J-A27042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 2269 EDA 2017
    MARCUS PHILPOT,                            :
                                               :
                       Appellee

          Appeal from the Judgment of Sentence Entered June 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010183-2015


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 05, 2019

        The Commonwealth appeals from the judgment of sentence entered

against Marcus Philpot. It maintains that the trial court abused its discretion

when it sentenced Philpot to 11½ to 23 months’ incarceration with immediate

parole for his third robbery conviction. We affirm because the Commonwealth

failed to preserve this issue for appellate review.

        On March 24, 2016, Philpot pled guilty to robbery, firearms not to be

carried without a license, and persons not to possess, use, manufacture,

control, sell or transfer firearms.1 The facts giving rise to these charges are as

follows. On January 5, 2013, Philpot approached a 21 year old college student

and pointed a gun at him. He threatened the victim and proceeded to take his
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1   18 Pa.C.S.A. §§ 3701(a)(1)(ii); 6106(a)(1); 6105(a)(1).
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cell phone and other items. The victim was able to track the location of his

phone using an application downloaded on his phone. This application led

officers to a location where they found another individual in the basement

surrounding by guns. While officers were serving their warrant, Philpot walked

in wearing the same articles of clothing that he wore when he robbed the

victim. Philpot confessed to the crime. N.T., Guilty Plea Hearing, 3/24/15, at

4-5.

       At the sentencing hearing, the Commonwealth reiterated the facts of

the case to the court, including that Philpot committed the robbery with a

firearm and took $100 from the victim. N.T., Sentencing, 6/22/17, at 4. It

informed the court that “[Philpot] ha[d] a prior adjudication of delinquency for

a PWID[2], as well as an adjudication for delinquency for an F-2 robbery.” Id.

at 5. Additionally, it noted that at the time he committed the crime herein, he

was “on supervision in the juvenile courts at the age of 18” for a previous F-

1 robbery which resulted in an adjudication of delinquency. Id. The

Commonwealth requested that the court impose the guideline sentence of 78

to 90 months’ plus or minus 12 months.3 Id. at 16. Defense counsel argued

that the court should deviate from the Sentencing Guidelines because of

“[Philpot’s] strong family support.” Id. at 6. Philpot admitted to the court that
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2Possession with Intent to Deliver a Controlled Substance, 35 P.S. § 780-
113(a)(30).

3The parties agreed that Philpot’s prior record score was 5 and the Sentencing
Guidelines called for a sentence of 78 to 90 months’ plus or minus 12 months.
N.T., Sentencing, 6/22/17, at 3.

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he committed the robbery armed with a firearm and stated that he made a

“terrible mistake.” Id. at 8, 10. After hearing from both parties, the trial court

stated the following before imposing its sentence:

            Okay. I’ll deviate from the guidelines. And I understand he
      has a criminal background. I understand that.

            I don’t know if the juvenile system has failed and not given
      him the right support, but I see strong family support here. Now,
      he can make one more mistake in life, and that will be with me.

            And he’ll be on my probation if he makes one more – family,
      understand that, he goes to state. He’s 21 years old. I don’t know
      why you take somebody[’s] cell phone. They sell them for eight
      dollars, 10 dollars.

            I don’t understand that at all. He didn’t rob the guy and take
      the money. A true robber goes into your pockets, and say, they
      take your jewelry, they take your rings, they do all that. They take
      your watch, whatever.

           He’s 21 years old. So I can either put him away and corrupt
      him even more, and he becomes a criminal, or I can try to
      rehabilitate this guy. Now, I think I can work with this guy.

                                       ***
             So, we work with him and give him another shot. He’s 21
      years old. I don’t have time to fill up the prisons with young people
      like him. I’m after those guys – the murderers, the rapists, the
      gunpoint robbers.

Id. at 16-17 (emphasis added). The Commonwealth failed to object to the

court’s characterization of the facts of the case, particularly that the case

involved a gunpoint robbery. The trial court imposed a sentence of 11½ to 23

months’ incarceration, followed by 8 years of probation with immediate parole.

The Commonwealth did not object that the sentence was grossly below the



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recommended guidelines and presented no rebuttal. It also did not file a post-

sentence motion and instead filed this timely appeal.

      On appeal, the Commonwealth raises one issue:

      I.     Did the [trial] court abuse its discretion by sentencing [Philpot] to
             an aggregate term of 11½ to 23 months’ incarceration, with
             immediate parole, where [Philpot] committed his third robbery in
             five years, and was on probation for armed robbery at the time of
             his most recent offense?

Commonwealth’s Br. at 4.

      The Commonwealth challenges the discretionary aspects of the sentence

imposed. Before addressing the merits of such a challenge, we must

determine whether: (1) the appeal is timely; (2) the issue was preserved; (3)

the brief includes a Pa.R.A.P. 2119(f) statement; and (4) a substantial

question is raised. See Commonwealth v. Edwards, 194 A.3d 625, 636

(Pa.Super. 2018).

      Here, the Commonwealth’s appeal is timely. However, it did not

preserve the issue presented to this Court. A challenge to the discretionary

aspects of sentence must be preserved either at the sentencing hearing or in

a post-sentence motion. See Commonwealth v. Griffin, 65 A.3d 932, 935

(Pa.Super. 2013) (“objections 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”). The Commonwealth failed to raise any

issue it had with the imposed sentence at the sentencing hearing and also

failed to file a post-sentence motion, thereby waiving any appellate review of

the issue.

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       The Commonwealth maintains that it was not required to file a post-

sentence motion under Rule 721(A)(1) of the Pennsylvania Rules of Criminal

Procedure. Specifically, it maintains “no motion was necessary because the

Commonwealth filed its appeal within 30 days of the judgment of sentence.”

Commonwealth’s Reply Br. at 2-3.

       Pennsylvania Rule of Criminal Procedure 721 provides:

       (A)        Commonwealth Challenges to Sentence

                  1. The Commonwealth may challenge a sentence by filing a
                     motion to modify sentence, by filing an appeal on a
                     preserved issue, or by filling a motion to modify
                     sentence followed by an appeal.

Pa.R.Crim.P. 721(A)(1). Thus, the Commonwealth may challenge a sentence

by filing an appeal as it did here, but it must file an appeal on a “preserved

issue.” Furthermore, only “[s]entencing issues raised by the Commonwealth

at the sentencing proceeding,” are preserved for appellate review.

Pa.R.Crim.P. 721(A)(2) (emphasis added).4 The Commonwealth did not argue

at the sentencing hearing, as it does on appeal, that the sentence imposed

was    “a     massive      departure     from    the    [S]entencing    [G]uidelines.”

Commonwealth’s Br. at 11. It failed to even correct the facts that the court

used to support its sentence, i.e. that this was not a gunpoint robbery and

Philpot     did    not   take   money    from    the   complainant.    Therefore,   the

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4 “Sentencing issues raised by the Commonwealth at the sentencing
proceeding shall be deemed preserved for appeal whether or not the
Commonwealth elects to file a motion to modify sentence on those issues.”
Pa.R.Crim.P. 721(A)(2).

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Commonwealth has waived any review of the sentence imposed. See

Pa.R.A.P. 302(a) (“issues not raised in the lower court are waived and cannot

be raised for the first time on appeal”). We are thus constrained to affirm the

judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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