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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                        :
HANEEF TUCK,                            :         No. 2546 EDA 2016
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, July 22, 2016,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0004493-2015


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 05, 2019

      Haneef Tuck appeals from the July 22, 2016 aggregate judgment of

sentence of 25 to 50 years’ imprisonment imposed after a jury found him

guilty of aggravated assault, burglary, criminal trespass, and two counts each

of robbery, criminal conspiracy, and theft by unlawful taking or disposition.1

After careful review, we affirm.

      The trial court summarized the extensive factual history of this case in

its June 12, 2018 opinion, and we need not reiterate it here. (See trial court

Rule 1925(a) opinion, 6/12/18 at 5-17.) In sum, in the early morning hours

of February 27, 2015, appellant and three cohorts forcibly entered a tattoo

parlor owned by Kasheef Murray after observing him and Isaiah Brown win


1 18 Pa.C.S.A. §§ 2702(a)(1), 3502(a)(3), 3503(a)(1)(ii), 3701(a)(1)(i) and
(ii), 903, and 3921(a), respectively.
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several hundred dollars at the SugarHouse Casino in Philadelphia, shot Murray

in the leg, and robbed them of $795 and several other items.          (Notes of

testimony, 5/17/16 at 81-84, 93-99.)        On March 28, 2015, appellant was

arrested in connection with this incident and charged with robbery and related

offenses.   On May 16, 2016, appellant proceeded to a jury trial alongside

co-defendant Aaron Brunson.      Following a three-day trial, the jury found

appellant guilty of the aforementioned offenses.2 Following the completion of

a pre-sentence investigation report and a sentencing hearing, the trial court

sentenced appellant to an aggregate term of 25 to 50 years’ imprisonment on

July 22, 2016.3 Appellant did not file any post-sentence motions. This timely

appeal followed on August 9, 2016.4




2 Appellant was found not guilty of carrying a firearm without a license and
carrying a firearm on public streets or public property in Philadelphia, and the
Commonwealth nolle prossed the charge of persons not to possess, use,
manufacture, control, sell, or transfer firearms.           See 18 Pa.C.S.A.
§§ 6106(a)(1), 6108, and 6105(a)(1), respectively.

3 Specifically, the trial court sentenced appellant as follows: 5 to 10 years’
imprisonment for aggravated assault; 5 to 10 years’ imprisonment for robbery
(Count 2), to be served consecutive to the sentence imposed for aggravated
assault; 5 to 10 years’ imprisonment for burglary, to be served consecutive to
the sentence imposed for robbery (Count 2); 5 to 10 years’ imprisonment for
criminal conspiracy (Count 8), to be served consecutive to the sentence
imposed for burglary; 5 to 10 years’ imprisonment for criminal conspiracy
(Count 13), to be served concurrently with the sentence imposed for robbery
(Count 8); and 5 to 10 years’ imprisonment for robbery (Count 15), to be
served consecutively with the sentence imposed for robbery (Count 8). (Notes
of testimony, 7/22/16 at 24-25; see also sentencing order, 7/22/16.)

4 The record reflects that appellant and the trial court have complied with
Pa.R.A.P. 1925.


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      Appellant raises the following issues for our review:

            I.     Did the trial court err and abuse its discretion by
                   imposing       an    aggregate      sentence     of
                   25-50 years[’] imprisonment imposing five
                   consecutive sentences that resulted in an
                   aggregate      sentence     of  25-50      years[’]
                   imprisonment?

            II.    Did appellant’s trial counsel provide ineffective
                   assistance of counsel where he failed to object
                   to the consecutive nature of the five sentences
                   imposed, failed to move for reconsideration of
                   sentence on the grounds that the aggregate
                   sentence was manifestly unjust and otherwise
                   failed to take appropriate steps to preserve
                   appellant’s claim of an unfair sentence for
                   appellate review?

Appellant’s brief at 2.

      We begin by addressing appellant’s claim that his aggregate judgment

of sentence of 25 to 50 years’ imprisonment was “manifestly excessive” and

that “the trial court abused its discretion in imposing five consecutive

sentences[.]” (Id. at 14.)

      Our standard of review in assessing whether a trial court has erred in

fashioning a sentence is well settled.

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            [a]ppellant must establish, by reference to the record,
            that the sentencing court ignored or misapplied the
            law, exercised its judgment for reasons of partiality,
            prejudice, bias or ill will, or arrived at a manifestly
            unreasonable decision.



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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

      Appellant’s claims challenge the discretionary aspects of his sentence.

Where an appellant challenges the discretionary aspects of his sentence, the

right to appellate review is not absolute. See Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super. 2011).          Rather, an appellant challenging the

discretionary aspects of his sentence must invoke this court’s jurisdiction by

satisfying the following four-part test:

            (1) whether the appeal is timely; (2) whether
            [a]ppellant preserved his issue; (3) whether
            [a]ppellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a substantial
            question that the sentence is appropriate under the
            sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Here, appellant filed a timely notice of appeal and included a separate

statement of reasons relied upon for allowance of appeal in his brief, as

required by Pa.R.A.P. 2119(f).     Appellant, however, failed to preserve his

sentencing claims by objecting at the sentencing hearing or filing a

post-sentence motion. Appellant, in turn, acknowledges his failure to do so.

(See appellant’s brief at 4.)    Accordingly, these claims are waived.     See

Commonwealth v. Evans, 901 A.2d 528, 533–534 (Pa.Super. 2006)

(stating, “[o]bjections to the discretionary aspects of a sentence are generally


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waived if they are not raised at the sentencing hearing or raised in a motion

to modify the sentence imposed at that hearing.” (citation omitted)), appeal

denied, 909 A.2d 303 (Pa. 2006).

      Appellant next argues that his trial counsel was ineffective by failing “to

object to the consecutive nature of the five sentences imposed”; failing “to

move for reconsideration of sentence on the grounds that the aggregate

sentence was manifestly unjust”; and failing to preserve his sentencing claims

for appellate review. (Appellant’s brief at 17-18.)

      We find these claims are unreviewable on direct appeal.                 In

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our supreme court

“h[e]ld that, as a general rule, a petitioner should wait to raise claims of

ineffective assistance of trial counsel until collateral review.”   Id. at 738.

Several limited exceptions to this rule have since been recognized in this

Commonwealth. In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003),

cert. denied, 540 U.S. 1115 (2004), the supreme court recognized a limited

exception to Grant where there exists an extensive record regarding the

ineffectiveness claims, including a full hearing where counsel testified, and the

trial court authored an opinion addressing the ineffectiveness claim. Id. at

853-855. Likewise, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),

our supreme court recognized that claims of ineffective assistance of counsel

may be reviewed on direct appeal “if (1) there is good cause shown, and

(2) the unitary review so indulged is preceded by the defendant’s knowing and



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express waiver of his entitlement to seek PCRA review from his conviction and

sentence, including an express recognition that the waiver subjects further

collateral review to the time and serial petition restrictions of the PCRA.[5].”

Id. at 564 (footnotes omitted).

        Here, the criteria for invoking the exceptions set forth in Bomar and

Holmes are not present. There was no evidentiary hearing conducted in this

matter wherein appellant demonstrated “good cause” for seeking unitary

review of his ineffectiveness claims nor made a knowing waiver of future

review under the PCRA, and the trial court did not address the substance of

appellant’s ineffectiveness claims in its opinion.       As such, the proper

disposition is to dismiss appellant’s ineffectiveness claims without prejudice to

his right to proceed pursuant to the PCRA.

        Based on the foregoing, we affirm the trial court’s July 22, 2016

judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 8/5/19




5   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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