J-S20018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DAMONTAE ANTHONY WILLIAMS,

                         Appellant                    No. 857 WDA 2015


           Appeal from the Judgment of Sentence of April 28, 2015
               In the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0001398-2012

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 11, 2016

      Appellant, Damontae Anthony Williams, appeals from the judgment of

sentence entered on April 28, 2015. We affirm.

      This Court previously set forth the factual background of this case as

follows:

      On July 25, 2012, at approximately 5:00 [p.m.], Appellant was
      transported in a silver Plymouth Neon automobile by Odell Littles
      (Littles) . . . to the Cricket Wireless Store located in the Walmart
      Plaza Shopping Center on Route 18 in Center Township, Beaver
      County, for the intended purpose of making payment of
      Appellant’s [cellular] telephone bill.      Upon arrival, Appellant
      exited the vehicle while Littles remained in the car. Appellant
      entered the Cricket Wireless Store and conversed with the
      salesperson, Daniel Clear (Clear), regarding accessories for his
      cellular telephone.

      After choosing the desired accessories and preparing to pay for
      the items at the cash register, Appellant displayed a black semi-
      automatic handgun pointed within six to twelve inches of Clear’s
      chest and demanded money from the cash register. Clear



* Retired Senior Judge assigned to the Superior Court
J-S20018-16

     complied by placing what was later determined to be $1,163.00
     into a green plastic bag, together with the merchandise that
     Appellant had chosen. Appellant then departed the store. . . .

     After entering the vehicle, much to the surprise of Littles,
     Appellant informed Littles that he had robbed the store. Upon
     learning of Appellant’s actions, Littles drove the vehicle into
     Monaca Borough, proceeding on Pennsylvania Avenue, the main
     thoroughfare.       Officer Alan Shaffer of the Monaca Police
     Department . . . . entered his police vehicle and pulled out of the
     station parking lot on to Pennsylvania Avenue heading in the
     direction of the Center Township Walmart Plaza for the purpose
     of rendering assistance, when he observed the silver Neon
     approaching on Pennsylvania Avenue from the opposite
     direction. He entered a parking lot, reversed his direction,
     activated his emergency lights[,] and began pursuit of the Neon
     automobile. Littles observed Officer Shaffer’s police vehicle and
     informed Appellant that the police were following behind their
     car. Upon reaching the traffic signal at the intersection of
     Pennsylvania Avenue and 14th Street, the Neon vehicle stopped
     for the red traffic signal.

     Appellant exited the front passenger side door and ran into the
     parking lot of CoGo’s Convenience Store located at the
     intersection. Officer Shaffer, while still in his vehicle, followed
     Appellant into the parking lot and inadvertently struck Appellant
     with the police vehicle in the leg, causing him to fall. Appellant
     immediately got up and continued to run from Officer Shaffer,
     who was in full uniform and in a marked police vehicle. Officer
     Shaffer pursued Appellant on foot into the alley behind CoGo’s,
     when Appellant turned, removed from his waist a handgun[,]
     and fired three shots at Officer Shaffer, striking him with the first
     shot in the inner thigh of his right leg. Officer Shaffer drew his
     weapon and returned fire as Appellant hid behind several
     vehicles parked in the alley. As Officer Shaffer continued his
     approach toward the vehicles, Appellant threw out his weapon,
     laid face down on the ground[,] and surrendered. Officer Rachel
     Dietz, the on-duty partner of Officer Shaffer, took Appellant into
     custody. . . .

     Officer Dietz inquired of Appellant as to whether he possessed
     any other weapons and Appellant replied that a loaded weapon
     was located in his right shorts pocket. Appellant further stated
     that if his hands were free, he would shoot the officers in the


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        face. Upon arrival of other officers, the weapon in Appellant’s
        pocket was removed together with a cigarette pack in which a
        baggie, containing 40 packages of cocaine weighing 4.4 grams,
        was found. The weapon with which Appellant fired upon Officer
        Shaffer was determined to be a .40 caliber semiautomatic
        weapon that had been stolen on July 12, 2012. The firearm
        located in his pocket was a .32 caliber fully loaded revolver.
        [Appellant] was not licensed to carry a firearm.

Commonwealth v. Williams, 97 A.3d 793 (table), 2014 WL 10982082, at

*1 (Pa. Super. 2014) (unpublished memorandum) (internal alterations and

citation omitted; paragraph breaks added).

        The relevant procedural history of this case is as follows.   On March

13, 2013, a jury found Appellant guilty of attempted murder,1 two counts of

aggravated assault,2 assault of a law enforcement officer,3 robbery,4 two

counts of receiving stolen property,5 possession of a firearm by a prohibited

person,6 carrying a firearm without a license,7 theft by unlawful taking,8




1
    18 Pa.C.S.A. §§ 901, 2502.
2
    18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(3).
3
    18 Pa.C.S.A. § 2702.1(a).
4
    18 Pa.C.S.A. § 3701(a)(1)(ii).
5
    18 Pa.C.S.A. § 3925(a).
6
    18 Pa.C.S.A. § 6105(a)(1).
7
    18 Pa.C.S.A. § 6106(a)(1).
8
    18 Pa.C.S.A. § 3921(a).




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simple assault,9 recklessly endangering another person,10 possession with

intent to deliver a controlled substance,11 and possession of a controlled

substance.12

        Prior to sentencing, the Commonwealth filed notice of its intent to seek

a mandatory minimum sentence of five years’ imprisonment for possession

with intent to deliver a controlled substance.    See 42 Pa.C.S.A. § 9712.1,

held unconstitutional, Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).                    The

Commonwealth also filed notice of its intent to seek a mandatory minimum

sentence of five years’ imprisonment for robbery while in possession of a

firearm. See 42 Pa.C.S.A. § 9712, held unconstitutional, Commonwealth

v. Valentine, 101 A.3d 801 (Pa. Super. 2014), appeal denied, 124 A.3d 309

(Pa. 2015).     On June 3, 2013, Appellant was sentenced to an aggregate

term of 40 to 80 years’ imprisonment.        The aggregate sentence included

mandatory minimum sentences of five to ten years’ imprisonment for

possession with intent to deliver a controlled substance and five to ten years’

imprisonment for robbery while in possession of a firearm. Appellant filed a




9
    18 Pa.C.S.A. § 2701(a)(1).
10
     18 Pa.C.S.A. § 2705.
11
     35 P.S. § 780-113(a)(30).
12
     35 P.S. § 780-113(a)(16).



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direct appeal and this Court affirmed.         Commonwealth v. Williams, 97

A.3d 793 (Pa. Super. 2014) (unpublished memorandum).

      On October 2, 2014, Appellant filed a pro se petition pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel was

appointed and counsel filed an amended petition.               The amended petition

alleged that Appellant’s direct appellate counsel was ineffective for failing to

object to the mandatory minimum sentences as violating the right to a jury

trial as interpreted by Alleyne v. United States, 133 S.Ct. 2151 (2013).

The Commonwealth conceded that Appellant was entitled to relief. On April

28, 2015, the PCRA court granted Appellant’s petition and granted a new

sentencing hearing as to the robbery and possession with intent to deliver a

controlled substance counts.

      The trial court then resentenced Appellant to four to eight years’

imprisonment for robbery and two to four years’ imprisonment for

possession with intent to deliver a controlled substance.               With the revised

sentences,    Appellant’s    aggregate       sentence    was       36    to   72    years’

imprisonment.        Appellant   did   not    object    to   the    sentence       at   the

PCRA/sentencing hearing on April 28, 2015 nor did he file a post-sentence

motion. This timely appeal followed.13




13
   On May 28, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(a). On June 18, 2015, Appellant filed his concise statement.
(Footnote Continued Next Page)


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      Appellant presents one issue for our review:

      [Did t]he [t]rial [c]ourt abuse[] its discretion . . . by directing
      that certain parts of [Appellant’s] sentence [] be served
      consecutively[?]

Appellant’s Brief at 6.

      In his lone issue, Appellant argues that his sentence is excessive. This

issue challenges the discretionary aspects of Appellant’s sentence.         See

Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).

Pursuant to statute, Appellant does not have an automatic right to appeal

the discretionary aspects of his sentence.        See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

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

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).


                       _______________________
(Footnote Continued)
On August 18, 2015, the trial court issued its Rule 1925(a) opinion.
Appellant’s lone issue on appeal was included in his concise statement.



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     In this case, Appellant failed to object to the discretionary aspects of

his sentence at the resentencing hearing.    See N.T., 4/28/15, at 27-29.

Furthermore, Appellant did not file a post-sentence motion.        Appellant

argues that he preserved the issue in his amended PCRA petition.        See

Appellant’s Brief at 17.   It is axiomatic, however, that a discretionary

aspects claim may only be preserved after the sentence is pronounced. The

issue cannot be preserved in a presentence filing, e.g., a sentencing

memorandum or a PCRA petition.           Therefore, Appellant waived his

discretionary aspects claim. See Leatherby, 116 A.3d at 83. Accordingly,

we may not reach the merits of Appellant’s discretionary aspects claim. As

Appellant has waived his lone issue on appeal, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2016




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