J-S16021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TOMMY T. TRAN                              :
                                               :
                       Appellant               :   No. 1658 EDA 2019

       Appeal from the Judgment of Sentence Entered December 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003556-2017


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 14, 2020

       Tommy T. Tran appeals from the judgment of sentence entered after he

pleaded guilty to one count each of Aggravated Assault, Possession of a

Firearm Not To Be Carried Without a License, Criminal Conspiracy, and

Burglary, and two counts each of Unlawful Restraint and Robbery.1 He

challenges the discretionary aspects of his sentence and claims prosecutorial

misconduct at sentencing. We affirm.

       The facts giving rise to Tran’s guilty plea are as follows:

          On February 10, 2017, around 1:50 in the morning, Tommy
          Tran [(“Tran”)] along with two other co-defendants entered
          a home at 2101 South 66th Street in the city and county of
          Philadelphia. N.T. 9/28/2017 at 9. The males encountered
          two elderly females in the home: Huyen Nguyen and Tntien
          Pham (Complainants). Id. at 10. [Tran] encountered Ms.
          Nguyen in the kitchen, where he placed a gun to her head
____________________________________________


118 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 903 3502(a)(1)(i), 2902(a)(1), and
3701(a)(1)(ii), respectively.
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         and a knife to her throat, brought her upstairs, and tied her
         up. N.T. 2/27/2018 at 4. A co-defendant encountered the
         other complainant as she was sleeping, woke her up,
         brought her to the same room as Nguyen, and tied her up
         as well. Id. at 4-5. Both complainants were punched, and
         Nguyen was strangled about her neck. N.T. 9/28/2017 at
         10. The defendants took $5,700 in cash as well as some
         jewelry from the complainants. N.T. 2/27/2018 at 6.

         During the incident, the neighbors of the complainants
         heard yelling and called the police. Id. at 5. Police arrived
         and stopped the robbery in progress. Id. Police observed
         three masked men attempting to leave the residence. N.T.
         9/28/2017 at 11-12. Once in the house, police observed the
         two complainants still tied up. Id. at 12. [Tran] was found
         with one other co-defendant in the rear bedroom
         underneath a bed, both still wearing masks. Id. His
         codefendant came out from under the bed, but [Tran]
         refused and was forcibly removed. Id. Police observed cash
         strewn about the room and recovered several hundred
         dollars as well as one of the complainant’s jewelry from
         [Tran]. Id. [Tran] possessed a gun and a knife, another co-
         defendant possessed a knife, and the third co-defendant
         possessed a lighter shaped like a gun. N.T. 4/12/2018 at 6.
         [Tran] is not licensed to carry a firearm. N.T. 9/28/2017 at
         13. [Tran] was arrested and charged with Burglary and
         related offenses.

Trial Ct. Op., filed 8/9/19, at 1-2 (unpaginated).

      Following a sentencing hearing in February 2018, the court imposed an

aggregate sentence of 10 to 20 years in prison followed by 20 years of

probation, citing the vulnerability of the victims and the need to protect them

and the public. Tran filed a timely post-sentence motion arguing the sentence

was excessive. The trial court vacated its sentence and scheduled a hearing

for March 2018. Before the court could hold the hearing, however, Tran filed

a notice of appeal, and we quashed the appeal as interlocutory. The court then




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conducted the resentencing hearing and resentenced Tran in December 2018

to the same sentence it had original imposed.

      Tran did not file a renewed post-sentence motion. Rather, in February

2019, he submitted a Motion to Dismiss arguing only that the court should

dismiss the charges due to alleged prosecutorial misconduct at Tran’s original

sentencing hearing and at his post-sentence hearing:

         7. Clearly by misrepresenting [codefendant’s] role at
         [Tran’s] sentencing hearing and post sentence hearing, the
         prosecutor engaged in conduct which intentionally
         undertake [sic] Defendant’s right to a fair sentence.

         8. Accordingly, in the interest of Justice, for the foregoing
         reasons, the case sub judice should be dismissed with
         prejudice pursuant to the Double Jeopardy Clause of Article
         1, Section 10 of the Pennsylvania State Constitution and
         Commonwealth v. Minnis, 83 A.3d 1047 (Pa.Super.
         2014).

Motion to Dismiss with Prejudice Based on Prosecutorial Misconduct, filed

2/4/19, at ¶¶ 7, 8 (emphasis in original). The court denied the motion by

operation of law and this timely appeal followed.

      On appeal, Tran raises two issues:

         1. Whether the trial court abused its discretion in imposing
         an unreasonable, manifestly excessive concurrent sentence
         of ten (10) to twenty (20) years, that was substantially
         above the aggravated guideline range, where the court
         failed to provide a contemporaneous written statement of
         the reason or reasons for deviating from the guidelines, and
         the sentence was grossly disproportionate to the gravity of
         the offense, [Tran]’s rehabilitative needs, and the protection
         of the community, thereby violating 42 Pa.C.S.A. Section
         9712(b) of the sentencing code and the fundamental norms
         of sentencing?



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         2. Whether [Tran]’s conviction and judgment of sentence
         should be vacated with prejudice, because the
         Commonwealth engaged in prosecutorial misconduct,
         thereby prejudicing [Tran]’s right to a fair sentencing, where
         during [Tran]’s sentencing hearing the prosecutor made
         egregious misrepresentation of fact with the clear explicit
         purpose of persuading the lower court to impose a
         heightened sentence?

Tran’s Br. at 4.

      Tran’s first issue is a challenge to the discretionary aspects of his

sentence. “The right to appellate review of the discretionary aspects of a

sentence is not absolute[.]” Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa.Super. 2014) (en banc). An appellant wishing review of such an

issue must clear four hurdles. The appellant must (1) have preserved the issue

either by raising it at the time of sentencing or in a post-sentence motion; (2)

have filed a timely notice of appeal; (3) set forth a concise statement of

reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f);

and (4) raise a substantial question about the appropriateness of the

sentence. Commonwealth v. Baker, 72 A.3d 652, 662 (Pa.Super. 2013).

      Here, Tran failed to preserve his sentencing claim in an objection at the

re-sentencing hearing or in a motion to modify the sentence. “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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).

Indeed, Tran did not file anything he captioned as a post-sentence motion

after his re-sentencing. Rather, he filed what he styled as a Motion to Dismiss.



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However, even that filing did not challenge his sentence, but rather alleged

that the trial court should dismiss his case because of prosecutorial

misconduct. In any event, that filing could not have preserved any challenge

to the sentence, as it would have been untimely. See Commonwealth v.

Feucht, 955 A.2d 377, 383 (Pa.Super. 2008) (“To preserve issues concerning

the discretionary aspects of sentencing, a defendant must raise them . . . in

a timely post-sentence motion.”).

      Although Tran did make such an argument in his post-sentence motion

challenging his original sentence, that is not the operative sentence. Rather,

he is now subject to the judgment of sentence imposed after his resentencing

hearing. Although the “new” sentence is for the same terms of imprisonment

and probation as the original sentence, Tran’s challenge to the original

sentence cannot be used as a challenge to the new sentence. This is not a

mere technicality. By not making an appropriate objection or post-sentence

motion against the “new” sentence, Tran deprived the trial court of the

opportunity to reconsider its sentence in light of any new information or

arguments presented at the resentencing hearing. Tran has waived his

sentencing claim.

      Next, Tran claims that the Assistant District Attorney (“ADA”) committed

prosecutorial misconduct when making her argument during the original

sentencing hearing. He alleges that the ADA’s misrepresentation of a

codefendant’s involvement amounted to prosecutorial misconduct and

influenced the court to impose a harsher sentence.

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     Even assuming the argument is properly before us in this appeal, as the

alleged misstatements occurred at hearings before the court resentenced

Tran, Tran waived the claim by failing to make a contemporaneous objection.

See Commonwealth v. Spotz, 18 A.3d 244, 277-78 (Pa. 2011) (concluding

that appellant waived claim of prosecutorial misconduct by failing to raise

contemporaneous objection). See also N.T., Sentencing, 4/24/17, at 7-9.

Moreover, Tran’s claims of prosecutorial misconduct do not hold up, as the

Commonwealth ably explains. See Com. Br. at 19-24. We affirm the judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2020




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