J-S32044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHAMON ANTWAIN MELVIN                      :
                                               :
                       Appellant               :   No. 2133 EDA 2019

       Appeal from the Judgment of Sentence Entered December 6, 2018,
             in the Court of Common Pleas of Montgomery County,
                Criminal Division at No(s): CP-46-CR-3906-2018.

BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 11, 2020

        Chamon Antwain Melvin appeals from the judgment of sentence

imposed following his conviction of persons not to possess a firearm,

possession of a controlled substance, and possession of drug paraphernalia.1

We affirm.

        The trial court set forth the relevant factual and procedural history as

follows:

              In the spring of 2018, Detective Michael Laverty of the
        Upper Merion Township Police Department, received information
        that Melvin was selling cocaine in Montgomery County and began
        an investigation. In the course of that investigation, the detective
        learned that Melvin had two open warrants, one warrant from
        Bowie County, Texas, relating to drug charges; and a second
        warrant from Chester County, Pennsylvania.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. § 6105(a)(1), 35 P.S. §§ 780-113(a)(16), (32).
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            Sergeant Brandy Faherty, of the Upper Merion Township
     Police Department, assisted with the investigation. Specifically,
     on May 23, 2018, she received information that Melvin was in
     Upper Merion in a black Mitsubishi Diamante car. That vehicle was
     observed, and it was determined that it was registered to Melvin.
     Detective Wright pulled up behind Melvin’s vehicle. Sergeant
     Faherty was able to identify the occupant of the vehicle as Melvin.
     Several officers approached the vehicle along with the sergeant in
     order to take Melvin into custody for the open warrants. Melvin
     exited the vehicle, and while being handcuffed[,] a handgun
     sticking out of his waistband was observed. A search incident to
     arrest was effectuated, and turned up a stolen handgun and
     approximately $1,172.00 in U.S. currency.

           Sergeant Faherty walked back past the vehicle and smelled
     unburnt marijuana emanating from it, and a canine search was
     performed. The dog uncovered a bag with a white powdery
     substance in the center console. At that juncture, the sergeant
     instructed the dispatch to tow Melvin’s vehicle from the scene in
     order to do a vehicle search back at the police station’s garage.
     Detective Gregory Pitchford and Detective Fran Rippert uncovered
     a bag of marijuana and cocaine from the vehicle.

           At the conclusion of [a] non-jury trial, Melvin was convicted
     of the aforementioned offenses.

           On March 8, 2019, Melvin was sentenced to [an aggregate]
     term of four to ten years’ imprisonment. A timely post-sentence
     motion was filed on March 18, 2019. An order denying the post-
     sentence motion was entered on the docket on June 18, 2019,
     and was served upon trial counsel on June 28, 2019. This appeal
     was filed on July 22, 2019.

Trial Court Opinion, 10/2/19, at 1-3 (references to the record omitted).

     Melvin raises three issues for our review:

     1. Whether the instant appeal was timely filed?

     2. Whether [Melvin’s] conviction of persons not to possess a
        firearm must be overturned when the lower court erred in
        holding that the disqualifying out-of-state offense of possession
        of marijuana is equivalent to the Pennsylvania offense of


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         manufacture, delivery or possession with intent to manufacture
         or deliver a controlled substance?

      3. Whether the lower court abused its discretion in sentencing
         [Melvin] to an aggregate sentence of four (4) to ten (10) years
         when the applicable mitigation evidence was ignored by
         imposing a consecutive sentence?

Melvin’s Brief at 2 (unnecessary capitalization omitted).

      In his first issue, Melvin contends that his appeal was timely filed. Both

the trial court and the Commonwealth agree that the appeal was timely filed.

      Based on our review of the record, we conclude that the appeal was

timely filed. Pursuant to our appellate rules, a notice of appeal must be filed

within thirty days after the entry of the order from which the appeal is taken.

See Pa.R.A.P. 903. In a criminal case, when a defendant files a timely post-

sentence motion, he or she has thirty days from the date of the entry of the

order deciding the post-sentence motion to file an appeal. See Pa.R.Crim.P.

720(A)(2)(a).   Importantly, the Pennsylvania Rules of Appellate Procedure

provide that the date of entry is the date the clerk of courts mails or delivers

copies of the order to the parties. See Pa.R.A.P. 108(a)(1).

      In this case, the trial court filed its order denying Melvin’s post-sentence

motion on June 18, 2019. However, the docket reflects that the clerk of courts

did not mail the order denying Melvin’s post-sentence motion to the parties

until June 28, 2019. Therefore, Melvin had until July 28, 2019, to file his

notice of appeal. As Melvin filed his notice of appeal on July 22, 2019, his




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appeal is timely. We therefore have jurisdiction to decide Melvin’s other two

appellate issues.

      In his second issue, Melvin argues that the trial court erred in convicting

him of persons not to possess a firearm under 18 Pa.C.S.A. § 6105(a)(1) of

the Uniform Firearms Act, based on a prior felony drug conviction in Texas.

This issue requires us to interpret section 6105.      “The interpretation of a

statute is a pure question of law, and therefore our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Felder, 75

A.3d 513, 515 (Pa. Super. 2013) (citation omitted).

      Under the Statutory Construction Act, the object of all statutory

construction is to ascertain and effectuate the General Assembly’s intention.

1 Pa.C.S.A. § 1921(a). When the words of a statute are clear and free from

ambiguity, the letter of the statute is not to be disregarded under the pretext

of pursuing its spirit. Id. § 1921(b). Words and phrases are to be construed

according to the rules of grammar and according to their common and

approved usage, unless they are technical words and phrases that have

acquired a peculiar meaning or definition.     Id. § 1903(a).    Further, penal

statutes are to be strictly construed. Id. § 1928(b)(1).

      Section 6105 provides, in relevant part, as follows:

      (a)   Offense defined.

            (1) A person who has been convicted of an offense
            enumerated in subsection (b), within or without this
            Commonwealth, regardless of the length of sentence or
            whose conduct meets the criteria in subsection (c) shall not

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           possess, use, control, sell, transfer or manufacture or obtain
           a license to possess, use, control, sell, transfer or
           manufacture a firearm in this Commonwealth

                                    ****

     (c) Other persons. In addition to any person who has been
     convicted of any offense listed under subsection (b), the following
     persons shall be subject to the prohibition of subsection (a):

                                    ****

           (2) A person who has been convicted of an offense under
           the act of April 14, 1972 (P.L.233, No.64), known as The
           Controlled Substance, Drug, Device and Cosmetic Act, or
           any . . . equivalent statute of any other state, that may
           be punishable by a term of imprisonment exceeding
           two years.

18 Pa.C.S.A. § 6105(a)(1), (c)(2) (emphasis added).

     As this Court has explained:

     an individual commits an offense under Section 6105 if the
     individual (1) possessed, used, controlled, sold, transferred, or
     manufactured a firearm (or obtained a license to do any of the
     foregoing activities); and (2) has been convicted of a specific type
     of offense listed in Section 6105(b) or 6105(c), or meets one of
     the miscellaneous conditions set forth in Section 6105(c). 18
     Pa.C.S.A. § 6105(a)(1).

Commonwealth v. Greenlee, 212 A.3d 1038, 1045 (Pa. Super. 2019).

     Here, no one disputes Melvin possessed a firearm. The issue is whether

Melvin’s Texas conviction rendered him a prohibited person under section

6105(c). Notably, Melvin was convicted in 2009 of possessing between five

and fifty pounds of marijuana in violation of Texas Health and Safety Code §




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481.121(b)(4).2      Melvin’s Texas conviction was graded as a third-degree

felony. Id. Under Texas law, a person convicted of a third-degree felony

“shall be punished by imprisonment . . . for any term of not more than 10

years or less than 2 years.” Tex. Penal Code Ann. § 12.34. At trial in this

matter, the Commonwealth introduced a certified copy of the Texas conviction

to prove that, on the date of the instant offense, Melvin was ineligible to

possess a firearm in Pennsylvania pursuant to section 6105. The trial court

determined that Melvin’s Texas conviction was equivalent to a conviction

under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act

(“CSA”) for the offense of possession with intent to deliver under 35 P.S. §

780-113(a)(30) (“PWID”),3 thereby rendering Melvin ineligible to possess a

firearm under section 6105(c). See Trial Court Opinion, 10/3/19, at 7-8.

____________________________________________


2   Pursuant to section 481.121:

        (a) Except as authorized by this chapter, a person commits an
        offense if the person knowingly or intentionally possesses a usable
        quantity of marihuana.

        (b) An offense under Subsection (a) is:

           (4) a felony of the third degree if the amount of marijuana
           possessed is 50 pounds or less but more than 5 pounds.

Texas Health and Safety Code § 481.121(a), (b)(4).

3 Section 780-113 establishes several offenses proscribing the delivery of
controlled substances. See e.g., 35 P.S. § 780-113(a)(1), (30), (32), (33),
(36). To establish the offense of PWID, the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a controlled



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        Melvin contends that the trial court erred in concluding that the Texas

offense was equivalent to PWID because “of the most fundamental

difference—PWID requires an intent to deliver or manufacture.” Melvin’s Brief

at 5.    He further argues that, because “the Texas statutory scheme has

separate offenses for Possession of Marijuana and Delivery of Marijuana,

“[a]ny reliance on the specific facts of the Texas offense to create equivalency

is misguided.” Id.4 According to Melvin, the Pennsylvania equivalent of his

Texas conviction is 35 P.S. 780-113(a)(16) (possession of a controlled

substance).5 Melvin points out that both the Texas law, section 481.121, and

the Pennsylvania law, section 780-113(a)(16), merely require the knowing or

intentional possession of marijuana.

____________________________________________


substance with the intent to deliver it. Commonwealth v. Jones, 874 A.2d
108, 121 (Pa. Super. 2005).

4Compare Texas Health and Safety Code § 481.121, supra, to Texas Health
and Safety Code, § 481.120, which provides a person commits the offense of
delivery of marihuana if “the person knowingly or intentionally delivers
marihuana.”

5 Pursuant to section 780-113(a)(16), a person is guilty of possession of a
controlled substance when:

        Knowingly or intentionally possessing a controlled or counterfeit
        substance by a person not registered under this act, or a
        practitioner not registered or licensed by the appropriate State
        board, unless the substance was obtained directly from, or
        pursuant to, a valid prescription order or order of a practitioner,
        or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16).



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       We agree with Melvin that his Texas conviction for possession of

marijuana under section 481.121 is the equivalent of possession of a

controlled substance under 35 P.S. § 780-113(a)(16), rather than PWID under

780-113(a)(30). However, this distinction does not entitle him to relief. The

critical inquiry under the Uniform Firearms Act, 18 Pa.C.S.A. § 6105(c)(2) is

(1) whether the out-of-state conviction is equivalent to an offense under the

CSA; and (2) whether the out-of-state conviction was punishable by a term of

imprisonment exceeding two years.6 In our view, Melvin’s Texas conviction

met both of these Pennsylvania requirements. First, it was equivalent to a

possessory violation under the CSA; namely, 35 P.S. § 780-113(a)(16).7

____________________________________________


6 We conclude that the phrase “that may be punishable by a term of
imprisonment exceeding two years” modifies offenses under any equivalent
federal statute or any equivalent statute of any other state, as well as offenses
under the CSA. If the General Assembly intended that phrase to modify only
offenses under the CSA, section 6105(c)(2) would have stated: A person who
has been convicted of an offense under the CSA that may be punishable by a
term of imprisonment exceeding two years, or an offense under any
equivalent federal statute or equivalent statute of any other state. However,
as written, the two-year imprisonment provision applies to offenses under the
CSA as well as equivalent offenses under federal statutes or other state
statutes.

7 In the instant matter, the Commonwealth and the trial court presumably
believed that the phrase “that may be punishable by a term of imprisonment
exceeding two years” only modifies offenses under the CSA. Notably, in
Pennsylvania, the mere possession of marijuana constitutes a violation of 35
P.S. § 780-113(a)(16), which is a misdemeanor punishable by a term of
imprisonment not exceeding one year. See id. § 780-113(b). Given that
section 780-113(a)(16) is not an offense which is punishable by a term of
imprisonment exceeding two years, as required for a conviction under 18
Pa.C.S.A. § 6105(c)(2), the Commonwealth appears to have advocated that



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Second, the Texas offense was punishable by a “term of not . . . less than 2

years.”   Tex. Penal Code Ann. § 12.34.          Thus, we affirm the trial court’s

determination that Melvin was a prohibited person under Pennsylvania law

and that he violated 18 Pa.C.S.A. § 6105(a)(1) by carrying a firearm.8

       In his final issue, Melvin contends that the trial court abused its

discretion in imposing an aggregate prison sentence of four to ten years. This

claim presents a challenge to the discretionary aspects of Melvin’s sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).          Prior to reaching the merits of a discretionary

sentencing issue, this Court conducts 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, [see] 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, [see] 42 Pa.C.S.[A.] §
       9781(b).

Id. (citation omitted). When an appellant challenges the discretionary aspects

of his sentence, we must consider his brief on this issue as a petition for


____________________________________________


Melvin’s mere possessory offense in Texas was the equivalent to the
Pennsylvania offense of PWID under section 780-113(a)(30), which carries a
longer term of imprisonment depending on the type of controlled substance
involved. See id. § 780-113(f).

8We may affirm the trial court on any valid basis appearing of record. See
Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007).

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permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b).

      In the instant case, Melvin filed a timely notice of appeal, filed a timely

post-sentence motion, and included in his appellate brief a separate Rule

2119(f) statement. However, the Commonwealth asserts that Melvin waived

his discretionary sentencing claim for numerous reasons, including the fact

that he did not preserve the claim at sentencing or in his post-sentence

motion. See Commonwealth’s Brief at 4. We agree, because Melvin did not

preserve the specific discretionary sentencing claim which he now presents for

our review.

      In his Rule 2119(f) statement, Melvin raised a single claim that “the

lower court failed to weigh his rehabilitative needs and mitigating evidence

against the remaining factors in [42 Pa.C.S.A.] 9721(b).” Melvin’s Brief at 6.

      However, Melvin did not raise this particular claim in his post-sentence

motion. There he argued that the trial court should reconsider the sentence

imposed based on mistakes the trial court made when it announced the

sentence, and purported inaccuracies in statements the Commonwealth made

at sentencing. Specifically, Melvin asserted:

      The court’s sentence is not consistent with the principals outlined
      in the sentencing code and specifically, the sentence assigned was
      an abuse of discretion.

      a. First, we note the record here indicated the trial court was not
      even fully cognizant of the sentence it actually was handing down,

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      and were it not for the Commonwealth’s insistence that the court
      retake the bench and clarify, the sentence would have been
      essentially time served, and not the years it ended up being.

      b. At sentencing the court first stated [Melvin] was to be
      incarcerated for 48 hours to ten months. The court re-took the
      bench and stated 48 months was his intended minimum. Finally,
      the court re-took the bench again and stated that he intended to
      sentence [Melvin] to 48 months to ten years’ incarceration.

      c. The court and the Commonwealth’s reasoning for
      recommending years of incarceration, go to issues simply not
      proven at trial: [Melvin] was acquitted on charges of possession
      with intent to deliver, [Melvin] was not found to be in possession
      of a loaded weapon, [Melvin] had not been convicted of delivery
      in Texas, and although [Melvin] had unpaid balances on his prior
      probation sentences, he was not being accused of substantive
      violations at the time of his arrest. In fact, the only argument of
      the Commonwealth to be factually accurate was that [Melvin] was
      on probation at the time he was arrested for these crimes.

      d. The combination of the flaws in the court’s statement of the
      sentence imposed (and thrice over correction) and the completely
      inaccurate statements by the Commonwealth in recommending
      such a sentence to the court, results in a substantial question as
      to the appropriateness of the sentence, and the court should
      reconsider the sentence finally assigned in light of these facts. We
      would urge the court to consider a sentence more aligned with the
      recommendations of defense counsel.

Melvin’s Post-Sentence Motion, 3/17/19, at 5-6 (unnecessary capitalization

omitted).

      Nowhere in Melvin’s post-sentence motion did he argue that the trial

court failed to weigh his rehabilitative needs or consider mitigating evidence

or other sentencing factors. Accordingly, Melvin failed to preserve this claim

for our review. See Moury, 992 A.2d at 170.




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     Having concluded that no relief is due on any of Melvin’s claims, we

affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




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