J-A30005-15

                                  2015 PA Super 256



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STACI DAWSON

                            Appellant                 No. 3498 EDA 2014


           Appeal from the Judgment of Sentence November 12, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000257-2014


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.:                             FILED DECEMBER 08, 2015

        Appellant, Staci Dawson, appeals from the November 12, 2014

aggregate judgment of sentence of 71½ to 143 months’ imprisonment,

followed by 84 months’ probation, imposed after she was found guilty of two

counts each of sale or transfer of firearms and criminal conspiracy, and one

count of filing a false report.1 After careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

              On February 13, 2013, [Appellant] completed a
              Firearms Transaction Record Form and purchased a
              .40 Caliber Smith & Wesson pistol at Miller’s Sporting
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6111(c), 903(c), and 4906(b)(1), respectively.
J-A30005-15


          Goods in Linwood, Pennsylvania. She returned to
          Miller’s Sporting Goods and purchased a second
          firearm, a Kel-Tec 9 mm. pistol, on February 27,
          2013.

                 On March 5, 2013[,] Patrol Corporal William
          Carey executed a traffic stop in the City of Chester.
          The vehicle was stopped after a brief chase that
          ended when the fleeing vehicle crashed into a van.
          The vehicle that was the subject of that traffic stop
          was driven by [Appellant]’s boyfriend, David Colon.
          Shamar Atkinson was a passenger in the vehicle.
          Both of these men were known felons. Colon was
          found in possession of suspected cocaine and
          Atkinson had the fully loaded Kel-Tec 9 mm. pistol,
          serial number R7921 that [Appellant] purchased on
          February 27, 2013 tucked in his waistband. Both
          men were arrested.

                In the course of an unrelated criminal
          investigation[,] Detective Robert Lythgoe of the
          Delaware County Criminal Investigation Division
          went to Miller’s Sporting Goods looking for the
          names of recent purchasers of 9 mm. handguns. He
          learned there that [Appellant] purchased a 9 mm.
          handgun on February 27, 2013.          On March 7,
          [2013,] he went to her reported address, 2018 West
          Fourth Street in Chester, Pennsylvania to see
          whether [Appellant]’s 9 mm. gun was the gun
          involved in the unrelated incident. [Appellant] was
          not at the residence. Her mother told the detective
          that [Appellant] no longer lived at that address and
          that she lived with her father. At about 4:00 p.m.[,]
          Detective Lythgoe went to the father’s address and
          inquired into the whereabouts of the pistol that she
          purchased on February 27th. [Appellant] stated that
          the pistol was at her mother’s home and that she
          was unable to retrieve it at that time. Later that
          evening, at about 7:00 p.m.[, Appellant] called
          Detective Lythgoe and reported that the gun was
          missing from her mother’s house and, “[t]he only
          thing she could think of was that her boyfriend
          (David Colon) may have stolen the firearm.”
          [Appellant] did not mention the second gun, the

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          Smith & Wesson that she purchased on February
          13th. At this point[,] Detective Lythgoe did not know
          that [Appellant] owned two guns.

                  On March 8 & 9, 2013[,] David Colon called
          [Appellant] several times from the George Hill
          Correctional Facility (GHCF). Detective David Tyler
          of the Delaware County Criminal Investigation
          Division secured these tapes after he learned that
          David Colon was in GHCF and that Shamar Atkinson
          was arrested while in possession of [Appellant]’s Kel-
          Tec 9 mm. handgun.           Portions of the recorded
          conversations were played for the jury and
          associated transcripts were entered into evidence.
          In the course of these conversations[, Appellant]
          tells Colon about Detective Lythgoe’s March 7th visit
          and inquiry, that detectives were looking for a gun
          and that she thought “one of them” was probably
          used in the commission of a crime. Colon instruct[ed
          Appellant] to, “just tell them I don’t know maybe my
          boyfriend, maybe one of his friends, maybe
          somebody stole it … All you can tell them is … is
          somebody took that [jawn]-somebody took them
          [jawn].” Colon t[old Appellant], “once they got the
          little black – once they type it in, everything going to
          pop up you see what I’m saying, what you got in
          your name, you see what I’m saying.” Colon t[old
          Appellant] not to go to the police until they talk
          again. In another call[, Appellant] t[old] Colon that
          authorities told her to report the missing firearm:
          “Yeah, he said go over there and file a – an incident
          report or whatever. But I – I don’t know which one
          like …. They didn’t ever say which one. So I just
          gotta go over there and file both.” During a third
          call[,] Colon ask[ed Appellant] if she [had] gone to
          the police station. She replie[d] that she [had not]
          gone yet. [Appellant told] Colon that Atkinson’s
          girlfriend asked her to come to the preliminary
          hearing to help “Shamar” and that she is going to
          say that she forgot the gun and left it in the car.
          Colon respond[ed]: “NO- be no, no, no, no, no, no,
          no, no, no, no man. But you don’t- you- no baby –
          no, no, no, [], no, no, no, no, no, no, no, no, no. …
          No they can’t go around like that because you don’t

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          got no license – you don’t got no license to drive or
          to carry like so it –you was- nah babe no, no. That’s
          going.” [Appellant told] Colon that she doesn’t know
          what to do when she goes to “the station” and Colon
          [said], repeatedly “I mean you got tell’em you ain’t-
          if you can’t find ‘em you can’t find’em,” and
          instruct[ed] her to filed a report “for both” because
          her name will be in the system, suggesting that the
          existence of a second gun will be discovered.

                On March 12, 2013[, Appellant] reported two
          firearms missing from her mother’s residence, 2018
          West Fourth Street, Chester.          Officer Doug
          Staffelbach took the report. [Appellant] reported
          that she discovered that both of the guns were
          missing on March 7, 2013.         She described the
          missing firearms as a “little 9” and a “Glock.” The
          transaction record she offered however indicated
          that she had purchased a Smith & Wesson.
          [Appellant] said that her mother’s home had been
          burglarized and that there were burglaries in the
          area so she purchased the guns for her own
          protection. After investigating, Officer Staffelbach
          found no reported burglaries in the area during the
          relevant time period.

                Detective Tyler testified that he was initially
          assigned to this investigation after Detective Lythgoe
          reported that a [9 mm.] handgun that was used in
          the unrelated investigation was connected to
          [Appellant] and that she suggested that David Colon
          may have stolen it. Detective Tyler went to Miller’s
          Sporting Goods and got a copy of the Firearms
          Transaction form for the February 27th purchase. On
          March 13, 2013[,] he contacted [Appellant] at her
          father’s house and asked if she would speak with him
          about the gun that was found in Atkinson’s
          possession. She agreed and followed Detective Tyler
          to the Chester Police Department where she gave a
          statement in which she discussed her purchase of
          the 9 mm. handgun and stated that she last saw it in
          the basement of her mother’s house on March 3rd.
          She knew it was “PF 9” but did not know the caliber
          or make or model of this firearm and did not know

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              what type of bullets it took. At no time during the
              interview did [Appellant] tell Detective Tyler that not
              one, but two firearms, had gone missing from her
              mother’s basement and that she reported both
              missing the previous day. Detective Tyler learned
              that [Appellant] reported a second gun missing and
              after listening to the prison tape recordings he
              returned to Miller’s in May and obtained the
              Transaction Form for the February 13th purchase.

Trial Court Opinion, 2/5/15, at 7-11 (internal citations omitted; some

brackets in original).

       On August 27, 2014, at the conclusion of a jury trial, the jury found

Appellant guilty of two counts each of sale or transfer of firearms and

criminal conspiracy, and one count of filing a false report.2     On November

12, 2014, the trial court imposed an aggregate sentence of 71½ to 143

months’ imprisonment, followed by 84 months’ probation.          Specifically, on

the first Section 6111(c) count, the trial court sentenced Appellant to 11½ to

23 months’ imprisonment, plus 24 months’ probation.             On the second

Section 6111(c) charge, the trial court sentenced Appellant to 60 to 120

months’ imprisonment, consistent with the mandatory minimum sentence

provision at Section 6111(h)(1), plus 60 months’ probation. The trial court

also imposed a sentence of 3 to 6 months’ imprisonment for filing a false


____________________________________________
2
  This was Appellant’s second trial. Appellant’s first trial ended on May 14,
2014 with the jury unable to reach a verdict on the above-mentioned
offenses, and finding her not guilty of several other offenses that are not
relevant to this appeal.




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report.   The trial court did not impose any further penalty on the criminal

conspiracy charges.          The filing a false report sentence was to run

concurrently to all other sentences; however, the two sentences for sale or

transfer of firearms were to run consecutively to each other. Appellant filed

a timely motion for reconsideration of sentence on November 20, 2014,

which the trial court denied on December 2, 2014. On December 8, 2014,

Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following three issues for our review.

              [1.]   Whether the trial court erred in imposing the
                     mandatory minimum sentence of 5 to 10 years
                     on the second count of unlawful sale or
                     transfer of firearms when [Appellant] was not
                     previously convicted of this offense but was
                     found guilty at the same trial for both counts?

              [2.]   Did the [t]rial [c]ourt abuse its discretion in
                     sentencing [Appellant] on Count 6, Firearms –
                     Duty to Other Persons, to 5 to 10 years to be
                     followed by 5 years of probation to run
                     consecutive to her sentence on Count 5 of 11½
                     to 23 months to be followed by 2 years of
                     probation, by failing to properly consider the
                     Sentencing Code and Sentencing Guidelines 42
                     Pa.C.S.A. § 9701, et. [s]eq. in imposing this
                     sentence?

              [3.]   Did [t]he [t]rial [c]ourt err in denying
                     [Appellant]’s [m]otion on Count 6, Firearms –
                     Duty to Other Persons, as against the weight of
                     the evidence where there was insufficient
                     evidence regarding any change of ownership of
____________________________________________
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A30005-15


                   a second firearm by [Appellant]        to   any
                   individual, lawful or otherwise?

Appellant’s Brief at 4.

      We address Appellant’s third issue first, as the remedy for lack of

sufficient evidence is a discharge order, rather than a new trial, and would

render Appellant’s remaining issues moot. Commonwealth v. Stokes, 38

A.3d 846, 853 (Pa. Super. 2011).        We begin by noting our well-settled

standard of review.        “In reviewing the sufficiency of the evidence, we

consider whether the evidence presented at trial, and all reasonable

inferences drawn therefrom, viewed in a light most favorable to the

Commonwealth as the verdict winner, support the jury’s verdict beyond a

reasonable doubt.”        Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.

Ct. 1400 (2015).      “The Commonwealth can meet its burden by wholly

circumstantial evidence and any doubt about the defendant’s guilt is to be

resolved by the fact finder unless the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),

appeal denied, 95 A.3d 277 (Pa. 2014).       As an appellate court, we must

review “the entire record … and all evidence actually received[.]”        Id.

(internal quotation marks and citation omitted).    “[T]he trier of fact while

passing upon the credibility of witnesses and the weight of the evidence

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J-A30005-15


produced is free to believe all, part or none of the evidence.” Id. (citation

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,

Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      In this case, Appellant avers that the evidence was insufficient to

sustain her conviction under Section 6111(c), which provides in relevant

part, as follows.

            § 6111. Sale or transfer of firearms

            (a) Time and manner of delivery.--

                    (1) Except as provided in paragraph (2), no
                    seller shall deliver a firearm to the purchaser
                    or transferee thereof until 48 hours shall have
                    elapsed from the time of the application for the
                    purchase thereof, and, when delivered, the
                    firearm shall be securely wrapped and shall be
                    unloaded.

                    (2) Thirty days after publication in the
                    Pennsylvania Bulletin that the Instantaneous
                    Criminal History Records Check System has
                    been established in accordance with the Brady
                    Handgun Violence Prevention Act (Public Law
                    103-159, 18 U.S.C. § 921 et seq.), no seller
                    shall deliver a firearm to the purchaser thereof
                    until the provisions of this section have been
                    satisfied, and, when delivered, the firearm
                    shall be securely wrapped and shall be
                    unloaded.

                                        …

            (c) Duty of other persons.--Any person who is not
            a licensed importer, manufacturer or dealer and who

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               desires to sell or transfer a firearm to another
               unlicensed person shall do so only upon the place of
               business of a licensed importer, manufacturer, dealer
               or county sheriff’s office, the latter of whom shall
               follow the procedure set forth in this section as if he
               were the seller of the firearm. The provisions of this
               section shall not apply to transfers between spouses
               or to transfers between a parent and child or to
               transfers between grandparent and grandchild.

                                               …

18 Pa.C.S.A. § 6111. Appellant avers that there is insufficient evidence that

she transferred the Smith & Wesson firearm to anyone through any means.4

Appellant’s Brief at 11.        The Commonwealth counters that the jury was

permitted to infer, primarily from her telephone conversations with Colon,

that she gave the firearm to Colon or Atkinson.             Commonwealth’s Brief at

27.

         In this case, the evidence at trial established that Appellant purchased

the Smith & Wesson from Miller’s Sporting Goods on February 13, 2013.

After police visited her on March 7, 2013 about the 9 mm. Kel-Tec firearm,

which ended up in Atkinson’s possession, she did not mention the Smith &

Wesson firearm to law enforcement.                 The next day, she discussed both

firearms with Colon and indicated to him that she did not know whether to

report just one or both stolen, because she did not know which firearm the

police    were   inquiring    about.      Commonwealth’s       Exhibit   C-11,   at   8;


____________________________________________
4
    Appellant does not challenge the conviction regarding the Kel-Tec firearm.



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J-A30005-15


Commonwealth’s Exhibit C-12, at 14.       Colon instructed her to report both

stolen, in part, because the police would discover the existence of the Smith

& Wesson. Commonwealth’s Exhibit C-11, at 8, 9; Commonwealth’s Exhibit

C-13, at 8, 9.      Colon also offered to take the blame for stealing both

firearms. Id. at 8.

         In our view, the Commonwealth presented sufficient evidence to

sustain the conviction.      The evidence summarized above revealed the

Appellant purchased two firearms, one of which ended up in the possession

of another. The prison tapes reveal that Appellant did not have the Smith &

Wesson in her possession and Colon offered to take responsibility for

stealing them from her, which was not true. Id. at 8, 9; Commonwealth’s

Exhibit C-12, at 14.       The jury was permitted to make the reasonable

inference that this was because Appellant had given the Smith & Wesson to

Colon and/or Atkinson and wished to evade responsibility for the same.

Based on these considerations, Appellant’s sufficiency challenge lacks merit.

         We next consider Appellant’s first issue, in which she avers that the

trial court erred in imposing the mandatory minimum at Section 6111(h),

because the second Section 6111(c) was not “previous” but rather a second

conviction from this very case. Appellant’s Brief at 11. The Commonwealth

counters that Section 6111(h) has no such requirement, and the trial court

properly applied the mandatory minimum sentence. Commonwealth’s Brief

at 18.


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J-A30005-15


      At the outset, we note that a challenge to the application of a

mandatory minimum sentence pertains to the legality of the sentence, which

presents a pure question of law that we review de novo. Commonwealth

v. Fennell, 105 A.3d 13, 15 (Pa. Super. 2014) (citation omitted), appeal

denied, 121 A.3d 494 (Pa. 2015).      It is also well established that “[i]f no

statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction.”     Id.   “An illegal sentence must be

vacated.” Id.

      The instant dispute pertains to Section 6111(h)(1), which provides as

follows.

           § 6111. Sale or transfer of firearms

                                      …

           (h) Subsequent violation penalty.—

                 (1) A second or subsequent violation of this
                 section shall be a felony of the second degree.
                 A person who at the time of sentencing has
                 been convicted of another offense under this
                 section shall be sentenced to a mandatory
                 minimum sentence of imprisonment of five
                 years. A second or subsequent offense shall
                 also result in permanent revocation of any
                 license to sell, import or manufacture a
                 firearm.

                                      …

                 (5) For the purposes of this subsection, a
                 person shall be deemed to have been
                 convicted of another offense under this section
                 whether or not judgment of sentence has been
                 imposed for that violation.

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J-A30005-15



18 Pa.C.S.A. § 6111(h)(1), (5) (emphasis added). The dispute in this case

is whether a previous conviction may include a separate charge in the same

case for the purposes of Section 6111(h)(1).

      When analyzing statutory text, we note the following.

              “Under the Statutory Construction Act of 1972, … our
              paramount interpretative task is to give effect to the
              intent of our General Assembly in enacting the
              particular       legislation      under         review.”
              Commonwealth v. Spence, 91 A.3d 44, 46 (Pa.
              2014) (citation omitted). “We are mindful that the
              object of all statutory interpretation is to ascertain
              and effectuate the intention of the General Assembly
              … and the best indication of the legislature’s intent is
              the plain language of the statute.” Commonwealth
              v. Walter, 93 A.3d 442, 450 (Pa. 2014) (citation
              omitted). “When the words of a statute are clear
              and unambiguous, we may not go beyond the plain
              meaning of the language of the statute under the
              pretext of pursuing its spirit.” Id., citing 1 Pa.C.S.A.
              § 1921(b). However, only “when the words of the
              statute are ambiguous should a reviewing court seek
              to ascertain the intent of the General Assembly
              through considerations of the various factors found
              in Section 1921(c) of the [Statutory Construction
              Act].” Id. at 450–451, citing 1 Pa.C.S.A. § 1921(c).

In re D.M.W., 102 A.3d 492, 494 (Pa. Super. 2014).

      In Commonwealth v. Thompson, 106 A.3d 742 (Pa. Super. 2014),

this Court was confronted with a similar question as to whether a mandatory

life sentence for two counts of third-degree murder under Section 9715 of

the Sentencing Code, includes a situation when the first and second

convictions are from the same case. Section 9715, provides in relevant part

as follows.

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J-A30005-15


            § 9715. Life imprisonment for homicide

            (a)        Mandatory         life      imprisonment.--
            Notwithstanding the provisions of section 9712
            (relating to sentences for offenses committed with
            firearms), 9713 (relating to sentences for offenses
            committed on public transportation) or 9714
            (relating to sentences for second and subsequent
            offenses), any person convicted of murder of the
            third degree in this Commonwealth who has
            previously been convicted at any time of murder or
            voluntary manslaughter in this Commonwealth or of
            the same or substantially equivalent crime in any
            other jurisdiction shall be sentenced to life
            imprisonment, notwithstanding any other provision
            of this title or other statute to the contrary.

                                      …

42 Pa.C.S.A. § 9715(a).      Following our decision in Commonwealth v.

Morris, 958 A.2d 569 (Pa. Super. 2008) (en banc), appeal denied, 991 A.2d

311 (Pa. 2010), we held in Thompson that the phrase “at any time” was

unambiguous and concluded the statute required a life sentence for

Thompson, even though his second conviction for third-degree murder arose

from the same trial and information as the first conviction.

            Section 9715 specifically focuses upon whether, at
            the time of sentencing, a defendant has been
            previously convicted “at any time.” The statute does
            not state that the two murders must be tried and
            sentenced separately. Indeed, the plain language of
            the statute requires that the trial court determine
            whether a previous conviction exists at the time of
            sentencing, without giving consideration to when the
            conviction occurred. Further, the statute does not
            make any distinction between convictions that arise
            from a single criminal episode and multiple criminal
            episodes.    We are bound by the unambiguous
            language of this statute and we cannot insert

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             additional requirements that the legislature has not
             included.

Thompson, supra at 761, quoting Morris, supra at 581.

     Turning back to Section 6111(h), we find Thompson instructive in

resolving the issue presented in this case.          Like Section 9715, Section

6111(h) “requires that the trial court determine whether a previous

conviction exists at the time of sentencing, without giving consideration to

when the conviction occurred.”        Id.   The statute does not contain any

textual limitations as to when the first and second convictions arose.

Furthermore, Section 6111(h)(5) states that “a person shall be deemed to

have been convicted of another offense under this section whether or not

judgment of sentence has been imposed for that violation.”                    18

Pa.C.S.A. § 6111(h)(5) (emphasis added). In our view, the language of this

subsection provides greater clarity than Section 9715’s use of the phrase “at

any time.”     42 Pa.C.S.A. § 9715(a).          Instantly, when the trial court

sentenced Appellant on November 12, 2014, Appellant had been convicted of

another Section 6111(c) offense, but the judgment of sentence had not been

imposed.      This   situation   is   contemplated    by   Section   6111(h)(5)’s

unambiguous text.     Based on these considerations, we conclude the trial

court correctly applied Section 6111(h)(1) to Appellant and the resultant

sentence was legal. See Fennell, supra; D.M.W., supra.

     Finally, in her second issue, Appellant avers the trial court abused its

discretion in imposing consecutive sentences for her two Section 6111(c)

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convictions. Appellant’s Brief at 13. At the outset, we note that this issue

pertains to the discretionary aspects of her sentence. It is axiomatic that in

this Commonwealth, “[t]here is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards

an argument pertaining to the discretionary aspects of the sentence, this

Court considers such an argument to be a petition for permission to appeal.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n

[a]ppeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (internal quotation marks and citation omitted).

     Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether   a     petition   for   permission     to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

              (1) [W]hether appellant has filed a timely notice of
              appeal, Pa.R.A.P. 902, 903; (2) whether the issue
              was properly preserved at sentencing or in a motion
              to reconsider and modify sentence, Pa.R.Crim.P.
              [720]; (3) whether appellant’s brief has a fatal
              defect, Pa.R.A.P. 2119(f); and (4) whether there is a

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J-A30005-15


           substantial question that the sentence appealed from
           is not appropriate under the Sentencing Code, 42
           [Pa.C.S.A.] § 9781(b).

Id.

      In the case sub judice, we note that Appellant has failed to include a

Rule 2119(f) statement in her brief, and the Commonwealth has noted its

objection. Commonwealth’s Brief at 31. “If a defendant fails to include an

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

this Court may not review the claim.” Commonwealth v. Karns, 50 A.3d

158, 166 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). As the

Commonwealth has lodged its objection, we deny Appellant’s petition for

permission to appeal the discretionary aspects of her sentence.          See

Trinidad, supra.

      Based on the foregoing, we conclude all of Appellant’s issues on appeal

are waived or devoid of merit. Accordingly, the trial court’s November 12,

2014 judgment of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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