J-A16001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM COATES, III,

                            Appellant                No. 247 WDA 2015


           Appeal from the Judgment of Sentence January 13, 2015
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0012614-2013


BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 28, 2016

       Appellant, William Coates, III, appeals the judgment of sentence

entered on January 13, 2015, in the Allegheny County Court of Common

Pleas. We affirm.

       The trial court set forth the relevant facts and procedural history of

this matter as follows:

             Briefly, the evidence presented at trial established that,
       beginning when she was 8 or 9 years old, [Appellant] (who was
       her mother’s boyfriend), began touching the breasts and
       buttocks of [C.L.] on a daily basis. The touching progressed to
       [Appellant] showing her his penis, having her touch his penis
       and eventually to ejaculating in her hands. [C.L.] also testified
       that on one occasion, [Appellant] forced her to perform oral sex
       on him and once he climbed on top of her and attempted to have
       sex with her, but he stopped when she screamed for her mother.
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*
    Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion, 1/13/16, at 2.

            [Appellant] was charged with Involuntary Deviate Sexual
      Intercourse,1 Criminal Solicitation,2 Criminal Attempt,3 Unlawful
      Contact with a Minor,4 Sexual Assault,5 Endangering the Welfare
      of a Child,6 Indecent Exposure,7 Corruption of Minors,8 Indecent
      Assault of a Person Under 139 and Indecent Assault.10 Following
      a jury trial held before this Court, [Appellant] was convicted of
      the Unlawful Contact, Endangering the Welfare of a Child,
      Indecent Exposure, Corruption of Minors and both counts of
      Indecent Assault. He appeared before this Court on January 13,
      2015 and was found to be a Sexually Violent Predator. He was
      subsequently sentenced to consecutive terms of imprisonment of
      three and one half (3½) to seven (7) years at the Unlawful
      Contact charge, two and one half (2½) to five (5) years at the
      Endangering the Welfare of a Child[,] [(2½) to five (5) years at
      the] Indecent Exposure charge[,] and two (2) to four (4) years
      at the Indecent Assault of a Person Under 13 charge, for an
      aggregate term of imprisonment of 10½ to 21 years. This timely
      appeal followed.
            1
              18 Pa.C.S.A. §3123(a)(7)
            2
              18 Pa.C.S.A. §902(a) - 2 counts
            3
              18 Pa.C.S.A. §901(a)
            4
              18 Pa.C.S.A. §6318.1
            5
              18 Pa.C.S.A. §3124.1
            6
              18 Pa.C.S.A. §4304(a)
            7
              18 Pa.C.S.A. §3127(a)
            8
              18 Pa.C.S.A. §6301(a)(1)(i)
            9
              18 Pa.C.S.A. §3126(a)(7)
            10
               18 Pa.C.S.A. §3126(a)(5)

Trial Court Opinion, 1/13/16, at 1-2.

      In his brief, Appellant presents the following issues:

      I. WAS THE SENTENCE IMPOSED MANIFESTLY EXCESSIVE AND
      AN ABUSE OF THE SENTENCING COURT’S DISCRETION IN THAT:

             Three of the four sentences received were for the
            maximum penalty, and all were ordered to be served
            consecutively;


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             Three sentences were above the aggravated range
            in the sentencing guidelines, the remaining sentence
            was in the aggravated range, yet the only
            recognition by the sentencing court of these facts
            was a single throw away comment that the
            aggregate sentence was “way outside” of the
            guidelines; and

             The court focused almost exclusively on the
            gravity of the offense and the impact on the victim,
            and ignored any reference to the defendant’s
            rehabilitative needs?

      II. WAS THE GUILTY VERDICT AGAINST THE WEIGHT OF THE
      EVIDENCE PRESENTED IN THAT THE JURY’S SPLIT VERDICT
      INDICATED THAT IT FOUND THE COMPLAINANT TO BE
      INCREDIBLE; AS THE COMPLAINANT’S TESTIMONY WAS THE
      ONLY EVIDENCE PRESENTED AGAINST MR. COATES, SHOULD
      THE GUILTY VERDICT HAVE SHOCKED THE CONSCIENCE OF THE
      COURT SUCH THAT A NEW TRIAL IS REQUIRED?

Appellant’s Brief at 7.

      In his first issue, Appellant presents a challenge to the discretionary

aspects of his sentence.      It is well settled that a challenge to the

discretionary aspects of a sentence is a petition for permission to appeal, as

the right to pursue such a claim is not absolute.        Commonwealth v.

Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). Before this Court may

review the merits of a challenge to the discretionary aspects of a sentence,

we must engage in the following four-pronged analysis:

      [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 preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial


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      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

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

      While Appellant filed a timely appeal and included a statement

pursuant to Pa.R.A.P. 2119(f) in his brief, we are constrained to agree with

the Commonwealth’s argument that Appellant failed to preserve his

challenge in a timely-filed post sentence motion. Commonwealth’s Brief at

12. The record reveals that Appellant was sentenced on January 13, 2015.

Counsel filed a motion to withdraw on January 20, 2015.            This motion

reiterated his original request to withdraw, which was memorialized in the

notes of testimony. N.T., 1/13/15, at 30, 33. The notes of testimony from

the sentencing hearing also reflect that the trial court stated it would appoint

counsel.   Id.   Accordingly, following the January 13, 2015 sentencing

hearing, the trial court appointed the office of the Public Defender to

represent Appellant in an order dated January 15, 2015.              The order

appointing the Public Defender however, was not entered on the docket until

January 20, 2015, and the order granting the motion to withdraw was not

filed until January 26, 2015.

      On January 28, 2015, five days beyond the ten-day period in which

post-sentence motions may be filed pursuant to Pa.R.Crim.P. 720, Appellant,

pro se, filed a motion to reconsider his sentence and a motion for a new trial

challenging the weight of the evidence.     These motions are undated, and

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therefore, a prisoner mailbox rule1 analysis is impossible as there are no

dates, pay slips, or even an envelope from which we can determine when

these motions were placed in the hands of prison officials.

       The Public Defender now argues on appeal that it did not receive the

appointment order until a week after the order was filed. Appellant’s Brief at

9.   Even if we accept the Public Defender’s representation that it was

unaware of the appointment, the record reflects that Appellant was

represented by counsel at all times, and there is no basis upon which the

untimely     nature     of   the    post-sentence    motions   can   be   excused.

Nevertheless, Appellant avers that the pro se motions should not be deemed

hybrid representation,2 as this case             is akin to Commonwealth v.

Leatherby, 116 A.3d 73 (Pa. Super. 2015). Appellant’s Brief at 9, n.2. We

disagree.

       In Leatherby, the appellant was abandoned by counsel, and the trial

court did not appoint new counsel until after the time to file post sentence

motions had expired. Thus, this Court allowed the trial court to consider the



____________________________________________


1
 The prisoner mailbox rule provides that, in the interest of fairness, a pro se
prisoner’s document will be considered filed on the date it is delivered to
prison authorities for mailing. Commonwealth v. Leggett, 16 A.3d 1144,
1146 n.7 (Pa. Super. 2011) (citation omitted).
2
  Hybrid representation is not permitted.           Commonwealth v. Ellis, 626
A.2d 1137, 1139 (Pa. 1993).



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appellant’s timely pro se motions without deeming them hybrid because the

appellant had no counsel during the post-sentence motion period.

      Here, however, the trial court appointed counsel before the time in

which to file post-sentence motions expired. Thus, as noted, Appellant had

counsel throughout the proceedings. The Public Defender, however, did not

file post-sentence motions, and Appellant filed them pro se.       Even if we

excused the hybrid nature of the motions pursuant to Leatherby, the

motions were untimely, and we discern no mechanism by which this

tardiness may be exempted. The five-day delay between the date the post-

sentence motions were due, January 23, 2015, and the date the motions

were filed, January 28, 2015, cannot be excused based on the record before

us. Moreover, because there is nothing upon which this Court can conduct a

mailbox-rule analysis, we conclude Appellant’s challenge to the discretionary

aspects of his sentence is waived for failing to preserve it in a timely-filed

post-sentence motion. Moury, 992 A.2d at 170.

      For these same reasons, we conclude that Appellant’s challenge to the

weight of the evidence is waived.      The Pennsylvania Rules of Criminal

Procedure require that a “claim that the verdict is against the weight of the

evidence shall be raised with the trial judge in a motion for a new trial: (1)

orally, on the record, at any time before sentencing; (2) by written motion

at any time before sentencing; or (3) in a post-sentence motion.”

Pa.R.Crim.P. 607.    A challenge to the weight of the evidence “must be


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presented to the trial court while it exercises jurisdiction over the matter

because appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is against

the weight of the evidence.” Commonwealth v. Burkett, 830 A.2d 1034,

1037 (Pa. Super. 2003) (internal quotation marks and citation omitted).

Appellant failed to preserve his challenge to the weight of the evidence claim

orally or in writing prior to sentencing, and as discussed above, his post-

sentence motion was untimely. As such, Appellant failed to properly present

his post-sentence motions resulting in waiver of his challenge to the weight

of the evidence. Id.

     For the reasons discussed above, Appellant failed to properly preserve

either of his issues on appeal.    Accordingly, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.

      Judge Olson Concurs in the Result.

      Judge Strassburger files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016

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