J-S53023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS LOPEZ,

                            Appellant                 No. 2082 EDA 2016


             Appeal from the Judgment of Sentence June 10, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014305-2012


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 18, 2017

        Appellant, Luis Lopez, appeals from the judgment of sentence entered

on June 10, 2016. We affirm.

        As the trial court ably explained:

          [Appellant] was arrested on November 19, 2012, and
          charged with aggravated indecent assault, unlawful contact
          with minor, endangering the welfare of a child, corruption of
          minors, indecent assault[,] and simple assault of a child
          under [12 years of age]. . . . On February 18, 2015, a jury
          was selected [for Appellant’s trial]. . . .

          [During trial, Appellant] decided to enter a negotiated plea
          to the charges of endangering the welfare of a child and
          corruption of the morals of a minor[,1] in exchange for an
          aggregate sentence of five years’ probation.

____________________________________________


1
    18 Pa.C.S.A. §§ 4304(a)(1) and 6301(a)(1)(i).
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        On April 27, 2015, [Appellant] incurred new charges of
        intimidation of a witness, contempt, aggravated [assault,]
        simple assault, conspiracy, terroristic threats[,] and
        recklessly endangering another person.        On January 8,
        2016, [Appellant] was sentenced to one to two years’
        incarceration for the intimidation of a witness offense. On
        June 10, 2016, a probation violation hearing was held, after
        which [Appellant] was found to have violated his probation[;
        that same day, the trial court revoked Appellant’s probation
        and re-sentenced Appellant to serve a term of one to two
        years in prison, followed by three years of probation, for the
        underlying convictions].

Trial Court Opinion, 8/30/16, at 1-2.

      On June 14, 2016, Appellant filed a timely motion to modify his

sentence.   See Pa.R.Crim.P. 708(E) (“[a] motion to modify a sentence

imposed after a revocation [of probation] shall be filed within 10 days of the

date of imposition. The filing of a motion to modify sentence will not toll the

30-day appeal period”).     Within Appellant’s motion to modify, Appellant

claimed that the trial court abused its discretion by imposing an “unduly

harsh and excessive [sentence] in light of [Appellant’s] background,

acceptance of responsibility[,] and cooperation in this matter.” Appellant’s

Motion to Modify, 6/14/16, at 2. The trial court denied Appellant’s motion to

modify on June 21, 2016 and, on June 27, 2016, Appellant filed a timely

notice of appeal.

      Appellant raises two claims on appeal:

        [1.] Whether the trial court erred in finding [Appellant]
        guilty of a violation of his probation where, as here, there
        was no admissible evidence of a violation admitted at the
        hearing?




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         [2.] Whether the trial court erred in denying [Appellant’s]
         motion for reconsideration of its decision finding [Appellant]
         in violation where, as here, the sentence imposed by the
         court for the violation was excessive given the ample
         evidence offered by the defense in mitigation and the
         complete lack of admissible evidence offered by the
         Commonwealth?

Appellant’s Brief at vi (some internal capitalization omitted).

      First, Appellant claims that there was insufficient evidence to support

the revocation of his probation because “the Commonwealth offered no

evidence [] that [Appellant] had violated his probation [and] relied only on

argument as to the appropriate sentence.” Appellant’s Brief at 9. This claim

is frivolous and demands little attention from this Court. Certainly, during

the revocation of probation hearing, the trial court noted that Appellant

violated his probation by being convicted of “witness intimidation” and

Appellant then expressly stipulated to a “direct violation” of his probation.

N.T. Violation of Probation Hearing, 6/10/16, at 3-4 and 7-8 (Appellant’s

Attorney:     “I’m going to pass this up to Your Honor, because I think that

that speaks best, copies of the presentence investigation report that were

done in the direct violation matter. And, by the way we’re stipping to a

direct violation, if I didn’t say that before”) (emphasis added). The claim

thus fails.

      Second, Appellant claims that the trial court abused its discretion by

imposing a manifestly excessive sentence. Appellant’s Brief at 9. Appellant

has waived his discretionary aspects of sentencing claim because he failed to

include a Pennsylvania Rule of Appellate Procedure 2119(f) statement in his


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brief    and    the   Commonwealth      has   objected    to   the   omission.

Commonwealth’s Brief at 6-7; Commonwealth v. Faulk, 928 A.2d 1061,

1071-1072 (Pa. Super. 2007) (“[t]o be reviewed on the merits, a challenge

to the discretionary aspects of sentence must raise a substantial question

that the sentence imposed is not appropriate.       A substantial question is

raised when the appellant advances a colorable argument that the sentence

was either inconsistent with a specific provision of the Sentencing Code or

contrary to the fundamental norms which underlie the sentencing process.

This Court determines whether an appellant has raised a substantial

question by examination of the appellant's concise statement of the reasons

relied upon for allowance of appeal, which must be included in the

appellant's brief, pursuant to Pennsylvania Rule of Appellate Procedure

2119(f). If a Rule 2119(f) statement is not included in the appellant's brief

and the appellee objects to the omission, then this Court is precluded from

reviewing the merits of the appellant's claim”) (internal citations and

quotations omitted).

        Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017


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