J. A15036/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
SCOTT FAUX,                                 :         No. 1395 MDA 2017
                                            :
                          Appellant         :


            Appeal from the Judgment of Sentence, August 9, 2017,
              in the Court of Common Pleas of Wyoming County
               Criminal Division at No. CP-66-CR-0000160-2017


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 09, 2018

        Scott Faux appeals the August 9, 2017 judgment of sentence in which

the Court of Common Pleas of Wyoming County sentenced him to a term of

imprisonment of 16 to 36 months for possession of a controlled substance

(heroin).1 After careful review, we affirm.

        The facts, as stated by the trial court, are as follows:

              On January 17, 2017 Wyoming County Detective
              David A. Ide along with Troopers from Pennsylvania
              State Police and Tunkhannock Borough Police
              obtained a search warrant and executed same for the
              residence of Timothy Egan. Upon arrival at Egan’s
              residence[,] he was advised of the existence of the
              search warrant. As the search of the residence began,
              in the presence of Egan, his cell phone continually
              rang. Egan subsequently advised that he did sell
              heroin to the Confidential Informant the previous
              date, mentioning the Confidential Informant by name.

1   35 P.S. 780-113(a)(16).
J. A15036/18


             Egan further identified a white male and female in the
             small dark colored car, who delivered the heroin to his
             residence the previous night as [appellant] and his
             girlfriend.

             While continuing the search, Egan’s [sic] received a
             text    message        from    [appellant],     making
             arrangement [sic] for the delivery of heroin from
             [appellant] to Egan. Egan consented to cooperating
             with the officers and texted [appellant] confirming the
             arrangement for [appellant] to deliver heroin to Egan
             at Egan’s residence in the next twenty minutes.
             [Appellant] advised via text he was in the Wal-Mart
             parking lot and was concerned because he observed
             marked police cars at the entrance of Egan’s trailer
             park.

             The officers then proceeded to Wal-Mart and located
             [appellant], in his small dark colored vehicle.
             [Appellant] was approached and advise [sic] of the
             nature of the investigation. At which point [appellant]
             made voluntary statements implicating himself in the
             use of heroin and the sale of heroin to Egan.
             [Appellant] was advised of his Miranda[2] warnings
             and verbally waived same. [Appellant] then stated he
             was obtaining heroin from a male in the Cook’s Trailer
             Park and that he was delivering same to Egan in
             Diamonds Trailer Park. [Appellant] was then taken
             into custody and transported to the Pennsylvania
             State Police Barracks, for violations of the conditions
             of his parole supervision.

             Detective Ide had previous knowledge of [appellant]
             being on State Parole for heroin use and past
             delivers [sic] and he therefor [sic] contacted
             [appellant’s] State Parole Agent to advise him of the
             above.

             As a result, on or about June 1, 2017 [appellant] was
             charged with 35 Ps.C.S.A. [sic] 113(a)[(]30[)]
             Criminal Conspiracy to Commit/Manufacture, Deliver
             or Possession with Intent to Deliver graded a felony;

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


                                      -2-
J. A15036/18


            18   Pa.C.S.A.   §   7512(a)    Criminal   use   of
            Communication Facility graded a felony in the third
            degree; and 35 Pa.C.S.A. [sic] 113(a)[(]16[)]
            Criminal Attempt/Possession of Controlled Substance
            graded a misdemeanor.

            [Appellant] plead [sic] guilty on July 7, 2017 to count
            three, Criminal Attempt/Possession of a Controlled
            Substance, second offense.         After review of an
            extensive     Pre   Sentence      Investigation  report
            [appellant] was sentenced on August 9, 2017 to pay
            the cost of prosecution, pay a fine in the amount of
            $500.00, be committed to the Department of
            Corrections for confinement in a state institution for a
            period of note [sic] less than sixteen months nor more
            than thirty-six months and stand committed until the
            same is complied with. [Appellant] shall receive credit
            for prior confinement in the amount of one hundred
            . . . ninety-five (195) days. [Appellant] shall be
            eligible for an RRRI minimum sentence of twelve (12)
            months. [Appellant] shall obtain a drug and alcohol
            evaluation and follow any and all recommended
            treatment plans until satisfactorily discharged.

Trial court opinion, 10/23/17 at 1-3 (citation omitted).

      On September 8, 2017, appellant filed a notice of appeal.        On

September 11, 2017, the trial court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant complied with the order on September 26, 2017. The trial court

filed its Pa.R.A.P. 1925(a) opinion on October 23, 2017.

      Appellant raises the following issues for this court’s review:

            1.    Did the [trial c]ourt err and abuse its discretion
                  by failing to consider the sentencing guidelines
                  as required by law and failing to provide
                  adequate reasons for its imposition of sentence
                  at the highest end of the sentencing guidelines?



                                     -3-
J. A15036/18


            2.    Did the [trial c]ourt err and abuse its discretion
                  by failing to consider the sentencing code as a
                  whole in its deviation from the sentencing
                  guidelines and its imposition of an unreasonable
                  and excessive sentence at the highest end of the
                  sentencing guidelines?

            3.    Did the [trial c]ourt err and abuse its discretion
                  by failing to consider or give appropriate weight
                  to   the     circumstances    of   the    offense,
                  [appellant’s]       background,        mitigating
                  circumstances, and/or refusing to reduce the
                  sentence imposed of [not less than] sixteen
                  (16) months nor more than thirty-six (36)
                  months?

Appellant’s brief at 4-5.

      Appellant challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether     to    affirm     the    sentencing      court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the judgment exercised was manifestly unreasonable,
            or the result of partiality, prejudice, bias or ill-will. In
            more expansive terms, our Court recently offered: An
            abuse of discretion may not be found merely because
            an appellate court might have reached a different
            conclusion, but requires a result of manifest
            unreasonableness, or partiality, prejudice, bias, or ill-
            will, or such lack of support so as to be clearly
            erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate review
            is that the sentencing court is in the best position to
            determine the proper penalty for a particular offense
            based upon an evaluation of the individual
            circumstances before it.




                                       -4-
J. A15036/18

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].      An appellant challenging the
            discretionary aspects of his sentence must invoke this
            Court’s jurisdiction by satisfying a four-part test:

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

Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of his sentence.    First, appellant timely filed his notice of appeal.

However, the Commonwealth points out that appellant did not raise his

sentencing claim either at the sentencing hearing or by filing a timely

post-sentence motion. A review of the record confirms that appellant did not

preserve the issues before the trial court that he now raises before this court.

As a result, these issues are waived. See Commonwealth v. Nischan, 928

A.2d 349, 355 (Pa.Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007)


                                     -5-
J. A15036/18

(“an appellant can seek to appeal discretionary sentencing issues only after

preserving them during the sentencing hearing or in post-sentence motions”),

citing Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/9/2018




                                   -6-
