J-S24015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC MOSHER                                :
                                               :
                       Appellant               :   No. 73 EDA 2020

       Appeal from the Judgment of Sentence Entered November 7, 2019
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000067-2019

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC MOSHER                                :
                                               :
                       Appellant               :   No. 177 EDA 2020

       Appeal from the Judgment of Sentence Entered November 7, 2019
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000096-2019


BEFORE:      BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 08, 2020

        In these consolidated cases,1 Appellant, Eric Mosher, appeals from the

aggregate judgment of sentence of 80 to 276 months’ incarceration, imposed

after he pled guilty, in two separate cases, to corruption of minors, indecent
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 This Court sua sponte consolidated these appeals by per curiam order
entered February 13, 2020.
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assault, and related offenses. Appellant solely challenges the discretionary

aspects of his sentence. We affirm.

      Briefly, in case CP-64-CR-0000067-2019 (hereinafter “case 67-2019”),

Appellant pled guilty to corruption of minors and indecent assault based on

evidence that he had sexually abused his daughter multiple times when she

was between the ages of 11 and 12 years old, including penetrating her anus

with his penis and performing cunnilingus on her.      At CP-64-CR-0000096-

2019 (hereinafter “case 96-2019”), Appellant pled guilty to corruption of

minors, dissemination of explicit sexual images, and criminal use of a

communication facility based on evidence that he had sent a 13-year-old

female pictures of his penis, as well as pornographic images of men and

women having sex.

      On November 7, 2019, the court sentenced Appellant in both cases to

an aggregate term of 80 to 276 months’ incarceration.       On November 18,

2019, Appellant filed a timely, post-sentence motion at both docket numbers.

On November 22, 2019, the court issued an order in each case denying

Appellant’s motion. On December 20, 2019, Appellant filed a timely notice of

appeal in case 67-2019, but he did not file an appeal in case 96-2019. For

some reason, on December 27, 2019, the court issued a second order denying

Appellant’s post-sentence motion in case 96-2019. Appellant then filed an

appeal in that case on January 2, 2020. Appellant subsequently complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors




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complained of on appeal, and the trial court filed a Rule 1925(a) opinion on

March 2, 2020.

      In the meantime, on February 3, 2020, this Court issued a rule to show

cause why Appellant’s appeal in case 96-2019 should not be quashed as

untimely. Appellant responded, claiming that the trial court did not issue an

order denying his post-sentence motion in case 96-2019 until December 27,

2019. He attached a copy of that order to his response, as well as a copy of

the November 22, 2019 order denying his motion in case 67-2019.            On

February 12, 2020, this Court discharged the rule to show cause order and

referred the issue to the present panel.

      We now conclude that quashal is inappropriate in case 96-2019. While

the record indicates that on November 22, 2019, the court issued an order

denying Appellant’s post-sentence motion in case 96-2019, that order did not

inform Appellant that he had 30 days within which to file an appeal. See

Pa.R.Crim.P. 720(B)(4)(a) (“An order denying a post-sentence motion,

whether issued by the judge pursuant to paragraph (B)(3)(d) or entered by

the clerk of courts pursuant to paragraph (B)(3)(c), … shall include notice to

the defendant of the following: (a) the right to appeal and the time limits

within which the appeal must be filed[.]”) (emphasis added). This error by

the court was compounded by its filing a second order on December 27, 2019,

which again denied Appellant’s post-sentence motion. In light of these trial

court errors, which amount to a breakdown in the operation of the court, we

excuse the untimeliness of Appellant’s notice of appeal in case 96-2019. See

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Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007)

(concluding that the trial court’s failure to advise the defendant of the deadline

for filing an appeal constituted a breakdown in the operation of the court that

excused the untimely filing of his appeal).

      Herein, Appellant states one issue for our review: “Whether the

sentence imposed by the [t]rial [c]ourt was excessive and utterly harsh and

oppressive and based on impermissible factors and constituted an abuse of

discretion?” Appellant’s Brief at 8 (emphasis omitted).

      Appellant’s issue challenges the discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] 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 [the]
         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.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, … 909 A.2d 303 ([Pa.] 2006). 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. Commonwealth v. Mann, 820 A.2d 788,
      794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.]
      2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). A substantial question

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      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Here, Appellant has included a Rule 2119(f) statement in his appellate

brief. Therein, he states pertinent facts about his case and sentencing. See

Appellant’s Brief at 14. Then, in regard to how the court purportedly erred in

fashioning his term of incarceration, he sets forth only the following two

sentences:

      The [t]rial [c]ourt abused its discretion in the sentence imposed.
      [Appellant] complained of the excessiveness and harshness of the
      sentences in his [m]otion for [p]ost-[s]entence [r]elief.

Id.   We conclude that Appellant’s bald claim of excessiveness fails to

demonstrate a substantial question for our review. See Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (“Generally, a bald

excessiveness claim does not raise a substantial question.”) (citation omitted).

      Nevertheless, even had Appellant raised a substantial question, we

would deny him relief.     In the Argument section of his brief, Appellant

concedes that the charges against him were “despicable,” yet he again only

baldly complains that his sentence is “highly excessive.” Appellant’s Brief at

17. Appellant then briefly mentions that the court imposed aggravated-range

sentences based, in part, on the fact that he committed a bail violation by

attempting to contact his daughter, the victim. Id. at 18-19. According to


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Appellant, “[w]hether that was an actual violation of his bail was never fully

adjudicated.” Id. at 19.

      Appellant’s undeveloped arguments are insufficient to demonstrate an

abuse of discretion by the trial court. Initially, he does not point to where in

the record of his sentencing hearing he challenged the court’s characterization

of his attempt to contact his daughter as a violation of his bail conditions.

Indeed, Appellant’s counsel seemed to concede that Appellant’s actions

violated the terms of his bail. See N.T., 11/7/19, at 30 (defense counsel’s

stating that Appellant’s attempt to contact his daughter “was a violation of his

bail”).   Accordingly, Appellant’s suggestion that the court relied on an

improper factor in aggravating his sentences is meritless. Thus, even had

Appellant presented a substantial question for our review, we would conclude

that he is not entitled to sentencing relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




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