J-S32013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CHARLES GEARHART,

                        Appellant                   No. 1482 WDA 2014


      Appeal from the Judgment of Sentence Entered August 14, 2014
             In the Court of Common Pleas of Clearfield County
           Criminal Division at No(s): CP-17-CR-0000891-2008


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 19, 2015

      Appellant, Charles Gearhart, appeals from the judgment of sentence

entered for his convictions of multiple drug related offenses after this Court

vacated his previous judgment of sentence and remanded for resentencing.

We affirm.

      The trial court summarized the procedural history of this case as

follows:

             [Appellant] was convicted of 19 charges relating to drug
      distribution activities occurring between 2005 and 2007. See
      Sentencing Order, CP-17-CR-891-2008 (May 24, 2012). On
      January 8th, 2009, as a result of a grand jury investigation
      commencing in 2006, drug related charges were filed against
      Clearfield County residents Michael Styers and [Appellant] as
      well as Maharaji Hemingway, from Philadelphia, Pennsylvania.
      The Grand Jury determined that Styers was the head of a
      cocaine distribution network operating primarily out of his
      garage/residence in Clearfield, Clearfield County with [Appellant]
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     being one of Styers’ principal cocaine dealers.1 Hemingway was
     named as Styers’ main source of cocaine out of Philadelphia
     between 2005 and 2007. Hemingway was alleged to have sold
     Styers and others cocaine in Philadelphia and in Clearfield
     County multiple times each month during the duration of their
     association.
          1
             The 26th Statewide Investigating Grand Jury based
          in    Allegheny    County,    Pennsylvania    issued
          Presentment Number 32 on September 25, 2008.

           As a result, charges were filed against Styers, Hemingway,
     and [Appellant] in the above captioned matter. Specifically,
     [Appellant] was charged with various counts of possession with
     intent to deliver and delivery of controlled substance, criminal
     conspiracy, criminal use of communication facility, dealing in
     proceeds of unlawful activity, and corrupt organizations. After
     lengthy pre-trial proceedings a consolidated trial for all three
     defendants was held before the Clearfield County Court of
     Common Pleas on January 23, 2012 through February 1, 2012.

           During the course of this eight day trial, the
     Commonwealth presented the testimony of twenty-four
     witnesses who were connected with or participated in the
     cocaine distribution ring alleged in this case.        Numerous
     witnesses provided testimony directly regarding [Appellant]
     and/or his involvement in selling cocaine in Clearfield County.2
     Although many of the witnesses had prior criminal records and
     were co-conspirators in the drug organization, these matters
     were fully explored on direct and cross-examination, along with
     any plea agreements with the Attorney General.
          2
              For example, Arianne Brocious testified that she
          introduced Styers to Hemingway, and made multiple
          trips with Styers and/or with [Appellant] to
          Philadelphia to purchase cocaine from Hemingway.
          Trial Tr. Day 3 of 8, Test. of Arianne Brocious, 9,
          Jan. 25, 2012.     In her testimony, Ms. Brocious
          estimated that four ounces of cocaine were
          purchased per trip, with the trips occurring regularly.
          Id. at 11, 13. She testified that she made around or
          more than fifteen trips with Styers and/or
          [Appellant], and that they would also make trips
          without her. Id. at 13-14.

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            Following deliberations, the jury found [Appellant] guilty
      on all charges in the information. Sentencing occurred before
      this Court on May 24, 2012, where all defendants received
      lengthy periods of state incarceration.

            For his role in the crimes, [Appellant] was given an uneven
      sentence of 11 to 18 years of incarceration. See Sentencing
      Order, CP-17-CR-891-2008 (May 24, 2012).                  Notably,
      [Appellant] was sentenced to 4 to 8 years of incarceration for
      count 13, Delivery of a Controlled Substance (100 grams to
      1000 50 grams/cocaine) [sic]; and 7 to 10 years of incarceration
      for count 14, Delivery of a Controlled Substance (100 grams to
      1,000 grams/cocaine).         These sentences were imposed
      consecutively, for a combined sentence of 11 to 18 years of
      incarceration. The remaining charges (counts 1-12; and counts
      15-19) for which [Appellant] was convicted were imposed
      concurrently to the sentences for counts 13 and 14.           See
      Sentencing Order, CP-17-CR-891-2008 (May 24, 2012).

Trial Court Opinion, 11/6/14, at 1-3.

      On appeal, this Court affirmed Appellant’s convictions. However, upon

finding that the trial court imposed several mandatory minimum sentences

pursuant to 18 Pa.C.S. § 7508, this Court sua sponte vacated Appellant’s

sentence and remanded for resentencing.      Commonwealth v. Gearhart,

992 WDA 2012, 97 A.3d 814 (Pa. Super. filed February 25, 2014)

(unpublished memorandum) at 7-11.       Upon remand, on August 14, 2014,

the trial court resentenced Appellant to serve an aggregate term of

incarceration of eleven to twenty-two years of incarceration.     This timely




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appeal followed.1 Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant presents the following issue for our review:

        Whether the Trial Court engaged in vindictive sentencing to give
        the Appellant a longer sentence following an Appeal to Superior
        Court.

Appellant’s Brief at v.

        Appellant argues that, although it did not impose mandatory minimum

sentences upon resentencing, the trial court imposed a more severe

sentence upon Appellant than originally fashioned. Appellant contends that

such sentencing is presumed to be vindictive and that there must be stated

reasons by the trial court in order to overcome the presumption of

vindictiveness. Appellant’s Brief at 1.

        A claim that a sentence imposed by the trial court was “vindictive”

amounts to a challenge to the discretionary aspect of the sentence.

Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006).                Thus,

our standard of review is one of abuse of discretion. Sentencing is a matter

vested in the sound discretion of the sentencing judge, and a sentence will

____________________________________________


1
   We note that, at the outset of its opinion drafted pursuant to Pa.R.A.P.
1925(a), the trial court stated that Appellant “is appealing the denial of his
Post-Sentence Motion. . . .” Trial Court Opinion, 11/6/14, at 1. However,
our thorough review of the certified record reflects that Appellant did not file
post-sentence motions after his resentencing. Likewise, the certified record
does not contain an order that would purport to deny any such post-
sentence motion.



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not be disturbed on appeal absent a manifest abuse of discretion.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

     Moreover, where an appellant challenges the discretionary aspects of a

sentence, there is no automatic right to appeal, and an appellant’s appeal

should    be    considered   to   be   a   petition   for   allowance   of   appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we

observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

     [a]n appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

               [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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

     In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Applying this principle,

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the Reeves Court held that an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.   See also Commonwealth v. Parker, 847 A.2d

745 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence

was waived because appellant did not object at sentencing hearing or file

post-sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa.

Super. 2000) (same).      Also, a failure to include the Pa.R.A.P. 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.

Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006) (quoting

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

     Herein, the first requirement of the four-part test is met because

Appellant timely brought this appeal following Appellant’s resentencing.

However, our review of the record reflects that Appellant did not meet the

second requirement because he did not raise his current challenge to the

discretionary aspects of his sentence in a post-sentence motion or at the

time of sentencing. Likewise, the third requirement is not met. Specifically,

Appellant failed to include in his appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).    The Commonwealth has objected to this

omission by Appellant.    See Commonwealth’s Brief at 9-11.       Therefore,


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Appellant’s issue is waived, and we are precluded from addressing the merits

of his claim on appeal. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2015




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