J-S46040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :       IN THE SUPERIOR COURT OF
                                              :             PENNSYLVANIA
                     Appellee                 :
                                              :
              v.                              :
                                              :
FADAH BURTON,                                 :
                                              :
                     Appellant                :           No. 2892 EDA 2014

   Appeal from the Judgment of Sentence entered on September 4, 2014
           in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No. CP-51-CR-0012356-2013

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED SEPTEMBER 16, 2015

         Fadah Burton (“Burton”) appeals from the judgment of sentence

imposed following her conviction of simple assault.            See 18 Pa.C.S.A.

§ 2701. We affirm.

         Burton, accompanied by 3 other women, assaulted another woman

from her neighborhood, punching her several times and hitting her with a

brick.      Burton   was   arrested   and   charged   with   aggravated   assault,

conspiracy, possessing an instrument of crime, recklessly endangering

another person, and simple assault.         After a non-jury trial, the trial court

found Burton guilty of simple assault, and not guilty of the remaining

charges.

         At the sentencing hearing conducted on September 4, 2014, the

parties agreed to an offense gravity score of 3 and a prior record score of 0.
J-S46040-15


The trial judge, without providing reasons on the record, sentenced Burton

to 9-23 months of house arrest, which was outside of the applicable

sentencing guidelines.1   As part of the sentence, Burton was required to

complete anger management classes, parenting classes, and job training.

Burton was also required to seek employment and obtain her GED.

      On September 5, 2014, Burton filed a Motion for Reconsideration of

sentence, which was denied. Burton filed a timely Notice of Appeal and a

court-ordered 1925(b) Concise Statement of Matters Complained of on

Appeal. The trial court issued an Opinion.2

      On appeal, Burton raises the following question for our review: “Did

the trial court[,] in sentencing [Burton] to nine (9) to twenty-three (23)

months of home confinement, outside [of] the sentencing guidelines and

aggravated guidelines for simple assault, abuse its discretion when there

were no stated aggravating factors and no reasons supporting the sentence

given on the record?” Brief for Appellant at 6.

      Burton challenges the discretionary aspects of her sentence.



1
  See 42 Pa.C.S.A. § 9721(b) (stating that “[i]n every case where a court
imposes a sentence or resentence outside the guidelines adopted by the
Pennsylvania Commission on Sentencing … the court shall provide a
contemporaneous written statement of the reason or reasons for the
deviation from the guidelines to the commission”).
2
  On October 3, 2014, Burton filed a Motion for Setting of Bail Pending
Appeal, which was denied. Thereafter, on October 21, 2014, the trial court
reconsidered the Motion, and granted Burton bail pending the outcome of
her appeal.


                                 -2-
J-S46040-15


       An appellant challenging the discretionary aspects of the
       sentence must invoke this [C]ourt’s jurisdiction by satisfying a
       four-part test:

       [W]e conduct a four-part analysis to determine: (1) whether
       [the] appellant has filed a timely notice of appeal, see Pa.R.A.P.
       902 and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence,
       see Pa.R.Crim.P. [720]; (3) whether the 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

       Burton filed a timely Notice of Appeal and raised her claim in a timely

Motion for Reconsideration.3        However, Burton did not file a Rule 2119(f)

Statement in her brief, and the Commonwealth has objected to Burton’s

omission. See Brief for the Commonwealth at 7. Thus, Burton has waived

her    challenge   to   the    discretionary    aspects   of    her   sentence.     See

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating

that   “[a]   failure   to    include   the    Rule   2119(f)   statement    does   not

automatically waive an appellant’s argument; however, we are precluded

from reaching the merits of the claim when the Commonwealth lodges an

objection to the omission of the statement.”).

       Judgment of sentence affirmed.

3
  The trial court posits that the issue is waived on appeal because Burton did
not raise the issue at sentencing or in her Motion for Reconsideration. See
Trial Court Opinion, 11/4/14, at 3. However, upon our review of the Motion
for Reconsideration, we conclude that Burton properly raised the claim. See
Motion for Reconsideration of Sentence, 9/5/14 (wherein Burton claims that
“there is nothing in the record supporting a sentence exceeding the
aggravated range….”).


                                        -3-
J-S46040-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2015




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