J-S43010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE JACKSON
Appellant No. 230 EDA 2013
Appeal from the Judgment of Sentence December 3, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005433-2010
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 04, 2014
Appellant, Maurice Jackson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for criminal conspiracy, robbery, robbery of motor vehicle,
theft by unlawful taking or disposition, and receiving stolen property.1 We
affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises four issues for our review:
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1
18 Pa.C.S.A §§ 903, 3701, 3702, 3921, 3925, respectively.
_____________________________
*Former Justice specially assigned to the Superior Court.
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MOTION TO SUPPRESS IDENTIFICATION TESTIMONY,
WHERE THE CIRCUMSTANCES OF THE OUT-OF-COURT
ULY
SUGGESTIVE, AND WHERE THE IN-COURT
IDENTIFICATION DID NOT HAVE AN INDEPENDENT
ORIGIN SUFFICIENT TO PURGE THE PRIMARY TAINT OF
THE OUT-OF-COURT IDENTIFICATION?
DID NOT THE TRIAL COURT ERR IN REFUSING DEFENSE
KLOIBER[2] INSTRUCTION TO
THE JURY REGARDING IDENTIFICATION TESTIMONY?
DID NOT THE TRIAL COURT ERR IN DENYING DEFENSE
VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
AND A NEW TRIAL WAS NECESSARY IN THE INTERESTS
OF JUSTICE
DID NOT THE TRIAL COURT ERR AND ABUSE ITS
DISCRETION IN SENTENCING APPELLANT TO AN
AGGREGATE TERM OF INCARCERATION OF 114 TO 240
MONTHS, WHERE THE IMPOSITION OF CONSECUTIVE
TERMS OF INCARCERATION RESULTED IN A SENTENCE
THAT WAS MANIFESTLY EXCESSIVE?
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct 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
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2
Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert.
denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).
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preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
rief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
n appellant separately set forth
in the Sentencing Code as a whole of limiting any challenges to the trial
ing
decision to exceptional Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,
174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d
1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
appellant advances a color
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were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
Sierra, supra at 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)).
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. Any challenge
to the exercise of this discretion ordinarily does not raise a substantial
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006)). But see Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super.
2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding
consecutive, standard range sentences on thirty-seven counts of petty theft
offenses for aggregate
constituted virtual life sentence and was so manifestly excessive as to raise
preliminary substantial question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face
Prisk, supra at 533 (quoting Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa.Super. 2010), appeal denied, 609 Pa. 685, 14 A.3d 825
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(2011)). Additionally,
Commonwealth
v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544
Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia, 653
A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873
(1995)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael E.
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed November 26, 2013, at 3-6)
(finding: 1) Victim struggled with assailant in broad daylight long enough to
provide police with description; Victim described assailant as African-
American male wearing dark hooded sweatshirt and sunglasses; police
recovered dark hooded sweatshirt and sunglasses near location where
Appellant was found hiding; Victim made on-site identification of Appellant,
without hesitation, within one hour of attack; police officers did not suggest
to Victim that Appellant was assailant; 2) Victim clearly observed Appellant
during struggle; Victim did not hesitate in identifying Appellant as assailant
sweatshirt went to weight of evidence and did not warrant Kloiber charge;
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3)
shocking; following car chase and foot pursuit, Victim positively identified
culpability for crimes at issue; 4) imposition of consecutive, standard range
sentences was appropriate; Appellant robbed and pistol-whipped delivery
person and led police on high-speed chase that endangered innocent
and revocations suggested that potential for rehabilitation was low).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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Com. v. Jackson, M.
Combined Opinion