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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
TYREEK S. HALL,                          :         No. 3670 EDA 2015
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, June 26, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0013587-2013


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 15, 2017

        Tyreek S. Hall appeals the judgment of sentence in which the trial

court sentenced him to serve a term of 20 to 40 years’ imprisonment for

third-degree murder and a consecutive sentence of 2½ to 5 years’

imprisonment for possession of an instrument of crime (“PIC”).1         After

careful review, we affirm.

        Appellant’s convictions stem from a shooting incident.   The record

reflects that Josiah McClarence and Daimeen Walker (“Walker”) engaged in a

brief fistfight with Nkingi Jones (“Jones”) and Gianni Bain (“Bain"). Walker

told his uncle about the incident. Walker’s uncle advised Walker to contact

appellant. Appellant asked Walker to identify the individuals involved in the



1
    18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively.
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fight. Appellant and Robert Anderson2 approached Jones and Bain who were

playing basketball with two other individuals in a driveway. Appellant pulled

out a gun from his waistband and fired seven shots into the group of young

men   who    scattered   in   different   directions   to   escape   the   gunfire.

Tremaine Rogers, 17 years old and one of the young men playing basketball,

was shot and killed. (See trial court opinion, 6/7/16 at 2-4.)

      Following a jury trial, appellant was convicted of the two crimes. On

June 26, 2015, the trial court imposed the sentences set forth above.

      On July 2, 2015, appellant filed a post-sentence motion and asked the

trial court to reconsider his sentences because the imposition of the

statutory maximum for both crimes was excessive and he had never been

adjudicated delinquent or convicted of a crime before. Also, with respect to

the PIC conviction, appellant asserted that the trial court did not place on

the record the reasons for the maximum sentence. Additionally, he asked

the trial court to reconsider the imposition of consecutive sentences.          By

order dated November 5, 2015, the trial court denied the motion by

operation of law pursuant to Pa.R.Crim.P. 720(B)(3). Appellant filed a notice

of appeal on December 4, 2015 and, on December 9, 2015, was ordered to

file a statement of matters complained of on appeal.          Appellant complied

with the request on December 29, 2015.


2
  Anderson was convicted of third-degree murder and was sentenced to 20
to 40 years of imprisonment. He was tried and sentenced with appellant.
Anderson has appealed to this court.


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      Before this court on appeal, appellant contends that the trial court

abused its discretion when it imposed the maximum sentence on both

charges and ordered them to be served consecutively, when appellant had

no prior record.      Appellant challenges the discretionary aspects of his

sentences.

             [T]he proper standard of review when considering
             whether      to    affirm    the    sentencing   court’s
             determination is an abuse of discretion. . . . [A]n
             abuse of discretion is more than a mere error of
             judgment; thus, a sentencing court will not have
             abused its discretion unless the record discloses that
             the     judgment        exercised     was     manifestly
             unreasonable, or the result of partiality, prejudice,
             bias or ill-will. In more expansive terms, our Court
             recently offered: An abuse of discretion may not be
             found merely because an appellate court might have
             reached a different conclusion, but requires a result
             of   manifest      unreasonableness,      or   partiality,
             prejudice, bias, or ill-will, or such lack of support so
             as to be clearly erroneous.

             The rationale behind such broad discretion and the
             concomitantly deferential standard of appellate
             review is that the sentencing court is in the best
             position to determine the proper penalty for a
             particular offense based upon an evaluation of the
             individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

             Challenges to the discretionary aspects of sentencing
             do not entitle an appellant to review as of right.
             Commonwealth v. Sierra, [752 A.2d 910, 912
             (Pa.Super. 2000)].       An appellant challenging the
             discretionary aspects of his sentence must invoke
             this Court’s jurisdiction by satisfying a four-part test:



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                   [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 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).

Moury, 992 A.2d at 170 (citation omitted).

      Here,    appellant   timely   filed   his   notice   of   appeal   pursuant   to

Pa.R.A.P. 902 and 903 and properly preserved his sentencing challenge in a

timely post-sentence motion.

      “A failure to include the Rule 2119(f) statement does not automatically

waive an appellant’s argument; however, we are precluded from reaching

the merits of the claim when the Commonwealth lodges an objection to the

omission of the statement.”         Commonwealth v. Love, 896 A.2d 1276,

1287 (Pa.Super. 2006), appeal denied, 940 A.2d 363 (Pa. 2007).

Appellant has failed to include a Rule 2119(f) statement in his brief, and the

Commonwealth has objected to this omission. Accordingly, appellant waives

the challenges to the discretionary aspects of his sentencing.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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