J-S53019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    ASHIA TERRY

                             Appellant                 No. 1795 EDA 2018


         Appeal from the Judgment of Sentence Entered June 21, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0010885-2011


BEFORE: OLSON, STABILE, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 05, 2019

        Appellant Ashia Terry appeals nunc pro tunc from the June 21, 2013

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County (“trial court”), following his guilty plea to third-degree murder,

conspiracy and possession of an instrument of crime (“PIC”).1 Upon review,

we affirm.

        The facts and procedural history of this case undisputed.             As

summarized by the trial court:

        On March 20, 2011, [Appellant] was arrested and charged with
        murder and related offenses after [Appellant] fatally shot Quinta
        Brown in the back on June 27, 2010, while Brown, a female, was
        fighting [Appellant’s] sister. [Appellant] claimed that he believed
        at the time of the shooting that Brown was a male. On February
        20, 2013, [Appellant] agreed to a “degree of guilt” hearing before
        the Honorable Lillian Ransom. On April 18, 2013, Judge Ransom
        found [Appellant] guilty of third-degree murder, conspiracy, and

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1   18 Pa.C.S.A. §§ 2502(c), 903, and 907(a), respectively.
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       PIC. On May 31, 2013, Judge Ransom sentenced [Appellant] to
       ten to twenty years of imprisonment for third-degree murder. He
       received no further penalty for [PIC].

              On June 10, 2013, the Commonwealth filed a motion for
       reconsideration of sentence,[2] arguing, inter alia, that the court
       had miscalculated the sentencing guidelines and failed to state its
       reasons on the record for departing below the mitigated range.
       [Appellant] had a prior record score of four. With the “deadly
       weapon used” enhancement, the sentencing guidelines were 186
       months (fifteen-and-a-half years) to the statutory limit for third-
       degree murder (twenty to forty years), with a mitigated range of
       minus twelve months. [Appellant’s] ten to twenty year sentence
       fell below the sentencing guidelines. At [Appellant’s] sentencing
       hearing, the Commonwealth had erroneously provided the
       guidelines as 168 months (fourteen years) to 240 months (twenty
       years).
              On June 21, 2013, during a hearing for the Commonwealth’s
       motion for reconsideration, the Commonwealth offered
       information that was not offered at [Appellant’s] first sentencing.
       Specifically, the Commonwealth offered information as to the
       efforts taken to apprehend [Appellant] and how he had eluded
       police. A warrant had been issued for [Appellant] on July 29,
       2010. Police went to several addresses, without results, before
       arresting [Appellant] on March 20, 2011, almost nine months after
       the murder. When police initially stopped [Appellant], he gave a
       fake name. On June 21, 2013, Judge Ransom granted the
       Commonwealth’s motion for reconsideration, and vacated
       [Appellant’s] sentence.    On the same date, Judge Ransom
       resentenced [Appellant] to fourteen-and-a-half to twenty-nine
       years of imprisonment for third-degree murder. [Appellant] did
       not file a post-sentence motion or a direct appeal.

             On July 18, 2014, [Appellant] filed a pro se Post-Conviction
       Relief Act (“PCRA”) petition, his first. On March 11, 2015,
       [Appellant] filed a subsequent pro se PCRA petition. On March 12,
       2015, the court-appointed PCRA counsel entered his appearance.
       In 2017, this matter was assigned to this Court. On February 27,
       2018, PCRA counsel-finding [Appellant’s] claims meritless-filed a
       [no-merit] letter pursuant to Commonwealth v. Finley, 550
       A.2d 213 (Pa. Super. 1988) [(en banc)] and a Motion to Withdraw.

             On June 14, 2018, after a hearing, [the PCRA court]
       reinstated [Appellant’s] appellate rights nunc pro tunc, finding
       that trial counsel should have filed an appeal after the trial court
       increased [Appellant’s] sentence.        [The PCRA court] then
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2  Contrary to Appellant’s contention, the Commonwealth’s motion for
reconsideration of sentence was timely. The docket confirms that the
Commonwealth filed the motion on June 10, 2013, the 10th day after the
entry of the May 31, 2013 judgment of sentence.

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       appointed appellate counsel.       [The court] advised appellate
       counsel that he did not have to file a post-sentence motion before
       filing an appeal as the instant appeal would be in response to the
       Commonwealth’s motion for reconsideration.

Trial Court Opinion, 9/25/18, at 1-3 (footnotes, record citations and

unnecessary capitalizations omitted). Appellant timely appealed. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Appellant complied, raising a single assertion of

error. “Did the trial court improperly, and without sufficient reasons to justify

same, raise its original sentence of ten (10) to twenty (20) years’

imprisonment imposed on May 31, 2013, upon a petition for reconsideration

by the Commonwealth, to fourteen and one-half (14½) to twenty-nine (29)

years?” Rule 1925(b) Statement, 7/7/18 at ¶ 1. In response, the trial court

issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s claim did not

merit relief.

       On   appeal,    Appellant     repeats     the   same   issue—challenging   the

discretionary aspects of sentence—for our review.3 We, however, decline to

address its merits.         As the Commonwealth argues, Appellant’s issue,
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3 We agree with the Commonwealth that Appellant’s claim that Judge Ransom
erred in permitting the Commonwealth to offer additional evidence at the re-
sentencing hearing is not preserved. See Commonwealth’s Brief at 11-12
(Appellant “waived all of his arguments with the exception of the claim that
the trial court failed to provide a statement of reasons of its sentence.”). As
the Commonwealth points out, this claim is not subsumed by Appellant’s Rule
1925(b) statement. See Commonwealth v. Castillo, 888 A.2d 775, 780
(Pa. 2005); Pa.R.A.P. 1925(b)(3)(vii) (providing that “issues not included in
the Statement ... are waived”); see also Commonwealth v. Hill, 16 A.3d
484, 491 (Pa. 2011) (“Rule 1925 violations may be raised by the appellate
court sua sponte.”). Additionally, the trial court did not address this issue in
its Rule 1925(a) opinion.

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implicating the discretionary aspects of sentence, is waived because he failed

to include a Pa.R.A.P. 2119(f) statement in his brief. See Commonwealth

v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (holding that this Court is

precluded from reaching the merits of a discretionary aspects of sentencing

claim when the appellant fails to include a Rule 2119(f) statement, and the

Commonwealth lodges an objection to the omission of the statement).

Accordingly, Appellant is not entitled to relief on his sole issue before us.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/19




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