J-A03001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    PIERRE THOMAS                              :
                                               :
                      Appellant                :       No. 854 EDA 2017

          Appeal from the Judgment of Sentence December 16, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000245-2016


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                      FILED JANUARY 26, 2018

       Appellant, Pierre Thomas, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

open guilty plea to two counts each of simple assault and recklessly

endangering another person (“REAP”), and one count each of resisting

arrest, possessing an instrument of crime (“PIC”), firearms not to be carried

without a license, and carrying firearms in public in Philadelphia. 1         On

December 21, 2015, Appellant was armed with a handgun when he fled on

foot from police during a traffic stop. After an officer caught up to Appellant,

a struggle ensued, during which Appellant repeatedly reached for and


____________________________________________


1 18 Pa.C.S.A. §§ 2701(a), 2705, 5104, 907(a), 6016(a)(1), and 6108,
respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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pointed the handgun at the officer.          On September 26, 2016, Appellant

entered an open guilty plea to his offenses. The court sentenced Appellant

on December 16, 2016, to an aggregate term of 7½-15 years’ incarceration,

plus 3 years’ probation.      On December 23, 2016, Appellant filed a timely

post-sentence motion, which the court denied on January 31, 2017.

Appellant timely filed a notice of appeal on March 1, 2017, and a court-

ordered Rule 1925(b) statement on April 24, 2017.

      As a prefatory matter, “issues not raised in the [trial] court are waived

and cannot be raised for the first time on appeal.”                Pa.R.A.P. 302(a).

Additionally, issues not raised in a Rule 1925 concise statement of errors will

likewise be deemed waived.         Commonwealth v. Castillo, 585 Pa. 395,

403, 888 A.2d 775, 780 (2005). “Rule 1925(b) waivers may be raised by

the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa. 410, 427,

16 A.3d 484, 494 (2011).

      In his post-sentence motion and Rule 1925(b) statement, Appellant

raised the same challenge to his sentence.             Specifically, Appellant stated:

“[The trial c]ourt purported to sentence within the sentencing guidelines but

applied   the   guidelines    erroneously;    sentenced      within   the   sentencing

guidelines but the case involves circumstances where the application of the

guidelines would be clearly unreasonable; or sentenced outside the

sentencing guidelines and the sentence is unreasonable.”                    See Post-

Sentence   Motion,    filed   12/23/16,      at   4,   unpaginated;    Rule   1925(b)


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Statement, filed 4/24/17, at 4, unpaginated.           Appellant’s brief on appeal

presents new sentencing claims: (i) there was “insufficient evidence of

aggravating factors” to justify the sentence; (ii) the court relied on

“erroneous findings” and impermissible sentencing factors in fashioning the

sentence; (iii) the court failed to place on the record an adequate statement

of reasons for sentencing Appellant above the sentencing guidelines; (iv) the

court    failed   to   consider   the    sentencing   guidelines   and   Appellant’s

rehabilitative needs; and (v) the court improperly weighed the seriousness

of the offenses.       Appellant failed to include these sentencing claims in his

post-sentence motion and Rule 1925(b) statement.                   Therefore, these

sentencing claims are waived for purposes of appellate review.                  See

Castillo, supra; Pa.R.A.P. 302(a), supra.

        Furthermore, when appealing the discretionary aspects of a sentence,

an appellant must invoke the appellate court’s jurisdiction by, inter alia,

including in his brief a separate concise statement demonstrating a

substantial question as to the appropriateness of the sentence under the

Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617

(2002); Pa.R.A.P. 2119(f). The concise statement must indicate “where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the code it violates.”        Commonwealth v. Kiesel, 854 A.2d

530, 532 (Pa.Super. 2004).              The statement must also specify “what

fundamental norm the sentence violates and the manner in which it violates


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that norm.” Id. If an appellant fails to include a Rule 2119(f) statement in

his brief and the Commonwealth objects, the discretionary sentencing issues

are waived.      Commonwealth v. McNear, 852 A.2d 401, 408 (Pa.Super.

2004).

      Instantly, Appellant challenges on appeal the discretionary aspects of

his sentence. Even if Appellant had preserved his sentencing claims in his

post-sentence motion and Rule 1925(b) statement, we would not reach his

issues on appeal, because Appellant failed to include a Rule 2119(f)

statement in his appellate brief, and the Commonwealth has objected. See

id.   Therefore, Appellant’s issues are waived.   See id.   Accordingly, we

affirm the judgment of sentence. See generally In re K.L.S., 594 Pa. 194,

197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived

on appeal, we should affirm).

      Judgment of sentence affirmed.      This case is removed from the

argument list.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/18




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