J-S22004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
JERRY LEE RITCHEY, JR.,                   :
                                          :
                Appellant                 : No. 96 WDA 2014

        Appeal from the Judgment of Sentence December 10, 2013,
            in the Court of Common Pleas of Venango County,
           Criminal Division, at No(s): CP-61-CR-0000029-2012

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER, JJ.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED JUNE 17, 2015

      I join the majority memorandum which affirms the judgment of

sentence, except for two areas of disagreement noted below.

      First, with respect to footnote 1 in the majority memorandum, the

majority opines that the Wiretap Act permits any Court of Common Pleas to

authorize a warrant under the Wiretap Act regardless of where the crime or

crimes are occurring. I believe this is an incorrect statement of the law.

             It is a fundamental precept of law that “‘the court has no
      jurisdiction of the offense unless it occurred within the county of
      trial ...’” The locus of a crime is always in issue, because the
      court has no jurisdiction over an offense unless it occurred within
      the county of trial or unless, by some statute, it need not. For a
      county to take jurisdiction over a criminal case, some overt act
      involved in that crime must have occurred within that county.
      Moreover, in order to base jurisdiction on an overt act, the act
      must have been essential to the crime[;] an act which is merely
      incidental to the crime is not sufficient. We must also look to the
      nature of the offense and the elements thereof to determine



*Retired Senior Judge assigned to the Superior Court.
J-S22004-15


      whether the crime was sufficiently related to the locus where the
      defendant is being prosecuted.

Commonwealth v. Webster, 681 A.2d 806, 808-09 (Pa. Super. 1996)

(quoting Commonwealth v. McPhail, 631 A.2d 1305, 1311 (Pa. Super.

1993) (citations omitted)).     Accordingly, I disagree with the sentiment

expressed in the second part of footnote 1.            Not only is the majority

incorrect, but there is no reason to reach this issue. It is pure dictum.

      Additionally, with respect to Ritchey’s sentence, I reiterate my

disagreement    with   our   standard    of   review   in   cases   involving   the

discretionary aspects of sentencing. See Commonwealth v. Zirkle, 107

A.3d 127 (Pa. Super. 2014) (Strassburger, J. concurring).

             My concern is not with the trial court’s exercise of
      discretion in [appellant’s] case, but with the fact that our review
      of a trial court’s sentencing discretion in general, and its decision
      to impose consecutive or concurrent sentences in particular, is
      treated differently than our review of any other exercise of a trial
      court’s discretion.

            The abuse-of-discretion standard is applied by this Court in
      reviewing trial courts’ exercises of discretion on issues from the
      continuance of trial, Commonwealth v. Antidormi, 84 A.3d
      736, 745 (Pa. Super. 2014); to the withdrawal of a plea,
      Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super.
      2013); to the reception of evidence, Commonwealth v. Akbar,
      91 A.3d 227, 235 (Pa. Super. 2014); to the weight of the
      evidence, Commonwealth v. Landis, 89 A.3d 694, 699 (Pa.
      Super. 2014). Thus, this Court is quite practiced in determining
      whether an appellant established that the trial court “ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.” Commonwealth v. Raven, 97 A.3d




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     1244, 1253 (Pa. Super. 2014) (quoting Commonwealth v.
     Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).

           There is no sound reason why, in reviewing a trial court’s
     decision to impose consecutive sentences, we do not consider
     whether the record establishes any of these signs of
     discretionary abuse, but instead must focus on the procedural
     hurdles of Rule 2119(f) and the amorphous and inconsistent
     categorization of an issue as one that does or does not raise a
     substantial question. See, e.g., Commonwealth v. Chilcote,
     578 A.2d 429, 441 (Pa. Super. 1990) (Popovich, J., concurring)
     (“[C]ompliance with the requirements of [Rule 2119(f)] wastes
     valuable judicial resources by adding an additional tier to our
     analysis of a defendant’s attack on the discretionary aspects of
     his sentence….”); Commonwealth v. McFarlin, 587 A.2d 732,
     738 (Pa. Super. 1991) (en banc) (Del Sole, J., dissenting)
     (“Widely divergent and inconsistent views of what constitutes a
     substantial question have arisen resulting in nonuniform
     treatment of a defendant’s ability to appeal a sentencing
     matter.”).

           Indeed, not only is the disparate treatment of sentencing
     discretion unwarranted and unreasonable, it is also at odds with
     our Constitution. Under Article V, Section 9 of the Pennsylvania
     Constitution, “an accused has an absolute right to appeal.”
     Commonwealth v. Franklin, 823 A.2d 906, 908 (Pa. Super.
     2003) (quoting Commonwealth v. Wilkerson, 416 A.2d 477,
     479 (Pa. 1980)).       However, under 42 Pa.C.S. § 9781 and
     Pa.R.A.P. 2119(f), this Court is permitted to grant allowance of
     appeal to review the discretionary aspects of a sentence only if
     we, in our discretion, find that the appellant filed the appropriate
     statement raising “a substantial question that the sentence
     imposed is not appropriate” under the Sentencing Code. 42
     Pa.C.S. § 9781(b). Further, this Court’s exercise of discretion in
     ruling on the discretionary aspects of a sentence is
     unreviewable.      42 Pa.C.S. § 9781(d) (“No appeal of the
     discretionary aspects of the sentence shall be permitted beyond
     the appellate court that has initial jurisdiction for such
     appeals.”).   Therefore, under Section 9781, this Court has
     complete, unreviewable discretion to deny a criminal defendant
     his or her right to an appeal the discretionary aspects of a
     sentence.



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                Section 9781(b) clearly infringes upon a
          defendant’s absolute right to an appeal. While I
          acknowledge that an en banc panel of this Court has
          held that the infringement is a reasonable regulation
          of the right to an appeal, McFarlin, 587 A.2d at 736,
          I agree with the thoughtful analysis of this issue of
          the Honorable Joseph A. Del Sole and his conclusion
          that the statutory limitations placed upon a criminal
          defendant’s right to an appeal the discretionary
          aspects of his or her sentence are unconstitutional:

                 Pennsylvania’s procedure of indeterminate
          sentencing, “necessitates the granting of broad
          discretion to the trial judge, who must determine,
          among the sentencing alternatives and the range of
          permissible penalties, the proper sentence to be
          imposed.” Commonwealth v. Martin, [], 351 A.2d
          650 (1976). The Supreme Court of Pennsylvania has
          stated that the importance of this discretionary
          power cannot be overemphasized, and has examined
          its role and its potential for abuse in Martin, supra.
          In this regard the [S]upreme [C]ourt has stated:

               [M]any commentators argue that it is
               one of the most important, and most
               easily abused powers vested in the trial
               court today.     In United States v.
               Waters,    [citation   omitted],     Judge
               Wilkey, speaking for the court, stated:

                      What happens to an offender
                      after conviction is the least
                      understood, the most fraught
                      with irrational discrepancies,
                      and the most in need of
                      improvement of any phase in
                      our criminal justice system.

               It is true that the sentence imposed is
               normally left undisturbed on appeal
               because the trial court is in a far better



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                position to weigh the factors involved in
                such a determination. However, we have
                held that the court’s discretion must be
                exercised within certain procedural
                limits, including the consideration of
                sufficient and accurate information.

          [Martin,] 351 A.2d at 657 (footnotes omitted.)

                 Thus, the important power held by those who
          impose a discretionary sentence is a power which
          must be exercised within limits. As a check on those
          limits the citizens of this Commonwealth have been
          provided with the constitutional provision found in
          Article V, Section 9, which ensures that a defendant
          has a right to appeal.       Section 9781(b) of the
          Sentencing Code eliminates that right, and instead
          gives the reviewing court the power to “grant” or
          “allow” appeal, in its discretion, when the
          discretionary aspects of a sentence are challenged.

                 … The question is not whether trial courts will
          or will not abuse their discretion.       We assume
          members of the bench of this Commonwealth will
          exercise their duty in accordance with the high
          standards for which they are known, however we
          must recognize that mistakes do occur and appellate
          courts exist to remedy such situations. The real
          issue is the legislative attempt to permit our [C]ourt
          to exercise our discretion to limit review. This
          discretionary action, which is not subject to review,
          prohibits what our own constitution guarantees—the
          right to appeal.

                                  ***

                … I do not agree that [] any limitation placed
          on a person’s right to appeal can withstand analysis
          under Article V, Section 9. While I agree that a
          person may waive [his or her] right to appeal by [his
          or her] own action, I reject the concept that the right
          may be eliminated by statute. Instead I agree with



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            our distinguished colleague, Judge Zoran Popovich,
            who stated in his concurring opinion in Chilcote, “§
            9781(b) violates the absolute right of a defendant to
            appeal his sentence.” [Chilcote, 578 A.2d at 441].

      McFarlin, 587 A.2d at 738-39 (Del Sole, J., dissenting).

            Accordingly, I am of the opinion that every criminal
      defendant, who preserves the issue for appeal, has the
      constitutional right to have this Court decide the merits of a
      claim that the sentencing court abused its discretion in imposing
      consecutive rather than concurrent sentences.

Zirkle, 107 A.3d at 134-136.

      Instantly, if Ritchey’s sentences had been ordered to run concurrently,

he would have received an aggregate sentence of 16 to 32 months of

incarceration.   Instead, he was given all consecutive sentences, for an

aggregate judgment of sentence of 96 to 192 months of incarceration. We

presently affirm that judgment of sentence, without reaching the merits of

his claim, because, correctly applying the controlling case law, we hold that

Ritchey’s aggregate sentence is not manifestly excessive and thus he failed

to raise a substantial question.   Accordingly, whether he was ordered to

spend a minimum of 16 or 96 months in prison, or any amount in between,

Ritchey is unable to have an appellate court even review the trial court’s

exercise of discretion. Under the current state of the law, the trial judge had

absolute, unassailable discretion to order a term of incarceration that

differed by a factor of six.




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