J-S02021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :              IN THE SUPERIOR COURT OF
                                 :                   PENNSYLVANIA
                                 :
               v.                :
                                 :
                                 :
    PATRICK A. STANLEY           :
                                 :
                   Appellant     :              No. 17 EDA 2017

           Appeal from the Judgment of Sentence November 16, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002479-2011

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                         FILED FEBRUARY 13, 2018

        Appellant Patrick A. Stanley appeals from the judgment of sentence of

four to ten years’ imprisonment imposed following the revocation of his

probation. He contends that his sentence was disproportionate to his crimes

as it was based on partiality, prejudice, bias, and ill will. We affirm.

        We adopt the facts set forth in the trial court’s opinion:

           In December of 2008, Appellant’s wife befriended an eighty-
        six-year-old man, and over the course of two years she deceived
        him into giving her over $330,000. Several of the checks paid to
        Appellant’s wife were made out to Appellant. Appellant cashed
        and deposited the checks made out to him. Following his arrest,
        on March 2, 2012, Appellant pled guilty to theft and criminal
        conspiracy. Appellant was sentenced to twenty-three months
        imprisonment, plus five years of probation. For the criminal
        conspiracy, he was sentenced to two years consecutive probation
        to be transferred to New Jersey.


____________________________________________
*   Retired Senior Judge assigned to the Superior Court.
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         While on probation in New Jersey, Appellant conspired with a
      group of people, including his father, who committed multiple
      burglaries and thefts. The burglaries frequently involved a ruse.
      One member of the group would pose as a Water Department
      employee or a handyman to distract elderly homeowners, while
      the others would steal valuables such as jewelry or safes.
      Appellant was fully aware of, and acquiesced to, similarly planned
      burglaries that occurred in Connecticut, Delaware, Pennsylvania
      and New York. However, he failed to alert the authorities.

         During the course of the burglary investigation, authorities
      were led to a safe deposit box under Appellant’s name.
      Investigators discovered several gold bars had been placed in the
      box under Appellant’s name. Further investigation revealed that
      Appellant’s wife told an elderly woman suffering from cancer that
      her cancer would be cured if she paid for her fortune telling
      services. Investigators found Appellant had knowledge of the
      fortune telling operation and allowed the proceeds to be placed in
      the safe deposit box. Appellant likely benefitted from his wife’s
      scheme and did not go to the authorities.

          Appellant’s father was arrested in Los Angeles for his
      involvement in the burglaries. Shortly after, Appellant was found
      at the bank trying to access the safety deposit box. He eventually
      entered a guilty plea in New Jersey, and was in custody for
      approximately eight months. Immediately following his detention
      in New Jersey, he was arrested in Philadelphia on May 2, 2016.

Trial Ct. Op., 7/19/17, at 2-3 (citations omitted).

      Subsequently, the trial court held a violation of probation hearing on

November 16, 2016, at which the court revoked his probation and sentenced

him to an aggregate sentence of four to ten years’ imprisonment. Appellant

filed a motion for reconsideration, contending that the court “did not have all

of the pertinent information about” his probation violation and thus could not

impose a proper sentence. Mot. for Recons. of Sentence, 11/17/16, at 2. He

also maintained that misinformation was presented to the trial court about the


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crimes that led to the revocation of his probation. Id. at 3. Appellant argued

that the court failed to properly consider his relative youth, family, absence of

a history of crime of violence, and payment of restitution.           Id.   The court

denied Appellant’s motion on December 2, 2016. Appellant timely appealed

on December 16, 2017, and timely filed a court-ordered Pa.R.A.P. 1925(b)

statement.1

       Appellant raises the following issue in his brief:

       Whether the sentencing court erred as a matter of law, abused its
       discretion and violated general sentencing principles when,
       following a revo[c]ation of probation, the court imposed a
       sentence of four to ten years[’] incarceration, and then refused to
       reconsider said sentence[.]

Appellant’s Brief at 3. Appellant’s brief did not include a statement as required

by Pennsylvania Rule of Appellate Procedure 2119(f). The Commonwealth has

objected to the statement’s absence. Commonwealth’s Brief at 7-9.

       In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super.

2013) (en banc), we held that our scope of review in an appeal from a

revocation    of   probation     sentencing      includes   discretionary   sentencing

challenges.     Such a challenge, however, is not appealable as of right.

Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017). We

will exercise our discretion to consider the issue only if (1) the appellant has



____________________________________________
1During the pendency of this appeal, Appellant filed a pro se Post Conviction
Relief Act petition, which the trial court dismissed without prejudice. Order,
8/21/17.


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filed a timely notice of appeal; (2) he has preserved the sentencing issue at

the time of sentencing or in a motion to reconsider and modify his sentence;

(3) he presents the issue in a properly framed statement in his brief under

Rule   2119(f)   of   the   Rules   of   Appellate   Procedure,   pursuant   to

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the

words of Section 9781(b) of the Sentencing Code, 42 Pa.C.S. § 9781(b), “it

appears that there is a substantial question that the sentence imposed is not

appropriate under this chapter.” See, e.g., Commonwealth v. Haynes, 125

A.3d 800, 807 (Pa. Super. 2015). In Commonwealth v. Karns, 50 A.3d 158

(Pa. Super. 2012), this Court explained that “[i]f a defendant fails to include

an issue in his Rule 2119(f) statement, and the Commonwealth objects, then

the issue is waived and this Court may not review the claim.” Id. at 166.

       Here, Appellant did not include a Rule 2119(f) statement in his brief,

and the Commonwealth has objected to its absence. See Commonwealth’s

Brief at 7-9. This Court cannot review Appellant’s sentencing issue over the

Commonwealth’s objection to the absence of a Rule 2119(f) statement, and

thus Appellant has waived his sentencing issue. See Karns, 50 A.3d at 166.

Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/18




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