J-A20001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
JUAN C. SOSA,                             :
                                          :
                  Appellant               : No. 195 EDA 2014

         Appeal from the Judgment of Sentence December 9, 2013,
               Court of Common Pleas, Philadelphia County,
             Criminal Division at No. CP-51-CR-0006214-2012

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                FILED SEPTEMBER 28, 2015

      Appellant, Juan C. Sosa (“Sosa”), appeals from the judgment of

sentence entered on December 9, 2013 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions of robbery,

criminal conspiracy, robbery of a motor vehicle, firearms not to be carried

without a license, carrying firearms on public streets or public property in

Philadelphia, receiving stolen property, possessing instruments of crime, and

altering or obliterating marks of identification.1 For the reasons that follow,

we affirm.

      The trial court summarized the facts of this case as follows:

             Valentin Palillero … was the owner and a delivery
             driver for San Lucas Pizza. On January 1, 2012, at
             around 11:30 p.m., [Palillero] received a pizza order


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3702(a), 6106(a)(1), 6108, 3925(a),
907(a), 6117(a).
J-A20001-15


            to be delivered to 2219 Reese Street. [Palillero]
            drove the order to 2219 Reese Street in his red Ford
            Explorer, but upon arrival the same caller instructed
            him to take the order to a different address. As the
            different address did not exist, [Palillero] returned to
            2219 Reese Street.       Upon [Palillero]’s return, a
            heavyset individual was waiting, sitting on the steps
            in front of 2219 Reese Street.          After [Palillero]
            reached into the backseat to secure the receipt with
            the order and then turned around, two other
            individuals pressed a gun to [Palillero]’s head. They
            ordered him to exit the car and hand over his
            money, cards, wallet and phone. One perpetrator
            drove away in the red Ford Explorer, and the other
            two fled on foot. [Palillero] walked back to his pizza
            shop and called the police. While patrolling the area
            in search of the carjackers, Police Officer Gerson
            Padilla located the red Ford Explorer parked on the
            2200 block of Mildred Street. A plainclothes police
            unit set up surveillance in the event someone would
            return to the vehicle, but no one did.

            The following night, in response to flash information
            and radio calls for an unrelated incident, Officer
            Padilla drove to the area of 2200 Mildred [Street].
            The investigation took them into [Sosa]’s house
            located at 2241 Darien Street[.] [Sosa] was inside,
            along with the keys to the red Ford Explorer, pizza
            boxes from San Lucas Pizza, and a black Beretta
            firearm in [Sosa]’s bedroom. (Id. at 57, 101-102,
            113).

Trial Court Opinion, 6/30/14, at 4 (record citations omitted).

      Police arrested Sosa that same evening.        On September 23, 2013,

following trial, a jury found Sosa guilty of the above referenced crimes. On

December 9, 2013, the trial court sentenced Sosa to a total of twelve to

twenty-four years of incarceration.     On December 17, 2013, Sosa filed a




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timely post-sentence motion, which the trial court denied the same day. On

December 27, 2013, Sosa filed a timely notice of appeal.

      On January 2, 2010, the trial court ordered Sosa to file a concise

statement of the errors complained of on appeal pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure. On January 10, 2014, Sosa

requested an extension for filing his Rule 1925(b) statement because he had

yet to receive his sentencing transcripts.    That same day, the trial court

granted Sosa the extension, making his Rule 1925(b) statement due on

February 13, 2014. On February 7, 2014, Sosa filed a timely Rule 1925(b)

statement in which he raised issues challenging the sufficiency of the

evidence to support his robbery, robbery of a motor vehicle, and conspiracy

convictions and alleging that his verdict was against the weight of the

evidence. See Pa.R.A.P. 1925(b) Statement, 2/7/14, at 1-2. Additionally,

in his Rule 1925(b) statement, Sosa “respectfully reserv[ed] the right to

supplement and amend this [Rule] 1925(b) [s]tatement” because he had yet

to receive his sentencing transcripts. Id. at 2. On March 26, 2014, Sosa

filed an untimely supplemental Rule 1925(b) statement in which he raised an

additional sufficiency of the evidence claim relating to his firearms not to be

carried without a license conviction and several discretionary aspects of

sentencing claims.      See Supplemental Pa.R.A.P. 1925(b) Statement,

3/26/14, at 1-4.




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      On appeal, Sosa now raises the following issues for our review and

determination:

            I.       Under the Sixth and Fourteenth Amendments
                     of the U.S. Constitution as well as Article I, § 9
                     of the Pennsylvania Constitution, was the
                     evidence insufficient to sustain [Sosa]’s
                     [r]obbery    convictions    and     [c]onspiracy
                     conviction?

            II.      Under the Sixth and Fourteenth Amendments
                     of the U.S. Constitution as well as Article I, § 9
                     of the Pennsylvania Constitution, were [Sosa]’s
                     convictions against the weight of the evidence?

            III.     Under the Sixth and Fourteenth Amendments
                     of the U.S. Constitution as well as Article I, § 9
                     of the Pennsylvania Constitution, was the
                     evidence insufficient to sustain [Sosa]’s
                     conviction for 18 Pa.C.S.A. § 6106(a)(1)?

            IV.      Under the Fifth, Eighth, and Fourteenth
                     Amendments of the U.S. Constitution as well
                     as Article I, §§ 9, 13 of the Pennsylvania
                     Constitution, did the [t]rial [c]ourt abuse its
                     discretion in sentencing [Sosa]?

Sosa’s Brief at 4.

      For his first issue on appeal, Sosa challenges the sufficiency of the

evidence for his robbery, robbery of a motor vehicle, and criminal conspiracy

convictions. In reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the



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            evidence.   Evidence will be deemed sufficient to
            support the verdict when it establishes each material
            element of the crime charged and the commission
            thereof by the accused, beyond a reasonable doubt.
            Nevertheless, the Commonwealth need not establish
            guilt to a mathematical certainty. Any doubt about
            the defendant’s guilt is to be resolved by the fact
            finder unless the evidence is so weak and
            inconclusive that, as a matter of law, no probability
            of fact can be drawn from the combined
            circumstances.

            The Commonwealth may sustain its burden by
            means      of   wholly     circumstantial    evidence.
            Accordingly, the fact that the evidence establishing a
            defendant’s participation in a crime is circumstantial
            does not preclude a conviction where the evidence
            coupled with the reasonable inferences drawn
            therefrom overcomes the presumption of innocence.
            Significantly, we may not substitute our judgment
            for that of the fact finder; thus, so long as the
            evidence adduced, accepted in the light most
            favorable to the Commonwealth, demonstrates the
            respective elements of a defendant’s crimes beyond
            a reasonable doubt, the appellant’s convictions will
            be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).

      Sosa argues that the evidence was insufficient to identify him as the

heavyset man who was sitting outside of 2219 Reese Street when Palillero

pulled up to that address for the second time. Sosa’s Brief at 30-35. Sosa

also argues that there is no evidence proving that he played any part in

Palillero’s robbery. Id. at 31-34. Sosa does not contest that the two men

who approached Palillero with a gun and stole his vehicle committed robbery




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and robbery of a motor vehicle. Therefore, Sosa’s arguments require us to

determine whether the evidence presented proved that he was the heavyset

individual referred to above and if so, whether he can be linked to Palillero’s

robbery as a coconspirator.

      The Pennsylvania Crimes Code defines criminal conspiracy as follows:

            (a) Definition of conspiracy.--A person is guilty of
            conspiracy with another person or persons to commit
            a crime if with the intent of promoting or facilitating
            its commission he:

                  (1) agrees with such other person or persons
                  that they or one or more of them will engage
                  in conduct which constitutes such crime or an
                  attempt or solicitation to commit such crime;
                  or

                  (2) agrees to aid such other person or persons
                  in the planning or commission of such crime or
                  of an attempt or solicitation to commit such
                  crime.

18 Pa.C.S.A. § 903(a). This Court has long held that this requires proof of

“(1) an intent to commit or aid in an unlawful act, (2) an agreement with a

co-conspirator and (3) an overt act in furtherance of the conspiracy.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013)

(quoting Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super.

2001)). “This overt act need not be committed by the defendant; it need

only be committed by a co-conspirator.” Commonwealth v. Murphy, 795

A.2d 1025, 1038 (Pa. Super. 2002) (quotations and citation omitted).




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            The essence of a criminal conspiracy is a common
            understanding, no matter how it came into being,
            that a particular criminal objective be accomplished.
            Therefore, a conviction for conspiracy requires proof
            of the existence of a shared criminal intent. An
            explicit or formal agreement to commit crimes can
            seldom, if ever, be proved and it need not be, for
            proof of a criminal partnership is almost invariably
            extracted from the circumstances that attend its
            activities. Thus, a conspiracy may be inferred where
            it is demonstrated that the relation, conduct, or
            circumstances of the parties, and the overt acts of
            the co-conspirators sufficiently prove the formation
            of a criminal confederation. The conduct of the
            parties and the circumstances surrounding their
            conduct may create a web of evidence linking the
            accused to the alleged conspiracy beyond a
            reasonable doubt. Even if the conspirator did not act
            as a principal in committing the underlying crime, he
            is still criminally liable for the actions of his co-
            conspirators in furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)

(quoting Commonwealth v. Johnson, 719 A.2d 778, 784–85 (Pa. Super.

1998) (en banc)).

      We conclude that the evidence, when viewed in the light most

favorable to the Commonwealth as the verdict winner, establishes that Sosa

was the heavyset male present at the scene of the crime when the robbery

of Palillero took place and links him to the robbery as a coconspirator. The

certified record on appeal reflects the following. When Palillero returned to

2219 Reese Street, he encountered a heavyset individual sitting in front of

the house whose face Palillero was unable to see. N.T., 9/17/13, at 40-41.

Sosa’s arrest report indicates that he is six feet tall and weighs 280 pounds.



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J-A20001-15


Biographical Information Report, 1/2/12, at 1.      Assuming the heavyset

individual was the person who placed the pizza order, Palillero turned to the

backseat of his vehicle to determine the total cost of the order.       N.T.,

9/17/13, at 41-42. Palillero then felt someone place a gun against the back

of his head. Id. Two individuals, who Palillero described as short and thin,

then removed him from his vehicle and demanded his cash, wallet, and

cellphone, and car keys.   Id. at 42, 70-71.   One of these two individuals

then got into Palillero’s red Ford Explorer and drove away. Id. at 43. The

other individual, along with the heavyset person described above, ran away

from the scene. Id.

     Later that evening, police found Palillero’s red Ford Explorer parked on

the 2200 block of Mildred Street, behind Sosa’s house. N.T., 9/18/13, at 38,

43-49; N.T., 9/19/13, at 55. Police eventually obtained a warrant to search

Sosa’s home. See id. at 99. During the search, police recovered the keys

to Palillero’s red Ford Explorer, pizza boxes from Palillero’s pizza shop, a

firearm resembling the one used during the robbery of Palillero, and a black

scarf resembling the one worn by one of the assailants during the robbery.

Id. at 113; N.T., 9/17/13, at 51-56.

     Therefore, the evidence, viewed in the light most favorable to

Commonwealth, creates the reasonable inference that Sosa was the

heavyset individual who was sitting outside of 2219 Reese Street while

Palillero was robbed, who fled the scene of the robbery with one of the other



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assailants, taking the items stolen from the robbery to his home. Although

the evidence reveals that Sosa did not actually take anything from Palillero’s

person, it sufficiently proves that Sosa was present during the robbery and

that he agreed to aid his coconspirators in robbing Palillero by making him

believe Sosa ordered the pizza and by helping them flee and conceal the

items taken from Palillero. Thus, the evidence reveals the intent to commit

an unlawful act, an agreement with the coconspirators to engage in that

unlawful act, and overt acts in furtherance of the conspiracy. See Thoeun

Tha, 64 A.3d at 710.      Accordingly, the evidence is sufficient to sustain

Sosa’s robbery, robbery of a motor vehicle, and criminal conspiracy

convictions.

      We disagree with Sosa that In Interest of G.G., 714 A.2d 467 (Pa.

Super. 1998), is instructive in this case and supports his sufficiency

challenge. In G.G., while the victim was walking home from school, G.G.’s

coconspirator called for him to come across the street.     Id. at 474.   The

victim complied and the coconspirator then told the victim that he wanted to

see what was in the victim’s pockets and bag. Id. The victim opened his

bag and the coconspirator and G.G. both peered into the bag.        Id.   The

coconspirator took a geometric compass from the victim.            Id.    The

coconspirator and G.G. then left the scene. Id. During the entire incident,

G.G. did not speak or make any threatening physical movements. Id.




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     Our Court held that the evidence was insufficient to sustain G.G.’s

conspiracy conviction because there was no evidence of any agreement

between G.G. and the coconspirator or that G.G. acted in furtherance of a

conspiracy. Id. at 474-75. G.G., however, is readily distinguishable from

the instant matter. Significantly, here, the police recovered the items taken

from Palillero during the robbery from Sosa’s home. Additionally, given the

way in which Palillero was lured away from and then back to 2219 Reese

Street and that upon his return to 2219 Reese Street, he understood the

heavyset individual to be the person who had ordered the pizza, it is

reasonable to infer that Sosa played a role in luring Palillero into the

robbery. Therefore, because G.G. is inapplicable to the instant matter, this

argument does not entitle Sosa to any relief.

     For his second issue on appeal, Sosa argues that his conviction was

against the weight of the evidence. The Commonwealth contends that Sosa

has waived his weight of the evidence claim for failing to state with

specificity why the verdict was against the weight of the evidence in his

post-sentence motion.    Commonwealth’s Brief at 23-24.       A “boilerplate”

post-sentence motion that “‘the verdict was against the weight of the

evidence,’ will preserve no issue for appellate review unless the motion goes

on to specify … why the verdict was against the weight of the evidence.”

Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983) (en

banc) (emphasis in the original). Here, in his post-sentence motion, Sosa



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merely averred that “[a] new trial is appropriate because the verdict is

against the weight of the evidence.”       Post-Sentence Motion, 12/17/13, at

¶¶ 7-9. Accordingly, we conclude that Sosa has not preserved his weight of

the evidence claim for appellate review.

      Even if Sosa had preserved his weight of the evidence claim, it is

nonetheless meritless.    Our standard of review when presented with a

weight of the evidence claim is different from that applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence.    Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).

Therefore, “an appellate court reviews the exercise of the trial court’s

discretion; it does not answer for itself whether the verdict was against the

weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135-

36 (Pa. 2011). Importantly, “a new trial based on a weight of the evidence

claim is only warranted where the jury’s verdict is so contrary to the

evidence that it shocks one’s sense of justice.” Id.




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         Sosa argues that Jesus Crisantos (“Crisantos”) was not a credible

witness. Crisantos gave a police statement linking Sosa to the robbery of

Palillero and the charge of firearms not to be carried without a license. See

N.T., 9/18/13, at 168-70; N.T., 9/19/13, at 53.                Sosa contends that

Crisantos was not a credible witness because, at trial, Crisantos recanted the

statement he gave to police, because Crisantos was in prison for a conviction

of   crimen    falsi,   and   because   Crisantos   received   immunity   for   any

involvement he may have had in Palillero’s robbery by testifying at Sosa’s

trial.    Sosa’s Brief at 24-26.    Sosa asserts that the unreliable statement

Crisantos gave to police is the only evidence linking Sosa to the robbery.

Id. at 26.

         We conclude that the trial court did not abuse its discretion in finding

that the verdict was not against the weight of the evidence. The jury heard

testimony about Crisantos’ prior crimen falsi conviction, about Crisantos

receiving immunity for testifying against Sosa, and that Crisantos was

recanting the statement he gave to police. N.T., 9/18/13, at 148-53, 174-

75. Ultimately, the jury determined that, despite these potential problems

with Crisantos as a witness, the statement he gave to police was credible.

“It is well established that this Court is precluded from reweighing the

evidence and substituting our credibility determination for that of the fact-

finder.”    Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). “The weight of the evidence is a matter exclusively for the finder of



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fact, who is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses.” Commonwealth v. Gonzalez,

109 A.3d 711, 723 (Pa. Super. 2015). As the fact-finder, the jury had the

responsibility of determining whether these factors affected Crisantos’

credibility as a witness. By convicting Sosa, the jury demonstrated that it

believed the statement Crisantos gave to police and that it did not find

credible his recantation of that statement.

      Moreover, our review of the certified record reveals that Crisantos’

statement was not the only evidence linking Sosa to the robbery.          See

supra, pp. 7-9. Based on our review of the record, the trial court did not

abuse its discretion in finding that the verdict was not against the weight of

the evidence.

      Before discussing the merits of the third and fourth issues Sosa raises

on appeal, we must address the allegations of waiver relating to those issues

raised by the Commonwealth.       The Commonwealth asserts that the trial

court did not authorize      Sosa’s untimely supplemental Rule       1925(b)

statement and that consequently, Sosa has waived any issue raised in his

supplemental Rule 1925(b) statement that he did not include in his timely

Rule 1925(b) statement. See Commonwealth’s Brief at 28. Sosa responds

by pointing out that the trial court stated that his supplemental Rule 1925(b)

statement was timely. Sosa’s Reply Brief at 7.




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       It is well settled that “in order to preserve their claims for appellate

review, [a]ppellants must comply whenever the trial court orders them to

file a Statement of Matters Complained of on Appeal pursuant to Rule 1925.

Any issues not raised in a 1925(b) statement will be deemed waived.”

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also

Pa.R.A.P. 1925(b)(4)(vii). Additionally, this Court has held that “the waiver

analysis set forth in Lord applied not only to cases where an appellant failed

to file a concise statement or omitted appellate issues from a concise

statement, but also to cases where he filed a court-ordered statement in an

untimely manner.”      Commonwealth v. Lane, 81 A.3d 974, 979-80 (Pa.

Super. 2013), appeal denied, 92 A.3d 811 (Pa. 2014).

       Importantly, our Court has held that “an appellant’s mere language in

an initial, timely 1925(b) statement unilaterally reserving additional time in

which to file an untimely 1925(b) statement will not suffice to preserve

future issues raised in any untimely statement, even when the reason for

such    action   is   the   result   of   the   unavailability   of   transcripts.”

Commonwealth v. Woods, 909 A.2d 372, 377-78 (Pa. Super. 2006). This

Court explained,

             [A]n appellant cannot simply include in a timely
             Pa.R.A.P. 1925(b) statement a “reservation of right”
             or other informal request to file an untimely,
             supplemental Pa.R.A.P. 1925(b), no matter what the
             reason might be for such a request. Rather, in order
             to file an untimely initial or supplemental Pa.R.A.P.
             1925(b) statement, an appellant must file a separate



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            petition seeking an extension of time or permission
            to file a Pa.R.A.P. 1925(b) statement nunc pro tunc.
            Such action will guarantee the trial court will take
            explicit action[.]

Id. at 377 n.10.

      According to this Court in Woods, to preserve issues raised in what

otherwise would be considered an untimely Rule 1925(b) statement, an

appellant must file a petition with the trial court, “setting forth good cause

for an extension of a specific amount of time in which to file the statement,

and obtain an order granting the request for the extension before the issues

raised in an untimely 1925(b) statement will be preserved for appeal to this

Court.”   Id. at 378.    Alternatively, “an appellant who has filed a timely

Pa.R.A.P. 1925(b) statement, and then for good cause shown discovers that

additional time is required to file a supplemental Pa.R.A.P. 1925(b)

statement, may file a separate petition seeking permission to file a

supplemental Pa.R.A.P. 1925(b) statement nunc pro tunc.” Id. at 378 n.11.

      Here, on January 2, 2010, the trial court ordered Sosa to file a Rule

1925(b) statement.      On January 10, 2014, the trial court granted Sosa’s

request for an extension for filing his Rule 1925(b) statement because he

had yet to receive his sentencing transcripts, making his Rule 1925(b)

statement due on February 13, 2014.          On February 7, 2014, Sosa timely

filed his Rule 1925(b) statement. In his Rule 1925(b) statement, Sosa

“respectfully reserv[ed] the right to supplement and amend this [Rule]




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1925(b) [s]tatement” because he had yet to receive his sentencing

transcripts. See Pa.R.A.P. 1925(b) Statement, 2/7/14, at 2. Sosa did not,

however, file the requisite petition for an extension of time for filing an

otherwise untimely Rule 1925(b) statement under Woods or receive an

order granting such a request. See Woods, 909 A.2d at 377-78. On March

26, 2014, Sosa untimely filed his supplemental Rule 1925(b) statement.

      Sosa contends that Woods is not applicable to this case because of

the 2007 revisions to Rule 1925. Sosa’s Reply Brief at 10-11. We disagree.

Rule 1925(b)(2) currently states,

             Upon application of the appellant and for good cause
             shown, the judge may enlarge the time period
             initially specified or permit an amended or
             supplemental Statement to be filed. Good cause
             includes, but is not limited to, delay in the
             production of a transcript necessary to develop the
             Statement so long as the delay is not attributable to
             a lack of diligence in ordering or paying for such
             transcript by the party or counsel on appeal. In
             extraordinary circumstances, the judge may allow for
             the filing of a Statement or amended or
             supplemental Statement nunc pro tunc.

Pa.R.A.P. 1925(b)(2). Thus, given the similarities between Rule 1925(b)(2)

and the rule set forth in Woods, we conclude that Woods is applicable to

this case.

      Following the filing of his timely Rule 1925(b) statement, Sosa did not

request any further extension and there is no order in the record indicating

that the trial court again enlarged the time period for filing his Rule 1925(b)




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statement or permitted Sosa to file an amended or supplemental statement.

Rather, Sosa merely “respectfully reserv[ed] the right to supplement and

amend this [Rule] 1925(b) [s]tatement” in his timely Rule 1925(b)

statement so that he could unilaterally file a supplemental Rule 1925(b)

statement. See Pa.R.A.P. 1925(b) Statement, 2/7/14, at 2. Sosa’s attempt

to unilaterally file a supplemental Rule 1925(b) statement is expressly

prohibited by Woods and not in accordance with the procedure for seeking

permission to file a supplemental statement set forth in Rule 1925(b)(2).

See Woods, 909 A.2d at 377-78; Pa.R.A.P. 1925(b)(2).

      Rule 1925(c)(3), however, further provides:

            If an appellant in a criminal case was ordered to file
            a Statement and failed to do so, such that the
            appellate court is convinced that counsel has been
            per se ineffective, the appellate court shall remand
            for the filing of a Statement nunc pro tunc and for
            the preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).     In Commonwealth v. Burton, 973 A.2d 428

(Pa. Super. 2009) (en banc), an en banc panel of this Court expanded the

rule set forth in Rule 1925(c)(3) to include not only the failure to file a Rule

1925(b) statement, but the untimely filing of a 1925(b) statement as well.

Id. at 432-33.     Under Burton, both the failure to file a Rule 1925(b)

statement and the untimely filing of a Rule 1925(b) statement are per se

ineffective assistance of counsel. Id. The panel explained:

            The complete failure to file the 1925 concise
            statement is per se ineffectiveness because it is



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           without reasonable basis designed to effectuate the
           client’s interest and waives all issues on appeal.
           Likewise, the untimely filing is per se ineffectiveness
           because it is without reasonable basis designed to
           effectuate the client’s interest and waives all issues
           on appeal.      Thus[,] untimely filing of the 1925
           concise statement is the equivalent of a complete
           failure to file. Both are per se ineffectiveness of
           counsel from which appellants are entitled to the
           same prompt relief.

           The view that Rule 1925(c)(3) does not apply to
           untimely 1925 concise statements would produce
           paradoxical results. The attorney who abandons his
           client by failing to file a 1925 concise statement
           would do less of a disservice to the client than the
           attorney who files a 1925 concise statement beyond
           the deadline for filing. Clients each victimized by per
           se ineffectiveness would be treated differently; the
           abandoned client would receive remand, “the more
           effective way to resolve such per se ineffectiveness,”
           whereas the client whose lawyer files the 1925
           concise statement late would be consigned to filing
           under the Post Conviction Relief Act, 42 Pa.C.S.A. §
           9541 et seq.

           Rule 1925(c)(3) was adopted by the Supreme Court
           to avoid unnecessary delay in the disposition on the
           merits of cases which results from per se
           ineffectiveness of appellant’s counsel. To accomplish
           the manifest purpose of the rule untimely filing of a
           1925 concise statement ought to have no more
           severe consequence than a complete failure to file.
           Thus, if there has been an untimely filing, this Court
           may decide the appeal on the merits if the trial court
           had adequate opportunity to prepare an opinion
           addressing the issues being raised on appeal. If the
           trial court did not have an adequate opportunity to
           do so, remand is proper.

Id. (footnote omitted).




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      Although this case does not present a scenario in which Sosa’s

untimely filing of his supplemental Rule 1925(b) statement would waive all

issues on appeal, it nonetheless represents per se ineffective assistance of

counsel on the part of Sosa’s post-trial/appellate counsel. See id.; Pa.R.A.P.

1925(c)(3).   The untimely filing of Sosa’s supplemental Rule 1925(b)

statement was without a reasonable basis designed to effectuate Sosa’s

interest because it needlessly resulted in the waiver of all the issues raised

in that statement that Sosa did not raise in his timely Rule 1925(b)

statement. Sosa’s post-trial/appellate counsel easily could have, and should

have, requested another extension or permission to file a supplemental

statement from the trial court pursuant to Rule 1925(b)(2) because he had

yet to receive Sosa’s sentencing transcripts.     See Pa.R.A.P. 1925(b)(2).

Moreover, if we do not apply Burton in this case, it would have the

anomalous result of putting Sosa in a better position had his post-

trial/appellate counsel not filed the timely but incomplete Rule 1925(b)

statement.

      Therefore, because the actions of Sosa’s post-trial/appellate counsel

were per se ineffective, we decline to find waiver of Sosa’s third and fourth

issues on the basis that Sosa’s supplemental Rule 1925(b) statement was

untimely. Additionally, because the trial court had adequate opportunity to

and did indeed prepare an opinion addressing the issues raised in Sosa’s




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supplemental Rule 1925(b) statement, we may address the merits of Sosa’s

third and fourth issues. See Burton, 973 A.2d at 432-33.

      For his third issue on appeal, Sosa argues that the evidence was

insufficient to sustain his conviction for firearms not to be carried without a

license under section 6106(a)(1) of the Crimes Code because police only

recovered a firearm from Sosa’s “abode.”           Sosa’s Brief at 36-37.   Sosa

contends that there is no evidence that he ever carried a firearm outside his

place of abode. Id. at 36.

      Section 6106(a)(1) provides as follows:

            (a) Offense defined.--

                    (1) Except as provided in paragraph (2), any
                    person who carries a firearm in any vehicle or
                    any person who carries a firearm concealed on
                    or about his person, except in his place of
                    abode or fixed place of business, without a
                    valid and lawfully issued license under this
                    chapter commits a felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1) (footnote omitted).

      The certified record on appeal reflects that there is sufficient evidence

to sustain Sosa’s conviction under section 6106(a)(1). The certified record

reveals that Crisantos told police the following:

            We    were driving around. I was sitting in the back of
            the   car. Carlos said “yo, yo, yo” and told Nick to pull
            the   car over. Nick pulled over. Carlos and Danny
            got   out of the car.

                                  *     *      *




                                      - 20 -
J-A20001-15


            It was quick. Carlos and Danny came back and said
            “go, go, go.” I seen Carlos with a gun. It looks like
            he had duct tape around it. Nick drove to Mildred
            Street right behind Key School. I hopped out of the
            car and we went inside Carlos’ house on Mildred
            Street. I was in the kitchen. Carlos came running
            into the house throwing shit yelling, the cops, the
            cops. I went to the front door. I seen a female cop
            coming up to the door. I knew why the cops were
            there.

N.T., 9/19/13, at 53.

      Sosa asserts that Crisantos’ statement is not evidence of his crimes

because Crisantos’ statement refers to a “Carlos,” who Sosa maintains is

some other unidentified individual. Sosa’s Brief at 32. However, when Sosa

was arrested he told police that his name was Carlos Sosa. N.T., 9/19/13,

at 52.   Therefore, viewing the evidence in the light most favorable to the

Commonwealth, we conclude that the “Carlos” that Crisantos refers to in his

police statement is indeed Sosa. Thus, the certified record reflects that Sosa

carried a firearm outside his place of abode and the evidence is therefore

sufficient to sustain his conviction under section 6106(a)(1).

      For his fourth issue on appeal, Sosa challenges the discretionary

aspects of his sentence. Despite declining to find waiver of this issue based

on Rule 1925(b), we must nevertheless conclude that Sosa has waived this

issue on appeal because as the Commonwealth points out, Sosa failed to

challenge the discretionary aspects of his sentence during sentencing or in a

post-sentence motion.     See Commonwealth’s Brief at 27-29.        It is well




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settled that “‘issues challenging the discretionary aspects of a sentence must

be raised in a post-sentence motion or by presenting the claim to the trial

court during the sentencing proceedings. Absent such efforts, an objection

to a discretionary aspect of a sentence is waived.’” 2   Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (quoting

Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011)).           “[A]

party cannot rectify the failure to preserve an issue by proffering it in

response to a Rule 1925(b) order.” Commonwealth v. Tejada, 107 A.3d

788, 799 (Pa. Super. 2015). (quotations and citation omitted).




2
   Our determination that Sosa has waived his discretionary aspects of
sentencing claims is required even though the trial court conceded that it
improperly sentenced Sosa:

            (1) [Sosa]’s conviction for Conspiracy to Commit
            Robbery was treated as having an Offense Gravity
            Score (OGS) of 10 when it should have been a 9,
            and (2) [Robinson] was sentenced using the Deadly
            Weapon Enhancement for Use, when he should have
            been   sentenced    using   the  Deadly   Weapon
            Enhancement for Possession.

Trial Court Opinion, 6/30/14, at 11.

    We note that neither of the above sentencing claims present legality
issues, and are therefore waivable. See Commonwealth v. Lamonda, 52
A.3d 365, 371 (Pa. Super. 2012) (en banc) (finding that a claim that the
trial court wrongly applied an offense gravity score was a claim challenging
the discretionary aspects of a sentence); Commonwealth v. Stokes, 38
A.3d 846, 857-58 (Pa. Super. 2011) (holding that claims involving the
application of the deadly weapon enhancement are claims challenging the
discretionary aspects of a sentence).


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       Sosa argues that because his post-trial/appellate counsel was not his

trial counsel and his post-trial/appellate counsel had not received his

sentencing transcripts before post-sentence motions were due that post-

trial/appellate counsel preserved his discretionary aspects of sentencing

claims by raising them in his Rule 1925(b) statement. Sosa’s Reply Brief at

2-6.   Despite Sosa’s change of counsel, our law is clear that an appellant

cannot raise issues for the first time in Rule 1925(b) statement.              See

Tejada, 107 A.3d at 799.             Moreover, Sosa’s post-trial/appellate counsel

could have petitioned the trial court to allow the filing of post-sentence

motions nunc pro tunc. See Commonwealth v. Moore, 978 A.2d 988, 991

(Pa. Super. 2009). (“To be entitled to file a post-sentence motion nunc pro

tunc, a defendant must, within 30 days after the imposition of sentence,

demonstrate sufficient cause, i.e., reasons that excuse the late filing. ...

When the defendant has met this burden and has shown sufficient cause,

the trial court must then exercise its discretion in deciding whether to permit

the    defendant   to   file   the    post-sentence   motion   nunc   pro   tunc.”).

Accordingly, Sosa is not entitled to any relief.




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     Judgment of sentence affirmed.

     Wecht, J. joins the Memorandum.

     Shogan, J. files a Concurring and Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2015




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