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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KIARA DESHAWN CAROTHERS                    :   No. 487 WDA 2019


        Appeal from the Judgment of Sentence Entered, March 8, 2019,
                 in the Court of Common Pleas of Erie County,
            Criminal Division at No(s): CP-25-CR-0002556-2018.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                          FILED FEBRUARY 3, 2020

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence imposed on Kiara Deshawn Carothers following her conviction of

firearms not to be carried without a license and recklessly endangering

another person.1 We affirm.

        Carothers discharged a firearm in the direction of a group of people,

apparently in retaliation for the smashing of a window of the vehicle in which

she was riding as a passenger.            See Trial Court Opinion, 5/28/19, at 1.

Carothers was arrested and charged at Count One with firearms not to be

carried without a license, and at Count Two with recklessly endangering

another person. She pleaded guilty to both counts. On January 30, 2019, the


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1   See 18 Pa.C.S.A. §6106(a)(1), 2705
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trial court sentenced her at Count One to forty-eight months of a restrictive

intermediate punishment program (“RIPP”), including five months of

incarceration, followed by six months of electronic monitoring, followed by

four months of intensive supervision. At Count Two, the trial court sentenced

her to one year of probation, consecutive to Count One. See id.

      The Commonwealth filed a motion for reconsideration.         Following a

hearing, the trial court resentenced Carothers as follows: at Count One to sixty

months of RIPP, including five months of incarceration, followed by nine

months of electronic monitoring, followed by three months of intensive

supervision; and at Count Two to one year of probation, consecutive to Count

One. See id. at 2.

      The Commonwealth filed a timely notice of appeal.         The trial court

directed the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.     In response, the Commonwealth filed a

concise statement in which it challenged the discretionary aspects of

Carother’s sentence, as follows:

      1. The Commonwealth respectfully posits that [the trial] court
         abused its discretion in imposing mitigated-range sentences at
         both counts, which sentences run afoul of the spirit and express
         objectives of the Pennsylvania Sentencing Guidelines, and for
         which no justification is apparent.

      2. Further, to the extent that [the trial] court relied on
         [Carother’s] production of offspring and the financial costs
         associated with imposing standard-range sentences (namely,
         [the] court’s assertion that housing an inmate costs $42,000
         per year), the Commonwealth respectfully asserts that said
         circumstances do not constitute mitigating factors and were

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         improperly relied upon in [the] court’s imposition of the
         mitigated-range sentences referenced above.

Concise Statement, 4/7/19, at unnumbered 2-3 (some capitalization omitted).

      Initially, we observe that a concise statement must be specific enough

for the trial court to identify and address each issue the appellant wishes to

raise on appeal, and the court may find waiver where a concise statement is

too vague.    Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.

2011). “When a court has to guess what issues an appellant is appealing, that

is not enough for meaningful review.”      Commonwealth v. Dowling, 778

A.2d 683, 686 (Pa. Super. 2001) (citation omitted). “A Concise Statement

which is too vague to allow the court to identify the issues raised on appeal is

the functional equivalent of no Concise Statement at all.” Id. at 686-87.

      Here, the trial court deemed the Commonwealth’s issues waived as

vague. See Trial Court Opinion, 5/28/19, at 2-3. The trial court characterized

the first issue as “generic,” and noted that “the Commonwealth fails to give

any specific reasons how the sentences ‘run afoul of the express objectives of

the Pennsylvania Sentencing Guidelines.’” Trial Court Opinion, 5/28/19, at 3.

      The trial court additionally determined that the Commonwealth’s

discretionary challenges were not reviewable.         As we have explained,

“[c]hallenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue, this Court conducts a four-part analysis to determine:

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      (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, [see] 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, [see] 42 Pa.C.S.A.
      § 9781(b).

Id. (citation omitted). We determine the existence of a substantial question

on a case-by-case basis. See Commonwealth v. Feucht, 955 A.2d 377,

384 (Pa. Super. 2008). A substantial question 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.” Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016)

(internal citations and quotation marks omitted).

      The trial court concluded that the Commonwealth failed to raise a

substantial question that the sentences appealed from are not appropriate

under the Sentencing Code. Trial Court Opinion, 5/28/19, at 3. Specifically,

the trial court stated “the Commonwealth’s [Pa.R.A.P.] 1925(b) statement

fails to set forth a plausible argument the sentences at Counts One or Two

violated a particular provision of the Sentencing Code or were contrary to the

fundamental norms underlying the sentencing scheme.” Id. at 3-4.

      Notably, with respect to its first issue, the Commonwealth argued in its

concise statement that the “sentences run afoul of the spirit and express

objectives of the Pennsylvania Sentencing Guidelines.” Concise Statement,


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4/7/19, at unnumbered 2.        However, in its Rule 2119(f) statement, the

Commonwealth stated its first issue differently, arguing instead that “the trial

court failed to consider general sentencing standards set forth in 42 Pa.C.S.A.

§ 9721(b), and failed to properly consider and apply the sentencing factors

within 42 Pa.C.S.A. § 9722 and 9725.” Commonwealth’s Brief at 5.

      Under our appellate rules, an appellant may not raise issues on appeal

that were not raised before the trial court. See Pa.R.A.P. 302(a) (providing

that issues not raised in the lower court are waived and cannot be raised for

the first time on appeal). Moreover, if an appellant is directed to file a concise

statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),

any issues not raised in that statement are waived. See Commonwealth v.

Lord, 719 A.2d 306, 309 (Pa. 1998).

      Here, we deem as waived the Commonwealth’s argument that the trial

court failed to properly consider and apply the sentencing factors because it

was not raised in its concise statement. See Feucht, 955 A.2d at 384 (holding

that “we will only evaluate substantive claims that were relied upon in the

concise statement”). Thus, even if the Commonwealth’s first issue was not

waived at the trial court for vagueness, it is otherwise waived on appeal.

      With respect to the Commonwealth’s second issue challenging the

application of mitigating factors, we observe that it failed to raise or discuss

this issue in its Rule 2119(f) statement.     When an appellant has raised a

discretionary sentencing challenge, the Rule 2119(f) statement must explain


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where the sentence falls in relation to the sentencing guidelines, identify what

specific provision of the Sentencing Code and/or what fundamental norm was

violated, and explain how and why the sentencing court violated that

particular provision and/or norm.         Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa. Super. 2000). If an appellant fails to include a discretionary

sentencing issue in his Rule 2119(f) statement, and the appellee objects, then

the issue is waived and this Court may not review the claim.               See

Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008).                 As

Carothers has objected to the Commonwealth’s failure to address its second

issue in its Rule 2119(f) statement, it is waived.2

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2020




____________________________________________


2 Carothers also argues that the Commonwealth’s second issue is waived for
failure to raise it at sentencing or in a post-sentence motion. See Pa.R.Crim.P.
720. However, we need not address that argument, as we find other bases
for waiver.

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