J-S52040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

IVAN CABRERA

                            Appellant                  No. 995 EDA 2014


             Appeal from the Judgment of Sentence May 21, 2009
               In the Court of Common Pleas of Chester County
               Civil Division at No(s): CP-15-CR-0005886-2005


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 12, 2014

        Appellant, Ivan Cabrera, appeals nunc pro tunc from the judgment of

sentence entered in the Chester County Court of Common Pleas, following

his bench trial convictions for possession of a controlled substance,



possession of drug paraphernalia.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

           [I]n August 2004, Coatesville Detective Martin Quinn
           contacted members of the Chester County Narcotics Strike
           Force and advised them that he had a confidential
           informant who told him that [Appellant] was selling
           cocaine in the Coatesville area and that [Appellant] resided
           at 35 Spruce Street in Pomeroy, Sadsbury Township,
____________________________________________


1
    35 P.S. § 780-113(a)(16), (30), (32).


_____________________________

*Former Justice specially assigned to the Superior Court.
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       Chester County. The informant also told Detective Quinn
       that a woman named Joy Washington was living with
       [Appellant].

       On July 22, 2005, Sadsbury Township police officers were
       summoned to 35 Spruce Street after [Appellant] was
       accosted by two armed men who demanded entry into the
       residence. [Appellant] reported that the men approached
       him when he returned home, brandished handguns,
       robbed him of a gold necklace and $500.00 in cash that he
       had on his person, and then fled because they heard police
       sirens approaching the area.

       In October 2005, Chester County Child Abuse Detective
       Joseph Daniels informed the Narcotics Strike Force that he
       had a confidential source who told him that: (1)
       [Appellant] and Ms. Washington both lived at 35 Spruce
       Street; (2) Ms. Washington told the confidential informant
       that [Appellant] was making a lot of money selling drugs;
       and (3) Ms. Washington was concerned that people might
       attempt to burglarize their home because [Appellant] kept
       large amounts of cash on hand. Later that month, the
       same informant advised Detective Daniels that Ms.
       Washington had said that she and [Appellant] moved to 29
       Spruce Street, a house that was previously inhabited by


       The Chester County Child Abuse unit also received a report
       from a minor female who alleged that [Appellant] sexually
       assaulted her at 35 Spruce Street in September 2005 and
       gave her cocaine on multiple occasions. As a result, police
       obtained an arrest warrant for [Appellant] and began
       searching for him.      During this investigation, police
       confirmed that [Appellant] and Ms. Washington had moved
       to 29 Spruce Street.

       At approximately 12:45 p.m. on October 25, 2005, a team
       of police officers who were conducting surveillance of 29
       Spruce Street effected a traffic stop and executed the
       arrest warrant as [Appellant] attempted to leave the house
       in a green Ford Expedition. Chester County Detective
       David Grandizio approached on foot and pulled [Appellant]
       from the Expedition after [Appellant] ignored commands to
       exit the vehicle. The detective threw [Appellant] to the

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          ground, placed a knee on his back, and conducted a pat-
          down search, detecting a large, hard object in the vicinity

          we
          pants and pulled out a black cloth drawstring bag, which
          the detective squeezed in order to determine whether it
          contained any rigid items. When he squeezed the bag, it
          opened slightly, and Detective Grandizio observed a baggie
          of suspected marijuana inside. As the cloth bag did not
          contain any large, solid objects, Detective Grandizio
          deduced that it was not the item he felt during the initial

          second time and located a loaded 9 mm semiautomatic
          handgun.    Another officer on the scene conducted a
          protective sweep of the Ford Expedition and discovered a
          stun gun.

          After [Appellant] was taken into custody, police officers
          emptied the cloth bag and ascertained that it contained
          one baggie of marijuana and eleven baggies of cocaine.[2]
          Detective Grandizio immediately applied for a warrant to
          search 29 Spruce Street.

                                       *       *   *

          A magisterial district judge issued a search warrant for 29
          Spruce Street, which led to the discovery of additional
          drugs and firearms; as a result, [Appellant] and Ms.
          Washington were charged with conspiracy and various
          drug and weapons offenses [at No. 5886 of 2005].

Commonwealth           v.    Cabrera,      No.     3493   EDA   2006,   unpublished

memorandum at 1-4 (Pa.Super. filed May 28, 2008).

____________________________________________


2
  At No. 5885 of 2005, the Commonwealth charged Appellant with offenses
related to the controlled substances and firearm recovered from his person.
Ultimately, Appellant was convicted of two (2) counts of PWID and one (1)
count of possession of firearm wit
8, 2007, the court sentenced Appellant to an aggregate term of ten (10) to




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       In September 2006, Appellant filed motions to suppress the evidence

obtained during the search of the Spruce Street residence.          The court

                                                                    , and the

Commonwealth timely filed a notice of appeal. On May 28, 2008, this Court

vacated the order granting suppression and remanded for trial. Specifically,

this Court held that the police conducted a legal search of the residence

pursuant to a valid warrant.

       Following a bench trial, the court found Appellant guilty of possession

of a controlled substance, PWID, and possession of drug paraphernalia. On

May 21, 2009, the court sentenced Appellant to an aggregate term of ten

(10) to twenty (20) years

run concurrent with the sentence Appellant was already serving at No. 5885

of 2005. The court also imposed a mandatory minimum sentence, pursuant

to 18 Pa.C.S.A. § 7508(a)(3)(iii).3 (See N.T. Sentencing Hearing, 5/21/09,

at 4, 13). Appellant did not file post-sentence motions or a notice of appeal.

____________________________________________


3

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), in which the Court expressly held that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt.    Here, the court imposed a mandatory minimum sentence on
                                                                         g
seven (7) year minimum sentence for PWID conviction involving at least one
hundred grams of cocaine, where defendant has been convicted of another
drug trafficking offense at the time of sentencing). Under Section 7508(b),
the court determines applicability of the mandatory minimum at sentencing
(Footnote Continued Next Page)


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        On May 26, 2010, Appellant timely filed a pro se petition pursuant to
                                                 4
                                                     The court appointed counsel, who

filed an amended petition on November 7, 2013. In the amended petition,

Appellant argued trial counsel was ineffective for failing to file a notice of

appeal.    Appellant also claimed trial counsel was ineffective for failing to




right to file a post-sentence motion nunc pro tunc.

        On February 7, 2014, Appellant filed a petition to modify sentence

nunc pro tunc. In it, Appellant argued as follows:

          a.
          #5886-05 and on Criminal Information #5885-0[5] were
          actions related to each other in time and in substance in
          that the conviction on #5886-05 came about as a result of
          information obtained as a result of the prosecution on
          #5885-0[5].

          b. The sentencing judge desired that [Appellant] serve
          these two sentences concurrently as evidenced by his
          sentencing [Appellant] to serve a period of incarceration
          from 10-20 years concurrently.
                       _______________________
(Footnote Continued)

by a preponderance of the evidence (arguably in violation of Alleyne). In
the present case, however, Appellant conceded the applicability of Section
7508(a)(3)(iii) at the sentencing hearing. (See N.T. Sentencing Hearing at

sentence. See Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super.
2001) (explaining challenge to application of mandatory minimum sentence
is non-waivable challenge to legality of sentence which, assuming proper
jurisdiction, this Court can raise sua sponte).
4
    42 Pa.C.S.A. §§ 9541-9546.



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J-S52040-14



        c. Because [Appellant] had served approximately three (3)
        years of his sentence on #588[5]-0[5] before he was
        sentenced on #5886-05, the sentences could not be fully
        served concurrently as [Appellant] contends was the
        intention of the sentencing judge.

(Petition to Modify Sentence Nunc Pro Tunc, filed 2/7/14, at 2).      Thus,

Appellant concluded the court should reduce his sentence at No. 5886 of

                                                              can be served

                Id.                                                        -

sentence motion nunc pro tunc.

     Appellant timely filed a notice of appeal on March 25, 2014. On March

26, 2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).     Appellant timely

filed a Rule 1925(b) statement on April 1, 2014.

     Appellant raises one issue for our review:

        DID    THE    TRIAL   COURT   ERR   BY     NOT   MODIFYING




     On appeal, Appellant contends his convictions at Nos. 5885 and 5886

of 2005 were based upon a related series of events. Appellant asserts the

sentencing court recognized the connection between the two cases; thus,

the court imposed the sentence for No. 5886 of 2005 to run concurrent with

the prior sentence at No. 5885 of 2005. Appellant insists, however, that the




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No. 5886 of 2005 matched the amount of time remaining on the sentence

for No. 5885 of 2005. Consequently, Appellant argues the court should have



imprisonment at No. 5886 of 2005, because Appellant had already served

approximately three (3) years of his ten (10) year minimum sentence at No.

5885 of 2005. Appellant concludes the court abused its discretion in failing

to modify the purportedly excessive sentence at No. 5886 of 2005.

                                            ry aspects of his sentence.   See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim

that sentence is manifestly excessive challenges discretionary aspects of

sentencing).

     Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).     Prior to reaching the merits of a discretionary

sentencing issue:

        [W]e conduct a four-part analysis to determine: (1)
        whether appellant has filed a timely notice of appeal, see
        Pa.R.A.P. 902 and 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and
        modify sentence, see Pa.R.Crim.P. 720; (3) whether

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

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).


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        When appealing the discretionary aspects of a sentence, an appellant



separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);



                                                          e purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial



decision to exceptional             Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830




were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

                       Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).       A claim that a sentence is manifestly


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statement sufficiently articulates the manner in which the sentence imposed

violates a specific provision of the Sentencing Code or the norms underlying

the sentencing process. Mouzon, supra at 435, 812 A.2d at 627.

     Instantly, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion nunc pro tunc and Rule 2119(f)

statement.    Nev

sentencing hearing, the court provided its rationale for the sentence

imposed:

        [I]f we run a concurrent sentence [with a minimum term

        a free ride for this offense [at No. 5886 of 2005] because
        he is three and a half plus years into the original ten-year
        sentence [at No. 5885 of 2005], which means that, worst
        case scenario, he might do six months on what is a
        mandatory seven-year sentence, so that a straight
        concurrent sentence is not possible.

                                *    *    *

        Again, so we do not have to revisit this issue by way of
        any sentencing arguments, the [c]ourt recognizes that it
        must impose at least a seven-year sentence. The [c]ourt
        also recognizes that seven on top of the ten that he is
        already doing is more than I think appropriate considering
        both cases together; however, each case has to be looked
        at separately. And I believe that he should serve at least
        an additional three and a half years, otherwise it would
        diminish the significance of this offense, which we do not
        think appropriate.

                                *    *    *


        [Appellant] gets a break. The sentence that can legally be

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          imposed is 10 to 20 y
          you will serve an additional three years.

(See N.T. Sentencing Hearing at 11, 13-14.)



receive an additional period of incarceration for the new convictions at No.

5886 of 2005.       As presented, Appellant has failed to raise a substantial

question that would compel sentencing relief.5        See Mouzon, supra.

Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

       JUDGE ALLEN JOINS THE MEMORANDUM.

       JUSTICE FITZGERALD CONCURS IN THE RESULT.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014

____________________________________________


5

the failure to receive credit for time served on the sentence at No. 5885 of
2005, Appellant still would not be entitled to relief.      See Wassell v.
Commonwealth, 658 A.2d 466, 469 (P
credit on a sentence can only be given when it has not already been credited
against another sentence. There is simply no statutory provision which

retroactively, i.e., to have it commence at the same time as a prior




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