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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

WILLIAM BROWN, IV

                         Appellant                  No. 1770 WDA 2015


           Appeal from the Judgment of Sentence July 15, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0011189-2013


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 26, 2016

      Appellant, William Brown, IV, appeals from the judgment of sentence

entered on July 15, 2015, in the Court of Common Pleas of Allegheny

County. On appeal, Brown advances two claims. First, he argues that the

trial court abused its discretion in recommending him for a motivational boot

camp, but imposing an aggregate sentence that makes him legally ineligible

to be considered. We find that discretionary aspects of sentencing claim

waived. Second, he maintains that the trial court abused its discretion by

failing to hold a hearing on his second post-sentence motion based on after-

discovered evidence. We find that there was no need for a hearing as

Brown’s underlying legal theory, that the Commonwealth failed to disclose

evidence, is belied by the record. We affirm.
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      A jury convicted Brown of possession with intent to deliver a controlled

substance, two counts of delivery of a controlled substance, and conspiracy.

The   trial   court   later   sentenced   Brown   to   an   aggregate   period   of

imprisonment of six to twelve years. At sentencing, the trial court noted that

“evaluation for boot camp at the discretion of the state system.” N.T.,

Sentencing, 7/15/15, at 22. The trial court entered a sentencing order on

that same date that has “Boot Camp Recommended” under each count for

which it imposed a sentence.

      David A. Hoffman, Esquire, represented Brown at sentencing and filed

a post-sentence motion. In the motion, Attorney Hoffman “request[ed]

reconsideration of sentence (to reduce the sentence of incarceration)….”

Post-Sentence Motion, 7/21/15, at ¶4. He also requested an extension of

time for Brown to file an amended post-sentence motion, as he was also

moving to withdraw as counsel. The trial court granted Attorney Hoffman’s

motion to withdraw and granted an extension of time to file an amended

post-sentence motion. The court also appointed Lyle S. Dresbold, Esquire, as

counsel.

      Attorney Dresbold then filed a post-sentence motion on Brown’s

behalf. The motion alleged that “[t]he sentence is unduly harsh given the

facts and circumstances and should be reconsidered. Defendant believes

that a concurrent sentence is appropriate because all the illegal activity for

which he was convicted was the result of a single chain of events.” Post-


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Sentence Motion, 9/21/15, at ¶6. The trial court denied Brown’s post-

sentence motion by order entered October 9, 2015.

       Attorney Dresbold filed another post-sentence motion on October 27,

2015. The motion alleged a Brady1 violation: that the Commonwealth failed

to disclose in discovery the criminal history of trial witness, and Brown’s

former co-defendant, Carrie Ann Schaub. The motion alleged Schaub “has

multiple past convictions for Manufacture, Delivery, or Possession with

Intent to Deliver controlled Substances.” Second Post-Sentencing Motion

Nunc Pro Tunc, 10/25/15, at ¶¶5-7, 11. The motion further alleged,

“[c]urrent counsel did not become aware of the Commonwealth’s failure to

disclose the evidence until after the denial of his first post-sentencing

motion.” Id., at ¶12.

       The Commonwealth filed a response. The Commonwealth noted that it

requested a Pennsylvania Criminal History Rap Sheet for Carrie Ann Schaub.

The Rap Sheet showed, apart from the charges on trial, only an arrest for

retail theft on October 23, 2005, for which she was adjudicated delinquent.

See Motion in Response to Defendant’s Second Post-Sentence Motion Nun

Pro Tunc, 11/5/15, at 1 and Exhibit “A,” (a copy of the Rap Sheet). The

Commonwealth stated that it was “completely unaware of any other

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1
  In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme
Court declared that due process is offended when the prosecution withholds
evidence favorable to the accused.



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convictions of Schaub until receipt” of Brown’s nunc pro tunc post-sentence

motion. Id. The response further explained that the Commonwealth

contacted Attorney Dresbold to ask about the prior convictions and that

Attorney    Dresbold     “informed   the   Commonwealth       that   he   previously

represented Schaub in Armstrong County, Pennsylvania[,] on drug cases to

which she plead guilty and this is how he knew she had a criminal history.”

Id.,   at   2.   Given   Attorney    Dresbold’s   knowledge    of    Schaub’s   prior

convictions, the Commonwealth maintained that the nunc pro tunc post-

sentence motion was untimely filed.

       The Commonwealth additionally argued that it did not fail to disclose

exculpatory evidence. It explained that Attorney Dresbold had not presented

any evidence that the Office of the Attorney General, who represented the

Commonwealth at trial, ever had possession or knowledge of Schaub’s prior

drug convictions. “These documents were instead in the possession of the

Armstrong County District Attorney’s Office and the Kittanning Borough

Police Department, as the Kittanning Borough Police Department Secretary

never submitted Schaub’s fingerprint card to the Pennsylvania State Police.”

Id., at 4. And, in any event, the Commonwealth noted the prior drug

offenses would have been inadmissible, as they are not crimen falsi

convictions.

       The trial court entered an order denying the nunc pro tunc post-

sentence motion on November 5, 2015. This timely appeal followed.


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       On appeal, Brown first challenges the discretionary aspects of his

sentence. In his Rule 2119(f) statement, Brown maintains that “in crafting

consecutive sentences, the lower court in essence disqualified the Appellant

from boot camp and left him with an unduly harsh aggregate sentence.”

Appellant’s Brief, at 10. Brown’s claim is that the trial court abused its

discretion when it “approved and recommended him for boot camp,” but

then imposed a sentence that made him motivational boot camp ineligible.

Id.

       Brown is correct that his aggregate sentence of imprisonment of six to

twelve years renders him ineligible for a motivational boot camp. See 61

Pa.C.S.A. § 3903 (defining “eligible inmate”). And it seems incongruous to

us that the trial court imposed a sentence that rendered him legally ineligible

for boot camp, but then immediately announced in open court “evaluation

for boot camp at the discretion of the state system” and noted “Boot Camp

Recommended” under each count for which it imposed a sentence in the

sentencing order.2 But this is a claim that Brown never advanced in the trial

court. “[I]ssues challenging the discretionary aspects of a sentence must be

____________________________________________


2
    In its brief, the Commonwealth concedes that the trial court
“recommended boot camp at each count,” however, the aggregate sentence
rendered Brown’s consideration ineligible. Commonwealth’s Brief, at 9. But it
then goes on to try and explain away the incongruity: “The lower court was
certainly aware of the eligibility criteria for the boot camp program and, had
it so chosen, could have imposed a boot camp-eligible sentence.” Id. No.
That makes no sense.



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raised in a post-sentence motion or by presenting the claim to the trial court

during the sentencing proceedings. Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. Shugars,

895 A.2d 1270, 1273-1274 (Pa. Super. 2006) (citation omitted). As Brown

failed to include this particular claim in any of his three post-sentence

motions, which we detailed above, we find this discretionary claim waived.3


____________________________________________


3
  The trial court notes “Appellant’s sentences were all at the very low end of
the standard range of the sentencing guidelines.” Trial Court Opinion,
2/10/16, at 6. This is incorrect. Brown, in his Rule 2119(f) statement, claims
that the trial court sentenced him “within the sentencing guidelines.”
Appellant’s Brief, at 10. This is partially correct.

At count 3, conspiracy (possession with intent to deliver 50<100 g of
heroin), the trial court sentenced outside the guidelines—the trial court
imposed a sentence below the mitigated range. At count 6 (possession with
intent to deliver <1 g of heroin), the trial court imposed a standard range
sentence. At count 7 (possession with intent to deliver <1 g of heroin), the
trial court imposed another standard range sentence. At count 10
(possession with intent to deliver 50<100 g of heroin), the trial court
imposed a mitigated range sentence.

The trial court imposed consecutive sentences at counts 3, 7, and 10 and
imposed a concurrent sentence at count 6. A standard range sentence is
presumptively reasonable. See Commonwealth v. Fowler, 893 A.2d 758,
767 (Pa. Super. 2006). And a trial court has discretion to determine
whether, given the particular facts of the case, a sentence should run
consecutive to or concurrent with another sentence. See Commonwealth
v. Bowen, 55 A.3d 1254, 1265 (Pa. Super. 2012). “The imposition of
consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Moury, 992 A.2d 162,
171-172 (Pa. Super. 2010) (emphasis added; citation omitted). That, we
would note, is simply not the case here.



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     In his second issue, Brown argues that the trial court erred in denying

his “Second Post-Sentencing Motion Nun Pro Tunc” without a hearing. Brown

filed this second post-sentence motion pursuant to Pa.R.Crim.P. 720(c),

After-discovered Evidence. Subsection (c) provides that “[a] post-

sentence motion for a new trial on the ground of after-discovered evidence

must be filed in writing promptly after such discovery.” Rule 720 leaves it in

the trial court’s discretion to determine whether a hearing is necessary. See

Pa.R.Crim.P. 720(B)(2)(b).

     As noted, the second post-sentence motion concerned Brown’s claim

that the Commonwealth deliberately failed to disclose Carrie Ann Schaub’s

prior convictions. And, as also mentioned, the Commonwealth responded

that it had no awareness of Schaub’s prior record and that Attorney Dresbold

was Schaub’s criminal defense attorney for the very offenses he accused the

Commonwealth of withholding. Attorney Dresbold explains in the appellate

brief that “[i]n 2009, appellate counsel represented Carrie Schaub during a

series of negotiated plea bargains in Armstrong County. … During their brief

time together, counsel knew her as Carrie Ann.” Appellant’s Brief, at 14.

Thus, he purports to explain his late discovery that led to the filing of the

second post-sentence motion.

     The trial court denied the second post-sentence motion because

Attorney Dresbold did not file it “promptly” as required by Rule 720(c). The

court explains that Attorney Dresbold already “acquired the information


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regarding Schaub’s prior convictions during his previous representation of

Schaub.” Trial Court Opinion, 2/10/16, at 8. Accordingly, the trial court

found he impermissibly waited 97 days after the filing of his post-sentence

motion to raise this claim in the second post-sentence motion.

      We agree with the trial court that there was no need for a hearing, but

we do so for a different reason. See Commonwealth v. O’Drain, 829 A.2d

316, 321 n.7 (Pa. Super. 2003) (“[T]his court may affirm the decision of the

trial court if there is any basis on the record to support the trial court's

action; this is so even if we rely on a different basis in our decision to

affirm.”) Brown has never disputed the Commonwealth’s assertion in its

response that it had neither possession nor knowledge of Schaub’s prior

drug convictions. The Commonwealth has a mandatory duty to disclose

“[a]ny evidence favorable to the accused that is material either to guilt or to

punishment, and is within the possession or control of the attorney for the

Commonwealth[.]” Pa.R.Crim.P. 573(B)(1)(a). Rule 573 “was promulgated

in response to the dictates of Brady.” Commonwealth v. Sullivan, 820

A.2d 795, 802 (Pa. Super. 2003) (citations and internal quotation marks

omitted). There was no need for a hearing in this case because the




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Commonwealth had not violated any mandatory duty to disclose favorable

evidence.4

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2016




____________________________________________


4
  The trial court obviously found Attorney Dresbold’s claim that he did not
realize he represented Schaub until well after the filing of the post-sentence
motion incredible. Our resolution takes both Attorney Dresbold and the
attorneys for the Commonwealth at their respective words as officers of the
court.



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