Com. v. Tucker, L. ( 2021 )

J-A18032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAVALLE L. TUCKER :
:
Appellant : No. 1028 WDA 2019
Appeal from the Judgment of Sentence Entered May 21, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000697-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 08, 2021
Appellant Lavelle L. Tucker appeals from the judgment of sentence
imposed after he pled guilty to one count each of indecent assault—person
with mental disability, indecent assault, corruption of minors, and endangering
welfare of children (EWOC).1 On appeal, Appellant challenges the
discretionary aspects of his sentence. We affirm.
The trial court described the facts underlying Appellant’s plea as follows:
The convictions arose from an incident that occurred on December
19, 2017. The victim H.B. was a minor at the time who attended
the Children’s Institute of Pittsburgh, a special needs school. H.B.
suffers from physical and intellectual disabilities as a result of a
genetic disorder and is essentially non-verbal and requires
twenty-four (24) hour care. Appellant was seventy-one (71)
years old and was employed as a driver by a company that was
responsible for transporting the victim to school. It was while in
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1 18 Pa.C.S. §§ 3126(a)(6), 3126(a)(2), 6301(a)(1)(i), and 4304(a)(1),
respectively.
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this capacity on December 19, 2017, that a passerby observed
Appellant seated next to the victim inside the handicap van with
his right hand down the front of her pants, beneath her clothing,
moving and manipulating his hand. The assault immediately
ended when the witness yelled and banged her fist on the glass
window.
Trial Ct. Op. at 4.
On February 9, 2018, Appellant was charged with two counts each of
aggravated indecent assault and indecent assault, and one count each of
corruption of minors and EWOC. On February 18, 2019, the Commonwealth
filed a motion to amend the criminal information so that it could withdraw the
two counts of aggravated indecent assault and remove the “course of conduct”
requirement from the corruption of minors charged. See Mot. to Amend,
2/18/19, at 1-2.
On February 25, 2019, the charges were amended as requested. N.T.,
2/25/19, at 8. Following a guilty plea colloquy, Appellant entered an open
guilty plea to the remaining charges. Id. at 8-13. Sentencing was deferred
for preparation of a pre-sentence investigation (PSI) report. Id. at 13.
On May 8, 2019, the trial court conducted a sentencing hearing. P.F.,
the mother of the victim, gave an impact statement on the victim’s behalf.
N.T., 5/8/19, at 7-11. T.F., the maternal grandfather of the victim, also gave
a victim impact statement. Id. at 15-18. Appellant made his allocution. Id.
at 22-24. The court indicated that it had considered the PSI, the sentencing
guidelines, the arguments of counsel, the victim impact statements, and
Appellant’s allocution. Id. at 25. The court noted the mitigating
circumstances of Appellant’s age, his admission of responsibility, and his
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expression of remorse, although the court noted that Appellant’s allocution
had focused primarily on the effect the case had had on Appellant. Id. at 26.
As an aggravating factor, the court noted the extent of the victim’s mental
disability, the “heartbreaking noises” the victim had uttered in the courtroom
and the fact that Appellant had been in a position of trust and authority
towards the victim. Id. at 26-27. At the conclusion of the hearing, the court
sentenced Appellant to an aggregate of three and one-half to seven years of
incarceration and a consecutive six years of probation. 2 Id. at 28-34.
On May 20, 2019, Appellant filed a timely post-sentence motion seeking
a reduction of his sentence due to his age; his minimal involvement with the
criminal justice system prior to the instant crime; the fact that he had willingly
pleaded guilty and saved the victim from the trauma of trial; and because
Appellant was remorseful for his actions. See Appellant’s Post-Sentence Mot.,
5/20/19, at 1-2. On June 12, 2019, the trial court denied Appellant’s post-
sentence motion.
Appellant filed a timely notice of appeal on July 12, 2019. Appellant
subsequently filed a timely court-ordered Pa.R.A.P. 1925(b) statement. The
trial court issued a responsive Rule 1925(a) opinion concluding that it had
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2 The court sentenced Appellant to thirteen to twenty-six months of
incarceration for indecent assault—person with mental disability; sixteen to
thirty-two months’ incarceration for corruption of minors, to run
consecutively; and six years of consecutive probation.
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sentenced Appellant appropriately pursuant to the sentencing guidelines.3
Trial Ct. Op., 11/4/19, at 4-8.
On appeal, Appellant raises one issue for our review:
Did the trial court abuse its discretion when it imposed a
manifestly excessive and unreasonable sentence that was based
on bias and speculation, double counted factors from the
guidelines, and failed to properly consider all of the relevant
sentencing criteria under 42 Pa.C.S.A. § 9721(b)?
Appellant’s Brief at 6 (some formatting altered).
Appellant’s claim relates to the discretionary aspects of his sentence.
He contends that, for the following reasons, his sentence was manifestly
unreasonable: 1) the trial court used impermissible factors and based its
sentence on bias, ill-will, and speculation; 2) the court double-counted a factor
already in the sentencing guidelines; 3) the court did not properly consider
the mitigating evidence and Appellant’s rehabilitative needs but, instead,
focused on the gravity of the offense and victim impact. Appellant’s Brief at
16.
Initially, we note that “challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.” Commonwealth
v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted and
formatting altered). An appellant challenging the discretionary aspects of his
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3 On May 22, 2020, the parties filed a stipulation to supplement the certified
record with Appellant’s PSI. See Stipulation, 5/22/20, at 1-2. The PSI is
contained within the certified record.
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sentence must invoke this Court’s jurisdiction by satisfying a four-part test 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 . . . ; (3) whether appellant’s brief has a fatal defect,
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, 42 Pa.C.S.[ ] § 9781(b).
Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (citation
omitted). “Issues not presented to the sentencing court are waived and
cannot be raised for the first time on appeal.” Commonwealth v. Malovich,
903 A.2d 1247, 1251 (Pa. Super. 2006) (citation omitted); see also Pa.R.A.P.
302(a) (stating that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”).
Appellant’s post-sentence motion requested a reduction of his sentence
due to his age; his minimal involvement with the criminal justice system prior
to the instant crime; he had willingly pled guilty; and because Appellant was
remorseful. See Appellant’s Post-Sentence Mot., 5/20/19, at 1-2. Appellant’s
post-sentence motion did not present argument regarding the court’s ill-will,
bias, or partiality, nor did he present argument regarding what Appellant later
characterized as “double-counting.” Id. Appellant raised these issues for the
first time in his Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. See Appellant’s Rule 1925(b) Statement, 8/15/19, at 1-3.
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Therefore, we find that Appellant waived these discretionary sentencing
claims by failing to preserve them at sentencing or in his post-sentence
motion. See Malovich, 903 A.2d at 1251; Commonwealth v. Cartrette,
83 A.3d 1030, 1042-43 (Pa. Super. 2013) (en banc) (holding that the
defendant waived his discretionary sentencing claim when he failed to
preserve it in his post-sentence motion); see also Pa.R.A.P. 302(a).
Appellant’s sole remaining claim is his contention that the trial court
failed to appropriately consider various mitigating factors in fashioning his
sentence. This Court “has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Caldwell, 117 A.3d 763, 769-
70 (Pa. Super. 2015) (en banc) (citation omitted). As Appellant has not raised
a substantial question for our review, we do not proceed to an examination of
the merits of his appeal.4 Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2021
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4Even if we were to review the merits of the issues preserved in Appellant’s
post-sentence motion, we would, ultimately, find them meritless.
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