J-S60043-17

                               2017 PA Super 298


COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
SKYLAR SHELDON HEASTER                   :
                                         :
                   Appellant             :   No. 573 WDA 2017

           Appeal from the Judgment of Sentence March 28, 2017
             In the Court of Common Pleas of Somerset County
            Criminal Division at No(s): CP-56-CR-0000873-2016


BEFORE:    OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                    FILED SEPTEMBER 18, 2017

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Somerset County following Appellant Skylar Sheldon

Heaster’s guilty plea to the charge of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii).

After a careful review, we affirm.

      The relevant facts and procedural history are as follows: Appellant was

arrested in connection with the robbery of a Family Dollar store involving a

knife, and on February 7, 2017, Appellant, who was represented by counsel,

entered a guilty plea to the charge of robbery.            In exchange, the

Commonwealth withdrew additional charges.      Moreover, the Commonwealth

and Appellant agreed as part of the plea negotiations that Appellant had

“possessed,” as opposed to “used,” a deadly weapon for purposes of

applying the deadly weapon enhancement.       N.T., guilty plea, 2/7/17, at 3-


____________________________________
*   Former Justice specially assigned to the Superior Court.
J-S60043-17


4.   The trial court acknowledged that, as part of the plea agreement, the

“deadly weapon possessed matrix would apply but not the deadly weapon

used matrix.”1 Id. at 4.

       On March 28, 2017, Appellant proceeded to a sentencing hearing, at

which the trial court had in its possession a pre-sentence investigation

report.    At sentencing, “having forgotten the stipulation concerning the

proper matrix to be used, [the trial court] sentenced [Appellant]...based on

the [deadly weapon enhancement] used matrix which was included as part

of the [p]re-[s]entence [r]eport.” Trial Court Opinion, filed 5/25/17, at 3 n.2

(emphasis in original).       See N.T., sentencing hearing, 3/28/17, at 8 (trial

judge stating that “on the offense of robbery...involving the use of a deadly

weapon, it is ordered that the defendant is sentenced as follows....”)

(emphasis added)). The trial court sentenced Appellant to four and one-half

years to nine years in prison.2



____________________________________________


1
  The deadly weapon enhancement possessed matrix is found at 204
Pa.Code § 303.10(a)(1)(i)-(iii), and the deadly weapon enhancement used
matrix is found at 204 Pa.Code § 303.10(a)(2)(i)-(iii).
2
  In its opinion, the trial court indicated that, based on Appellant’s offense
gravity score and prior record score, the sentencing guideline’s
recommended standard range was 54-66 months in the deadly weapon
enhancement used matrix, as opposed to 45-57 months in the deadly
weapon enhancement possessed matrix. Trial Court Opinion, filed 5/25/17,
at 3 n.2. Thus, under both enhancement matrixes, Appellant’s sentence was
imposed within the standard range.



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      Appellant raised no objection during the sentencing hearing, and at the

conclusion of the hearing, the trial court provided Appellant with his post-

sentence and appellate rights.       Appellant did not file a post-sentence

motion; however, on April 10, 2017, he filed a timely, counseled notice of

appeal. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement, Appellant timely complied, and the trial court filed a Pa.R.A.P.

1925(a) opinion.

      In his first issue, Appellant contends the trial court abused its

discretion in imposing an excessive sentence without considering Appellant’s

individual, rehabilitative needs.   He further contends that, contrary to the

parties’ plea agreement, the trial court abused its discretion in improperly

applying the “use,” as opposed to the “possession,” of a deadly weapon

sentencing enhancement matrix.

      Generally, upon the entry of a guilty plea, a defendant waives all

claims and defenses other than those sounding in the jurisdiction of the

court, the validity of the plea, and what has been termed the “legality” of

the sentence imposed. See Commonwealth v. Eisenberg, 626 Pa. 512,

98 A.3d 1268 (2014) (holding that the proper entry of a guilty plea acts to

extinguish virtually all legal challenges that could have been brought upon

the trial or appeal of the case). However, where a defendant pleads guilty

without any agreement as to sentence, (i.e. an open plea), the defendant

retains the right to petition this Court for allowance of appeal with respect to


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J-S60043-17


the discretionary aspects of sentencing. Commonwealth v. Brown, 982

A.2d 1017, 1019 (Pa.Super. 2009). Conversely, where a defendant enters

into a negotiated plea agreement that includes the terms of the sentence,

the defendant may not seek a discretionary appeal relating to those agreed-

upon terms. See id.

         Instantly, Appellant entered a “hybrid” guilty plea; that is, the parties

did not bargain for a specific sentence but negotiated as to a certain aspect

of the sentence (application of the deadly weapon possession enhancement

matrix). A hybrid plea agreement does not preclude appellate review of

those discretionary aspects of the sentence that were not agreed upon in the

negotiation process. See id.

         With regard to Appellant’s specific claim that the trial court abused its

discretion in imposing an excessive sentence without considering Appellant’s

individual, rehabilitative needs, we note that this presents a challenge to the

discretionary aspects of sentencing.      See Commonwealth v. Rhoades, 8

A.3d 912 (Pa.Super. 2010). When an appellant challenges the discretionary

aspects of his sentence, we must consider his brief on this issue as a petition

for permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267

(Pa.Super. 1997). Prior to reaching the merits of a discretionary sentencing

issue,

         [this Court conducts] a four[-]part analysis to determine: (1)
         whether [A]ppellant 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

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J-S60043-17


       sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’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.A. § 9781(b).

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

omitted). Here, Appellant filed a timely notice of appeal; however, as the

Commonwealth argues, Appellant did not preserve his claim that the trial

court failed to consider his individual, rehabilitative needs in imposing

sentence.

       As we indicated above, “issues challenging the discretionary aspects of

a sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings. Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012) (en

banc) (citation omitted). In the case sub judice, despite being advised of his

post-sentence rights, Appellant did not file a post-sentence motion.

Moreover, Appellant did not present an objection on this basis during his

sentencing hearing. Accordingly, we deem this issue to be waived.3          See

id.


____________________________________________


3
  Appellant’s inclusion of this claim in his Pa.R.A.P. 1925(b) statement does
not obviate waiver for failing to raise the claim properly in the lower court.
See Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008). Moreover,
we note that Appellant failed to include a separate Pa.R.A.P. 2119(f)
statement in his brief, and the Commonwealth has specifically objected to
(Footnote Continued Next Page)


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J-S60043-17


      With regard to Appellant’s specific claim that, contrary to the parties’

plea agreement, the trial court abused its discretion in applying the “use,” as

opposed to the “possession,” of a deadly weapon sentencing enhancement

matrix, we note the following:

      Following the acceptance of a negotiated plea, the trial court is
      not required to sentence a defendant in accordance with the plea
      agreement. Such a sentence is legal, so long as it does not
      exceed the statutory maximum. However, a criminal defendant
      who is sentenced to more than was agreed upon in a negotiated
      plea may withdraw his guilty plea upon being deprived of the
      benefit of his bargain.

Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa.Super. 2013) (citations

omitted).

      Here, Appellant does not allege that he should be permitted to

withdraw his guilty plea, and he did not seek to do so in the trial court. See

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006)

(holding that to preserve an issue related to the entry of a guilty plea, the

appellant must either object at the sentencing colloquy, raise the issue at

the sentencing hearing, or file a timely post-sentence motion).    Further, he

does not allege that his sentence exceeded the statutory maximum or that

his sentence is otherwise “illegal.” Rather, he contends that the trial court

abused its discretion in failing to apply the “use,” as opposed to the


                       _______________________
(Footnote Continued)

the statement’s absence. See Commonwealth’s Brief at 2. Thus, his claim
is further waived on this basis. See Foster, supra.



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J-S60043-17


“possession,” of a deadly weapon sentencing enhancement matrix in

violation of the parties’ plea agreement.

       Appellant’s claim implicates the discretionary aspects of his sentence.

See Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa.Super. 2010) (en

banc) (“[A] challenge to the application of the deadly weapon enhancement

implicates the discretionary aspects of sentencing.”); Commonwealth v.

Berry, 877 A.2d 479 (Pa.Super. 2005) (en banc) (holding that an

appellant’s claim that he was sentenced in violation of his plea agreement

did not implicate the legality of his sentence).   The Commonwealth argues

that Appellant has waived this claim by failing to present it in a post-

sentence motion or lodging an objection during the sentencing hearing. We

agree and conclude Appellant has waived this claim for review.4           See

Lamonda, supra.

       In his final claim, Appellant requests that we remand this matter for an

evidentiary hearing based on after-discovered evidence, i.e., the discovery

of his co-defendant’s5 cell phone.

____________________________________________


4
  As discussed supra, Appellant’s inclusion of this claim in his Pa.R.A.P.
1925(b) statement does not obviate waiver for failing to raise the claim
properly in the lower court. Foster, supra. Moreover, as indicated supra,
the Commonwealth specifically objected to Appellant’s failure to include a
separate Pa.R.A.P. 2119(f) statement in his brief, and thus, his claim is
waived on this basis, as well. See id.
5
  The charging documents listed Tony Angelo Stevens as Appellant’s co-
defendant and, in the affidavit of probable cause, the charging officer
(Footnote Continued Next Page)


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      Pennsylvania Rule of Criminal Procedure 720, relating to post–

sentence procedures and appeal, provides in pertinent part:

      (C) After–Discovered Evidence. A post–sentence motion for a
      new trial on the ground of after–discovered evidence must be
      filed in writing promptly after such discovery.

Pa.R.Crim.P. 720(C) (bold in original).           See Commonwealth v. Castro,

625 Pa. 582, 93 A.3d 818, 828 (2014) (noting that Rule 720(C) requires a

motion for after–discovered evidence to be filed promptly upon the discovery

of such evidence). The Comment to Rule 720 relevantly states that:

      [A]fter-discovered evidence discovered during the post-sentence
      stage must be raised promptly with the trial judge at the post-
      sentence stage; after–discovered evidence discovered during the
      direct appeal process must be raised promptly during the direct
      appeal process, and should include a request for a remand to the
      trial judge.

Pa.R.Crim.P. 720, Comment.

      It is well-settled that, to obtain relief, the after-discovered evidence

claim must meet a four-prong test:

      (1) the evidence could not have been obtained before the
      conclusion of the trial by reasonable diligence; (2) the evidence
      is not merely corroborative or cumulative; (3) the evidence will
      not be used solely for purposes of impeachment; and (4) the
      evidence is of such a nature and character that a different
      outcome is likely. At an evidentiary hearing, an appellant must
      show by a preponderance of the evidence that each of these
      factors has been met in order for [new proceedings] to be
      warranted.

                       _______________________
(Footnote Continued)

indicated that Mr. Stevens admitted that he drove Appellant to the Family
Dollar store so that Appellant could commit the robbery.



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J-S60043-17


Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.Super. 2007) (citation

omitted).6

       Further, as our Supreme Court has explained, to warrant an

evidentiary hearing on a claim of after-discovered evidence, the request

must, at the very least, “describe the evidence that will be presented at the

hearing. Simply relying on conclusory accusations...is insufficient to warrant

a hearing.”     Castro, 625 Pa. at 598, 93 A.3d at 827 (footnote omitted).

“[T]he hearing is for the presentation of evidence, not the potential

discovery of evidence. An evidentiary hearing...is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim[.]”      Id. at 598-99, 93 A.3d at 827-28 (quotation marks

and quotation omitted).

       Instantly, Appellant’s entire appellate argument with regard to his

after-discovered evidence claim is as follows:

              [Following sentencing], Appellant was...remanded to the
       custody of the Warden at the Somerset County Jail for his
       transfer to a State Correctional Institution, at which point his
       fiancé attempted to retrieve his personalty, including Appellant’s
       cell phone. However, his fiancé was given his co-defendant’s cell
       phone and, upon realizing that it was not Appellant’s, she
       returned it immediately to the Somerset County District
       Attorney’s Office. In relaying this information to Appellant,
____________________________________________


6
  Although Appellant’s sentence resulted from a plea of guilty, rather than as
a result of a trial, “[a]ny after-discovered evidence which would justify a new
trial would also entitle [a] defendant to withdraw his guilty plea.”
Commonwealth v. Peoples, 456 Pa. 274, 275, 319 A.2d 679, 681 (1974).




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J-S60043-17


       Appellant averred that his co-defendant’s cell phone has
       exculpatory information contained thereon that could exonerate
       him from some of the charges. Following a discussion of the
       sentence and the discovery of this evidence with counsel,
       Appellant filed a Notice of Appeal[.]
                                        ***
             The evidence on Appellant’s co-defendant’s phone was not
       available prior to trial to Appellant as it was in police custody. It
       was not even available to be obtained until after Appellant’s
       custody was transferred from the Somerset County Jail to the
       Pennsylvania Department of Corrections. The evidence contained
       on that cell phone is neither corroborative nor cumulative as it
       eliminates the deadly weapon used/possessed issue altogether.
       The evidence would be used to exonerate Appellant from the
       applicability of the sentencing enhancements applied and
       contemplated in this case. More importantly, the evidence on
       the cell phone is of the nature that the plea offered to and
       accepted by Appellant in this case would prove improper, as well
       as the sentencing enhancements. Due to the aforementioned,
       the four-prong test...is met and the case should be remanded for
       new proceedings.
                                        ***
              Appellant’s case is unusual in that evidence negating the
       aforementioned sentencing concerns was discovered after his
       guilty plea and sentence. Under Pennsylvania law, 1) when the
       evidence was obtained and was unavailable before trial; 2) when
       the evidence is not “merely corroborative or cumulative,” 3)
       when the evidence is not used to impeach a witness [in] his
       case...the lower court can conduct a hearing..., and can then
       “opine on [Appellant’s] alleged after-discovered evidence.”

Appellant’s Brief at 18, 21, 25 (quotation omitted).

       Assuming, arguendo, Appellant raised his claim “promptly” upon

discovery of his co-defendant’s cell phone,7 we conclude Appellant has not

____________________________________________


7
  Appellant indicates he learned of the existence of his co-defendant’s cell
phone some time after sentencing. He subsequently presented his after-
(Footnote Continued Next Page)


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J-S60043-17


met the pleading requirements for an evidentiary hearing under Rule 720.

Based on Appellant’s argument, as set forth supra, we discern no basis upon

which to conclude that Appellant’s co-defendant’s cell phone, itself,

constitutes “evidence...of such a nature and character that a different

outcome is likely.” Rivera, 939 A.2d at 359.

      Moreover, although Appellant summarily argues there is “evidence” on

the cell phone that could exonerate him and/or limit the applicability of the

deadly weapon sentencing enhancements, Appellant has not described or

identified what information or evidence the cell phone contains. See id. His

vague and conclusory assertions are insufficient to meet the benchmarks

necessary to warrant a hearing under Castro, supra.              As our Supreme

Court has held, “[a]n evidentiary hearing...is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim.” Id. at 599, 93 A.3d at 828.

      While Rule 720’s Comment explains that the rule requires a motion for

after-discovered evidence be filed promptly upon the discovery of such

evidence, there must be actual discovery of actual evidence, not merely the

possibility of such evidence.           See id.     The relevant motion or after-

discovered evidence claim is not to serve as a preemptive means of securing

a hearing that will itself comprise the investigation. Id. Appellant needed to
                       _______________________
(Footnote Continued)

discovered evidence claim for the first time in his Rule Pa.R.A.P. 1925(b)
statement.



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J-S60043-17


do more than point to the existence of his co-defendant’s cell phone as a

potential resource to aid his cause; he needed to clearly articulate in his

claim how the cell phone, or what evidence from the cell phone, he would

present to meet the after-discovered evidence test. As he failed to do this,

we discern no basis to remand this matter for an evidentiary hearing. See

Castro, supra.

     For all of the foregoing reasons, we affirm.

     Affirmed.

     Dubow, J. joins the opinion.

     Olson, J. Concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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