J-A29018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
 FRANKLIN D. LONG                           :
                                            :
                       Appellant            :     No. 3214 EDA 2017

           Appeal from the Judgment of Sentence March 16, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0002941-2016


BEFORE:       OTT, J., DUBOW, J., and STEVENS*, P.J.E.

CONCURRING/DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                       FILED

JUNE 26, 2019

         I concur with the Majority’s affirming of Appellant’s convictions.

However, I respectfully disagree that Appellant is entitled to relief on his claim

that his right to allocution was violated, and therefore, it is unnecessary to

vacate Appellant’s judgment of sentence and remand for resentencing on this

basis.

         As the Majority indicates, Pa.R.Crim.P. 704(C)(1) provides, in relevant

part, that “[a]t the time of sentencing, the judge shall afford the defendant

the opportunity to make a statement.”           Pa.R.Crim.P. 704(C)(1).   It is the

sentencing court’s obligation to inform the defendant of his right to speak prior

to sentencing.       Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918

(1989). However, errors pertaining to the right of allocution may be waived


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A29018-18


for appellate review where not properly challenged in the trial court.       See

Commonwealth v. Hardy, 99 A.3d 577 (Pa.Super. 2014).

      In the case sub judice, immediately after the trial court announced

Appellant’s sentence, defense counsel informed the trial court that Appellant

wished to read a statement of allocution. N.T., 3/16/17, at 78. The trial court,

indicating that it would fully consider the statement and make any necessary

changes to Appellant’s sentence, permitted Appellant to read his statement.

Id. at 78-80.    As Appellant read his statement, he began looking in the

courtroom for the victim and the family; however, they had already left the

courtroom. Id. at 79-80. After Appellant concluded his statement, the trial

court specifically stated it considered Appellant’s statement, indicated that the

statement did not change the court’s sentence, and confirmed Appellant’s

aggregate sentence was ten years’ incarceration to be followed by seven years

of probation.    Id. at 80-81.      Defense counsel presented no objection

pertaining to a violation of Appellant’s right to allocution.

      Thereafter, in his post-sentence motion, Appellant complained the trial

court violated his right to allocution by not giving him an opportunity to make

a statement prior to sentencing when the victim and family members were

still in the courtroom.   Specifically, Appellant suggested the trial court failed

to provide him “with an opportunity to assert his Constitutional right to

allocute and address the complaining witness[;]” “by the time he was finally

permitted allocution, [Appellant] turned to address the family but they had


                                       -2-
J-A29018-18


already left[;]” and “the fact that [Appellant] was not permitted his right to

allocution and not able to apologize to the family when they were still in the

room, is a violation of [Appellant’s] right to allocution and should result in a

new sentencing hearing.” Appellant’s Post Sentence Motion, filed 3/27/17, at

¶ 6.

       However, Appellant is mistaken that his right of allocution extends to

the victim and family.    Rather, “[t]he significance of allocution lies in its

potential to sway the court toward leniency prior to imposition of sentence.”

Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa.Super. 2003) (bold

added). Therefore, based on the arguments presented to the trial court with

regard to Appellant’s allocution issue, Appellant is not entitled to relief on

appeal, and I dissent on this basis. I concur in all other respects.




                                     -3-
