J-S71027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNETH RODGERS,                           :
                                               :
                       Appellant               :   No. 3520 EDA 2017

            Appeal from the Judgment of Sentence October 1, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001705-2015

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 24, 2018

        Appellant, Kenneth Rodgers, appeals from the October 1, 2015

Judgment of Sentence entered in the Philadelphia County Court of Common

Pleas following his open guilty plea to Aggravated Assault, Possession of an

Instrument of Crime (“PIC”), Simple Assault, and Recklessly Endangering

Another Person (“REAP”).1 After careful review, we affirm.

        The facts and procedural history are as follows. On January 15, 2015,

following a verbal altercation, Appellant attacked the victim (“Victim”), his co-

worker, at their place of employment. Video surveillance footage captured

Appellant punching the Victim about the face and head, continuing to do so

after the Victim had fallen to the ground. The Victim then picked himself up

off the ground, whereupon Appellant returned and chased the Victim with what

police later identified as a metal pipe.
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1   18 Pa.C.S. §§ 2702(a); 907; 2701; and 2705, respectively.
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        On January 26, 2015, the Commonwealth charged Appellant with the

above crimes in connection with this incident. On July 20, 2015, Appellant

entered an open guilty plea to all charges.       The trial court ordered the

preparation of a Pre-Sentence Investigation (“PSI”) report and a mental health

evaluation.

        On October 1, 2015, the court sentenced Appellant to an aggregate term

of 3 to 8 years’ incarceration.2 Relevant to the instant appeal, the court noted

that the video surveillance footage of the incident showed Appellant striking

the Victim with the metal pipe and stabbing the Victim in the right arm with a

pair of scissors. The court, thus, applied the deadly weapon enhancement

when sentencing Appellant.3, 4 At the sentencing hearing, the court placed a

detailed explanation of Appellant’s sentence on the record.          See N.T.




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2 The court sentenced Appellant to 3 to 8 years’ incarceration for his
Aggravated Assault conviction and a concurrent term of 2 ½ to 5 years for his
PIC conviction. The court also sentenced Appellant to a consecutive term of
2 years’ probation for his REAP conviction. Appellant’s Simple Assault
conviction merged for sentencing purposes.

3   See 204 Pa.Code § 303.10(a)(2).

4 The Sentencing Guideline standard-range sentence for an Aggravated
Assault conviction with a deadly weapon enhancement is 6½- to 7 ½-years’
incarceration, plus or minus 12 months. Appellant actually got a downward
deviation from the sentencing guidelines.




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Sentencing, 10/1/15, at 23-24.5 Appellant did not object at the sentencing

hearing to the court’s application of the deadly weapon enhancement.

       Appellant did not file a timely Post-Sentence Motion pursuant to

Pa.R.Crim.P. 720.       On October 27, 2017, he filed a Nunc Pro Tunc Post-

Sentence Motion to Reconsider Imposed Sentence, in which he requested the

court to “reconsider [his] sentence and impose a lesser sentence.” Motion,

10/27/17, at ¶ 2. He asked the court to “accept his motion nunc pro tunc as

having been filed within 10 days of [his] October 1, 2015 sentence.” Id. In

the Motion, Appellant did not allege that his sentence was excessive or provide

any explanation why he believed that the court should reconsider his

sentence. The court denied Appellant’s Motion the next day. Appellant did

not timely file a direct appeal from his Judgment of Sentence.

       Appellant sought and, on September 28, 2017, the PCRA court granted

the reinstatement of his direct appeal rights nunc pro tunc; however, court

expressly denied Appellant’s request for permission to file a Post-Sentence

Motion nunc pro tunc.6
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5 The sentencing court’s stated reasons include: (1) Appellant’s credible
expressions of remorse; (2) Appellant’s acceptance of responsibility; (3) the
PSI report and mental health evaluation; (4) Appellant’s family situation; (5)
Appellant’s propensity for violence; (6) the need to protect society; and (7)
Appellant’s use of deadly weapons in this incident. N.T. Sentencing, 10/1/15,
at 23-25.

6  The PCRA court indicated that it was denying Appellant the opportunity to
file a Post-Sentence Motion nunc pro tunc because Appellant did not
demonstrate that his failure to file a timely Post-Sentence Motion prejudiced



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       This timely appeal followed.            Appellant filed a Pa.R.A.P. 1925(b)

Statement in which he challenged the discretionary aspects of his sentence,

including the imposition of the deadly weapon enhancement, and the court’s

alleged failure to consider mitigating factors.

       Appellant raises the following issues on appeal:

       1. Whether the [c]ourt improperly applied the deadly weapon
          enhancement outside of the Guideline ranges[?]

       2. Whether the [c]ourt abused its discretion with the harsh and
          unreasonable sentence given to [Appellant?]

Appellant’s Brief at 8.

       As presented, both of Appellant’s issues challenge the discretionary

aspects of his sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 915-

16. (Pa. Super. 2010) (noting that a challenge to the deadly weapon

enhancement implicates a discretionary aspect of a defendant’s sentence);

see also Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)

(considering whether a defendants’ challenge to the weight the sentencing


____________________________________________


him. Order, 9/28/17, at 1 n.1, citing Commonwealth v. Liston, 977 A.2d
1089, 1094 n.9 (Pa. 2009) (explaining that a petitioner must successfully
plead and prove in a PCRA Petition that he was deprived of the right to file
and litigate post-sentence motions as a result of ineffective assistance of
counsel in order for a PCRA Court to reinstate his post-sentence rights nunc
pro tunc.). In particular, the court found that Appellant “failed to offer any
evidence that his sentence would have been reconsidered had his counsel filed
the motion he requested in a timely manner.” Id. It noted that it “considered
the guidelines, the modified presentence report, the mental health evaluation,
the video of the crime, the arguments of counsel, testimony on [Appellant’s]
behalf[,] and [Appellant’s] allocution, prior to sentencing” and that “the basis
for the sentence was thoroughly articulated.” Id.

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court placed on mitigating factors raised a substantial question regarding the

discretionary aspects of his sentence, and concluding it did not).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa. Super. 2000).      Rather, an appellant challenging the sentencing

court’s discretion must invoke this Court’s jurisdiction by (1) filing a timely

notice of appeal; (2) properly preserving the issue at sentencing or in a motion

to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f),

which requires a separate section of the brief setting forth “a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence[;]” and (4) presenting a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code.    Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

Super. 2015).

      Here, the record is clear that Appellant did not raise this issue at

sentencing or file a timely Post-Sentence Motion. Thus, Appellant has failed

to preserve his objection to the court’s discretionary application of the deadly

weapon enhancement and his claim that the court failed to consider mitigating

factors when sentencing him.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/18




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