J-S38038-19, J-S38039-19 & J-S38040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
 BILLY JAISON,                         :
                                       :
                  Appellant            :   No. 1605 EDA 2018

          Appeal from the Judgment of Sentence August 3, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0007540-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
 BILLY JAISON,                         :
                                       :
                  Appellant            :   No. 1606 EDA 2018

          Appeal from the Judgment of Sentence August 3, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0007541-2016

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
 BILLY JAISON,                         :
                                       :
                  Appellant            :   No. 1607 EDA 2018

          Appeal from the Judgment of Sentence August 3, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0007545-2016


BEFORE:   OTT, J., DUBOW, J., and COLINS*, J.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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MEMORANDUM BY COLINS, J.:                        FILED SEPTEMBER 17, 2019

       Appellant, Billy Jaison, appeals from the judgments of sentence for his

convictions, following a bench trial, of forgery‒altered writing, conspiracy,

identity theft, access device fraud, and theft by unlawful taking of movable

property.1 Appellant challenges the aggregate punishment imposed of 2½ to

5 years of imprisonment followed by 45 years of probation. We affirm.

       On March 9, 2016, Appellant was charged at CP-51-CR-0007540-2016

(No. 7540-2016), CP-51-CR-0007541-2016 (No. 7541-2016), and CP-51-CR-

0007545-2016 (No. 7545-2016) relating to three incidents during November

and December 2015 in which Appellant allegedly surreptitiously took personal

property in the form of a wallet or cash from another person on a Southeastern

Pennsylvania Transit Authority (SEPTA) bus.         On August 15, 2016, the

Commonwealth filed a notice pursuant to Rule of Criminal Procedure 582

stating its intention to try each of the three matters in a joint trial. Appellant

waived his right to trial by jury, and a non-jury trial was conducted on May

17, 2017.

       At trial, Diane Dobkin testified that she boarded a crowded No. 42 SEPTA

bus on November 24, 2015 in Center City Philadelphia. N.T., 5/17/17, at 8.

Appellant was jostled during the ride, and, when she exited the bus near a

hospital in West Philadelphia, she noticed that her wallet containing various

credit and bank cards was missing from her purse. Id. at 9-10. Ms. Dobkin
____________________________________________


1 18 Pa.C.S. §§ 4101(a)(1), 903, 4120(a), 4106(a)(1), and 3921(a),
respectively.

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was later informed that her Macy’s credit card was subsequently used and that

her debit card had been used at a 7-Eleven store. Id. at 13-15.

     Edward Patrick O’Hara testified that on December 3, 2015 he withdrew

$600 from a bank near Frankford Avenue in Philadelphia and placed the money

in his front right pant pocket along with $100 that he already had on him. Id.

at 17-18. Mr. O’Hara then boarded a No. 3 SEPTA bus; as he was stepping

into the bus, he felt a tug on his pant pocket, and when he checked his pocket

a few seconds later, he discovered that all of the money in his pocket was

gone. Id. at 18-21.

     Leah Zindel testified that on December 26, 2015 she boarded a No. 17

SEPTA bus in Center City Philadelphia and that she was jostled and bumped

during the ride by several men. Id. at 24-26. Within a few blocks, Ms. Zindel

realized that her wallet was gone. Id. at 27. Ms. Zindel was subsequently

informed that her credit card was used later that day at the Macy’s in Center

City Philadelphia. Id. at 28, 31-33.

     Detective Jason Connor of SEPTA Transit Police testified at the trial.

Detective Connor stated that he took statements from Ms. Dobkin, Mr. O’Hara,

and Ms. Zindel. Id. at 54, 64-65, 75-76. Detective Connor reviewed video

from the No. 3 bus that Mr. O’Hara boarded on December 3, 2015 and the No.

17 bus that Ms. Zindel boarded on December 26, 2015; in addition, Detective

Connor obtained receipts and videos from a 7-Eleven store on November 24,

2015 and Macy’s Center City Department Store on December 26, 2015,

corresponding to the dates and times of the unauthorized use of Ms. Dobkin’s

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debit card and Ms. Zindel’s credit card. Id. at 55, 65, 76. Through his review

of these videos, Detective Connor was able to identify Appellant as being on

the same bus as Mr. O’Hara and Ms. Zindel and in close proximity to their

persons. Id. at 65-69, 78-82. Detective Connor further observed Appellant

as the individual who engaged in the unauthorized use of Ms. Dobkin’s debit

card at 7-Eleven and Ms. Zindel’s credit card at Macy’s. Id. at 55-59, 70, 87,

97-103.   In addition, Detective Connor personally observed Appellant at

SEPTA’s Jefferson Station on December 26, 2015 while conducting a pick-

pocketing investigation; through his later review of surveillance video,

Detective Connor determined that Appellant was wearing the same clothing

and with the same individual as when he was on the bus with Ms. Zindel and

using her credit card at Macy’s. Id. at 87-93. Based on his observations and

investigation, Detective Connor obtained a search warrant of Appellant’s

home; through that search he collected several distinctive articles of clothing

and apparel that Appellant was seen wearing in that video. Id. at 105-08.

      Pennsylvania State Parole Officer John Hampton testified that he had

met with Appellant approximately twice per month during the course of the

prior two years. Id. at 39-40. Mr. Hampton stated that Detective Connor

asked him to review the five surveillance videos that had been obtained in this

case; Mr. Hampton was able to identify Appellant in each of these videos based

on his body language, facial appearance, distinctive articles of clothing, and a

bag that Appellant carried during each visit. Id. at 40-48.




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       At the conclusion of trial, the trial court found Appellant guilty of the

above stated offenses.2         On August 3, 2017, the trial court sentenced

Appellant to 2½ to 5 years of imprisonment on the forgery‒altered writing

charge at docket number No. 7540-2016 and consecutive 5 year terms of

probation on the remaining nine charges in the three cases for an aggregate

probationary term of 45 years.

       On August 7, 2017, Appellant filed timely motions for reconsideration of

the sentence at each docket number. The trial court denied the motion at No.

7540-2016 on October 6, 2017, but Appellant failed to file a timely notice of

appeal from this order. Appellant filed a PCRA petition on November 15, 2017

at No. 7540-2016 requesting that he be permitted to file a notice of appeal in

this case nunc pro tunc. The PCRA petition also noted that the motions for

reconsideration of the sentences at No. 7541-2016 and No. 7545-2016

remained outstanding. On November 16, 2017, the trial court entered orders

denying the motions for reconsideration at No. 7541-2016 and No. 7545-

2016. Appellant again failed to file a timely notice of appeal as to either of

these orders, and instead filed PCRA petitions on April 3, 2018 seeking the
____________________________________________


2Appellant was convicted of forgery‒altered writing, conspiracy, identity theft,
access device fraud, and theft by unlawful taking of movable property at No.
7540-2016; theft by unlawful taking of movable property at No. 7541-2016;
and forgery‒altered writing, identity theft, access device fraud, and theft by
unlawful taking of movable property at No. 7545-2016. The trial court found
Appellant not guilty of a count of receipt of stolen property, 18 Pa.C.S. §
3925(a), at each docket number and an additional conspiracy count at No.
7541-2016.



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reinstatement of his appellate rights.           On May 24, 2018, the PCRA court

reinstated Appellant’s direct appeal rights at each of the three docket

numbers. On May 29, 2018, Appellant filed notices of appeal as to each case.3

       Appellant raises the following issue on appeal:

       Whether the trial court abused its discretion when the court failed
       to provided adequate reasons on the record for the sentence and
       failed to consider all of the relevant factors.

Appellant’s Brief, No. 1605 EDA 2018, at 9; Appellant’s Brief, No. 1606 EDA

2018, at 8; Appellant’s Brief, No. 1607 EDA 2018, at 9 (extraneous

capitalization omitted). Specifically, Appellant contends that the trial court

failed to adhere to the requirements of Section 9721 of the Sentencing Code

that it make “a statement of the reason or reasons for the sentence imposed”

on the record at the sentencing hearing addressing the general sentencing

factors of “the protection of the public, the gravity of the offense as it relates
____________________________________________


3  On August 2, 2018, the trial court entered an order at No. 7540-2016
directing Appellant to file a concise statement of matters complained of on
appeal within 21 days pursuant to Rule of Appellate Procedure 1925(b).
Appellant did not file a Rule 1925(b) statement. No Rule 1925(b) order was
issued at either of the two docket numbers. The trial court issued its opinion
on December 12, 2018. In the opinion, the trial court stated that the matters
should be remanded for appointment of new appellate counsel because
Appellant’s counsel, who represented him throughout the trial and continues
to represent him in this appeal, failed to file timely notices of appeal as
requested by his client and failed to respond to the trial court’s Rule 1925(b)
order. Trial Court Opinion, 12/12/18, at 7-8. On January 17, 2019, Appellant
filed an application in each of the three appellate matters seeking remand so
that he could file Rule 1925(b) statements. This Court entered orders
remanding the matters, and Appellant then filed his Rule 1925(b) statements
on February 25, 2019. On February 27, 2019, the trial court issued a
supplemental opinion in which it stated that it was relying on the reasoning
stated in its prior opinion.

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to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Furthermore,

citing Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003),

Appellant argues that the trial court failed to consider his age, his

employment, education, and family histories, and the nature of the crimes he

committed and that there is no indication in the record that the trial court

considered a pre-sentence report.

      A challenge to the discretionary aspect of a sentence is not appealable

as of right. Commonwealth v. Akhmedov, ___ A.3d ___, 2019 PA Super

232, *31 (filed July 29, 2019).

      Rather, an appellant challenging the sentencing court’s discretion
      must invoke this Court’s jurisdiction by (1) filing a timely notice of
      appeal; (2) properly preserving the issue at sentencing or in a
      motion to reconsider and modify the sentence; (3) complying with
      Pa.R.A.P. 2119(f), which requires a separate section of the brief
      setting forth “a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of a
      sentence[;]” and (4) presenting a substantial question that the
      sentence appealed from is not appropriate under the Sentencing
      Code

Id. (citation omitted). A substantial question is present where the appellant

advances an argument that the sentence was inconsistent with a specific

provision of the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process. Id. at *32.




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       While Appellant included Rule 2119(f) statements in his appellate briefs

and raised a substantial question for our review,4 Appellant failed to preserve

this issue by raising it before the trial judge therefore precluding our review

of his appellate issue. “Objections to the discretionary aspects of a sentence

are generally waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed.”          Commonwealth v. Padilla-

Vargas, 204 A.3d 971, 975-76 (Pa. Super. 2019) (citation omitted); see also

Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015)

(discretionary sentencing challenge must be presented to trial court at

sentencing or in post-sentence motion to be preserved). An appellant cannot

cure the waiver of an issue by including the challenge to the discretionary

aspects of a sentence in his Rule of Appellate Procedure 1925(b) concise

statement. Padilla-Vargas, 204 A.3d at 976.

       Appellant did not object to his sentence at the sentencing hearing. While

Appellant filed a post-sentence motion for reconsideration of the sentence, the

sole ground that he asserted is that his “sentence is manifestly excessive as

grossly disproportionate to his crimes” and he did not assert the trial court

failed to state the reasons for his sentence on the record or that the trial court

failed to consider the relevant sentencing factors. Post-Sentence Motion, No.

7540-2016, ¶3; Post-Sentence Motion, No. 7541-2016, ¶3; Post-Sentence

____________________________________________


4 See Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super.
2013) (en banc) (claim that sentencing court failed to consider factors set
forth in Section 9721(b) presents a substantial question).

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Motion, No. 7545-2016, ¶3. Accordingly, because Appellant failed to raise the

issue he presents in this current appeal to the trial court either at the

sentencing hearing or in a post-sentence motion, this appellate issue is

waived.   Padilla-Vargas, 204 A.3d at 975-76; Tejada, 107 A.3d at 799.

Furthermore, Appellant has not argued on appeal that his sentence was

manifestly excessive or grossly disproportionate to his crimes – the issue

raised in his post-sentence motion – and therefore this issue is also waived.

Commonwealth v. Gould, 187 A.3d 927, 934 n.7 (Pa. Super. 2018).

      Even if this issue had been preserved, we would find it meritless.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation

omitted). Contrary to Appellant’s claim in his brief, the trial court stated its

reasons for the sentence imposed at the sentencing hearing, addressing each




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of the Section 9721 sentencing factors of protection of the public, 5 gravity of

the offense,6 and rehabilitative needs of the defendant.7

       Furthermore, this case is distinguishable from Parlante. In that case,

the 21-year old defendant was initially convicted of forgery and then

repeatedly violated probation, including for arrests related to drug possession

and underage drinking and four technical violations. 823 A.2d at 928. On her

sixth violation, the trial court sentenced the defendant to an aggregate four

to eight year term of imprisonment. Id. This Court found that the trial court

abused its discretion because it did not consider all relevant factors, including

the defendant’s age, family history, rehabilitative needs, her pre-sentence

investigative report (PSI), and the fact that all convictions and arrests were

for non-violent crimes. Id. at 930.

       In the instant matter, by contrast, the record reflects that the trial court

ordered a PSI, and Appellant acknowledged in his post-sentence motion that


____________________________________________


5 N.T., 8/3/17, at 13-14 (“I think that really the only hope for the citizens is
to keep you off the street for quite a while. . . . So you’re going to get a hit
from this one and after you do this again you’ll get [an]other hit, and frankly
we won’t have to watch for you every time you get on a bus or walk down the
street.”).
6 N.T., 8/3/17, at 14 (“I don’t usually go along with the Commonwealth
recommendation, they tend to be a little heavy-handed, but I really don’t think
there’s much of anything positive I can gain from looking at your record and
your continued conduct.”).
7 N.T., 8/3/17, at 13 (“I don’t think I’ve ever seen a guy with so many arrests
and convictions. You got at least one adult arrest for every year of your life.
You’ve got a dozen probation violations, so getting another hit from a back
judge doesn’t seem to stop you.”).

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the trial court’s sentencing of him was accomplished with the benefit of the

report. Post-Sentence Motion, No. 7540-2016, ¶2; Post-Sentence Motion, No.

7541-2016, ¶2; Post-Sentence Motion, No. 7545-2016, ¶2.              “Where the

sentencing court had the benefit of reviewing a PSI, we must presume that

the sentencing judge was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Knox, 165 A.3d 925, 930 (Pa. Super.

2017) (citation omitted). The trial court recognized Appellant’s age at the

time of sentence, 55, and that he had an unceasing record of 55 contacts with

the criminal justice system spanning his adult life, a dozen probation

violations, and 30 convictions for various property offenses, including robbery.

N.T., 8/3/17, at 6, 13.    The record thus reflects that the trial court was

cognizant of the Appellant’s ample criminal record and background and

provided sufficient reasons for the sentence imposed.

      Based on the foregoing, Appellant is not entitled to relief.

      Judgments of sentence affirmed.

      Judge Ott joins the Memorandum.

      Judge Dubow Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/19

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