J-S23009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 MAMADOU DIALLO                           :
                                          :
                    Appellant             :   No. 1956 EDA 2017

            Appeal from the Judgment of Sentence May 25, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0003914-2016


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 06, 2018

      Appellant, Mamadou Diallo, appeals from the judgment of sentence

entered on May 25, 2017, in the Montgomery County Court of Common Pleas.

We affirm.

      The notes of testimony from Appellant’s February 6, 2017 jury trial

reveal that on February 9, 2016, Appellant and his girlfriend-accomplice,

Ashley Woods (“Woods”), entered a Target department store in Montgomery

County, Pennsylvania. The couple put a pair of leggings and a $299.00 child

car seat in their shopping cart. Appellant and Woods then approached a self-

check-out register. Appellant and Woods scanned the leggings, but they did

not scan the car seat. After paying for the leggings, the couple went to the

parking lot, put the car seat and leggings inside their vehicle, and departed.

Eric Kisielowski (“Kisielowski”), a loss prevention officer at Target, witnessed


____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant and Woods take the car seat from the store without paying for it.

Kisielowski followed Appellant and Woods to the parking lot, and he obtained

the license plate number of the car the pair drove.1 Appellant and Woods

drove to a different Target store, which was located in Lehigh County, and

returned the car seat for a refund. On April 7, 2016, police charged Appellant

with retail theft, receiving stolen property (“RSP”), and conspiracy to commit

retail theft.2

       The jury found Appellant guilty of all charges. On May 25, 2017, the

trial court sentenced Appellant as follows: RSP, twelve to twenty-four months

of incarceration; conspiracy, twelve months of probation to be served

consecutively to the sentence for RSP; and no further penalty for retail theft.

N.T., Sentencing, 5/25/17, at 10. Appellant filed a timely pro se notice of

appeal and request to proceed in forma pauperis (“IFP”) on appeal. The trial

court granted Appellant IFP status on June 23, 2017. On August 1, 2017, the

trial court directed Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days, and the

Pa.R.A.P.    1925(b)      order    was    served   on   Appellant’s   trial   counsel,


____________________________________________


1 Utilizing the license plate number, Detective Andrew Moretti of the Plymouth
Township Police Department learned that the car belonged to a third party
named Danish Jacob. N.T., 2/6/17, at 67. When detective Moretti spoke to
Mr. Jacob, he informed Detective Moretti that he lent his car to Woods that
day. Id. at 68. It was this information that led Detective Moretti to Appellant
and Woods. Id. at 71-75.

2   18 Pa.C.S. §§ 3929(a)(1), 3925(a), and 903(a)(1) respectively.

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Dennis Caglia, Esquire. On August 3, 2017, Attorney Caglia filed a petition to

file a post-sentence motion nunc pro tunc, in order to preserve a challenge to

the discretionary aspects of Appellant’s sentence.       On August 16, 2017,

Appellant, through counsel, filed an unopposed motion for an extension of

time in which to file his Pa.R.A.P. 1925(b) statement. In this motion, counsel

noted that the trial court had not ruled on the petition to file a post-sentence

motion nunc pro tunc. The next and final document in the certified record is

Appellant’s September 20, 2017 Pa.R.A.P. 1925(b) statement.

      On appeal, Appellant raises the following issue for this Court’s

consideration:

      Whether the trial court erred when it ruled against [Appellant’s]
      Post Trial Motion which averred that the underlying sentence
      imposed was unduly harsh and excessive as it relates to the length
      of the prison term and to mitigation testimony presented?

Appellant’s Brief at 4. Appellant’s issue is a challenge to the discretionary

aspects of his sentence.

      When an appellant challenges the discretionary aspects of his sentence

there is no automatic appeal; rather, the appeal will be considered a petition

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.

Super. 2007).    Furthermore, as this Court noted in Commonwealth v.

Moury, 992 A.2d 162 (Pa. Super. 2010):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

            [W]e conduct a four-part analysis to determine: (1)
            whether [the] appellant has filed a timely notice of

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            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 [the] appellant’s brief
            has a fatal defect, Pa.R.A.P. 2119(f); and (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      Appellant has satisfied the first element of the four-part test from

Moury.    Appellant filed a timely notice of appeal.   However, as discussed

above, while Appellant filed a petition to file a post-sentence motion nunc pro

tunc to preserve a challenge to the discretionary aspects of his sentence, there

is no order in the certified record disposing of this petition.   Nevertheless,

appended to Appellant’s brief is an order dated August 23, 2017. Appellant’s

Brief at Appendix C. This order granted Appellant’s nunc pro tunc motion to

challenge the discretionary aspects of his sentence, denied reconsideration of

his sentence, and directed Appellant to file his Pa.R.A.P. 1925(b) statement

within thirty days. While this document does not appear in the certified record

or on the trial court’s docket, the order is reflected on this Court’s docket as

a comment to the entry noting the filing of Appellant’s notice of appeal.

Moreover, the trial court addressed this issue in its Pa.R.A.P. 1925(a) opinion.

For these reasons, we decline to find Appellant’s challenge to the discretionary

aspects of his sentence waived on appeal for failing to file a post-sentence




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motion pursuant to Pa.R.Crim.P. 720, and we conclude that Appellant has

satisfied the second prong of the four-part test from Moury.

       Next, we must determine if Appellant provided a proper statement of

reasons for allowance of appeal from the discretionary aspects of his sentence

pursuant to Pa.R.A.P. 2119(f).          The Commonwealth argues that Appellant

failed to include a separate statement in his brief as required by Rule 2119(f).3

Commonwealth’s Brief at 9. Instead, Appellant included his Pa.R.A.P. 2119(f)

statement at the beginning of the argument section of his brief.             See

Appellant’s Brief at 8-9.      Although we agree with the Commonwealth that

Appellant has not strictly complied with Pa.R.A.P. 2119(f) and case law

applying the rule, we decline to find waiver.        Thus, we are satisfied that

Appellant has fulfilled the third requirement from Moury.

       Next, we must determine if Appellant has raised a substantial question

for our review. Moury, 992 A.2d at 170.

            A substantial question requires a demonstration that “the
       sentence violates either a specific provision of the sentencing
       scheme set forth in the Sentencing Code or a particular
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3   Rule 2119(f) provides as follows:

       (f) Discretionary aspects of sentence. An appellant who
       challenges the discretionary aspects of a sentence in a criminal
       matter shall set forth in a separate section of the brief a
       concise statement of the reasons relied upon for allowance of
       appeal with respect to the discretionary aspects of a sentence. The
       statement shall immediately precede the argument on the merits
       with respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f) (emphasis added).

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       fundamental norm underlying the sentencing process.”
       Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
       2005). This Court’s inquiry “must focus on the reasons for which
       the appeal is sought, in contrast to the facts underlying the
       appeal, which are necessary only to decide the appeal on the
       merits.” Id. Whether a substantial question has been raised is
       determined on a case-by-case basis; the fact that a sentence is
       within the statutory limits does not mean a substantial question
       cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
       (Pa. Super. 2003). However, a bald assertion that a sentence is
       excessive does not by itself raise a substantial question justifying
       this Court’s review of the merits of the underlying claim. Id.

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012). Whether

the issue raised on appeal constitutes a substantial question is a matter

evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d

808, 811 (Pa. Super. 2001).

       In his Pa.R.A.P. 2119(f) statement, Appellant avers that his sentence

was unduly harsh because the trial court failed to state its reasons for

sentencing Appellant in the aggravated range of the Guidelines. Appellant’s

Brief at 8-9. Specifically, Appellant argues that the trial court did not provide

adequate reasons for imposing a sentence in the aggravated range of the

Guidelines    and    failed   to   give   adequate   consideration   to   Appellant’s

immigration status,4 his remorse, and his future goals. Appellant’s Brief at

13. We conclude that Appellant has raised a substantial question for our



____________________________________________


4  Appellant was born in the Republic of Guinea. He is not a citizen of the
United States; rather he is a legal permanent resident.         Presentence
Investigation Report, 4/24/17, at 1. As a legal permanent resident, Appellant
is a deportable alien. 8 U.S.C. § 1227.

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review.   See Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.

1999) (stating that when an appellant asserts that the trial court failed to

state sufficiently its reasons for imposing a sentence outside of the Sentencing

Guidelines, this Court will conclude that the appellant has stated a substantial

question).

      It should be noted that “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.” Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is

not merely an error in judgment; rather, an appellant must establish that the

trial court ignored or misapplied the law, exercised its judgment for reasons

of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable

decision. Id.

      The trial court addressed this issue as follows:

      The undersigned carefully considered Appellant’s PSI report, the
      nature and grading of his crimes (M-1s), and the mitigating factors
      presented by counsel. The trial court had a copy of the PSI report
      and also considered Appellant’s immigration status after speaking
      with Appellant’s federal probation officer, which was placed, in
      part, on the record as follows:

             THE COURT: The court does have a copy of the PSI. I
             had already conferenced with counsel for both sides.
             During that conference, I was able to get in touch with
             Appellant’s Federal Probation Officer which at that
             time we had a conference call on speaker phone
             because I wanted to find out his immigration status,
             which I was informed at that time and also to find out
             the status of his Federal Probation.


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     (N.T. - Sentencing at 3-4.) The trial court also noted the following
     guideline ranges: For the conviction of theft by receiving stolen
     property (Count 2), restorative sanctions to nine (9) months’
     incarceration, plus three (3) months for the aggravated range; for
     the conviction of conspiracy to commit retail theft (Count 3),
     restorative sanctions to three (3) months’ incarceration, plus
     three (3) months for the aggravated range. (Id. at 5.) Defense
     counsel also placed on the record that Appellant is from “[Guinea]
     and faces immigration issues as a result of his convictions”; that
     his criminal history is insignificant; that he had already been
     sentenced in both the federal system and Lehigh County to
     probation. (Id. at 6.)

            The trial court considered Appellant’s immigration status,
     but such did not ultimately help mitigate his total sentence. The
     undersigned specifically addressed Appellant’s immigration
     status, as well as[] aggravating sentencing factors on the record,
     as follows:

           I am someone who comes from a family of immigrants
           and believes in the American dream and believes that
           people who want to come here and work hard, should
           be here. But that’s not you. You have been given an
           opportunity to be here; and since coming to this
           country as a student at first because of political
           asylum, you decided to commit a crime for which you
           were convicted in Federal Court.

           You were given probation.         You were given an
           opportunity to stay on the right track and do the right
           thing. But you did not do that. You committed this
           crime in Montgomery County and the identical crime
           in Lehigh County. This is not someone who is taking
           advantage of opportunities that are given to him. This
           is not someone who is showing that they want to take
           advantage of what this country has to offer. Because
           you are disrespecting the opportunity you were given
           by committing crime here, by not doing the right
           thing, and you have done it time and time again. This
           is not one mistake that you could put on your
           girlfriend (coconspirator, Ashley Woods) when you
           committed the same crime in another county.




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             Because you were on Federal Probation at the time
             you committed the crime, because you were given an
             opportunity to be here that you did not take
             advantage of and continued to commit more crime, I
             consider those aggravating factors in this matter.

             [A]n additional aggravating factor is leaving when we
             had sentencing scheduled last week and we had to
             pick you up on your bench warrant and you tried to
             run out of the window.

      (Id. at 10.) Therefore, the trial court found it appropriate to
      sentence Appellant to one (1) to two (2) years’ imprisonment in
      an SCI on the charge of theft by receiving stolen property to be
      followed consecutively by one (1) year of probation on the charge
      of conspiracy. (Id.)

Trial Court Opinion, 11/14/17, at 5-6 (internal footnote, brackets, and ellipses

omitted).

      As noted, the trial court had the benefit of a PSI, which gives rise to a

presumption that the trial court properly considered and weighed all relevant

factors. See Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super.

2016) (“[W]here the sentencing judge had the benefit of a [PSI] report, it will

be presumed that he or she was aware of the relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.”).      Moreover, the trial court stated its

consideration of Appellant’s immigration status, his recidivism, and his failure

to avail himself of the opportunity to rehabilitate through prior sentences of

probation.   N.T., Sentencing, 5/25/17, at 8-10.       For these reasons, we

conclude that the trial court carefully considered the appropriate factors and

provided its rationale for imposing a sentence in the aggravated range of the

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Sentencing Guidelines for RSP. Rodda, 723 A.2d at 214. For these reasons,

Appellant is not entitled to relief. Therefore, we affirm Appellant’s judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/18




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