J-S64035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DAVID M. COOK

                            Appellant                         No. 198 EDA 2016


          Appeal from the Judgment of Sentence December 16, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0003068-2013


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                               FILED AUGUST 30, 2016

       Appellant David M. Cook appeals the judgment of sentence entered in

the Court of Common Pleas of Bucks County on December 16, 2015,

following the revocation of his parole.1 Following a review of the record, we

dismiss the appeal.      As shall be discussed more fully infra, in his counseled

appellate    brief,   Appellant     failed     to   comply    substantially   with   the

requirements set forth in Pa.R.A.P. 2111-2140; therefore, we are unable to

conduct meaningful review.
____________________________________________


1
  The cover page of Appellant’s brief incorrectly indicates he is appealing the
January 4, 2016, Order denying his post-sentence motion for reconsideration
of sentence. The caption correctly reflects that the appeal is taken from the
judgment of sentence entered on December 16, 2015.




*Former Justice specially assigned to the Superior Court.
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       Because a detailed recitation of the facts is not necessary to our

disposition, we briefly note that the instant matter arises following the trial

court’s revocation of Appellant’s parole due his direct and technical violations

thereof after he was found guilty of simple assault, disorderly conduct and

harassment on August 26, 2015. On December 16, 2015, a parole violation

hearing was held following which Appellant was sentenced to serve the

entirety of his back time of parole of nineteen (19) months and eighteen

(18) days consecutive to his remaining sentences without eligibility for

parole.2 On December 24, 2015, Appellant filed his “Motion to Modify and

Reconsider Sentence” wherein he averred the aforementioned sentence “was

excessive in this it exceeds what is necessary to protect the public and

rehabilitate [Appellant].”      See Motion to Modify and Reconsider Sentence,

filed 12/24/16, at ¶ 6. The trial court denied Appellant’s motion in its Order

filed on January 4, 2016.          Appellant filed a timely notice of appeal on

January 21, 2016, challenging the discretionary aspects of his sentence.

       Initially, we note that appellate briefs must materially conform to the

requirements of the Pennsylvania Rules of Appellate Procedure and this

Court may quash or dismiss an appeal if a defect in the brief is substantial.
____________________________________________


2
  On August 27, 2015, Appellant received a sentence of one (1) to two (2)
years in prison on the Simple Assault conviction and a consecutive sentence
of ninety (90) days imprisonment on the Disorderly Conduct conviction. The
trial court also found Appellant to be in contempt of a PFA Order that was
active at the time of the assault for which he was sentenced to a consecutive
term of six (6) months’ incarceration.



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Commonwealth v. Adams, 882 A.2d 496, 497 (Pa.Super. 2005); Pa.R.A.P.

2101. Our review of Appellant’s brief exposes substantial violations of the

Rules of Appellate procedure.

       In the “Scope and Standard of Review” portion of his appellate brief,

Appellant fails to state the appropriate scope and standard of review, for

while his is an appeal of the discretionary aspects of his sentence for a

parole violation, he cites this Court’s scope of review of appeals from a

judgment of sentence imposed following probation revocation.            See

Pa.R.A.P. 2111(a)(3); Brief for Appellant at 5.      In addition, Appellant

purports to appeal from the January 4, 2016, order denying his post-

sentence motion for reconsideration of sentence;3 however, in a criminal

context, an appeal properly lies from the judgment of sentence, not an order

denying post-sentence motions. See Commonwealth v. Dreves, 839 A.2d

1122, 1125 n.1 (Pa.Super. 2003) (en banc) (in a criminal action, appeal

properly lies from the judgment of sentence made final by the denial of a

post-sentence motion); Brief for Appellant at 4.

       Next, Appellant presents the following statement of the question

presented:




____________________________________________


3
  Specifically, although Appellant is a male, Appellant purports to appeal
“her” denial of post-sentence motions. See Brief for Appellant at 4.



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        A.    Whether the trial court abused its discretion by imposing a
        sentence that was excessive in that it exceeds what is necessary
        to protect the public and rehabilitate Appellant.

Brief for Appellant at 5.

        Appellant’s assertion the trial court’s sentence exceeded that which is

necessary to protect the public and rehabilitate him is a challenge to the

discretionary aspects of the sentence. Commonwealth v. Caldwell, 117

A.3d 763, 768 (Pa.Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015)

(stating claim the trial court failed to consider a defendant’s rehabilitative

needs and the consecutive imposition of his sentences resulted in an

excessive sentencing scheme challenges the discretionary aspects of

sentence). Challenges to the discretionary aspects of one’s sentence are not

appealable as of right, and in order for this Court to reach the merits of such

claims, Appellant first must have satisfied a four-part test.       An essential

element of this test is a consideration of whether his appellate brief has a

fatal    defect   for   his   failure   to   comply   with   Pa.R.A.P.   2119(f).

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011).


        Rule 2119 provides in relevant part that:

        f) Discretionary aspects of sentence. An appellant who
        challenges the discretionary aspects of a sentence in a criminal
        matter shall set forth in a separate section of the brief a concise
        statement of the reasons relied upon for allowance of appeal
        with respect to the discretionary aspects of a sentence. The
        statement shall immediately precede the argument on the merits
        with respect to the discretionary aspects of the sentence.




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Pa.R.A.P. 2119(f) (emphasis added).            In this regard, this Court has

explained:

     [t]he concise statement must specify where the sentence falls in
     relation to the sentencing guidelines and what particular
     provision of the code it violates. Additionally, the statement
     must specify what fundamental norm the sentence violates and
     the manner in which it violates that norm. If the statement
     meets these requirements, we can decide whether a substantial
     question exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (internal

quotations and citations omitted).        In the matter sub judice, Appellant

nowhere includes a separate designation pursuant to Pa.R.A.P. 2119(f).

     In Commonwealth v.            Shugars, 895 A.2d 1270, 1274 (Pa.Super.

2006) this Court indicated we may review an appellant’s discretionary

aspects of sentence claims in instances where the Commonwealth has not

objected to his or her failure to include a Rule 2119(f) statement in the

appellate brief; however, we also stated “we need not do so.”             Id. citing

Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super. 2005) see also

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004) (finding

that “when the appellant has not included a Rule 2119(f) statement and the

appellee has not objected, this Court may ignore the omission and

determine if there is a substantial question that the sentence imposed was

not appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua

sponte,      i.e.,   deny   allowance     of   appeal”);      Pa.R.A.P.     2119(f).

Notwithstanding,      the   Note   to   Pa.R.A.P.   2111(d)    states     the   2008


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amendments to Pa.R.A.P. 2119(f) “recognize that, while Pa.R.A.P. 2119(f)

does not apply to all appeals, an appellant must include the reasons for

allowance of appeal as a separate enumerated section immediately before

the Argument section if he or she desires to challenge the discretionary

aspects of a sentence.” Pa.R.A.P. 2111(d) note (emphasis added). Indeed,

this Court also has determined that “we cannot look beyond the statement

of questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”          Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa.Super. 2012) (citation omitted).          As such, when

considered along with the other shortcomings of his appellate brief,

Appellant’s failure to include a Pa.R.A.P. 2119(f) statement constitutes a

fatal defect. 4

       Lastly, Appellant has failed to attach the requisite concise statement

and trial court opinion to his appellate brief. See Pa.R.A.P. 2111(d)(stating

“there shall be appended to the brief of the appellant a copy of the

____________________________________________


4
   Even assuming, arguendo, Appellant properly had averred in a Rule
2119(f) concise statement that his sentence was excessive and failed to take
into consideration his rehabilitative needs, such a claim fails to raise a
substantial question, for generally, a bald claim of excessiveness based upon
the trial court’s alleged inadequate consideration of mitigating factors or
resulting from the imposition of consecutive sentences fails to raise a
substantial question. See Commonwealth v. Austin, 66 A.3d 798, 808
(Pa.Super. 2013); Commonwealth v. Johnson, J., 961 A.2d 877, 880
(Pa.Super. 2008).      Herein, Appellant devotes just three paragraphs of
argument to develop what constitutes a bald allegation the trial court abused
its discretion.



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statement of errors complained of on appeal, filed with the trial court

pursuant to Pa.R.A.P. 1925(b)”); Pa.R.A.P. 2111(b) (providing “[t]here shall

be appended to the brief a copy of any opinions delivered by any court or

other government unit below relating to the order of other determination

under review, if pertinent to the questions involved”). In the “Statement of

the Case” portion of his brief Appellant references his concise statement of

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

February 4, 2016, and indicates that document is attached to his brief as

Exhibit “A.” Appellant further claims the trial court’s responsive opinion was

filed on February 23, 2016, and is attached as Exhibit “B.” To the contrary,

Exhibit “A” is a statement of matters complained of on appeal filed on

December 21, 2015, wherein Appellant raises five, distinct issues.     Exhibit

“B” is a trial court Opinion filed on April 18, 2016, which addresses those

issues.

      We find the aforementioned substantial omissions and defects preclude

meaningful review. Accordingly, we suppress Appellant’s brief and dismiss

his appeal. See Adams, supra at 497-98; Pa.R.A.P. 2101.

      Appeal dismissed.

      Judge Stabile joins the memorandum.

      Judge Solano concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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