Com. v. Crawford, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN NEWKIRK CRAWFORD :
:
Appellant : No. 649 MDA 2018
Appeal from the Judgment of Sentence Entered March 27, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000719-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2018
John Newkirk Crawford appeals from the judgment of sentence, entered
in the Court of Common Pleas of Lackawanna County, following his convictions
for possession of a controlled substance,1 possession of drug paraphernalia,2
and tampering with physical evidence.3 After our review, we affirm.
On March 13, 2017, police attempted to stop a Chevrolet sedan after it
failed to heed a stop sign. The pursuit escalated into a chase. During the
chase, the sedan turned down a narrow, one-lane roadway where the
arresting officer observed an unknown individual discard a black plastic bag
out of the front passenger window in close proximity to the door. Based on
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1 35 P.S. § 780-113 (a)(16).
2 35 P.S. § 780-113 (a)(32).
3 18 Pa.C.S.A. § 4910(1).
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the officer’s experience dealing with discarded contraband, and because of the
difficulty involved in driving down a narrow alleyway, he concluded that the
bag could only have been discarded by the passenger and not the driver. The
bag was tossed from the window in such a fashion that the arresting officer
didn’t think “there would be any way to really discard that bag out of that car
without me seeing it.” N.T. Trial, 12/6/2017, 23–24. The sedan ultimately
came to a stop, and the officer arrested Crawford, who was sitting in the
passenger seat. Later, other officers recovered the discarded black plastic
bag, which contained 47 glassine packets of suspected heroin. Testing by the
State Police Crime Lab revealed the presence of Fentanyl.
Following a trial, presided over by the Honorable Michael J. Barrasse,
the jury found Crawford guilty of possession of a controlled substance,
possession of drug paraphernalia, and tampering with physical evidence.
Crawford filed a motion for reconsideration, stating “the sentence imposed is
harsh and extreme.” Motion for Reconsideration, 3/27/18, at 2. After this
motion was denied, Crawford filed a timely Pa.R.A.P 1925(b) concise
statement of matters complained on appeal on May 4, 2018, challenging, inter
alia, “[w]hether the verdicts on possession with intent to deliver, delivery of
a controlled substance, and possession of a controlled substance-cocaine
charges were supported by sufficient evidence?” Pa.R.A.P. 1925(b)
Statement, 5/14/18. Notably, Crawford was not convicted of any of these
crimes. The court’s June 15, 2018 Rule 1925(a) opinion affirmed Crawford’s
judgment of sentence, specifically addressing the sufficiency of the evidence
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supporting the correct crimes for which Crawford was convicted. Crawford
filed an amended Rule 1925(b) on August 30, 2018, listing the correct
convictions. This appeal followed.
On appeal, Crawford challenges whether the three verdicts were
supported by sufficient evidence, whether the trial court imposed an
unreasonable and excessive sentence, and whether the trial court failed to
state on the record the reasons for each sentence.
The Commonwealth asserts Crawford failed to preserve his challenges
to the sufficiency of evidence underpinning his convictions as well as the trial
court’s failure to articulate the reasoning behind Crawford’s sentences, but
concedes that Crawford preserved his challenge to the reasonableness of his
sentence. Upon review, we agree.
“‘[I]n order to preserve their claims for appellate review, [a]ppellants
must comply whenever the trial court orders them to file a Statement of
Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not
raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.’”
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). When challenging
the sufficiency of the evidence, this bright-line rule exists as a mandate to
state “the element or elements upon which the appellant alleges [] the
evidence was insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982
(Pa. Super. 2016) (citing Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.
Super. 2013)). The need for specificity is heightened where “‘the appellant
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was convicted of multiple crimes, each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable doubt.’” Garland,
supra (quoting Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009)). This Court is barred from reviewing issues that were not raised in a
Rule 1925(b) statement even if the trial court correctly assessed and
addressed those same issues in its Pa.R.A.P. 1925(a) opinion. See Castillo,
888 A.2d at 398–99, 403; see also Commonwealth v. Dowling, 778 A.2d
683, 686 (Pa. Super. 2001) (“When a court has to guess what issues an
appellant is appealing, that is not enough for meaningful review”). Should the
need arise, Rule 1925(b)(2) allows appellants to amend or supplement their
statements—however, the court may only allow such filings for good cause
shown. Commonwealth v. Woods, 909 A.2d 372, 378 (Pa. Super. 2006).
On May 4, 2018, Crawford’s attorney filed a Rule 1925(b) statement
challenging the sufficiency of the evidence, however, it not only failed to
include any of the elements Crawford wished to challenge, it failed to mention
any of the crimes for which Crawford was convicted. This mandates waiver of
his sufficiency claims. Stiles, 143 A.3d at 982. In its June 15, 2018 Rule
1925(a) opinion, the trial court correctly assumed that Crawford intended to
challenge the sufficiency of the crimes he was convicted of and addressed
those issues on the merits. This, however, cannot remedy the initial failure
to file an adequate Rule 1925(b) statement. Castillo, 888 A.2d at 398–99,
403; Dowling, 778 A.2d at 686. Moreover, Crawford’s amended Rule
1925(b) statement cannot preserve his sufficiency claims, as he not only filed
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in an untimely fashion, he neither attempted to show good cause to amend,
see Woods, 909 A.2d at 378, nor specified the elements he intended to
challenge, see Stiles, 143 A.3d at 982.
Crawford also raises two challenges to the discretionary aspects of his
sentence—namely, whether the court imposed “unreasonable and excessive
sentences” and whether the court failed to state “reasons for the sentences”
on the record. Appellant’s Brief, at 4. We note that discretionary aspect of
sentencing challenges must be raised in a post-sentence motion during the
sentencing proceedings. Commonwealth v. Reeves, 778 A.2d 691, 692
(Pa. Super. 2001).
Crawford preserved his claim regarding unreasonable and excessive
sentencing in his post sentence motion. Pa.R.Crim.P. 720. However, his
assertion that the trial court failed “to state on the record reasons for the
sentences” first appears in his Rule 1925(b) statement. This claim, therefore,
is waived.4 Miklos, 159 A.3d at 970. Thus, Crawford has preserved one issue
for our consideration: “Whether the trial court imposed harsh, unreasonable
and excessive sentences?” Appellant’s Brief at 4.
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4 We note that Crawford has waived all of his claims save one. Such failure
approaches the limits of per se ineffective assistance of counsel.
Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005). However, absent
special circumstances not present here, ineffective assistance of counsel
claims must be deferred to PCRA review. Commonwealth v. Holmes, 79
A.3d 562, 576 (Pa. 2013); see also Commonwealth v. Bomar, 826 A.2d
831, 855–56 (Pa. 2003) (finding exception where trial court has developed
claim of ineffectiveness below by having trial counsel testify in post-trial
motions).
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There is not an absolute right to appellate review of discretionary
aspects of a sentence—it must be considered a petition for permission to
appeal. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.
Super. 2014). An appellant must satisfy the following four-part test to invoke
this Court’s jurisdiction when challenging the discretionary aspects of a
sentence:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted).
Crawford raised his claim in a timely motion to reconsider sentence and
also filed a timely notice of appeal. He has also included a separate Pa.R.A.P
2119(f) statement in his brief. Lastly, this Court must assess whether
Crawford raised a substantial question to invoke our review. We conclude he
has not.
A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
omitted).
This Court “cannot look beyond the statement of questions presented
and the prefatory [Rule] 2119(f) statement to determine whether a
substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10
(Pa. Super. 2013) (citation omitted). A claimant can raise a substantial
question by alleging a standard-range sentence is excessive, however this
Court is not required to “accept bald allegations of excessiveness.”
Commonwealth v. Mouzon, 812 A.2d 617, 627–28 (Pa. 2002). When
appellants allege a standard-range sentence is excessive, he or she must point
to “the specific provision of the Sentencing Code or the fundamental norm
underlying the sentencing process that the trial court violated in imposing the
sentence” in order to raise a substantial question. Commonwealth v.
Trippett, 932 A.3d 188, 202 (Pa. Super. 2007); see also Commonwealth
v. Reynolds, 835 A.2d 720, 732–33 (Pa. Super. 2003).
Crawford’s Rule 2119(f) statement regarding the excessiveness of his
sentence is limited to the assertion that “none of the facts surrounding the
commission of the crimes necessitated such harsh sentences that fell in the
high end of the standard sentence ranges.” Brief of Appellant, 9. This
assertion of excessiveness fails to point to a portion of the Sentencing Code
or a fundamental norm underlying the sentencing process, and as such, fails
to raise a substantial question necessary to permit discretionary review. See
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Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004)
(defendant did not raise substantial question by merely asserting sentence
was excessive when he failed to refer to any section of Sentencing Code
potentially violated by sentence).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2018
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