Com. v. Cobbs, L. ( 2023 )

J-S14039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LYDELL COBBS :
:
Appellant : No. 559 WDA 2022
Appeal from the PCRA Order Entered April 21, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013095-2002,
CP-02-CR-0013096-2002
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JUNE 12, 2023
Lydell Cobbs (Cobbs) appeals1 from the PCRA order entered in the Court
of Common Pleas of Allegheny County (PCRA court) denying his motion filed
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* Retired Senior Judge assigned to the Superior Court.
1 Cobbs filed one notice of appeal with this Court listing both docket numbers
despite the holding of Commonwealth v. Walker, 185 A.3d 969, 971 (Pa.
2018), that “where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case.” However,
Cobbs filed the notice of appeal at both dockets in the trial court. Therefore,
Cobbs complied with Walker’s mandate. See Commonwealth v. Johnson,
236 A.3d 1141, 1148 (Pa. Super. 2020) (declining to quash appeal where the
notice of appeal contained multiple docket numbers that appellant filed at each
trial court docket).
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pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541-9546.2 Cobbs
argues that the court erred in denying his motion because the sentence
imposed after the revocation of his probation was illegal where it did not credit
him with time served. We affirm.
This case has a protracted procedural history and we include only those
pertinent facts we glean from our review of the record.
I.
A.
On October 30, 2002, Cobbs was charged at docket number 2002-13095
with two counts of first-degree felony involuntary deviate sexual intercourse
(IDSI) and related charges for criminal conduct involving his six-year-old
daughter.3 He was charged at docket number 2002-13096 with one count
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2 Cobbs did not title his requests for relief as PCRA petitions. However,
“regardless of how a petition is titled, courts are to treat a petition filed after
a judgment of sentence becomes final as a PCRA petition if it requests relief
contemplated by the PCRA.” Commonwealth v. Fantauzzi, 275 A.3d 986,
995 (Pa. Super. 2022) (citations omitted). “[A] petition challenging the
legality of a sentence on the grounds that the sentence exceeded the statutory
limit [is] ‘undoubtedly cognizable under the PCRA’ and, therefore, any such
petition, regardless of its title [is] to be treated as a PCRA petition.” Id. (citing
Commonwealth v. Taylor, 65 A.3d at 467); see also Commonwealth v.
Perry, 563 A.2d 511, 513 (Pa. Super. 1989) (“[W]hen a petitioner challenges
the legality of a trial court’s alleged failure to award credit for time served as
required by law in imposing sentence, that challenge to the sentence [is]
deemed cognizable as a due process claim in PCRA proceedings.”).
3 18 Pa.C.S. §§ 3123(a)(6), 3126(a)(7), 3127, 4302, 4304 and 6301,
respectively.
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each of IDSI and related charges for the same criminal action against his ten-
year-old sister.4
Cobbs pleaded guilty on April 6, 2004, at both docket numbers with the
assistance of counsel. Sentencing was deferred for the preparation of a
presentence investigation report (PSI) and a Megan’s Law evaluation. At the
August 5, 2004 sentencing and Megan’s Law hearing, the court determined
Cobbs was a sexually violent predator (SVP) and sentenced him in case
number 2002-13095 on Count One IDSI to a term of not less than five nor
more than ten years’ imprisonment5 and a consecutive term of five years of
probation, with credit for time served from August 15, 2002, through
November 23, 2002. At case number 2002-13096, the court sentenced Cobbs
to a concurrent sentence that was identical to the one imposed at case number
2002-13095, i.e., not less than five nor more than ten years’ incarceration on
Count One IDSI with the same credit for time served, and a consecutive period
of five years’ probation.
On August 27, 2004, Cobbs filed an appeal challenging his SVP
designation and on July 5, 2005, the Superior Court affirmed his judgment of
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4 18 Pa.C.S. §§ 3123(a)(6), 901(a), 3126(a)(7), 4302 and 6301, respectively.
5 At that time the statutory maximum for the first-degree felony conviction
was 20 years. See 18 Pa.C.S. § 3123(a)(1); 18 Pa.C.S. § 1103. The statutory
maximum sentence for IDSI with a child under 13 years of age was later
increased to 40 years. See 2002, Dec. 16, P.L. 1953, No. 226, § 1.1 (eff.
Feb. 14, 2003).
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sentence. The Pennsylvania Supreme Court denied his petition for allowance
of appeal on December 21, 2005. (See Commonwealth v. Cobbs, 883 A.2d
685 (Pa. Super. filed July 5, 2005) (unpublished memorandum), appeal
denied, 891 A.2d 729 (Pa. 2005).
B.
After serving the ten-year maximum sentence, Cobbs was released on
probation to a halfway house. (See PCRA Court Opinion, 11/17/2022, at 1).
Thereafter, several violation of probation (VOP) hearings were held between
May 6, 2013, and December 7, 2015, for violations ranging from engaging in
assaultive behavior, failing to cooperate with Justice Related Services and
producing an approved housing plan and having a cell phone, contact with
minors and smartphone pictures of minors despite his SVP designation.6
At the March 7, 2016 VOP hearing, after detailing all Cobbs’s violations
while he was on probation, the court revoked his probation and sentenced him
to a term of incarceration of not less than five nor more than ten years on
Count One IDSI at docket number 2002-3095 and a consecutive term of not
less than five nor more than ten years on IDSI at Count One of case number
2002-3096. At the hearing, Probation Officer Lynne stated incorrectly that
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6 Cobbs had been ordered “to have no contact with minors, follow lifestyle
restrictions as they pertain to avoid risk situations, no alcohol and is not to
own or possess any device that has access to the Internet per his charge-
specific conditions.” (N.T. VOP Hearing, 12/07/15, at 3).
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Cobbs had reached the statutory maximum on Count 1 IDSI at docket number
2002-3095, and that it should be imposed at Count Two, to which the court
responded in the affirmative. (See id. at 14-15). However, the VOP
sentencing orders reflect that the five-to-ten-year sentences were properly
imposed for Count One IDSI at both docket numbers. (See VOP Order of
Sentence 2002-3095, at 1-2); (VOP Order of Sentence 2002-3096, at 1-2).
On March 23, 2016, Cobbs filed a pro se motion to reconsider his VOP
sentence in which he challenged its discretionary aspects. (See Pro se Motion
to Reconsider Sentence, 3/23/16, at ¶¶ 1-8). On June 21, 2016, Cobbs filed
a pro se PCRA petition. Appointed counsel filed an amended petition on
February 2, 2017, requesting reinstatement of Cobbs’s appellate rights and
credit for time served. The Commonwealth agreed that Cobb was entitled to
reinstatement of his direct appeal rights on his VOP sentence and to time
credit from September 15, 2015, to October 2, 2015. On May 8, 2017, the
court reinstated Cobbs’s direct appeal rights of his VOP sentence and granted
him time credit from September 15, 2015, to October 2, 2015.
C.
On May 17, 2017, Cobbs filed a motion for reconsideration of the March
7, 2016 VOP sentence that the court denied on June 7, 2017. Cobb filed a
notice of appeal, arguing that the court erred in finding that he violated the
terms of his probation. This Court affirmed the VOP sentence on June 25,
2018, and the Pennsylvania Supreme Court denied Cobbs’s petition for
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allowance of appeal. (See Commonwealth v. Cobbs, 193 A.3d 1104 (Pa.
Super. filed June 25, 2018) (unpublished memorandum), appeal denied, 198
A.3d 328 (Pa. 2018).
D.
On September 9, 2019, Cobbs filed a timely pro se PCRA petition arguing
that he should have received ten years’ credit for time served on the original
sentence for Count One IDSI in case number 2002-3095. He maintained that
at the VOP hearing, the court stated it was imposing a sentence on Count Two
IDSI, but the sentencing sheet reflected the sentence was imposed at Count
One. (See Pro se PCRA Petition, 9/09/19, at 4 ¶ 6(A)). Court-appointed
counsel filed a petition to withdraw and a Turner/Finley7 no-merit letter. On
January 13, 2020, the PCRA court issued notice of its intent to dismiss the
petition and granted counsel’s petition to withdraw. See Pa.R.Crim.P. 720(1).
The court granted two requests for an extension of time for Cobbs to respond
to the Rule 907 notice, ultimately giving him until September24, 2020, to file
a response, which he did on June 21, 2020.
On August 21, 2020, the court dismissed Cobb’s PCRA petition and
Cobbs timely appealed to this Court. In his court-ordered Rule 1925(b)
statement, Cobbs raised ten issues challenging the VOP sentence, including
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7Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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that the court erred in failing to grant him 3,650 days’ time credit for time
served in custody. (Rule 1925(b) Statement, 9/30/20, at 1 ¶ 2(a)). 8 The
appeal was docketed at 936 WDA 2020.
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8 In his other nine issues, Cobbs claimed:
* * *
b. the trial court erred when it abused its authority when it
sentenced Appellant to the aggregate 20-year maximum sentence
after the Appellant had already served the maximum on the
mitigated sentence on March 7, 2016.
c. the trial court erred when it illegally sentenced Appellant on
Count Two of the first CC No: 200213095 on March 7, 2016, which
is a Count that said no further penalty was originally imposed. A
defendant cannot legally be resentenced on a GWP (without
further penalty) upon a resentencing.
d. the trial court erred when it resentenced Appellant to 10 years
and 18 days over the 20-year maximum sentence when it
resentenced him on March 7, 2016.
e. the trial court erred when it violated Appellant’s due process
rights at sentencing on March 7, 2016.
f. the trial court erred when it resentenced Appellant for having 5
female friends on March 7, 2016.
g. the trial court erred when it didn’t resentence Appellant on the
5 year probation on March 7, 2016.
h. the trial court erred when it resentenced Appellant unjustly and
was being biased towards Appellant on March 7, 2016.
i. the trial court erred when it resentenced Appellant on expired
Count One at docket number 200213095.
(Footnote Continued Next Page)
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E.
In the meantime, on June 17, 2020, Cobbs filed a pro se motion for time
credit, again requesting that the court credit the ten years he served from
December 22, 2002, until December 22, 2012. (See Motion for Time Credit,
6/17/20, at 1). On July 22, 2020, the trial court issued an order that granted
credit for time served in both cases from February 2, 2013, to March 16, 2015,
from June 26, 2015, to October 2, 2015, and from November 19, 2015, to
March 7, 2016 (979 days). The order specified that “no credit is given which
was previously used in a prior sentence.” (Order, 7/22/20).
Cobbs timely appealed from the July 22, 2020 order. In his court-
ordered Rule 1925(b) statement, Cobbs raised one claim: “The trial court
erred when it failed to credit [him] with 3,650 days time credit for time served
in custody when it resentenced [Cobbs] on March 7, 2016.” (Rule 1925(b)
Statement, 9/08/20, at 1 ¶ 2(a)). The appeal was docketed at 869 WDA 2020.
F.
On November 2, 2020, a panel of this Court addressed Cobbs’s related
appeals at 869 WDA 2002 and 936 WDA 2002 in one memorandum opinion.
It quashed the appeal at 869 WDA 2002 for technical reasons, although it
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j. the trial court erred when it resentenced Appellant without
allowing Appellant to call on his witness on March 7, 2016.
(Rule 1925(b) Statement, 9/30/20, at 1-2 ¶¶ 2(b)-(j)).
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noted that the PCRA appeal did raise “one cognizable challenge to the legality
of the VOP sentence concerning the application of time credit” that it
addressed in its consideration of appeal 938 WDA 2002. (Commonwealth
v. Cobbs, 268 A.3d 395, at *4 n.9 (Pa. Super. filed Nov. 2, 2021)
(unpublished memorandum)). In considering Cobbs’s claim that the trial court
erred in failing to grant him time credit for the ten years he already served on
IDSI, the Court observed:
[Cobbs] first claims that his VOP sentence is illegal because
the 3,650 days he served on his original sentence should count
toward the VOP sentence. …
We note that a criminal defendant is entitled to credit for
time served against the maximum term and any minimum term
for all “time spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.” 42 Pa.C.S.
§ 9760(1). Section 9760 bars a defendant from receiving credit
against more than one sentence for time served.
Commonwealth v. Brown, 145 A.3d 184, 188 (Pa. Super. 2016)
(citing Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa.
Super. 1996)).
We conclude that [Cobbs]’s entire argument on this issue is
misplaced. Cobbs did receive credit for the ten years he served
on the original sentence, because … Cobbs “maxed out,” or served
the entire maximum term of ten years on that sentence for IDSI.
At the time of [Cobbs]’s criminal acts, IDSI had a statutory
maximum term of twenty years, Appellant received credit for the
ten years that he served on the original sentence, the trial court
ordered [Cobbs] to serve the remaining available ten years under
the statute, and the trial court awarded [him] with credit for time
served.[a] [Cobbs]’s VOP sentence of five to ten years, combined
with the time to which he was previously sentenced, which was
also five to ten years, does not exceed the twenty-year maximum
amount of time to which he can be sentenced for each conviction
for IDSI. [Cobbs]’s VOP sentence is a legal sentence.
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[a]As stated, on July 22, 2020, the trial court also clarified
its award of time credit. Order, 7/22/20.
(Id. at *5) (record citation and two footnotes omitted).
G.
Cobbs again filed a motion for time credit and corrected commitment on
March 20, 2022, in which he averred that “he was not given credit for the time
served in the SCI-Albion 3,650 days … from 2002 to 12-22-2012.” (Motion
for Time Credit and Corrected Sentence Commitment, 3/30/22). The court
denied the motion on April 21, 2022. (Order, 4/21/22). Cobbs timely
appealed and on August 18, 2022, the court ordered Cobbs to file a Rule
1925(b) statement within 21 days.
This Court’s docket reflects that on September 8, 2022, Cobbs filed pro
se correspondence with this Court requesting an extension of time to file his
Rule 1925(b) statement, which this Court denied without prejudice for Cobbs
to seek relief in the trial court. (See Order, 9/15/22). On September 26,
2022, Cobbs filed a Rule 1925(b) statement in this Court, claiming:
a. The lower courts refused to send a new DC 300 court
commitment (sic) form here to SCI-Forest with the ten years of
time credit on it so that the D.O.C. and SCI-Forest can fix my
sentence as it is stated in your superior court November 2nd 2021
decision.
b. The Da who is Stephen A. Zappala stated in his brief to the
[S]uperior [C]ourt in (Brief 936 WDA 2020) that I was sentenced
to just ten years more but I don't have no paper work stating that.
c. The [S]uperior [C]ourt also stated in there (sic) November 2nd
2021 decision that I was court ordered to serve the remaining ten
years under the statute in which is a 5 to 10 years sentence.
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d. The department of corrections central office specialist of records
department Mr. Tony Stair stated that they have not received the
sentencing order that mentioned anything that states I am to
receive ten years of credit from the lower courts.
e. On 6/21/2022 I received another letter from the department of
corrections specialist by the name of Mr. Williams Bennage-
Gregory and he stated in his letter to me that in the [S]uperior
[C]ourt[’]s order dated November 2nd 2021 it does not mention
anything about my sentence being a 5 to 10 year sentence and
until they receive an amended order correcting the sentence they
will not fix my sentence.
f. By not sending an amended order to the department of
correction will make my sentence illegal still also by not correcting
this error of giving my ten years credit will put me ten years over
the 20 year maximum.
g. My maximum date should be June 30th of 2023 not June 30th
2033 and for the above reasons this motion should be granted.
(Rule 1925(b) Statement, 9/08/22, at 1 ¶ 2 (a)-(g)).
On September 29, 2022, we directed the Prothonotary of this Court to
provide a copy of the document to the trial court for its convenience. (See
Order, 9/29/22). The trial court docket does not reflect the Rule 1925(b)
statement, and on November 17, 2022, the court issued a Rule 1925(a)
opinion finding that Cobbs waived any claims.9
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9 It is well-settled that “in order to preserve their claims for appellate review,
Appellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also Pa.R.A.P.
1925(b)(4)(vii). “[T]he purpose of Rule 1925 is to facilitate appellate review
and to provide the parties and the public with the legal basis for a judicial
(Footnote Continued Next Page)
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In his brief to this Court, Cobbs raises one issue for our review: “Did
the trial court err as a matter of law by failing to credit [him] with all time
served on his original sentence and apply it to his VOP sentence?” (Cobbs’s
Brief, at 4).
II.
A.
Cobbs argues that his “VOP sentence violates 42 Pa.C.S.A. § 9760(1) &
(2), and exceeds the maximum allowable sentence governed by 18 Pa.C.S.A.
§ 1103(1) by ten years making it illegal.” (See id. at 8). The Commonwealth
treats Cobbs’s request for relief as an untimely PCRA petition that was properly
dismissed. (See Commonwealth’s Brief, at 14-21).
As previously noted, regardless of how Cobbs titled his requests for
relief, “courts are to treat a petition filed after a judgment of sentence
becomes final as a PCRA petition if it requests relief contemplated by the
PCRA.” Fantauzzi, 275 A.3d at 995 (citations omitted). Although Cobbs
buttresses his argument by adding that the trial court failed to provide a new
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decision.” Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021)
(citation omitted). Instantly, when Cobbs incorrectly filed his Rule 1925(b)
statement in this Court, the Prothonotary was directed to provide a copy to
the trial court, which appears not to have happened, so there is no trial court
opinion addressing his issues or explaining the reasons for its decision.
However, we may affirm a trial court decision on any legal basis. See
Commonwealth v. Santiago, 270 A.3d 512, 520 n.8 (Pa. Super. 2022)
(citation omitted). This Court, the trial and PCRA courts have addressed the
legality of the VOP sentence before; therefore, we will address Cobbs’s claim.
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commitment order so all his time credit has not been awarded,10 his claim is
that his VOP sentence is illegal because it exceeds the statutory maximum
where he was not given credit for time served, which is “undoubtedly
cognizable under the PCRA” and, therefore, it is to be treated as a PCRA
petition.11 Id. (citing Commonwealth v. Taylor, 65 A.3d at 467); see 42
Pa.C.S. § 9543(a)(2)(vii) (stating that to be eligible for relief under the PCRA,
the petitioner must plead and prove by a preponderance of the evidence that
the sentence resulted from the “imposition of a sentence greater than the
lawful maximum”); (see also Commonwealth’s Brief, at 15-23).12
Before considering the merits of Cobb’s claim, we must first determine
whether it is timely, thus vesting us with jurisdiction. A PCRA petition,
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). “Where a
new sentence is imposed at a probation revocation hearing, the revocation
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10 (See Cobbs’ Brief, at 11, 14).
11 Cobbs acknowledged this fact where he raised this same claim in his first
PCRA petition. (See Pro se PCRA Petition, 9/09/19, at ¶ 6(A)). Furthermore,
unlike in his first motion for time-credit in which he sought clarification of the
computation of the time-served, which the trial court provided, the only claim
in the motion for time-credit for our review is that the court erred in not giving
him credit for the ten years’ time served.
12 “Our standard of review from the denial of a PCRA petition is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
King, 259 A.3d 511, 520 (Pa. Super. 2021) (citation omitted).
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hearing date must be employed when assessing finality under § 9545(b)(3)
to any issues directly appealable from that hearing.” Commonwealth v.
Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001), appeal denied, 798 A.2d
1286 (Pa. 2002). A judgment becomes final at the conclusion of direct review,
“including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements
of the PCRA are jurisdictional in nature, courts cannot address the merits of
an untimely petition. See Commonwealth v. Moore, 247 A.3d 990, 998
(Pa. 2021).
In this matter, Cobbs’s VOP sentence was imposed on March 7, 2016.
On June 25, 2018, this Court affirmed the judgment of sentence and the
Pennsylvania Supreme Court denied review on November 27, 2018.
Therefore, the VOP sentence became final on February 25, 2019, when Cobb’s
time to appeal to the United States Supreme Court expired and he had until
February 25, 2020, to file a timely PCRA petition. See U.S. Sup. Ct. R. 11.
His petition filed on March 30, 2022, is untimely on its face and we lack
jurisdiction to consider any claims raised therein unless Cobbs pleads and
proves one of the three limited exceptions to the time-bar,13 which he failed
to do since he did not acknowledge that his filing was a PCRA petition.
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13 The three limited exceptions to the time-bar are:
(Footnote Continued Next Page)
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Further, in order to be eligible for relief, a PCRA petitioner must
demonstrate that his allegation of error “has not been previously litigated or
waived.” 42 Pa. C.S.A. § 9543(a)(3). Previous litigation is defined in relevant
part as follows: “For purposes of this subchapter, an issue has been previously
litigated if: … the highest appellate court in which the petitioner could have
had review as a matter of right has ruled on the merits of the issue [.]”. 42
Pa. C.S.A. § 9544(a)(2); Commonwealth v. Derk, 913 A.2d 875, 881 (Pa.
Super. 2006).
Previously, this Court addressed Cobbs’s following claim: “Whether the
trial court erred when it failed to credit Appellant with 3,650 days of credit for
time served in custody when it resentenced [him] on March 7, 2016[,]” which
in practical effect is the same issue he now raises. (Cobbs, 268 A.3d at *5);
(see Cobbs’s Brief, at 10). Therefore, the issue was previously litigated and
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(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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this Court affirmed the VOP sentence specifically addressing the time-served
argument.
Cobbs appears to be confused about the Court’s memorandum opinion
because this Court affirmed the VOP sentence so it is unclear why he believes
the trial court was directed to change it or provide a new commitment order.
We remind Cobbs that, “upon sentencing following a revocation of probation,
the trial court is limited only by the maximum sentence that it could have
imposed originally at the time of the probationary sentence.”
Commonwealth v. Bowser, 783 A.2d 348, 349 (Pa. Super. 2001) (citation
omitted). This Court concluded that Cobbs’s issue had no merit where the
maximum sentence he originally could have received for Count One IDSI at
13095-2002 was 20 years, he served his maximum ten on the original
sentence, and upon revocation, in consideration of the fact that Cobbs had
served ten years of the 20-year maximum, the court sentenced him to only
five to ten more years on that count. The fact that he was sentenced to a
consecutive term of five to ten years at case number 13096-2002 is of no
moment because, at the time of the original sentence, Cobbs could have
received a maximum 20-year term on both counts, not just on either one, as
they involved criminal behavior against a different victim.
In sum, even if timely filed, this issue was previously litigated, found to
have no merit, and Cobbs is due no relief where the sentence is not illegal and
considers time served.
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B.
We also note that Cobbs argues that his juvenile adjudication for
robbery was assigned an incorrect record score and this resulted in an illegal
sentence. (See Cobbs’s Brief, at 14-15). The Commonwealth responds that
this issue is waived for Cobbs’s failure to include it in his Rule 1925(b)
statement or to provide any support for the claim. (See Commonwealth’s
Brief, at 22).
We agree with the Commonwealth that Cobbs did not include this
challenge as one of the seven issues he raised in the filed Rule 1925(b)
statement, resulting in waiver. (See Rule 1925(b) Statement, 9/23/22);
Commonwealth v. Davis, 273 A.3d 1228, 1239 n.5 (Pa. Super. 2022)
(finding claim waived where appellant failed to raise specific issue in in his
Rule 1925(b) statement); Pa.R.A.P. 1925(b)(4)(vii).
Further, this claim is neither included in Cobbs’s statement of questions
involved nor is it fairly suggested thereby in violation of Rule 2116(a). See
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”);
Commonwealth v. Garland, 63 A.3d 339, 342 (Pa. Super. 2013) (waiving
issue not raised in statement of questions involved).
Finally, his brief argument on this issue is inadequate where it only cites
boilerplate law about prior record scores and provides no citations to the
record or any specifics about how that law was allegedly misapplied in his
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case. (See Cobbs’s Brief, at 14-15); see Pa.R.A.P. 2101(a), (c). Therefore,
the claim is waived on this basis as well.
For all these reasons, Cobbs is due no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2023
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