J-S35006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LYNELL LEE

                            Appellant                No. 1878 EDA 2014


              Appeal from the Judgment of Sentence June 5, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0700791-2005


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JULY 21, 2015

        Appellant, Lynell Lee, appeals from the June 5, 2014 judgment of

sentence of three to six years’ imprisonment imposed following the

revocation of his probation. After careful review, we affirm.

        On August 9, 2005, Appellant pled guilty to burglary,1 pursuant to a

negotiated plea agreement, and the trial court sentenced him to 11½ to 23

months’ imprisonment, followed by one year of reporting probation, with

immediate parole to a drug treatment facility, once a bed became available.

N.T., 8/9/05, at 10. On January 22, 2009, Appellant appeared before the

trial court for a violation of probation hearing and was found to be in direct
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3502.
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violation of probation. The trial court revoked his probation and resentenced

him to two to four years’ imprisonment, followed by six years’ probation,

concurrent to any other sentence Appellant was then serving.           Trial Court

Order, 1/22/09. On February 18, 2014, the trial court, following a violation

of probation hearing, found Appellant had committed technical violations of

his probation, but the trial court continued Appellant’s probation. Trial Court

Order, 2/18/14. On June 5, 2014, Appellant again appeared before the trial

court for a hearing for alleged violations of his probation.     The trial court

found Appellant was in technical violation of his probation, revoked

probation, and resentenced Appellant to three to six years’ imprisonment.

       Appellant filed a timely notice of appeal on July 2, 2014.        The trial

court ordered Appellant to file a statement of matters complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) on

August 11, 2014, and Appellant complied. The trial court filed a responsive

opinion pursuant to Rule 1925(a) on October 1, 2014.2          Appellant's Rule

1925(b) statement advances the following sole claim of error.

              The trial court’s sentence was excessively harsh and
              an abuse of discretion for a violation of probation
              where it failed to consider all the sentencing factors

____________________________________________


2
  We note the trial court found Appellant’s 1925(b) statement was one day
late. Trial Court Opinion, 10/1/14, at 4 n.1. However, the trial court
granted Appellant an extension of 21 days to file the statement on August
29, 2014. Trial Court Order, 8/29/14. On September 19, 2014, Appellant
timely complied. Thus, his statement was timely.



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             on the record and was excessive in light of the
             violation and the [Appellant’s] mitigating evidence.

Appellant’s Rule 1925(b) Statement, 9/19/14.

      On appeal, Appellant seeks review of the following two issues.

             1. Whether the [trial court] [e]rred in [f]inding
             [Appellant]      in   [v]iolation    of      [h]is
             [p]robation/[p]arole?

             2. Whether the [trial court] abused its discretion
             and imposed an excessive sentence without giving
             weight to [Appellant’s] mitigating evidence?

Appellant’s Brief at 3.

      By its plain text, Rule 1925(b) requires that statements “identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.”    Pa.R.A.P. 1925(b)(4)(ii).     The

Rule also requires that “[e]ach error identified in the Statement will be

deemed to include every subsidiary issue contained therein which was raised

in the trial court ….” Id. at 1925(b)(4)(v). Finally, any issues not raised in

accordance    with   Rule   1925(b)(4)   will   be   deemed   waived.    Id.    at

1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-

line rule, and “any issues not raised in a Rule 1925(b) statement will be

deemed waived.”      Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011);

accord Pa.R.A.P. 1925(b)(4)(vii). Instantly, Appellant has failed to include

his first issue on appeal in his 1925(b) statement.       See Appellant’s Rule

1925(b) Statement, 9/19/14. Accordingly, the issue is waived.




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      In his second issue, Appellant challenges the discretionary aspects of

his sentence. Appellant’s Brief at 9.

             It is well settled that, with regard to the
             discretionary aspects of sentencing, there is no
             automatic right to appeal. [Therefore, b]efore we
             reach the merits of this issue, we must engage in a
             four part analysis to determine: (1) whether the
             appeal is timely; (2) whether Appellant preserved his
             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.
             The third and fourth of these requirements arise
             because Appellant’s attack on his sentence is not an
             appeal as of right. Rather, he must petition this
             Court, in his concise statement of reasons, to grant
             consideration of his appeal on the grounds that there
             is a substantial question. [I]f the appeal satisfies
             each of these four requirements, we will then
             proceed to decide the substantive merits of the case.

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

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Upon review of the record, we conclude Appellant has failed to

preserve his claim.     Appellant did not object to his sentence at the

sentencing   hearing,   nor   did   Appellant   file   a   post-sentence   motion.

Therefore, Appellant has waived the issue for failure to raise it in the trial

court. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).           Further,

Appellant failed to include a statement pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f) in his brief, and the Commonwealth has noted

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its objection to its absence. Commonwealth Brief at 9. “If 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.”

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation

omitted), appeal denied, 65 A.3d 413 (Pa. 2013).

     Based on the foregoing, we conclude Appellant has waived all of his

challenges on appeal, and we affirm the June 5, 2014 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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