J-S66005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JASON EDWARD JACKSON,

                             Appellant                No. 1433 WDA 2016


        Appeal from the Judgment of Sentence Entered August 25, 2016
              In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                           CP-02-CR-0017785-2013
                           CP-02-CR-0017787-2013


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.:              FILED APRIL 18, 2018

        I respectfully disagree with the Majority’s conclusion that Appellant

waived his sentencing claim for our review, and with its alternative position

that Appellant’s sentencing challenge is meritless. Thus, I dissent.

        First, Appellant argues that in fashioning his sentence, the trial court

improperly (and repeatedly) “cited four cases that were withdrawn or

dismissed in their entirety[,]” without fully recognizing that those cases did

not result in convictions. Appellant’s Brief at 23, 24. In Appellant’s post-

sentence motion, he stated:

        5. [Appellant] believes the courts [sic] sentence was excessive for
        the following reasons:
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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         a) [Appellant] admitted he was addicted to marijuana[;]

         b) the court failed to recognize the rehabilitative needs of
         [Appellant;]

         c) the court failed to recognize [Appellant] has not
         been convicted of a crime while on probation[;]

         d) [Appellant] has community support.

Post-Sentence Motion, 9/1/16, at 2 (unnumbered; emphasis added). In my

view, the above-emphasized language was sufficient to preserve the claim

Appellant now raises on appeal. Thus, I dissent from the Majority’s position

that Appellant waived this issue for our review.

      I also disagree with the Majority’s alternative conclusion that Appellant’s

issue is meritless. I recognize, as does the Majority, that in the court’s earlier

comments at the sentencing proceeding, it acknowledged that Appellant’s

other criminal cases did not result in convictions. Nevertheless, the court’s

later statements demonstrate that it did consider the underlying facts of

Appellant’s dismissed/withdrawn cases as proven facts.        Most notably, just

prior to sentencing Appellant, the court declared: “I feel that you are a danger

due to the combination of guns, drugs and violence.”            N.T. Sentencing

Hearing, 8/25/16, at 6.     Appellant stresses, and I agree, that the “[t]rial

[c]ourt’s conclusion that [he] was incorrigible due to a ‘combination of guns,

drugs and violence’ was baseless, as [Appellant] had no new convictions since

the 2014 simple assaults (i.e.[,] the instant cases). Though [Appellant] did

have technical violations, they did not involve guns and violence.” Appellant’s

Brief at 26.



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      Moreover, the trial court’s comments to Reverend Martin - namely, that

Appellant continues to ‘beat women’ and carry a gun - further establish that

the   court   considered    the   allegations   against   Appellant    in   his

dismissed/withdrawn cases as proven facts. While the Majority concludes that

it is not “proper to consider off-the-cuff remarks made after sentencing,” our

Supreme Court has held otherwise. See Commonwealth v. Bethea, 379

A.2d 102, 106 (Pa. 1977) (“In deciding whether a trial judge considered only

permissible factors in sentencing a defendant, an appellate court must, of

necessity, review all of the judge’s comments.”) (emphasis added). Thus, I

would conclude that the trial court abused its discretion by sentencing

Appellant for criminal conduct for which he was never convicted.            See

Commonwealth v. Smart, 564 A.2d 512, 524 (Pa. Super. 1989) (finding an

abuse of discretion where the sentencing court appeared to sentence Smart

for crimes of which he was acquitted).

      Moreover, I would hold that the court’s error in this regard necessitates

vacating Appellant’s judgment of sentence. To support the contrary position,

the Majority cites Commonwealth v. Smith, 673 A.2d 893 (Pa. 1996).

There, the trial court imposed a mitigated sentence based on Smith’s lack of

a criminal record. In affirming Smith’s sentence, our Supreme Court held that

“since the impermissible factor relied on … does not implicate constitutional

rights, we believe that the improper consideration of [the] appellant’s lack of

a prior record was more than offset by the wealth of other factors relied on by

the trial court.” Id. at 896-97. Here, unlike in Smith, the court imposed a

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harsher sentence on Appellant based, at least in part, on crimes for which he

was never convicted.      Thus, in my view, the trial court relied on an

impermissible factor implicating Appellant’s constitutional right to due process

of law, and Appellant’s sentence must be vacated. Therefore, I dissent.




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