J-S13017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES STEPHON JOHNSON

                            Appellant                 No. 781 WDA 2014


              Appeal from the Judgment of Sentence April 7, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001345-2013


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 05, 2015

        Appellant, Charles Stephon Johnson, appeals from the April 7, 2014

aggregate judgment of sentence of four to eight years’ imprisonment,

imposed after he was found guilty of one count each of intimidation of a

witness, terroristic threats, and simple assault.1    After careful review we

affirm.

        The trial court summarized the relevant facts and procedural history of

this case as follows.

                    This case had its genesis with events which
              occurred on January 30, 2013. That day, Appellant
              was involved in a violent fight with Antwane McCaleb
              in Kramer’s On the Avenue, a bar in Erie,
              Pennsylvania.    The incident began in the men’s
              room, and continued outside the restroom in the
____________________________________________
1
    18 Pa.C.S.A. §§ 4952(a)(3), 2706(a)(1), and 2701(a)(3), respectively.
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              poolroom area. Michael Wellman, the tavern owner,
              and his girlfriend, Mary Shauberger, who is
              employed at the bar, were present.          Wellman
              witnessed a portion of the incident, which was
              recorded on videotape by the tavern’s security
              system.     Appellant was charged at Erie County
              Docket No. 855 of 2013 with [a]ggravated [a]ssault,
              a second[-]degree felony; [t]erroristic [t]hreats, a
              first[-]degree       misdemeanor;        [r]ecklessly
              [e]ndangering [a]nother [p]erson, a second[-]degree
              misdemeanor;      and   [d]isorderly  [c]onduct,    a
              summary offense.

                    Pursuant to a plea agreement, the charge of
              [a]ggravated [a]ssault was changed to [s]imple
              [a]ssault, a misdemeanor. The remaining charges
              were nolle prossed as part of the plea agreement.
              On July 10, 2013, Appellant entered a guilty plea to
              [s]imple [a]ssault.     On September 10, 2013,
              Appellant was sentenced to 6 to 12 months of
              incarceration, consecutive to Count 4 at Erie County
              Docket No. 310 of 2013.[2]

                    In the early afternoon of March 26, 2013,
              before the underlying criminal action was resolved,
              Appellant returned to Kramer’s.            Appellant
              approached the bar area where Wellman and
              Shauberger    were    sitting  side-by-side   doing
              paperwork. Wellman’s father and a bartender were
              also present.

                    Wellman asked Appellant to leave when
              Appellant entered the bar. Appellant appeared angry
              and refused to leave.      Appellant demanded the
              videotape of the bar fight involving Appellant in
              January of 2013. Appellant came nose-to-nose with
              Wellman.      Appellant yelled at Wellman and
____________________________________________
2
  At docket number CP-25-CR-310-2013, Appellant pled guilty to one count
each of carrying a firearm without a license and intentional possession of a
controlled substance. The trial court imposed an aggregate sentence of
three to seven years’ imprisonment.



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              Shauberger, calling them a “snitch” and a “b _ _ _
              _”, and telling them they were “marked” persons.
              Appellant threatened to put a bullet in their heads.
              Appellant told Wellman and Shauberger they were
              unsafe, and it would never be safe for them to walk
              outside without having to worry Appellant would
              come for them. Appellant leaned forward and took a
              full swing with his hand toward Shauberger’s face
              and knocked a cigarette out of her mouth.
              Shauberger asked Appellant to leave the bar a
              number of times. When Appellant refused to leave,
              Shauberger ran to the kitchen and called 911.
              Wellman and Shauberger were afraid and feared for
              their lives. Appellant remained in the bar and was
              present when the police arrived.

                     City of Erie Police Officers Roofner and Attalla
              responded to the dispatch, arrived at Kramer’s at
              approximately 4:45 p.m., and arrested Appellant.
              Wellman and Shauberger were visibly shaken and
              afraid when the police arrived. Wellman told the
              officers the alarm and video security system were
              not turned on when Appellant arrived. Wellman
              showed the officers the security system and turned it
              back on in their presence.

Trial Court Opinion, 7/2/14, at 2-3 (internal citations omitted).

       On June 12, 2013, the Commonwealth filed an information charging

Appellant with one count each of intimidation of a witness, terroristic

threats, and simple assault.3 On November 12, 2013, Appellant proceeded

to a one-day bench trial, at the conclusion of which the trial court found

Appellant guilty of all charges. On April 7, 2014, the trial court imposed an



____________________________________________
3
  For clarity, this is a second simple assault charge, independent of the
charge Appellant pled guilty to on July 10, 2013.



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aggregate sentence of four to eight years’ imprisonment.4        On April 28,

2014, Appellant filed an untimely “Post Sentence Motion Nunc Pro Tunc,”

which the trial court denied on May 6, 2014.      On May 7, 2014, Appellant

filed a timely notice of appeal.5

       On appeal, Appellant raises the following two issues for our review.

____________________________________________
4
  Specifically, the trial court imposed a sentence of four to eight years’
imprisonment for intimidation of a witness, relevant to this appeal, graded
as a second-degree felony. The trial court imposed a sentence of six to 12
months’ imprisonment for the terroristic threats and simple assault charges.
All sentences were to run concurrent to each other but consecutive to any
other sentence Appellant was already serving.
5
  The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) statement on May 9, 2014. The statement was due 21
days from the date of said filing, on May 30, 2014. The trial court’s docket
reflects that the order was served the same day. Appellant did not request
an extension of time to file his Rule 1925(b) statement. Appellant’s Rule
1925(b) statement was not filed until June 11, 2014. Our Supreme Court
has held that “Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement, when so
ordered[.]” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

      However, this Court has held that failure to timely file a Rule 1925(b)
statement is the equivalent of a failure to file said statement.
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc). Both failures constitute per se ineffective assistance of counsel,
which in criminal cases ordinarily requires a remand pursuant to Rule
1925(c)(3). Id. However, this Court held “[w]hen counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those
issues we need not remand and may address the merits of the issues
presented.” Id. On July 2, 2014, the trial court issued its Rule 1925(a)
opinion, addressing the issues Appellant now raises before this Court.
Therefore, pursuant to Thompson, we may address the merits of
Appellant’s claims.



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              A.      Whether the trial court erred in grading
                      Appellant’s conviction for intimidation of
                      witnesses or victims as a felony of the second
                      degree when the charge was ultimately based
                      on a conviction for simple assault – a
                      misdemeanor[?]

              B.      Whether the sentence imposed by the trial
                      court was illegal, in part, as it was based on an
                      improper grade of a felony of the second
                      degree or, in the alternative, whether the
                      sentence was manifestly excessive and clearly
                      unreasonable[?]

Appellant’s Brief at 3.

         In his first issue, Appellant avers that the trial court erroneously

graded his conviction for intimidation of witnesses as a second-degree

felony, as it was based on his conviction for simple assault which was graded

as   a    second-degree       misdemeanor.      Appellant’s   Brief   at   7.      The

Commonwealth counters that the gradation was proper because the

conviction was based on the charge originally sought by the Commonwealth,

aggravated         assault,   which   was    graded   a   second-degree         felony.

Commonwealth’s Brief at 4.

         At the outset, we note the grading of a felony goes to the legality of

the sentence.        Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super.

2013), appeal denied, 85 A.3d 482 (Pa. 2014). With this in mind, we begin

by noting our well-settled standard of review. “A challenge to the legality of

a sentence … may be entertained as long as the reviewing court has

jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.


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Super. 2011) (citation omitted).     It is also well-established that “[i]f no

statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913,

915 (Pa. Super. 2014) (citation omitted).      “An illegal sentence must be

vacated.” Id. “Issues relating to the legality of a sentence are questions of

law[.] … Our standard of review over such questions is de novo and our

scope of review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238

(Pa. Super. 2014) (citations omitted).

      In this case, Appellant was convicted of intimidation of witnesses, the

statute for which provides as follows.

            § 4952. Intimidation of witnesses or victims

                                         …

            (b) Grading.--

            (1) The offense is a felony of the degree indicated in
            paragraphs (2) through (4) if:

                  (i) The actor employs force, violence or
                  deception, or threatens to employ force or
                  violence, upon the witness or victim or, with
                  the requisite intent or knowledge upon any
                  other person.

                  (ii) The actor offers any pecuniary or other
                  benefit to the witness or victim or, with the
                  requisite intent or knowledge, to any other
                  person.

                  (iii) The actor’s conduct is in furtherance of a
                  conspiracy to intimidate a witness or victim.




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                  (iv) The actor accepts, agrees or solicits
                  another to accept any pecuniary or other
                  benefit to intimidate a witness or victim.

                  (v) The actor has suffered any prior conviction
                  for any violation of this section or any
                  predecessor law hereto, or has been convicted,
                  under any Federal statute or statute of any
                  other state, of an act which would be a
                  violation of this section if committed in this
                  State.

            (2) The offense is a felony of the first degree if a
            felony of the first degree or murder in the first or
            second degree was charged in the case in which the
            actor sought to influence or intimidate a witness or
            victim as specified in this subsection.

            (3) The offense is a felony of the second degree if a
            felony of the second degree is the most serious
            offense charged in the case in which the actor sought
            to influence or intimidate a witness or victim as
            specified in this subsection.

            (4) The offense is a felony of the third degree in any
            other case in which the actor sought to influence or
            intimidate a witness or victim as specified in this
            subsection.

            (5) Otherwise the offense is a misdemeanor of the
            second degree.

18 Pa.C.S.A. § 4952(b). Appellant argues that because the sentence he pled

guilty to was simple assault graded as a second-degree misdemeanor, the

instant offense should have been graded as a second-degree misdemeanor

as well.   Appellant’s Brief at 7.   However, in the Commonwealth’s view,

because it originally charged Appellant with aggravated assault as a second-

degree felony, the gradation was proper, and it is of no moment that


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Appellant pled guilty to simple assault as a second-degree misdemeanor.

Commonwealth’s Brief at 4. Both parties cite to our decision in Felder.

      In Felder, the defendant was convicted by a jury of intimidation of a

witness, simple assault, and criminal conspiracy.     Felder, supra at 514.

Relevant to her appeal, the jury deadlocked on the charge of aggravated

assault, and the Commonwealth nolle prossed the charge.           Id.   Felder

challenged the grading of her intimidation of a witness conviction as a first-

degree felony on the same grounds as Appellant does in this case.

            Felder… argues that because the jury hung on the
            aggravated assault charge and it was nolle prossed
            by the Commonwealth before sentencing, application
            of subsection 4952(b)(2) was improper here.
            According to Felder, the language of subsection
            4952(b)(2)     is   ambiguous,   and    the   proper
            interpretation should be that grading is based upon
            the highest grade offense existing at the time of
            sentencing upon which the jury reached a verdict.
            Based upon this interpretation, Felder contends that
            she    should     have  been   sentenced    on   the
            witness/victim intimidation conviction as a second[-
            ]degree misdemeanor.

Id. at 516 (internal quotation marks and citations omitted). After applying

traditional statutory construction principles, this Court concluded that

Section 4952(b) is not ambiguous.

            If “a felony of the first-degree ... was charged in the
            case,” then the offense of witness/victim intimidation
            is graded as a first-degree felony.        If the most
            serious offense charged in the case was a second
            degree felony, then the witness/victim intimidation
            offense is graded as a second-degree felony. If no
            first-degree or second-degree felony was charged in
            the case, but the criminal defendant nevertheless

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              sought to influence or intimidate a witness or victim
              in any manner described in subsection 4952(b)(1),
              then the witness/victim intimidation offense is
              graded as a third degree felony. In all other cases,
              the offense of witness/victim intimidation is graded
              as a second-degree misdemeanor.

Id. Applying these principles to Felder’s case, this Court noted that because

the defendant was charged with aggravated assault as a first-degree felony,

the grading of the intimidation of a witness charge, also as a first-degree

felony, was proper. Id.

                    A first-degree felony was charged in this case,
              and thus the trial court properly graded Felder's
              conviction for witness/victim intimidation as a first-
              degree felony pursuant to subsection 4952(b)(2).
              Felder’s alternative interpretation of this subsection
              would require us to insert additional language into
              the statute, namely that the first-degree felony
              charge “continued to exist in the case at the time of
              sentencing.” Nothing in section 4952(b)(2) suggests
              that the legislature intended such a result. To the
              contrary, the statute’s focus on the most serious
              crime charged makes eminent sense, since the
              relevant charge is the most serious one a criminal
              defendant attempted to escape by use of
              intimidation.

Id. at 517.

     Instantly, Appellant notes that this case is similar to Felder.

Appellant’s Brief at 8. Like in Felder, the Commonwealth charged Appellant

with aggravated assault as a second-degree felony, which was “the most

serious offense charged in the case in which [Appellant] sought to influence

or intimidate a witness[.]” 18 Pa.C.S.A. § 4952(b)(3). However, Appellant

argues that this case is different than Felder because “[p]ursuant to a plea

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agreement, the charge was amended to [s]imple [a]ssault and the

remaining charges were nolle prossed.” Appellant’s Brief at 8. Therefore, in

Appellant’s view, the second-degree felony gradation was improper because

it “was based on a charge that no longer existed.” Id.

      We conclude this is a factual distinction without a legal difference. In

both cases, the aggravated assault charge that served as the basis for the

gradation of the intimidation of a witness charge as a felony was dropped.

In Felder, it was nolle prossed after a hung jury, and in this case it was

nolle prossed following an amendment of the charge to simple assault

pursuant to a plea bargain.      Appellant does not explain why this factual

distinction makes a legal difference. It appears that Appellant is trying to

make the same argument as was attempted in Felder, to add additional text

into Section 4952, “namely that the [second]-degree felony charge

‘continued to exist in the case at the time of sentencing.’” Felder, supra.

As Felder rejected this extra caveat for Section 4952(b)(2), we reject it as

well for Section 4952(b)(3). Based on these considerations, we conclude the

trial court did not impose an illegal sentence when it graded Appellant’s

intimidation of witnesses charge as a second-degree felony.         See Akbar,

supra. As a result, Appellant is not entitled to relief on this issue.

      In his second issue, Appellant avers that if his sentence is legal, it was

nevertheless “manifestly excessive, clearly unreasonable and inconsistent

with the objectives of the Pennsylvania Sentencing Code.” Appellant’s Brief


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at 8. Specifically, Appellant argues that the trial court “failed to consider the

fact that the sentence was disproportionate to the circumstances and the

actions alleged to [] Appellant.” Id. at 9.

      At the outset, we note that Appellant’s issue on appeal pertains to the

discretionary aspects of his sentence.          It is axiomatic that in this

Commonwealth “[t]here is no absolute right to appeal when challenging the

discretionary aspect of a sentence.”     Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards

an argument pertaining to the discretionary aspects of the sentence, this

Court considers such an argument to be a petition for permission to appeal.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “Rather,

an [a]ppeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (internal quotation marks and citation omitted).

      Prior to reaching the merits of a discretionary sentencing issue, this

Court is required to conduct a four-part analysis to determine whether a

petition for permission to appeal should be granted.       Commonwealth v.

Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal

denied, 99 A.3d 925 (Pa. 2014).         Specifically, we must determine the

following.


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            (1) [W]hether appellant has filed a timely notice of
            appeal, Pa.R.A.P. 902, 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, Pa.R.Crim.P.
            [708]; (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).

Id.

      In the case sub judice, we note that Appellant filed a timely notice of

appeal.   We further observe that Appellant has included a Rule 2119(f)

statement in his brief. However, as noted above in the procedural history of

this case, Appellant filed his post-sentence motion 21 days after the

imposition of sentence. Cf. Pa.R.Crim.P. 720(A)(1) (stating, “a written post-

sentence motion shall be filed no later than 10 days after imposition of

sentence[]”).   Although Appellant titled his post-sentence motion as one

filed “nunc pro tunc,” the trial court did not expressly grant Appellant

permission to file a post-sentence motion nunc pro tunc.            This is a

requirement under our cases.     See, e.g., Commonwealth v. Patterson,

940 A.2d 493, 498 n.3 (Pa. Super. 2007) (stating, “a post-sentence motion

cannot toll the appeal period unless the appellant files a motion seeking

permission to file a post-sentence motion nunc pro tunc and the trial court

expressly grants this request within thirty days of the imposition of the

sentence[]”); Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super.

2003) (en banc) (stating, “[t]he trial court’s resolution of the merits of the


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late post-sentence motion is no substitute for an order expressly granting

nunc pro tunc relief[]”).         Based on these considerations, we conclude

Appellant has failed to preserve any issue pertaining to the discretionary

aspects of his sentence.6 See Trinidad, supra.

       Based on the foregoing, we conclude both of Appellant’s sentencing

claims are either waived or devoid of merit.       Accordingly, the trial court’s

April 7, 2014 judgment of sentence is affirmed.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2015



____________________________________________
6
   Even if Appellant’s post-sentence motion was timely and assuming
arguendo that Appellant had raised a substantial question for our review, we
would still nevertheless deem his issue waived. Appellant’s argument for
this issue is woefully underdeveloped for this Court to engage in any
meaningful appellate review, thus we would deem Appellant’s issue waived
on this basis as well. See generally Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009) (stating, “where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that
claim is waived[]”), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250
(2010).



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