J-S25007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DWAYNE A. GOLSTON                          :
                                               :
                       Appellant               :       No. 910 WDA 2017

              Appeal from the Judgment of Sentence May 22, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002218-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                              FILED MAY 30, 2018

       Appellant, Dwayne A. Golston, appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas, following his jury trial

convictions for forgery, access device fraud, identity theft, receiving stolen

property, and possessing instruments of crime.1 We affirm.

       In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

       Appellant raises three issues for our review:

          APPELLANT AVERS AND BELIEVES THAT THE [COURT]
          ERRED WHEN IT DENIED APPELLANT’S OMNIBUS PRE-
          TRIAL MOTIONS AND THEREBY RULED THAT APPELLANT’S
          CONSTITUTIONAL RIGHTS HAD NOT BEEN VIOLATED BY
          THE MILLCREEK TOWNSHIP POLICE DEPARTMENT (MPD),
          SPECIFICALLY THAT THE STOP AND/OR SEARCH OF
____________________________________________


1 18 Pa.C.S.A. §§ 4101(a)(2); 4106(a)(1)(ii); 4120(a); 3925(a); 907(a),
respectively.
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         APPELLANT WAS CONSTITUTIONAL (I.E., THAT THE
         MILLCREEK TOWNSHIP POLICE DEPARTMENT HAD
         REASONABLE SUSPICION AND/OR PROBABLE CAUSE).

         WHETHER THE VERDICT GOES AGAINST THE SUFFICIENCY
         OF THE EVIDENCE BECAUSE THE COMMONWEALTH’S
         PRIMARY WITNESSES TESTIFIED AND/OR PRESENTED
         EVIDENCE OF WHAT WAS UNCHARGED CONDUCT INSIDE
         THE BRANCH OF ERIE BANK, AND THE COMMONWEALTH
         PRESENTED NO WITNESSES OR EVIDENCE OF THE
         ALLEGED CONDUCT INSIDE THE BRANCH OF PNC BANK,
         ESPECIALLY WITH REGARDS TO THE FOLLOWING
         CHARGES: A) FORGERY (F2)—COUNT ONE; B) ACCESS
         DEVICE FRAUD (F3)—COUNT TWO; C) RECEIVING STOLEN
         PROPERTY (F3)—COUNT THREE; D) IDENTITY THEFT (F3)—
         COUNT FOUR; AND/OR E) INSTRUMENTS OF CRIME (M1)—
         COUNT FIVE[.]

         APPELLANT AVERS AND BELIEVES THAT THE [COURT]
         ERRED AT TIME OF SENTENCING WHEN THE TRIAL COURT
         IMPOSED A PERIOD OF INCARCERATION, WHICH WAS AN
         AGGRAVATED    RANGE    SENTENCE,   AND    IMPOSED
         SUBSEQUENT CONSECUTIVE TERMS OF PROBATION
         AND/OR SUPERVISION THAT EXCEEDS TEN (10) YEARS,
         WHICH    IS    MANIFESTLY   EXCESSIVE,     CLEARLY
         UNREASONABLE     AND   INCONSISTENT    WITH    THE
         OBJECTIVES OF THE SENTENCING CODE. SPECIFICALLY,
         SECTION 9721(B) OF THE SENTENCING CODE STATES
         THAT CONFINEMENT SHALL BE CONSISTENT WITH THE
         PROTECTION OF THE PUBLIC, THE GRAVITY OF THE
         OFFENSE AND THE REHABILITATIVE NEEDS OF THE
         DEFENDANT. APPELLANT ARGUES THAT THE POLICIES OF
         SECTION 9721(B) COULD HAVE BEEN ACHIEVED WITHOUT
         IMPOSING SUCH A LENGTHY MINIMUM AGGREGATE
         SENTENCE.

(Appellant’s Brief at 3).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William R.

Cunningham, we conclude Appellant’s issues merit no relief. The trial court


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opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed August 22, 2017, at 4-13) (finding:

(1) employees at Erie Bank told Officer Caldwell that African American man

wearing tan sports coat and derby-style hat had tried, for second time, to cash

savings bonds with identification card that could not be verified; Erie Bank

employees told officer that suspect was walking west; Officer Caldwell knew

PNC bank was nearby, so he drove there and observed black male with tan

sports coat and derby-style hat; Officer Caldwell had reasonable suspicion for

investigative detention, approached Appellant, and asked what he was doing;

after learning of Appellant’s failure to cash savings bonds at Erie Bank and at

PNC Bank, officer asked Appellant for his identification, which Appellant

produced; when officer attempted to verify it, it came back as white female

with different name and address than listed on identification card; officer

asked Appellant about savings bonds; Appellant handed one over; officer

verified that name and social security number on savings bond belonged to

81-year-old white male resident of Arizona; Appellant then admitted his real

identity and claimed he had found savings bonds on top of urinal in restaurant

in Chicago; at this point, officer had probable cause to arrest Appellant; court

properly denied suppression motion; (2) after failed attempts at banks in Ohio

and Illinois, Appellant travelled to Pennsylvania to try to cash savings bonds

belonging to Arizona resident, Mr. Peele; Appellant secured false identification

card in Ohio so he could pass himself off as Mr. Peele; Appellant signed


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identification card as Mr. Peele and wrote on and/or signed at least one of

savings bonds; no evidence showed Mr. Peele authorized Appellant to write

on his savings bonds; Appellant claimed he found savings bonds in bathroom

of restaurant in Chicago or near dumpster of restaurant, or in projects of Ohio;

whichever version of Appellant’s story jury believed demonstrated Appellant

knew or had reason to know savings bonds were stolen; Commonwealth

presented sufficient evidence to sustain each of Appellant’s convictions; (3)

Appellant challenges excessive nature of his sentence,2 which does not raise

substantial question under circumstances of this case; moreover, court

considered Appellant’s character, prior record, seriousness of offenses, impact

of offenses on Victim, and reviewed pre-sentence investigation report; court

stated reasons for sentence imposed on record at time of sentencing; court


____________________________________________


2 Appellant filed pro se correspondence on May 30, 2017, within ten days of
sentencing, stating he wanted to challenge the discretionary aspects of his
sentence. The court forwarded the correspondence to counsel, consistent with
Pa.R.Crim.P. 576(a)(4) (stating in any case in which defendant is represented
by counsel, if defendant submits for filing written motion, notice or document
that has not been signed by defendant’s attorney, clerk of courts shall accept
it for filing and forward copy of time stamped document to defendant’s
attorney and attorney for Commonwealth within 10 days of receipt). Counsel
asserted in Appellant’s Pa.R.A.P. 1925(b) statement that the court
erroneously denied Appellant’s post-sentence motions, but the certified record
and docket entries show counsel did not file a post-sentence motion on
Appellant’s behalf.      Consequently, Appellant’s discretionary aspects of
sentencing issue is waived. See Commonwealth v. Griffin, 65 A.3d 932
(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (explaining
objections to discretionary aspects of sentence are waived if they are not
raised at sentencing hearing or in timely filed post-sentence motion). Even if
Appellant had preserved his sentencing challenge, we would agree with the
trial court’s conclusion that his claim merits no relief.

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did not abuse sentencing discretion). Accordingly, we affirm on the basis of

the trial court’s opinion regarding Appellant’s first and second issues.

Appellant’s third issue on appeal is waived; even if Appellant had preserved

this claim, we would affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2018




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