J. S55003/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
ANTHONY JEFFERSON,                        :          No. 884 WDA 2014
                                          :
                          Appellant       :


            Appeal from the Judgment of Sentence, August 5, 2013,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0012737-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 13, 2015

        Anthony Jefferson appeals from the August 5, 2013 judgment of

sentence following his conviction of first-degree murder, robbery, and

conspiracy to commit robbery.1 We affirm.

        The trial court has set forth the underlying facts of this matter as

follows:

                    At approximately 1:00 PM on November 14,
              2011, Joseph Boone arrived in the 2100 block of
              Bentley Drive, a housing project in the Hill District
              section of the City of Pittsburgh, Allegheny County,
              and began talking with friends. Several days prior,
              Azsion Upshur, Anthony Jefferson (Appellant), and
              Raymond Pendleton planned to rob Boone. They
              targeted Boone because they knew him to sell
              marijuana, and believed he would have cash on him.

* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 3701(a)(i) and (ii), and 903(a)(1), respectively.
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          According to their plan, Pendleton was to lure Boone
          into the hallway of a building and then call Upshur
          and Appellant to complete the robbery. Pursuant to
          this plan, when Boone arrived in the afternoon of
          November 14, Pendleton called Upshur and stayed
          on the phone with him as he beckoned Boone into
          the hallway of 2112 Bentley Drive. Once Boone was
          in the hallway, Upshur notified Appellant and both
          immediately headed to the site.

                 When Boone saw Appellant and Upshur
          running towards the hallway in masks he attempted
          to escape by running up the interior steps of the
          building. Appellant instructed Pendleton to leave the
          area, and Appellant and Upshur pursued Boone up
          the steps. Appellant was armed with a revolver even
          though the use of a firearm was not specifically part
          of the original plan. Appellant and Upshur fought
          with Boone as they tried to rob him, dragging him
          back down the steps and striking his head several
          times against the mailboxes inside the hallway on
          the first floor. The struggle caused Boone to wriggle
          out of his several shirts, both shoes, and a sock in
          his effort to get free. Shirtless and shoeless, Boone
          yelled, “take it, take it, you can have it,” as he
          managed to flee into the courtyard. As Boone ran
          away Appellant followed and shot him in the hip,
          causing Boone to fall to the ground in the courtyard.
          Appellant caught up to Boone, stood over him, and
          shot him a second time. Appellant and Upshur fled
          the area together.

                 Several neighbors moved Boone from the
          courtyard to the curb so that paramedics could more
          easily reach him.       While awaiting the medics,
          Pendleton approached the area where Boone lay on
          the sidewalk. Boone pointed at him and said, “your
          niggas did this to me.” Boone was transported to
          Mercy Hospital where he underwent emergency
          surgeries in an attempt to save his life, but these
          efforts were to no avail. Boone suffered multiple
          blunt force injuries, head trauma, lacerations to the
          back of his head and face, a gunshot wound to the
          right abdomen and a gunshot wound to the right hip.


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            Boone died as a result of a perforating gunshot
            wound of the trunk which lacerated his liver and
            aorta. The medical examiner was able to determine
            that the muzzle of the firearm was less than three
            feet away from Boone’s body when the fatal shot
            was fired.

                  Pendleton called Appellant and Upshur later
            that day about what occurred. Both Appellant and
            Upshur admitted they shared approximately $200
            taken from Boone, and Appellant stated, “My bad
            bro, I didn’t mean for things to go this far.” In
            response Upshur stated, “You know how things go.
            We got a couple of dollars.” Based upon interviews
            of Pendleton and several other witnesses, Appellant
            was interviewed.     Appellant told police that he
            robbed Boone at gunpoint and shot him twice
            following a struggle for the gun. Appellant was
            charged as noted hereinabove.

Trial court opinion, 4/15/15 at 6-8 (citations and footnotes omitted).   The

trial court summarized the procedural history of this case as follows:

                  [Appellant]     was   charged      by    criminal
            information with one count of criminal homicide, two
            counts of conspiracy, one count of person not to
            possess a firearm, one count of robbery, and one
            count of carrying a firearm without a license.

                   Appellant proceeded to a jury trial on May 13-
            20, 2013, at the conclusion of which Appellant was
            found guilty of first degree murder, robbery, and
            conspiracy to commit robbery; he was found not
            guilty of the firearms charge.

                 On August 5, 2013, Appellant was sentenced
            by the Trial Court to the following: Count one: first
            degree murder – life imprisonment; Count two:
            robbery – six to twelve years incarceration to be
            served consecutive to the period of incarceration
            imposed at count one; Count four: conspiracy to
            commit robbery – six to twelve years incarceration to



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            be served consecutive to the period of incarceration
            imposed at count two.

                  On August 8, 2013, Appellant filed a post
            sentence motion, which was denied by the Trial
            Court on November 27, 2013.

                  On April 15, 2014, the Trial Court granted
            Appellant’s PCRA Petition to reinstate his appellate
            rights nunc pro tunc, and ordered that the notice of
            appeal be filed no later than May 29, 2014.

                  On May 29, 2014, Appellant filed a notice of
            appeal, [and the Trial Court filed an opinion pursuant
            to Pa.R.A.P. 1925.]

Trial court opinion, 1/15/15 at 2-3 (citations and footnotes omitted).

      Appellant has raised the following issues for our review:

            I.     Whether the trial court erred in failing to grant
                   appellant’s motion to suppress his statement
                   on the grounds that the statement was not
                   voluntarily given and was obtained in violation
                   of appellant’s Miranda rights?

            II.    Whether the trial court erred in failing to grant
                   appellant’s request to postpone trial?

            III.   Whether the trial court erred in admitting
                   Commonwealth’s      Exhibit   One    (1) over
                   appellant’s objection that it was highly
                   prejudicial and had no probative value?

            IV.    Whether the sentence imposed was excessive?

            V.     Whether the trial court erred in denying
                   appellant’s post-sentence motions without a
                   hearing?

Appellant’s brief at 9 (capitalization omitted).




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        The first issue for our review is whether the trial court erred in failing

to grant appellant’s motion to suppress his statement to police regarding the

homicide of Joseph Boone (“victim”). When reviewing suppression matters,

we are bound by any finding of fact by the suppression court that is

supported by the record; however, any legal decisions by the suppression

court are subject to de novo review. Commonwealth v. James, 69 A.3d

180, 186 (Pa. 2013) (citations omitted). Any matters concerning credibility

of witnesses and the weight of evidence presented are strictly within the

purview of the suppression court.        Commonwealth v. Davis, 102 A.3d

996, 999 (Pa.Super. 2014) (citations omitted).

        Our supreme court has instructed that when considering whether a

waiver of Miranda2 rights is valid, a court must consider the following

factors:

                    (1) [W]hether the waiver was voluntary, in the
              sense that the waiver was not the result of
              government pressure; and (2) whether the waiver
              was knowing and intelligent, in the sense that it was
              made with full comprehension of both the nature of
              the right being abandoned and the consequence of
              that choice.

Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (citations

omitted).     The court further stated that factors to be considered when

determining whether a waiver of Miranda is valid and a subsequent

statement or confession is voluntary are as follows:


2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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            the duration and means of interrogation; the
            defendant’s physical and psychological state; the
            conditions attendant to the detention; the attitude
            exhibited by police during the interrogation; and any
            other facts which may serve to drain one’s powers of
            resistance to suggestion and coercion.

Id.

      The Commonwealth directs our attention to a case previously

considered by this court that is analogous to the facts presently at issue.

(Commonwealth’s brief at 23.) In Commonwealth v. Watkins, 750 A.2d

308, 311 (Pa.Super. 2000), the defendant, based on a court order, was

transported from the Allegheny County Jail, where he was serving time on

an unrelated sentence, to the homicide offices of the Pittsburgh Police

Department. After being informed of and waiving his Miranda rights, the

defendant   confessed   to   committing   a    homicide   after   approximately

five hours of interrogation, including a polygraph test. Id. at 312. Much like

appellant, the defendant in Watkins refused to allow detectives to

tape record his confession, but he adopted and signed a statement written

by detectives containing his confession. Id.

      The court found that the defendant’s confession in Watkins was

voluntary. Id. at 314. Specifically, the court noted that:

            Although [defendant] was in police custody for
            nearly nine hours, appellant was subjected to only
            three hours and twenty-nine minutes of actual
            interrogation. It is not clear whether [defendant]
            was shackled during his interrogation; however, this
            is a standard practice employed by the police due to
            previous attempted escapes. Since [defendant] was


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             in custody for another offense at the time of the
             interrogation and left alone during breaks in the
             questioning, the securing of [defendant] by the
             police reflected prudent police conduct rather than
             coercive conduct. . . . In addition, we note that
             [defendant] was fully informed of his Miranda rights
             and made a knowing and voluntary waiver of those
             rights. Furthermore, [defendant] asserts no specific
             misconduct in the form of physical or psychological
             intimidation by the police.

Id.

       In   the   instant   case,   appellant   was   transported   from   the

Allegheny County Jail to the City of Pittsburgh homicide office to answer

questions regarding the victim’s death. (Notes of testimony, 5/9/13 at 20.)

From the time he was released from the Allegheny County Jail to the time he

returned, appellant was only subject to police custody for five hours and

twelve minutes. (Id. at 23, 38.) The record is also completely devoid of

any allegations of police misconduct or any incidents of physical or

psychological coercion by the police. Appellant, while not completely free to

leave due to his incarceration for an unrelated offense, was free to refuse to

answer the detectives’ questions and was free to end the interview at any

time, and was made aware of his ability to do so by detectives. (Id. at 20-

21.)   At no point during the interrogation did appellant indicate that he

wished to return to the Allegheny County Jail.3 (Id. at 59.)


3
  While appellant testified that he expressed a desire to be taken back to the
jail seven times, the suppression court is the sole arbiter of the facts, and
absent a misapplication of law, we are bound to the suppression court’s
factual findings. (Id. at 48, 59; see James, supra.)


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        Finally, much like the defendant in Watkins, appellant knowingly and

intelligently waived his Miranda rights.     (Id. at 10-13.)   Specifically, the

police had appellant initial a prepared form several times indicating that he

understood that (1) he had the right to refuse to answer any police

questions; (2) that he had the right to have an attorney present during

questioning; and (3) that he could end the interrogation at any time after it

started by refusing to answer any more questions.        (Id. at 11-12.)   After

individually acknowledging each of these rights, appellant indicated that he

was willing to waive his rights by signing the prepared Miranda form. (Id.

at 13.)    The detectives discussed appellant’s rights with him before they

began their interrogation. (Id. at 40.)

        Therefore, we find that appellant voluntarily waived his Miranda rights

when he gave his statement to the police, and that his first issue is without

merit.

        Appellant’s second issue is whether the trial court erred in refusing to

grant appellant a continuance.         Appellant made two requests for a

continuance.     The first came at the suppression hearing held on May 9,

2013, when appellant requested a continuance after it became apparent to

him that the Commonwealth would not be offering him a plea deal. (Id. at

2-3.)     The suppression judge denied appellant’s request after defense

counsel indicated in open court that she was ready to proceed. (Id. at 3.)

The second request for a continuance came on the first day of trial just



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before the jury was empaneled and sworn. (Notes of testimony, 5/13/13 at

25.)   This request was made due to defense counsel having received new

discovery material from the Commonwealth and having learned new

information from appellant two days prior to the start of trial. (Id. at 5, 7,

9, 11.) The trial judge denied appellant’s second request for a continuance,

but did allow defense counsel to take whatever time was required to

interview   potential   new     witnesses    that   were     identified   in   the

Commonwealth’s discovery information.4 (Id. at 25-26.)

       The standard of review that we must follow for a trial court’s decision

to grant or deny continuances is well settled.

            The grant or denial of a motion for a continuance is
            within the sound discretion of the trial court and will
            be reversed only upon a showing of an abuse of
            discretion. Commonwealth v. Boxley, 948 A.2d
            742, 746 (Pa. 2008). An abuse of discretion is not
            merely an error of judgment; rather discretion is
            abused when the law is overridden or misapplied, or
            the judgment exercised is manifestly unreasonable,
            or the result of partiality, prejudice, bias, or ill will,
            as shown by the evidence on the record. Moreover,
            a bald allegation of an insufficient amount of time to
            prepare will not provide a basis for reversal of the
            denial of a continuance motion. Commonwealth v.
            Ross, 57 A.3d 85, 91 (Pa.Super. 2012).                An

4
  The new discovery information defense counsel had been made aware of
two days prior to the start of trial was as follows: copies of inventory
reports from the crime lab and the identity of three potential witnesses:
Denise Hayden, Edwin Williams, and Charles Washington.             (Notes of
testimony, 5/13/13 at 14, 18, 21.) Hayden did not have any information
regarding the victim’s murder, and Williams and Washington helped move
the victim closer to the street. (Id. at 21.) There is no indication that any
of these witnesses, who were not called at trial, would have affected
appellant’s case.


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             appellant must be able to show specifically in what
             manner he was unable to prepare for his defense or
             how he would have prepared differently had he been
             given more time. We will not reverse a denial of a
             motion for continuance in the absence of prejudice.
             Id.

Commonwealth v. Antidormi, 84 A.3d 736, 745-746 (Pa.Super. 2014)

(citations omitted).    We shall address both of appellant’s motions for

continuance separately according to the standards set by this court in

Antidormi.

      We first address the continuance motion that was made just prior to

the start of the suppression hearing on May 9, 2013. A written motion for

continuance does not appear in the record; however, defense counsel did

orally request a continuance prior to the suppression hearing.         (Notes of

testimony, 5/9/13 at 2-3.)      Defense counsel indicated that appellant had

learned the morning of the suppression hearing that the Commonwealth

would not be offering any sort of plea deal in his case, and as a result,

appellant asked for “additional time to prepare for his trial.” (Id. at 2.) The

trial court then asked defense counsel if, in light of various motions filed on

appellant’s behalf, she was prepared to proceed to trial. (Id. at 3.) After

defense counsel answered in the affirmative, the trial court denied

appellant’s motion. (Id.)

      This is nothing more than a bald allegation of appellant not having a

sufficient amount of time to prepare for trial. At no point during the initial

request for a continuance or in his brief to this court does appellant fulfill the


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requirements set forth by this court in Antidormi by indicating what he

would have done differently to prepare for trial in light of learning that the

Commonwealth would not be offering a plea deal. Since appellant has failed

to articulate with any specificity how he would have prepared differently if

his first motion for continuance had been granted, the trial court did not

abuse its discretion when it denied appellant’s motion.

      We now turn to appellant’s second motion for continuance which was

filed on the first day of trial on May 13, 2013. This motion was made by

defense counsel after receiving 50 pages of discovery material from the

Commonwealth which contained the names of three witnesses that were

previously unknown to the defense, in addition to receiving new information

that defense counsel had received from appellant. (Appellant’s brief at 24.)

Appellant states that this continuance was required because of the recent

disclosures from the Commonwealth and appellant to defense counsel, the

“previously prepared line of defense was substantially altered, and that

defense counsel needed time to prepare an adequate defense.” (Id. at 25.)

Appellant further states that had the continuance motion been granted,

defense counsel “would have had adequate time to properly investigate and

interview the newly discovered Commonwealth witnesses, as well as had

adequate time to prepare a new line of defense.” (Id.)

      Appellant also asserts that defense counsel had inadequate time to

properly interview the newly disclosed Commonwealth witnesses.         This is



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simply not supported by the facts in the record. When discussing appellant’s

motion for continuance with defense counsel and the Commonwealth, the

trial judge told defense counsel that they would “have an opportunity to

interview him over lunch, and I will give you whatever time you need.

That’s the only thing I see in this entire package that would delay the start

of this trial.”    (Notes of testimony, 5/13/13 at 25.) Therefore, appellant’s

claim that defense counsel did not have the opportunity to interview the

Commonwealth’s newly disclosed witnesses is without merit, and appellant

was not prejudiced by the trial court’s denial of his second motion for a

continuance.

      Aside       from   interviewing   the   Commonwealth’s   newly    disclosed

witnesses, appellant fails to articulate how he would have prepared for trial

differently had the trial court granted his second request for a continuance.

A need for “additional time to properly prepare a new line of defense” is little

more than a bald allegation of appellant not having adequate time to

prepare for trial, which as discussed above is not grounds for a reversal of a

denial of a continuance motion.         Antidormi, 84 A.3d at 745.     Therefore,

appellant’s arguments relating to his second motion for continuance are

without merit, and we find that the trial court did not abuse its discretion

when it denied appellant’s motion.

      Appellant’s third issue for our review is whether the trial court erred in

admitting a photograph into evidence that appellant claims was highly



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prejudicial and lacking in any probative value.        The photograph at issue

depicts the victim and the crime scene when the police initially arrived.

(Notes of testimony, 5/13/13 at 81-82.)

      The standard by which photographs depicting crime scenes are

admitted into evidence is well settled.

                  The admissibility of photographic evidence
            depicting a crime scene is within the sound discretion
            of the trial court, and the trial court’s ruling will be
            reversed only upon an abuse of that discretion.
            Commonwealth v. Baez, 720 A.2d 711, 726 (Pa.
            1998).      In determining whether to admit a
            photograph or videotape of a murder victim, a trial
            court must engage in a two-step analysis.
            Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa.
            2008). First, the court must determine whether the
            photograph is inflammatory.         If it is not, the
            photograph may be admitted if it has relevance and
            can assist the jury’s understanding of the facts. If
            the photograph is inflammatory, the court must
            determine whether the essential evidentiary value of
            the photograph will improperly inflame the minds
            and passions of the jury. Id.

Commonwealth v. Patterson, 91 A.3d 55, 67 (Pa.Super. 2014).

      In the instant case, the Commonwealth attempted to admit a

newspaper photograph into evidence depicting the victim and “panicked and

screaming civilians.”   (Notes of testimony, 5/13/13 at 83.)           When the

Commonwealth      attempted   to   admit      the   photograph   through   Officer

Norine Kelly, defense counsel objected, stating that the prejudicial value of

the photograph outweighed its probative value. (Id. at 82.) The trial judge

sustained the objection, instructing the Commonwealth that the photograph



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would be admitted if the “panicked and screaming civilians” were removed

from the photograph. (Id. at 83.) An edited version of the photograph was

later admitted into evidence.      (Id. at 122.)      Later in the trial, the

Commonwealth called Theresa Thornhill, the victim’s sister, to testify.

(Notes of testimony, 5/15/13 at 439.)        At that point, the Commonwealth

sought to admit an unedited version of the photograph into evidence

because the photograph depicted Thornhill’s emotional state. (Id. at 436.)

Defense counsel again objected, and the trial court overruled their

objections. (Id.)

      During the two times that the Commonwealth attempted to introduce

the photograph into evidence for admission, the trial court conducted a

balancing test to determine whether the probative value of the photograph

outweighed its prejudicial value. When the Commonwealth first attempted

to introduce the photograph, the trial court sustained defense counsel’s

objections, stating that the presence of screaming civilians would cause

prejudice to appellant.   (Notes of testimony, 5/13/13 at 83.)        When the

Commonwealth called Thornhill to testify, and again sought to introduce the

unedited photograph, the trial court found that since Thornhill was depicted

in the photograph, the photograph’s probative value outweighed its

prejudicial value:

            Now that she’s [Thornhill] testifying, she can identify
            herself in the photograph and the circumstances.
            Certainly goes to the jury should know what her
            state of mind was. Not necessarily her state of mind


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            but what her demeanor was and what was going on
            at that juncture when she undertook to help assist
            her brother and also her subsequent interpretation of
            his gesture.[5]    That will be admissible at this
            juncture.

Notes of testimony, 5/15/13 at 436-437.      In addition to conducting two

separate balancing tests in regards to the photograph, the trial court also

offered a cautionary instruction to the jury regarding the scene depicted in

the photograph:

            Ladies and gentlemen, the photograph, of course,
            was not gruesome or inflammatory to any degree
            but it depicts an emotional situation as you saw. It
            is admitted solely for the purposes of identifying
            persons present and their behavior and reaction at
            the times may reflect on their memories and
            impressions now that they were given to you in
            court.

Id. at 449.6

      Based on the record before us, we find that the trial court did not

abuse its discretion when it admitted the unedited photograph into evidence.

On both occasions that the Commonwealth attempted to have the

photograph admitted, the trial court conducted a balancing test to determine

whether the photograph’s probative value was outweighed by its prejudicial

effect.   The record does not indicate that the conclusion the trial court


5
  Thornhill testified that the victim was gesturing toward a group of men,
indicating that one of them had shot him. (Notes of testimony, 5/15/13 at
442.)
6
  The trial court also provided further cautionary instructions to the jury
before deliberations. (See notes of testimony, 5/16/13 at 622.)


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reached is the result of a misapplication of law, nor does it indicate that the

trial court’s decision was the result of bias, prejudice, or ill-will. Therefore,

appellant’s argument that the photograph is highly prejudicial and lacks any

probative value is without merit.

      Appellant’s fourth issue is whether the trial court imposed an excessive

sentence by ordering two sentences to be served consecutively to a

sentence of life imprisonment without the possibility of parole.

            A challenge to the discretionary aspects of
            sentencing is not automatically reviewable as a
            matter of right. Commonwealth v. Hunter, 768
            A.2d 1136 (Pa.Super. 2001)[,] appeal denied, 796
            A.2d 979 (Pa. 2001).         When challenging the
            discretionary aspects of a sentence, an appellant
            must invoke the appellate court’s jurisdiction by
            including in his brief 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, 812
            A.2d    617    (Pa.   2002);   Commonwealth v.
            Tuladziecki, 522 A.2d 17 (Pa. 1987); 42 Pa. C.S.A.
            § 9781(b); Pa.R.A.P. 2119(f). “The requirement that
            an appellant separately set forth the reasons relied
            upon for allowance of appeal ‘furthers the purpose
            evident in the Sentencing Code as a whole of limiting
            any challenges to the trial court’s evaluation of the
            multitude of factors impinging on the sentencing
            decision to exceptional cases.’” Commonwealth
            v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1987)
            (en banc) (emphasis in original).

Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).

      An appellant’s Rule 2119(f) statement is required to include an

articulation of “what particular provision of [the Sentencing] Code is

violated, what fundamental norms the sentence violates, and the manner in


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which it violates the norm.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa.Super. 2014) (citations omitted).

      Appellant’s Rule 2119(f) statement is as follows:

                  Pursuant to Rule 2119(f), the reasons relied on
            for allowance of appeal with respect to the
            discretionary aspects of the sentence are as follows:
            1) appellant was convicted of one (1) count of
            Murder in the First Degree, which carried a
            mandatory sentence of life without the possibility of
            parole; 2) the Honorable Edward J. Borkowski then
            sentenced Appellant to two (2) consecutive periods
            of incarceration of six (6) to twelve (12) months for
            one (1) count of Robbery and one (1) count of
            Conspiracy to Commit Robbery, despite the fact that
            Appellant already received a sentence of life without
            the possibility of parole; 3) by running appellant’s
            sentences for robbery and conspiracy consecutive,
            the Honorable Edward J. Borkowski abused his
            discretion as the additional sentences were wholly
            unnecessary.

Appellant’s brief at 29-30.

      The   Commonwealth claimed that appellant failed to           include   a

Rule 2119(f) statement in his brief:

                   The appellant in the instant case, although
            mentioning Rule 2119(f) in the body of his
            argument, has failed to include a separate statement
            in his brief.

Commonwealth’s brief at 40-41.         This court has consistently held that a

failure by an appellant to articulate a sufficient Rule 2119(f) statement along

with an objection from the Commonwealth will result in this court being

precluded from considering the issue. Commonwealth v. Karns, 50 A.3d

158, 166 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013). See


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also Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa.Super. 2013),

appeal denied, 91 A.3d 161 (Pa. 2014) (“We disapprove of Appellant’s

failure to indicate where his sentences fell in the sentencing guidelines and

what provision of the sentencing code was violated);7 Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa.Super. 2000) (requiring a Rule 2119(f)

statement to include allegations of violations of the sentencing guidelines or

the sentencing code).

      Appellant, while referencing a violation of fundamental norms in his

Rule 2119(f) statement by citing the consecutive sentences imposed in

addition to his life sentence, fails to cite any violations of the sentencing

guidelines or the sentencing code.       Moreover, appellant’s Rule 2119(f)

statement is in the body of the argument section of his brief instead of being

set forth separately pursuant      to   the   Rules of Appellate   Procedure.

Therefore, the issue is waived.

      Even if appellant were to submit a sufficient Rule 2119(f) statement,

appellant has failed to raise a substantial question into the discretionary

aspects of his sentence. A substantial question is raised when an appellant

“advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing


7
 The Dodge court ultimately considered the appellant’s case on its merits
because the Commonwealth failed to object to the appellant’s lack of a
Rule 2119(f) statement. Id.


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

(citation omitted).    We have previously stated that consecutive sentences

that do not impose a manifestly excessive sentence do not constitute a

substantial question. Dodge, 77 A.3d at 1269.

      In the instant case, as a result of being convicted of first-degree

murder, appellant was sentenced to the mandatory minimum sentence of life

imprisonment without the possibility of parole. (Notes of testimony, 8/5/13

at 10.)       Given the very nature of appellant’s sentence for first-degree

murder, it is impossible for the sentencing court to impose a sentence for

robbery and conspiracy to commit robbery, regardless of whether the

sentence was consecutive or concurrent to the murder sentence, that would

impose a manifestly excessive sentence.           Therefore, even if appellant

included a sufficient Rule 2119(f) statement, his underlying argument lacks

merit.

      The fifth and final issue appellant raises for our review is whether the

trial court erred when it denied appellant’s post-sentence motions without a

hearing. The Pennsylvania Rules of Criminal Procedure provide, in relevant

part, that upon a filing of post-sentence motions, “the judge shall also

determine whether a hearing or argument on the motion is required, and if

so,   shall    schedule   a   date   or   dates   certain   for   one   or   both.”

Pa.R.Crim.P. 720(B)(2)(b). A judge is not required to hold a hearing or oral

argument when considering a post-sentence motion. Id., Comment. This



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court has also stated that a defendant’s due process rights are not violated

when the trial court does not hold a hearing to consider a defendant’s

post-sentence motions, and that the trial judge has discretion over whether

or not to hold a hearing. Commonwealth v. Gaffney, 702 A.2d 565, 566

(Pa.Super. 1997), affirmed, 733 A.2d 616 (Pa. 1999).8

      Appellant has made no argument that the trial court was in violation of

the   relevant   Rules    of   Criminal   Procedure.     A   plain   reading   of

Rule 720(B)(2)(b) indicates that the trial judge is well within his discretion to

determine that a post-sentence motion hearing is not required. Therefore,

we find that the trial judge did not abuse his discretion and this claim is

without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2015




8
   The Gaffney court considered the provisions of Pa.R.Crim.P.
1410(B)(2)(b). Gaffney, 702 A.2d at 566. Pa.R.Crim.P. 1410(B)(2)(b) is
identical to Rule 720(B)(2)(b).


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