J-S43010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MAURICE JACKSON

                            Appellant                    No. 230 EDA 2013


           Appeal from the Judgment of Sentence December 3, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005433-2010


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 04, 2014

        Appellant, Maurice Jackson, appeals from the judgment of sentence

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

trial convictions for criminal conspiracy, robbery, robbery of motor vehicle,

theft by unlawful taking or disposition, and receiving stolen property.1 We

affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises four issues for our review:
____________________________________________


1
    18 Pa.C.S.A §§ 903, 3701, 3702, 3921, 3925, respectively.


_____________________________

*Former Justice specially assigned to the Superior Court.
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          MOTION TO SUPPRESS IDENTIFICATION TESTIMONY,
          WHERE THE CIRCUMSTANCES OF THE OUT-OF-COURT
                                                      ULY
          SUGGESTIVE,    AND     WHERE     THE   IN-COURT
          IDENTIFICATION DID NOT HAVE AN INDEPENDENT
          ORIGIN SUFFICIENT TO PURGE THE PRIMARY TAINT OF
          THE OUT-OF-COURT IDENTIFICATION?

          DID NOT THE TRIAL COURT ERR IN REFUSING DEFENSE
                                KLOIBER[2] INSTRUCTION TO
          THE JURY REGARDING IDENTIFICATION TESTIMONY?

          DID NOT THE TRIAL COURT ERR IN DENYING DEFENSE

          VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
          AND A NEW TRIAL WAS NECESSARY IN THE INTERESTS
          OF JUSTICE

          DID NOT THE TRIAL COURT ERR AND ABUSE ITS
          DISCRETION IN SENTENCING APPELLANT TO AN
          AGGREGATE TERM OF INCARCERATION OF 114 TO 240
          MONTHS, WHERE THE IMPOSITION OF CONSECUTIVE
          TERMS OF INCARCERATION RESULTED IN A SENTENCE
          THAT WAS MANIFESTLY EXCESSIVE?



       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          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
____________________________________________


2
  Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert.
denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).



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          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. 720; (3) whether

          (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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

        When appealing the discretionary aspects of a sentence, an appellant

                                                                         rief a

separate concise statement demonstrating that there is 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);

                                             n appellant separately set forth



in the Sentencing Code as a whole of limiting any challenges to the trial

                                                                           ing

decision to exceptional             Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830



appellant advances a color

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were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

                      Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).



impose its sentence concurrently or consecutively to other sentences being

imposed at the same time or to sentences already imposed. Any challenge

to the exercise of this discretion ordinarily does not raise a substantial

            Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.

2006)).   But see Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super.

2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding

consecutive, standard range sentences on thirty-seven counts of petty theft

offenses for aggregate

constituted virtual life sentence and was so manifestly excessive as to raise



preliminary substantial question inquiry is whether the decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face



Prisk, supra at 533 (quoting Commonwealth v. Mastromarino, 2 A.3d

581, 587 (Pa.Super. 2010), appeal denied, 609 Pa. 685, 14 A.3d 825


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(2011)).     Additionally,



                                                            Commonwealth

v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544

Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia, 653

A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873

(1995)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael E.



opinion comprehensively discusses and properly disposes of the questions

presented.     (See Trial Court Opinion, filed November 26, 2013, at 3-6)

(finding: 1) Victim struggled with assailant in broad daylight long enough to

provide police with description; Victim described assailant as African-

American male wearing dark hooded sweatshirt and sunglasses; police

recovered dark hooded sweatshirt and sunglasses near location where

Appellant was found hiding; Victim made on-site identification of Appellant,

without hesitation, within one hour of attack; police officers did not suggest

to Victim that Appellant was assailant; 2) Victim clearly observed Appellant

during struggle; Victim did not hesitate in identifying Appellant as assailant



sweatshirt went to weight of evidence and did not warrant Kloiber charge;


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3)

shocking; following car chase and foot pursuit, Victim positively identified



culpability for crimes at issue; 4) imposition of consecutive, standard range

sentences was appropriate; Appellant robbed and pistol-whipped delivery

person and led police on high-speed chase that endangered innocent



and revocations suggested that potential for rehabilitation was low).



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2014




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