J-S03034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 DWAYNE HOWARD                           :
                                         :   No. 630 EDA 2017
                       Appellant

          Appeal from the Judgment of Sentence August 25, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002307-2012


BEFORE:    BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED MARCH 06, 2018

      Appellant, Dwayne Howard, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after he entered

into an open guilty plea to charges of Possession with Intent to Deliver, 35

Pa.C.S.A. § 780-113(a)(30), and Intentional Possession of a Controlled

Substance, 35 Pa.C.S.A. § 780-113(a)(16). Raised for our consideration is

whether the trial court abused its sentencing discretion in imposing an

aggravated range sentence. We affirm.

      The trial court aptly sets forth the pertinent factual and procedural

history of the case.

      On November 30, 2011, police officers set up surveillance in the
      area of 4901 Oxford Avenue in the city and county of Philadelphia
      for a narcotics investigation. N.T. 1/5/2015 at 11. On November
      30, 2011, the police officers met with a confidential informant who
      called a phone number and asked the male voice for Percocet. Id.

____________________________________
* Former Justice specially assigned to the Superior Court.
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     The confidential informant was provided with $100 of prerecorded
     money to make the purchase. Id. at 12. The officers observed
     [Appellant] exit from Apartment 16-A, enter into a black Ford 500,
     meet with the confidential informant, engage in a hand-to-hand
     transaction and return with ten Percocet pills. Id. The officers
     followed the black Ford 500 back to 4901 Oxford Avenue and
     observed [Appellant] exit the vehicle and enter [the] Apartment.

     [On two more dates in early December, 2011, officers working
     surveillance observed Appellant sell Percocet pills to a confidential
     informant in a manner similar to that observed on November 30,
     2011.]

     On December 16, 2011, at approximately 4:40 p.m., officers
     executed a search and seizure warrant on the black Ford 500 and
     4901 Oxford Avenue, Apartment 16-A. N.T. 1/5/2015 at 13.
     Officers recovered from the black Ford 500 an amber pill bottle
     containing 105 Oxycodone pills. Id. Officers also recovered 279
     grams of cocaine, 8 grams of crack cocaine, and 279 grams of
     barbiturates. N.T. 8/25/16 at 18. The street value of these drugs
     [was] in excess of $14,000. Id.

     On January 5, 2015, [Appellant] entered an open guilty plea to
     the charges of Possession with Intent to Deliver and Intentional
     Possession of a Controlled Substance. [Appellant] read, signed
     and discussed with counsel the plea agreement to plead guilty [to]
     the charges which carried a maximum penalty [of 15 years’
     incarceration] and a fine of $40,000. N.T. 1/5/15 at 6. . . .
     [Appellant] then fled the Commonwealth for over one year without
     notice or permission from the court.

     On August 25, 2016, Appellant was sentenced to 7 to 14 [years’
     incarceration on the above convictions].

     On September 8, 2016, [Appellant] moved for Modification of
     Sentence. On January 9, 2017, Appellant’s Post-Sentence Motion
     was denied by operation of law and a Notice of Appeal to the
     Superior Court was filed on behalf of Appellant on January 31,
     2017.

     On March 1, 2017, Appellant filed a Motion for New Counsel. Denis
     Cogan, counsel for Appellant, filed a Motion to Withdraw as
     Counsel on March 23, 2017. On July 5, 2017, Appellant, through


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      new counsel Zak T. Goldstein, filed a Statement of Matters
      Complained of on Appeal.

Trial Court Opinion, filed 8/1/2017, at 1-4.

      Appellant raises one issue for our consideration:

      I.     [DID] THE TRIAL COURT ABUSE[] ITS DISCRETION IN
             IMPOSING AN EXCESSIVE, AGGRAVATED GUIDELINE
             RANGE SENTENCE?

Appellant’s brief, at vi.

      Appellant’s claim challenges the discretionary aspects of his sentence,

from which there is no absolute right to appeal. See Commonwealth v. Hill,

66 A.3d 359, 363 (Pa. Super. 2013). To reach the merits of a discretionary

issue, this Court must determine:

      whether the appeal is timely; (2) whether Appellant preserved
      [the] issue; (3) whether Appellant's brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted).

      As the record confirms that Appellant filed a timely notice of appeal and

post-sentence motion, we review Appellant’s Pa.R.A.P. 2119(f) concise

statement of reasons relied upon for allowance of appeal.         In the concise

statement, Appellant asserts, first, that the trial court abused its discretion in

imposing a sentence that double-counts Appellant’s prior record score and

offense gravity score. We find this specific claim waived as Appellant raises it

for the first time in his appellate brief. See Commonwealth v. Mann, 820


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A.2d 788, 794 (Pa.Super. 2003) (noting our rules of appellate procedure

provide “issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”).

       Appellant also asserts in his Rule 2119(f) statement that the trial court

erred in confining its consideration of mitigation evidence to Appellant’s post-

offense rehabilitation when he presented other mitigation evidence at

sentencing. Assuming, arguendo, that Appellant did not waive this issue by

filing a vague, court-ordered Pa.R.A.P. 1925(b) statement claiming only “The

court abused its discretion in imposing an unreasonable and excessive

sentence,”1 we find his sentencing claim does not present a substantial

question for our review, as “this Court has held on numerous occasions that a

claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. 2013) (citation omitted).

       Even if Appellant’s claim did present a substantial question, the trial

court explained why, despite Appellant’s mitigation proffer, an aggravated

sentence was reasonable:

       The sentencing court had a duty to consider the need to protect
       the public, consider the gravity of the offense regarding its impact
       on the community, and the rehabilitative needs of the defendant.
       Appellant has been arrested for robbery, convicted of aggravated
____________________________________________


1 We decline to find waiver where the trial court’s Rule 1925(a) opinion
meaningfully addresses whether it abused its sentencing discretion by failing
to consider properly Appellant’s mitigation offer. As such, Appellant’s vague
Rule 1925(b) statement does not hamper judicial review.                   See
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super. 2008).

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      assault, convicted of felony retail thefts, and narcotics violations
      in multiple counties within the Commonwealth. As the facts [in
      the present case] reflect, Appellant was caught with large
      amounts of varying narcotics whose street value exceeded
      $14,000.     The offense presented a harmful threat to the
      community for two reasons: (1) the mobility of Appellant in
      committing offenses outside Philadelphia County; and (2) the
      volume of narcotics Appellant possessed that may have been
      distributed throughout the Commonwealth.

      In considering the rehabilitative needs of Appellant, the
      sentencing court weighed an extensive felonious criminal history
      dating back to 1999 and an offender with little respect for due
      process of law through his fleeing the Commonwealth without
      notice to this court, the Office of the District Attorney, or even
      [his] own counsel.

      ***
      In sentencing Appellant to [an aggravated range sentence of] 7-
      14 years, the court took into consideration Appellant’s 13 adult
      arrests, 7 conviction, 5 violations and one revocation. Further,
      [the court also considered the street value of the drugs recovered
      in the present case]. Lastly, the court considered the fact that
      Appellant absconded for one year after pleading guilty.

      Defense counsel argues that Appellant’s troubled childhood and
      extensive family support, medical condition, and continued
      sobriety were not properly acknowledged in weighing the
      sentence. These factors were considered, but were greatly
      outweighed by the above facts.

Trial Court Opinion, at 6-7.

      A review of the sentencing hearing supports the court’s opinion in this

regard, as the court engaged in an extensive discussion with defense counsel

and acknowledged that the defense had “put great effort in trying to show

why pretty substantial mitigation should have been taking place in this case.”

N.T., 8/25/16 at 8. This effort was undermined considerably, however, by

Appellant’s pre-sentencing decision to cut off an ankle bracelet with an


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electronic monitor and abscond from the jurisdiction after the court had

refused the Commonwealth’s request to revoke bail and placed Appellant on

house arrest, the court noted. N.T., at 22-23. While Appellant did eventually

check himself into a six-month rehabilitation program in Virginia, the court

noted he did not do so until nearly one year after he had absconded, N.T., at

15, and his absconding was, in any event, an act of brazen disregard of the

court’s authority:

      I was struggling to accept some of [your defense team’s]
      reasoning through mitigation. As the Commonwealth stated and
      I stated earlier to your counsel, any effort that they make, the
      hundreds of hours they might have put into this case, you have
      thrown out the window. You cut your bracelet.

      There are means which I could have put you in a drug treatment
      program in different prisons in the system. That would have given
      you treatment while you were there. But again, you threw that
      all away. You believed that you had the right to decide what you
      did and what you didn’t do. And for that I don’t see any mitigation.
      And for the reasons set forth by the Commonwealth and stated by
      me, I find a reason for aggravation in this case.

N.T., at 23-24.

      Based on the foregoing, we find no merit to Appellant’s claim of error.

We therefore affirm the judgment of sentence imposed by the trial court.

      Judgment of sentence is AFFIRMED.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:3/6/18




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