ***
             The [c]ourt has received and reviewed a presentence
      investigation report.     [Appellant] has four arrests with one
      conviction. Standard guideline range is 9 to 16. [Appellant] has
      no known ties to the Adams County community and the facts of
      this case are that he was in possession of 14 grams of heroin with
      the intent to deliver it here in Adams County.

             Based upon the nature of the offense, the fact that
      [Appellant] is bringing heroin into our community from outside,
      selling it to residents living here within Adams County, the
      sentence of the [c]ourt is that [Appellant] will serve no less than
      two years nor more than four years in a state correctional
      institution designated by the State Department of Corrections.


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                                    ***

Order of Court, filed 2/7/18, at ¶¶ 2-3.

      When the trial court asked Appellant if he had any questions, Appellant

indicated he did and the following exchange ensued:


             [Appellant]: I understand that I didn’t have any ties to
      anything out here at Adams County as well as the fact that I didn’t
      have like—in my discovery it don’t say that I had any relationships
      or any dealings with anybody out here that I was just caught. I
      just had the heroin in my possession.
             [The Court]: Well, as you indicated in your observation
      earlier is that we are fairly strict here and we do take that
      seriously. Your attorney has recognized and everyone knows that
      heroin is a poison killing people. So anyone that has it in their
      possession with intent to deliver is going to be dealt with in the
      most severe manner. So that’s the rational[e] of my sentencing
      and I do wish you good luck.

N.T. Sentencing, 2/5/18, at 10.

      On March 5, 2018, Appellant filed a timely notice of appeal. On that

same date, the trial court directed Appellant to file a concise statement of the

matters complained of on appeal within twenty-one (21) days pursuant to

Pa.R.A.P. 1925(b). On March 26, 2018, Appellant filed his concise statement

wherein he raised the following issue:


      1.    The [c]ourt abused its discretion when it found [Appellant’s]
      lack of residency in Adams County to be an aggravating factor for
      purposes of sentencing [Appellant] to a period of incarceration in
      excess of the Standard Guideline Range.


In his brief, Appellant presents the following Statement of Question Involved:




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            Did the lower court impose an illegal sentence when it
      imposed a disparate “out-of-county” sentence, namely that it used
      Appellant’s non-residency as the only extraneous factor to
      aggravate his sentence?

Brief for Appellant at 5.

      The manner in which Appellant has framed his issue on appeal conflates

a challenge to the discretionary aspects of his sentence and a challenge to the

legality of his sentence, although it is well-established that such claims are

distinct.   In his concise statement, Appellant essentially asserts his sentence

was excessive, and a claim that a sentence is harsh and excessive implicates

the discretionary aspects of a sentence. Commonwealth v. Treadway, 104

A.3d 597, 599 (Pa.Super. 2014). However, in his appellate brief, Appellant

challenges the legality of his sentence, arguing it violates his equal protection

rights guaranteed by the Fourteenth Amendment of both the United States

and Pennsylvania Constitutions. A challenge to the legality of one’s sentence

is a question of law. Commonwealth v. Barnes, 167 A.3d 110, 116

(Pa.Super. 2017)(en banc).

      Before reaching the merits of Appellant’s discretionary aspects of

sentence claim, we first must determine whether this Court has jurisdiction in

this case, for challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right. Commonwealth v. Glass, 50

A.3d 720, 726 (Pa.Super. 2012), appeal denied, 63 A.3d 774 (Pa. 2013). In

doing so, we engage in a four-part analysis to determine:




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       (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; 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.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa.Super. 2014)

(citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015).

      It is well-established that “[o]bjections to the discretionary aspects of a

sentence are generally waived if they are not raised at the sentencing hearing

or in a motion to modify the sentence imposed.” Commonwealth v. Moury,

992 A.2d 162, 170 (Pa.Super. 2010).      Moreover, an appellant cannot raise a

discretionary challenge to his or her sentence for the first time in a Rule

1925(b) statement. See Commonwealth v. Coleman, 19 A.3d 1111, 1118

(Pa.Super. 2011) (issues raised for the first time in Rule 1925(b) statement

are waived); See also Commonwealth v. Watson, 835 A.2d 786, 791

(Pa.Super. 2003) (“a party cannot rectify the failure to preserve an issue by

proffering it in” in a Rule 1925(b) statement).

      Herein, the record reflects that while Appellant filed a timely notice of

appeal, he did not raise the issue he presented in his concise statement before

the trial court at the time of sentencing, nor did he file a post-sentence motion

preserving the same. Because Appellant failed to preserve a challenge to the

discretionary aspects of his sentence before the trial court, he failed to satisfy

the second prerequisite to appellate review under Colon, 102 A.3d at 1042–

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43. We, therefore, may not exercise our discretion to resolve his discretionary

aspects of sentencing claim. Accordingly, we find this issue waived.

      Notwithstanding, in his appellate brief Appellant challenges the legality

of his sentence.

             Generally, an appellant cannot raise new legal theories for
      the first time on appeal. Pa.R.A.P. 302(a); Commonwealth v.
      Truong, 36 A.3d 592, 598 (Pa.Super. 2012) (en banc), appeal
      denied, 618 Pa. 688, 57 A.3d 70 (2012). Notwithstanding,
      because Appellant's claim presents a challenge to the legality of
      his sentence, it is not waived, even though Appellant raised it for
      the first time in his appellate brief. Commonwealth v. Barnes,
      637 Pa. 493, 495, 151 A.3d 121, 122 (2016). Legality–of–
      sentence claims are not subject to traditional waiver doctrine.
      Commonwealth v. Wolfe, 636 Pa. 37, 51, 140 A.3d 651, 660
      (2016).”


Commonwealth v. Golson, 2018 WL 2473514, at *5 (Pa.Super. filed June

4, 2018).   Thus, we will review Appellant’s challenge to the legality of his

sentence, and in doing so “we are mindful that our standard of review is de

novo, and our scope of review is plenary.” Id. (citation omitted).

      Appellant claims “[t]his case involves a sentence which explicitly

considered and punished the exercise of Appellant’s constitutional right of

intrastate travel.” Brief for Appellant at 2. Appellant reasons that as a result,

the trial court not only misapplied the sentencing guidelines but also imposed

an illegal sentence as “it implicates Appellant’s due process guarantees and

violates his right to equal protection under the law.” Id. Appellant posits he

has a right to freedom of movement and to travel unfettered within the

Commonwealth of Pennsylvania and reasons these rights were violated by the

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trial court’s imposition of an “out-of-town tax,” namely an aggravated-range

sentence based on the sole extraneous factor that he did not reside in Adams

County. Id. at 11, 14-15, 18. Following our review of the record, we disagree.

      It is true that in a general sense, citizens enjoy a constitutional right to

freedom of movement. See, e.g. Commonwealth v. Doe, 167 A. 241, 242

(Pa.Super. 1933) (“Freedom of locomotion, although subject to proper

restrictions, is included in the ‘liberty’ guaranteed by our Constitution (see

article 1, §§ 1, 9).”). However, such right is not without limitation. See, e.g.,

Commonwealth v. Patchett, 425 A.2d 798, 800 (Pa.Super. 1981) (“... the

legislature, in the proper exercise of its police power, may regulate the use of

the highways of the Commonwealth for the purpose of promoting public

safety. To accomplish that purpose, the legislature may limit the enjoyment

of personal liberty and property.”) (citations omitted).

      The record herein evinces the trial court did not deprive Appellant of a

benefit or subject him to a greater penalty for traveling within the

Commonwealth of Pennsylvania; rather, it penalized him for possessing with

the intent to deliver a significant amount of heroin in Adams County, a crime

to which he pled guilty. A review of the sentencing transcript reveals that

Appellant’s residence in another county was not the sole extraneous factor

that the trial court considered and utilized when sentencing Appellant in the

aggravated range; this was merely just one factor among several, including a

consideration of Appellant’s PSI report and the sentencing guidelines, that led


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to his sentence. See N.T. Sentencing, 2/5/18, at 2, 9-10.     Commonwealth

v. Downing, 990 A.2d 788, 794 (Pa.Super. 2010) (stating “where a trial court

is informed by a pre-sentence report, it is presumed that the court is aware

of all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed”) (citation

and quotation marks omitted)

      As the trial court explained in its rule 1925(a) Opinion:

             Instantly, from th[e] presentence investigation report it was
      learned that the Appellant had four adult arrests with one
      conviction. The current offense had an offense gravity score of 8
      and [Appellant’s] prior record score was 0 generating a standard
      guideline range sentence of 9 to 16. The aggravated range was
      +9. The presentence investigation report also confirmed the
      Appellant was a fugitive from justice out of Philadelphia County
      where he was wanted to stand trial on two separate felony robbery
      cases with additional charges including burglary of a home with
      person present, as a felony of the first degree and firearms
      charges[.]
             During the sentencing hearing the [c]ourt was reminded
      that for the current offense Appellant, who had no known ties to
      the Adams County area, came to Adams County possessing the
      relatively large amount of 14 grams of heroin, for the purpose of
      distributing and selling it in our community. There was no
      indication that Appellant was an addict in possession of some
      controlled substance and selling a small portion of his own supply
      in order to feed his habit. The gravity of Appellant’s offense was
      readily apparent and acknowledged by the Defense.

                                      ***
            All factors of the Sentencing Code were considered by this
      [c]ourt. But in this instance, paramount among those factors, was
      the need to protect the public and the gravity of the offense. At
      sentencing the [c]ourt cited the serious nature of the offense and
      the fact that the Appellant was bringing heroin into this
      Community from outside to sell it to residents living here within
      Adams County as the primary reasons this [c]ourt believed a
      sentence in the aggravated range would be appropriate. The

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      [c]ourt considered all of the arguments of Defense counsel and
      the lengthy statement of allocution made by Appellant at the time
      of sentencing. Despite supposedly having a prior record score of
      zero Appellant’s own statement at sentencing was that he served
      31 months in the Philadelphia County Prison plus 9 months on
      house arrest. According to his own statement, he was on house
      arrest with electronic monitoring when he absconded Philadelphia
      County and fled to Adams County. He came to Adams County and
      began selling heroin for profit. The conclusion to be drawn from
      the facts of the case is that while the Appellant was a fugitive from
      Philadelphia County where he was wanted to stand trial on
      multiple felony armed robbery charges he chose to make his living
      selling heroin in Adams County.
             The reasons articulated by the [c]ourt, in conjunction with
      the [c]ourt[’]s careful consideration of the arguments of counsel
      and [Appellant’s] own statements, clearly reflect this [c]ourt[’]s
      determination that the conduct of the Appellant, in poisoning our
      Community with a relatively large amount of heroin, warranted a
      sentence in the aggravated range, and that a local sentence
      advocated by Defense counsel would not have adequately
      addressed [Appellant’s] rehabilitative needs nor provided
      adequate protection of the Community.

Trial Court Opinion, filed 3/29/18, at 4-5.

     Appellant’s arguments to the contrary, the trial court’s pointing out at

the sentencing hearing that he had no ties to the community, which Appellant

admitted, See N.T. Sentencing, 2/5/18, at 10, does not equate to an

infringement on his “right to travel” within the Commonwealth. Indeed, his

right to intrastate travel was qualified by his own criminal conduct, not an

arbitrary distinction drawn by the trial court. As we stated above, the trial

court explained Appellant’s sentence was grounded in its belief that “anyone

that has [heroin] in their [sic] possession with intent to deliver is going to be

dealt with in the most severe manner.         N.T. Sentencing, 2/5/18, at 10

(emphasis added). As such, we find no abuse of discretion.

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      Judgment of sentence affirmed.

      Judge Stabile joins the memorandum.

      Judge Shogan files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/18/2018




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