Com. v. Gaynor, J.

J.S52012/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY GAYNOR, :
:
Appellant : No. 1161 EDA 2013

Appeal from the Judgment of Sentence January 29, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0015282-2010

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 10, 2015

Appellant, Jeffrey Gaynor, appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas following his jury

conviction of fourteen counts of cruelty to animals.1 He raises nine issues,

pertaining to claims of trial counsel’s ineffective assistance, the denial of his

suppression motion, the admission of evidence of a prior bad act, the

sufficiency and weight of the evidence, the discretionary aspects of his

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 5511(c)(1) (“A person commits an offense if he wantonly or
cruelly illtreats, . . . beats, otherwise abuses any animal, or neglects any
animal as to which he has a duty of care . . . or deprives any animal of
necessary sustenance, drink, shelter or veterinary care, or access to clean
and sanitary shelter which will protect the animal against inclement weather
and preserve the animal’s body heat and keep it dry.”).
J. S52012/14

sentence, including the restitution imposed, and the denial of his request for

bail pending appeal. We find most of his issues waived and the remaining

meritless. We thus affirm.

Preliminarily, we sua sponte consider the timeliness of this appeal.

See Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).

“Jurisdiction is vested in the Superior Court upon the filing of a timely notice

of appeal.” Id. Appellant was represented at trial and sentencing by James

Marsh, Esq. On January 29, 2013, the court imposed sentence. On the

following day, Appellant filed a timely motion for reconsideration of

sentence, challenging only his sentence. See Pa.R.Crim.P. 720(A)(1) (“[A]

written post-sentence motion shall be filed no later than 10 days after

imposition of sentence.”). The trial court held a hearing the same day,

which Appellant did not attend,2 and denied the motion on the record. N.T.,

1/30/13, at 7-8. However, there is no written order in the record and no

docket entry for a written order. See Pa.R.Crim.P. 720(B)(3)(d) (“If the

judge denies the post-sentence motion, the judge promptly shall issue an

order and the order shall be filed and served as provided in Rule 114.”),

720(B)(4)(a) (requiring order denying post-sentence motion, whether issued

by judge or entered by clerk of courts, to include notice to defendant of right

to appeal and time limits within which appeal must be filed).

2
See N.T. Post Sentence Mot., 1/30/13, at 3.

-2-
J. S52012/14

Pursuant to Rule 720(A)(2), Appellant had thirty days, or until Friday,

March 1, 2013, to file a notice of appeal. See Pa.R.Crim.P. 720(A)(2)(a) (“If

the defendant files a timely post-sentence motion, the notice of appeal shall

be filed . . . within 30 days of the entry of the order deciding the motion.”).

On February 22, 2013, however, Appellant filed, with new counsel Kenneth

A. Young, Esq.,3 a “Supplemental Post Sentence Motion and/or Bail Pending

Appeal,” which raised ineffective assistance of trial counsel claims. The trial

court held a hearing on April 10, 2013, and denied the motion. Appellant

filed a notice of appeal on April 17th and, subsequently, a court-ordered

Pa.R.A.P. 1925(b) statement.

In this appeal, neither the parties nor the trial court address the

timeliness of the notice of appeal. We note, however, that at the hearing on

Appellant’s second post-sentence motion, the Commonwealth argued the

February 22, 2013 motion was untimely under Rule 720 because it was filed

more than ten days after the imposition of sentence. N.T. Mot., 4/10/13, at

8-9. Attorney Young questioned whether the court “officially denied” the

first post-sentence motion. Id. at 10. The court responded that it had

denied it at the bar of the court, the docket should show the motion was

denied, but the court would “go by the docket.” Id. at 10. The court then

denied the second post-sentence motion and stated Appellant could file an

3
Attorney Young continues to represent Appellant in this appeal.

-3-
J. S52012/14

appeal within thirty days of that day. Id. at 13.

We agree with the Commonwealth’s assertion—that Appellant’s

February 22, 2013 motion was untimely under Rule 720 because it was filed

more than ten days after the January 29th imposition of sentence. See

Pa.R.Crim.P. 720(A)(1). We add that Appellant’s April 17, 2013 notice of

appeal was filed more than thirty days after the court’s January 30th denial

of his first post-sentence motion. See Pa.R.Crim.P. 720(A)(2)(a). However,

we hold that the lack of a written order memorializing the court’s denial of

the first post-sentence motion, as well as the attendant lack of written notice

to Appellant of his appeal rights and the time limits for taking an appeal, are

“breakdowns” that excuse the otherwise untimeliness of this appeal. 4 See

Pa.R.Crim.P. 720(B)(4)(a); Patterson, 940 A.2d at 498-99 (stating that

generally, appellate court cannot extend time for filing appeal, but may

grant relief where there is breakdown in processes of trial court, and noting

we have found breakdown where clerk of courts did not enter order notifying

defendant his post-sentence motion was denied by operation of law in

contravention of Rule 720). Accordingly, we decline to quash this appeal.

On November 21, 2010, Philadelphia police officers, as well as an

officer from the Pennsylvania Society for the Prevention of Cruelty to

Animals (“SPCA”), were called to Appellant’s house, a rowhome in the

4
There was also no oral advisement to Appellant of his appellate rights at
the January 30, 2013 hearing.

-4-
J. S52012/14

southwest section of the City of Philadelphia. Four dogs were taken from the

yard and eighteen from the basement; all were pit bull terriers. He filed a

motion to suppress evidence, which was denied after a hearing on June 20,

2012.

The case proceeded to a jury trial commencing December 3, 2012.

The Commonwealth’s theory was that Appellant was breeding dogs for dog

fighting. See N.T. Sentencing, 1/29/13, at 22.5 Appellant testified in his

own defense. The jury found him guilty of fourteen counts of cruelty to

animals, each graded a summary offense.

On January 29, 2013, the trial court imposed sentence as follows. On

four counts of cruelty to animals, the court imposed an aggregate term of

180 to 360 days’ imprisonment, a consecutive 900 days’ probation, total

fines of $700 and restitution to the SPCA of $72,800.6 On the following day,

5
The parties’ opening and closing arguments at trial were not transcribed.
See N.T. Trial, 12/5/12, at 95.
6
The court’s sentence was imposed as follows: (1) on four counts of cruelty
to animals, consecutive terms each of 45 to 90 days’ imprisonment; and (2)
on the remaining ten counts, consecutive terms each of 90 days’ probation.
The court also imposed the mandatory minimum of $50 on all fourteen
counts of cruelty to animals. We note that although the sentencing
transcript and written sentencing order indicate the total fine is $700, the
trial docket states the total fine is $7,000.

In imposing restitution, the court heard from the Commonwealth that
after the dogs were removed from Appellant’s home on the day of arrest,
Appellant never relinquished his rights to them, and thus the dogs could not
be adopted. N.T., 1/29/13, at 7. Appellant did not deny this. Id. at 21 (“I
didn’t know I was able to do that.”). The Commonwealth further averred

-5-
J. S52012/14

Appellant, via Attorney Marsh, filed a motion for reconsideration of sentence.

The court held a hearing the same day and denied relief.7

The next document in the record is Appellant’s supplemental post-

sentence motion, filed on February 22, 2013, by Attorney Young.8 This

motion alleged several instances of trial counsel’s ineffectiveness. The court

held a hearing on April 10th and heard some argument on the claim that

counsel was ineffective for not calling character witnesses who would have

testified to Appellant’s reputation for truthfulness. N.T., 4/10/13, at 13-16.

The Commonwealth argued Appellant’s claims should be deferred to Post

Conviction Relief Act9 (“PCRA”) proceedings, and the court declined to hold

an evidentiary hearing.

Appellant took this appeal and filed a court-ordered Pa.R.A.P. 1925(b)

statement. Subsequently, on June 21, 2013, Appellant filed a “Motion for

Early Parole,” arguing his family depended on his financial, physical, and

that at the time of sentencing, the SPCA had sheltered, fed, and provided
medical treatment to the dogs for two years and two months. Id. at 12.
The court assessed the cost of monthly care per dog at $200 and multiplied
this figure for fourteen dogs and twenty-two months, to arrive at a total of
$72,800. Id. at 13.
7
As stated above, Appellant did not attend this hearing.
8
Neither the certified record nor the docket indicates when Attorney Marsh
withdrew from representation and when Attorney Young entered his
appearance.
9
42 Pa.C.S. §§ 9541-9546.

-6-
J. S52012/14

emotional support. The docket includes an entry that the court granted it

and ordered that he be paroled on July 27, 2013.10

Appellant presents nine claims for our review, relating to: (1) the

denial of his claims of ineffective assistance of counsel; (2) the denial of his

motion to suppress evidence; (3) the admission of “dog fighting material at

trial;” (4) the sufficiency of the evidence; (5) the weight of the evidence; (6)

the court’s alleged failure, when imposing sentence, to consider the exhibits

he submitted documenting his medical condition; (7) the alleged

excessiveness of his sentence; (8) the restitution imposed; and (9) the

denial of his motion for bail pending appeal.11 Appellant’s Brief at 5, 23. We

find some of these issues waived and the remainder meritless.

Appellant’s first claim is that the court erred in denying relief on his

claim that trial counsel was ineffective for failing to: (1) call character

witnesses to testify about his truthfulness; and (2) call fact witnesses who

would have testified they “personally observed [his] interactions with this

dogs, the sanitary conditions of the dogs and their housing, the cause of the

liquid to accumulate in . . . the basement.” Id. at 11. Appellant cites the

2003 decision in Commonwealth v. Celestin, 825 A.2d 670 (Pa. Super.

2003), for the proposition that when a defendant raises ineffectiveness

10
There is no corresponding order in the certified record.
11
For ease of disposition we have reordered Appellant’s issues.

-7-
J. S52012/14

claims in a post-sentence motion, the court may address them. We find no

relief is due.

On October 30, 2013, our Supreme Court issued its decision in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Although this

decision post-dated the April 10, 2013 hearing before the trial court, we find

it controls this matter. The Holmes Court held that “Grant’s[12] general

rule of deferral to PCRA review remains the pertinent law on the appropriate

timing for review of claims of ineffective assistance of counsel[.]” Id. at

563. The Court, however, recognized two exceptions, “both falling within

the discretion of the trial judge.” Id. The first exception was for

“extraordinary circumstances where a discrete claim . . . of trial counsel

ineffectiveness is apparent from the record and meritorious to the extent

that immediate consideration best serves the interests of justice[.]” Id.

Under the second exception, the PCRA court has discretion to hear claims

“only if (1) there is good cause shown” and (2) the defendant makes a

“knowing and 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.[ ]” Id. at 564.

In the case sub judice, the trial court’s opinion addresses the merits of

12
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).

-8-
J. S52012/14

Appellant’s ineffectiveness claims. Trial Ct. Op., 9/9/13, at 8-9. However,

we affirm the denial of relief pursuant to Holmes.13 Appellant does not

argue—nor would we find—that his ineffectiveness claims are of such

extraordinary magnitude warranting immediate consideration as to fall

within the first exception. See id. The second exception likewise does not

apply, as Appellant made no express waiver of future PCRA review of the

instant convictions and sentence. See id. Accordingly, we deny relief

without prejudice for Appellant to raise any cognizable claims in a timely

PCRA petition. See 42 Pa.C.S. §§ 9543, 9545.

Appellant’s second claim on appeal is that the court erred in denying

his motion to suppress evidence. He avers the police illegally entered his

home without a warrant and then illegally obtained evidence which was the

basis for their application for a search warrant. His sole argument in support

is that there were no exigent circumstances, no danger to police, and no

possibility that evidence would be destroyed before a search warrant could

be issued. Appellant’s Brief at 18, 20, 21. We find no relief is due.

We note:

Our analysis of [a suppression ruling] begins with the
presumption that where a motion to suppress has been
filed, the burden is on the Commonwealth to establish by a
preponderance of the evidence that the challenged
evidence is admissible. If the trial court denies the

13
“[W]e may affirm the PCRA court’s decision on any basis.”
Commonwealth v. Callahan, 101 A.3d 118, 123-24 (Pa. Super. 2014)
(citation omitted).

-9-
J. S52012/14

motion, we must determine whether the record supports
the trial court’s factual findings and whether the legal
conclusions drawn therefrom are free from error. In so
doing, we may consider only the evidence of the
prosecution and so much of the evidence for the defense
as remains uncontradicted when read in the context of the
record as a whole. Where the record supports the findings
of the suppression court, we are bound by those facts and
may reverse only if the court erred in reaching its legal
conclusions based upon the facts.

Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)

(citation omitted). “Further, ‘[i]t is within the suppression court’s sole

province as fact finder to pass on the credibility of witnesses and the weight

to be given their testimony.’” Commonwealth v. Gillespie, 103 A.3d 115,

118 (Pa. Super. 2014) (citation omitted).

It is well established that “probable cause alone will not
support a warrantless search or arrest in a residence . . .
unless some exception to the warrant requirement is also
present. . . . [A]bsent consent or exigent
circumstances, private homes may not be
constitutionally entered to conduct a search or to
effectuate an arrest without a warrant, even where
probable cause exists.”

Bowmaster, 101 A.3d at 793 (some emphasis added) (citation omitted);

see also Commonwealth v. Simmen, 58 A.3d 811, 816-17 (Pa. Super.

2012) (noting federal and Pennsylvania constitutions permit third party

consent to search premises).

In the instant appeal, Appellant’s brief wholly ignores the trial court’s

finding that he consented to the search of his home. We determine the

record supports this factual finding and the court’s legal conclusions. See

- 10 -
J. S52012/14

Bowmaster, 101 A.3d at 792. At the suppression hearing, Philadelphia

Police Officer Eric Riddick testified to the following. He responded to a radio

call about gunshots inside Appellant’s two-story rowhome.14 N.T. Mot.,

6/20/12, at 7. There were “at least six” officers in the front of the home.

Id. at 9. One officer knocked on the front door, while Officer Riddick and

another officer went to the rear of the home, by walking to the end of the

street, turning right, and walking “up the alleyway.” Id. at 9. From the

alleyway, Officer Riddick observed Appellant inside the fenced yard,

“washing off two dogs,” one of which “appeared to have fresh injuries” and

open wounds. Id. at 10. The officer directed Appellant to go to the front of

the house and that police were knocking on the front door. Id. Appellant

went to the front of the property, and when Officer Riddick was notified the

front door was open, he “went around to the front of the house.” Id. at 11.

The following exchange occurred at the suppression hearing:

[Officer Riddick:] I told [Appellant] that we had a
report [of] gunshots coming from inside this house. He
responded, There’s nobody in here shooting. At that time
we were admitted in so we could make a further check
of everybody. . . .

[Commonwealth:] You said you were admitted inside?
Who admitted you inside?

A. [Appellant.]

14
Officer Riddick also testified that upon investigation, the officers
determined no one was injured and no one in the house had a gun. N.T.,
6/20/12, at 15.

- 11 -
J. S52012/14

Q How did he do that? Did he say anything?

A Yeah. He told me to come in.

* * *

A . . . But he told us we could come in and check
to make sure nobody was injured inside the house or
nobody with a weapon.[15]

Id. at 12-13 (emphases added).

Appellant testified at the suppression hearing as follows. While he was

in his back yard washing his dog, a police officer arrived and ordered him to

put down the hose. Another officer “was climbing the gate with his gun

drawn” and “[t]hey jump the gate” and “start petting the dogs.” Id. at 63.

The officers handcuffed Appellant and took him into his house while “other

officers were coming through.” Id. at 63-64. Appellant denied inviting the

police into his house. Id. at 65. Appellant’s wife also testified that officers

“came over the gate” and brought Appellant “through the house” in the

handcuffs. Id. at 51. She stated the officers opened the front door and that

neither she nor Appellant invited them inside. Id. at 50, 52.

The trial court believed the testimony of Officer Riddick, and this Court

is bound by the trial court’s credibility determinations. See Gillespie, 103

A.3d at 118. In light of the record, we do not disturb the court’s finding that

Appellant consented to the search of his home. As he does not contest the

15
On cross-examination, Officer Riddick testified that neither Appellant nor
his wife signed a consent for police to enter the residence. N.T., 6/20/13, at
20-21.

- 12 -
J. S52012/14

finding that the officers had probable cause to enter the home, see Trial Ct.

Op. at 15, we affirm the denial of his suppression motion.

Appellant’s third claim is that the court erred in denying his motion to

preclude “dog fighting material at trial, which was dated[,] absolutely

irrelevant” and “severely prejudic[ial]” to him. Appellant’s Brief at 23.

Appellant does not identify the “material,” but maintains the Commonwealth

sought to present it under the “common scheme” exception to the general

rule precluding evidence of prior bad acts.16 Although Appellant’s brief sets

forth relevant legal authority, the only argument is that the evidence was

prejudicial and the passage of more than ten years “was too long of a period

for allegations that [he] had somehow previously been involved in dog

fighting to be admitted at trial.” Appellant’s Brief at 23, 25, 26. We find this

issue is waived.

An appellant waives an issue on appeal if he fails to present the claim

with citations to relevant authority or develop the issue in meaningful

16
The prior version of Pennsylvania Rule of Evidence 404(b)(1), in effect at
the time of the 2012 trial, provided: “Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Pa.R.E. 404(b)(1), subs. rescinded &
replaced, Jan. 14, 2013, eff. Mar. 18, 2013. Subsection (b)(2) set forth the
exception: “Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident.” Pa.R.E.
404(b)(2), subs. rescinded & replaced, Jan. 14, 2013, eff. Mar. 18, 2013.
Subsection (b)(3) provided that in a criminal case, evidence of other crimes,
wrongs or acts may be admitted “only upon a showing that the probative
value of the evidence outweighs its potential for prejudice.” Pa.R.E.
404(b)(3), subs. rescinded & replaced, Jan. 14, 2013, eff. Mar. 18, 2013.

- 13 -
J. S52012/14

fashion capable of review. Commonwealth v. Akbar, 91 A.3d 227, 235

(Pa. Super. 2014). In addition, “to preserve a claim of error for appellate

review, a party must make a specific objection to the alleged error before

the trial court in a timely fashion.” Id. If an objection to evidence is made

on a specific ground, “all other reasons for its exclusion are waived.” Id.

(citation omitted).

As stated above, Appellant does not identify the evidence that he now

challenges. The trial court opinion explained:

Immediately prior to the commencement of trial,
[Appellant] presented [an oral] Motion in Limine seeking to
prohibit the Commonwealth from introducing a video clip
taken from a VHS tape, labeled “[Appellant’s] dogs, taken
from [Appellant’s] bedroom. The proposed video clip
shows [Appellant] participating in a dog fight in the
basement of his home at some time prior to his arrest.
After a hearing, the Court denied [Appellant’s] motion.
...

Trial Ct. Op. at 15-16 (citing N.T. Trial, 12/4/12, at 10, 16-19).

To the extent Appellant argues the evidence was prejudicial, we find

this claim waived for failure to present any supportive discussion. Instead,

Appellant advances only a bald, conclusory statement that the evidence was

prejudicial. See Akbar, 91 A.3d at 235.

We find Appellant’s second argument, that the videotape was too old,

is waived for failure to raise it before the trial court. Appellant’s entire

argument against the videotape at trial was, verbatim:

Your Honor, not only now that the Commonwealth has
labeled that they are going under, I guess it’s (b)2,

- 14 -
J. S52012/14

evidence of other crimes, wrongings [sic], we have to get
to 404(b)3,[17] and the rule may be admitted in a criminal
case upon that it shows [sic] that the probative value of
the evidence outweighs its potential. It’s possible for
prejudice [sic]. I would suggest that if we’re limiting it,
there’s other ways to prove identity. Only one arrested in
the house. I think we’re just trying to bootstrap things
when it shouldn’t be in there and there’s potential for
prejudice.

We’re not here for dog fighting. Let’s try the evidence, not
try a case from 1997. That’s where we’re going to here.
Thank you.

N.T., 12/4/12, at 24.

Although defense counsel’s argument is not entirely clear, it appears

to reference someone’s identity and urge the court not to try Appellant for

acts committed in 1997. Although the latter comment alludes to a prior

date, we find it is not sufficient to preserve a claim that the prior bad act

was too remote in time to be relevant to the instant charges. See Akbar,

91 A.3d at 235.

We address Appellant’s next two issues together—the sufficiency and

weight of the evidence. First, his argument section on the sufficiency of the

evidence includes the relevant standard of review and general discussion

about circumstantial evidence, but fails to even mention the crimes of which

Appellant was convicted, let alone discuss their elements. Instead, the sole

17
Rule of Evidence 404(b)(3) provides, “In a criminal case the prosecutor
must provide reasonable notice . . . of the general nature of any such
evidence the prosecutor intends to introduce at trial.” Pa.R.E. 404(b)(3).

- 15 -
J. S52012/14

argument is that “Appellant was convicted on speculation,” “[t]here were no

facts submitted at trial that proved [he] was guilty of the crimes charged[,]”

and “[t]he Jury issued its verdict based on alleged circumstantial evidence

which did not meet the elements of the crimes charged and which certainly

created extreme reasonable doubt.” Appellant’s Brief at 35.

The next section, pertaining to the weight of the evidence, likewise

sets forth the relevant standard of review. However, after careful review,

we discern the sole argument is that there were no witnesses “who testified

with any certainty” that they saw him commit the crimes of cruelty to

animals.18 Id. at 35, 38. Neither section sets forth the statutory definition

of or any legal authority discussing the elements of cruelty to animals.19

Because the purported challenge to the sufficiency of the argument is

vague and fails to address, let alone set forth, any of the elements of cruelty

to animals, we find the issue is waived. See Akbar, 91 A.3d at 235. The

challenge to the weight of the evidence is waived for failure to raise it orally

or in a written motion before sentencing or in a post-sentence motion. See

18
The brief also avers, “The Appellant loved and cared for the Complainant
and would never had done anything to hurt her.” Appellant’s Brief at 36-37.
This argument is not applicable to the facts of this case.
19
The only elements of a crime discussed in the brief are “sufficiency
evidence to show that the defendant intentionally caused, or attempted to
cause, serious bodily injury manifesting extreme indifference to the value of
human life.” Appellant’s Brief at 32 (quoting Commonwealth v. Caterino,
678 A.2d 389, 391 (Pa. Super. 1996)). We note the discussion at this page
of the Caterino decision is about the crime of aggravated assault.

- 16 -
J. S52012/14

Pa.R.Crim.P. 607(A)(1)-(3).

Appellant’s next three claims pertain to the discretionary aspects of his

sentence. First, he avers the trial court imposed an “excessive and

disproportionate sentence and erred in applying the Sentencing Guidelines

for convictions of summary offenses.” Appellant’s Brief at 26. In support,

he argues the “court failed to articulate why it was making the sentence

even harsher when that factor has already been addressed by the

guidelines;” Appellant does not explain what “that factor” is. Id. at 28

(emphasis added). Appellant also avers the court failed to consider “the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and community, and [his] rehabilitative needs.” Id.

at 29. Second, Appellant asserts the court erred in denying his motion for

reconsideration of sentence. He states the motion properly included

documentation from his doctors.

Third, Appellant avers the restitution of $72,800 was excessive and

inappropriate. In support, he maintains: (1) the court failed “to consider the

actual loss in this matter;” (2) “[t]he dogs seized from [his] home should

not have been euthanized [or] taken from [him] in any manner;” and (3) he

“is on disability as he suffers from various medical health problems and has

no means of paying restitution.” Id. at 30-31. See Commonwealth v.

Colon, 708 A.2d 1279, 1281 (Pa. Super. 1998) (stating claims that

sentencing court failed to consider evidence of defendant’s ability to pay

- 17 -
J. S52012/14

restitution and sentence of restitution is excessive under circumstances

implicate discretionary aspects of sentencing); Commonwealth v. Walker,

666 A.2d 301, 307 (Pa. Super. 1995) (noting claim that court lacked

jurisdiction to impose restitution challenges legality of sentence, but claim

that sentence of restitution is excessive under circumstances is challenge to

discretionary aspects of sentencing).

Appellant’s brief fails to include a Pa.R.A.P. 2119(f) statement, and the

Commonwealth has objected. Commonwealth’s Brief at 16, 17, 32, 36.

Accordingly, these sentencing claims are waived. See Pa.R.A.P. 2119(f);

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (“If a

defendant fails to include an issue in his Rule 2119(f) statement, and the

Commonwealth objects, then the issue is waived and this Court may not

review the claim.”), appeal denied, 65 A.3d 413 (Pa. 2013). Appellant’s

restitution claim is also waived for failure to raise it at sentencing or in a

post-sentence motion. See Commonwealth v. Baker, 72 A.3d 652, 662

(Pa. Super. 2013) (stating challenge to discretionary aspect of sentence is

reviewable only if defendant, inter alia, preserved issue by raising it at

sentencing or in post-sentence motion), appeal denied, 86 A.3d 231 (Pa.

2014). Indeed, Appellant’s counsel acquiesced to the amount at the

sentencing hearing. N.T. Sentencing, 1/29/13, at 13 (“[T]hat would be

certainly reasonable under the circumstances.”).

In his final, ninth claim, Appellant avers the trial court erred in denying

- 18 -
J. S52012/14

his motion for bail pending appeal.20 He claims he “suffers from a plethora

of medical issues and is literally dying, wasting away in prison and being

treated by physicians who do not have the benefit of knowing the complex

history of his ailments or the specialization to treat his conditions.”

Appellant’s Brief at 16. We agree with the trial court that no relief is due.

Appellant’s brief wholly ignores the following. After filing the notice of

appeal, he filed a motion for early parole, stating his minimum release date

was July 27, 2013. The docket indicates the court granted this motion and

ordered that he be paroled on that date. In its opinion, the trial court

opined Appellant’s bail-pending-appeal issue is moot because he “was

paroled as of July 27, 2013 and is no longer incarcerated.” Trial Ct. Op. at

11. Accordingly, we agree that on this issue, there is no relief this Court can

grant.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2015

20
Appellant’s second post-sentence motion had requested bail pending
appeal.

- 19 -