J-S39037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RANDALL D. BROOKS                          :
                                               :
                       Appellant               :      No. 1499 MDA 2017

           Appeal from the Judgment of Sentence December 6, 2016
                in the Court of Common Pleas of Centre County,
             Criminal Division at No(s): CP-14-CR-0000141-2012,
             CP-14-CR-0000568-2011, CP-14-CR-0001515-2011,
             CP-14-CR-0001927-2010, CP-14-CR-0002130-2010

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 31, 2018

       Randall D. Brooks (“Brooks”) appeals from the judgment of sentence

imposed following his conviction of five counts of witness intimidation; two

counts each of aggravated assault, stalking, harassment, and solicitation to

commit evidence tampering; and one count each of solicitation to commit

perjury, attempted murder, possessing an instrument of crime (“PIC”),

recklessly endangering another person, aggravated jury tampering, and

conspiracy to commit aggravated jury tampering.1 We dismiss the appeal.

       In November 2009, Brooks and Jessica Rooney (“Rooney”) ended their

romantic relationship.       Rooney subsequently began dating Matthew Ross


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1 18 Pa.C.S.A. §§ 4952, 2702, 2709.1, 2709, 902 (4910), 902 (4902), 901
(2501), 907, 2705, 4583.1, 903.
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(“Ross”), who worked next door to the auto repair business where Brooks was

employed. From December 2009 through early 2010, Brooks harassed and

stalked Rooney and Ross. Ultimately, while following Ross’s vehicle, Brooks

fired several shots into Ross’s vehicle, with one bullet striking Ross in the arm.

As a result of his gunshot wound, Ross continues to have medical issues,

including the limited use of his left arm. Brooks later confessed to Rooney

that he had shot Ross. After the shooting, Brooks continued to harass Rooney,

approaching her in public, leaving notes, and subsequently writing letters to

Rooney from prison.

      The matter proceeded to trial. Following jury selection, Brooks returned

to jail and spoke with fellow inmate Joshua Dunlap (“Dunlap”). Aware that

Dunlap personally knew juror Brent Kephart (“Kephart”), Brooks asked Dunlap

to contact Kephart to discuss Brooks’s case, upon Dunlap’s release on bail.

On the morning of Dunlap’s release, Brooks told Dunlap that he and Kephart

would receive financial compensation if they complied with Brooks’s wishes.

Brooks additionally requested that his father alter evidence in the case.

      Following a jury trial, Brooks was convicted of the above-described

charges. The Commonwealth filed a Motion to modify Brooks’s sentence, and

Brooks filed a post-sentence Motion.      On August 14, 2012, the trial court

granted modification of the sentence, ultimately sentencing Brooks to an

aggregate prison term of 35 to 73 years in prison, which included a sentence

of 20-40 years for Brooks’s conviction of attempted murder causing serious


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bodily injury.2      Thereafter, the trial court denied Brooks’s post-sentence

Motion.

        Brooks filed a timely direct appeal, which was dismissed for failure to

file an appellate brief. Brooks timely filed a pro se Post Conviction Relief Act3

Petition, seeking to reinstate his direct appeal rights. Brooks retained private

counsel, who filed an amended PCRA Petition. On May 8, 2014, the PCRA

court granted the Petition, and reinstated Brooks’s direct appeal rights, nunc

pro tunc.

        On direct appeal, this Court vacated Brooks’s judgment of sentence for

attempted murder causing serious bodily injury,4 holding that the sentence is

illegal under Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super.

2014), and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).                See

Commonwealth v. Brooks, 122 A.3d 1120 (Pa. Super. 2015) (unpublished

memorandum at 22-23).            Specifically, this Court held that the maximum



____________________________________________


2See 18 Pa.C.S.A. § 1102(c) (providing for a maximum sentence of 20 years
where attempted murder does not result in serious bodily injury, and a
maximum sentence of 40 years where attempted murder results in serious
bodily injury).

3   42 Pa.C.S.A. §§ 9541-9546.

4 Pursuant to the Crimes Code, a person convicted of attempted murder,
where serious bodily injury results, may be sentenced to a prison term of not
more than 40 years. 18 Pa.C.S.A. § 1102(c). A person convicted of attempted
murder where serious bodily injury does not result, may be sentenced to a
prison term of not more than 20 years. Id.


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sentence of 40 years is illegal, “because the record fail[ed] to establish that

the jury made the requisite serious bodily injury finding.” Id. (unpublished

memorandum at 25 (internal quotation marks omitted)).             Further, “[a]s

vacating [Brooks’s] sentence for attempted murder may upset the overall

sentencing scheme vis-à-vis [Brooks’s] other convictions,” the Court vacated

Brooks’s judgment of sentence in its entirety, and remanded for resentencing.

Id. (unpublished memorandum at 26).

      On remand, the trial court sentenced Brooks to an aggregate prison

term of 28 to 56 years. Brooks filed post-sentence Motions challenging, inter

alia, the improper grading of one count of stalking. The trial court granted

the Motion, and, at a second sentencing hearing, the trial court imposed an

aggregate prison term of 27 years and 3 months to 54 years and 6 months,

followed by seven years of probation. Brooks filed a post-sentence Motion,

which the trial court denied. Thereafter, Brooks filed the instant timely appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Brooks presents the following claims for our review:

      1) Did the [trial] court incorrectly apply an offense gravity score
         of 14[,] when the appropriate [offense] gravity score is 13 for
         the charge of attempted murder, which resulted in an improper
         recommendation and compromised the fundamental norms
         that underlie the sentencing process?

      2) Did the [trial] court commit an error of law and abuse of
         discretion by sentencing [Brooks] to an excessive term of
         imprisonment by increasing the sentences on counts at the
         second and third resentencing hearings[,] following a remand

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         due to the imposition of an illegal sentence that contravened
         the fundamental norms of sentencing set forth in 42 Pa.C.S.A.
         § 9721(b)?

Brief for Appellant at 4.

      Brooks’s claims implicate the discretionary aspects of sentencing. See

Commonwealth v. Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (en banc)

(recognizing that a challenge regarding the applicable offense gravity score

implicates the discretionary aspects of a sentence); See Commonwealth v.

Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017) (recognizing that a claim

that a sentence is manifestly excessive challenges discretionary aspects of

sentencing). “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017).       Prior to reaching the merits of a

discretionary sentencing issue,

      [w]e conduct a four-part analysis to determine: (1) whether
      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 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).

Grays, 167 A.3d at 815-16 (citation omitted).

      Here, Brooks timely filed a Notice of Appeal, and preserved his claims in

a post-sentence Motion. Brooks’s appellate brief, however, does not include

a concise statement of reasons relied upon for allowance of appeal, as is

required by Pa.R.A.P. 2119(f).

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      Rule 2119(f) provides, in relevant part, that

      [a]n appellant who challenges the discretionary aspects of a
      sentence in a criminal matter shall set forth in his brief a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of a sentence. The statement
      shall immediately precede the argument on the merits with
      respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f). An appellant cannot invoke this Court’s jurisdiction unless

he properly submits a Rule 2119(f) statement.         See Commonwealth v.

Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (holding that an appellant

must include a Rule 2119(f) statement in his brief to invoke the appellate

court’s jurisdiction).

      Here, Brooks’s appellate brief does not include the separate statement

of reasons relied upon for allowance of appeal, as required by Rule 2119(f).

The Commonwealth has objected to the omission, asserting that the claims

are waived. See Brief for the Commonwealth at 9. “Where an appellant fails

to comply with Pa. R.A.P. 2119(f) and the Commonwealth objects, the issue

is waived for purposes of review.” Commonwealth v. Montgomery, 861

A.2d 304, 308 (Pa. Super. 2004).

      Because Brooks has not invoked this Court’s jurisdiction over his

challenges to the discretionary aspects of his sentence, his claims are waived.

Consequently, we must dismiss his appeal.

      Appeal dismissed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2018




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