J-S35006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LYNELL LEE
Appellant No. 1878 EDA 2014
Appeal from the Judgment of Sentence June 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0700791-2005
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2015
Appellant, Lynell Lee, appeals from the June 5, 2014 judgment of
sentence of three to six years’ imprisonment imposed following the
revocation of his probation. After careful review, we affirm.
On August 9, 2005, Appellant pled guilty to burglary,1 pursuant to a
negotiated plea agreement, and the trial court sentenced him to 11½ to 23
months’ imprisonment, followed by one year of reporting probation, with
immediate parole to a drug treatment facility, once a bed became available.
N.T., 8/9/05, at 10. On January 22, 2009, Appellant appeared before the
trial court for a violation of probation hearing and was found to be in direct
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3502.
J-S35006-15
violation of probation. The trial court revoked his probation and resentenced
him to two to four years’ imprisonment, followed by six years’ probation,
concurrent to any other sentence Appellant was then serving. Trial Court
Order, 1/22/09. On February 18, 2014, the trial court, following a violation
of probation hearing, found Appellant had committed technical violations of
his probation, but the trial court continued Appellant’s probation. Trial Court
Order, 2/18/14. On June 5, 2014, Appellant again appeared before the trial
court for a hearing for alleged violations of his probation. The trial court
found Appellant was in technical violation of his probation, revoked
probation, and resentenced Appellant to three to six years’ imprisonment.
Appellant filed a timely notice of appeal on July 2, 2014. The trial
court ordered Appellant to file a statement of matters complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) on
August 11, 2014, and Appellant complied. The trial court filed a responsive
opinion pursuant to Rule 1925(a) on October 1, 2014.2 Appellant's Rule
1925(b) statement advances the following sole claim of error.
The trial court’s sentence was excessively harsh and
an abuse of discretion for a violation of probation
where it failed to consider all the sentencing factors
____________________________________________
2
We note the trial court found Appellant’s 1925(b) statement was one day
late. Trial Court Opinion, 10/1/14, at 4 n.1. However, the trial court
granted Appellant an extension of 21 days to file the statement on August
29, 2014. Trial Court Order, 8/29/14. On September 19, 2014, Appellant
timely complied. Thus, his statement was timely.
-2-
J-S35006-15
on the record and was excessive in light of the
violation and the [Appellant’s] mitigating evidence.
Appellant’s Rule 1925(b) Statement, 9/19/14.
On appeal, Appellant seeks review of the following two issues.
1. Whether the [trial court] [e]rred in [f]inding
[Appellant] in [v]iolation of [h]is
[p]robation/[p]arole?
2. Whether the [trial court] abused its discretion
and imposed an excessive sentence without giving
weight to [Appellant’s] mitigating evidence?
Appellant’s Brief at 3.
By its plain text, Rule 1925(b) requires that statements “identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). The
Rule also requires that “[e]ach error identified in the Statement will be
deemed to include every subsidiary issue contained therein which was raised
in the trial court ….” Id. at 1925(b)(4)(v). Finally, any issues not raised in
accordance with Rule 1925(b)(4) will be deemed waived. Id. at
1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-
line rule, and “any issues not raised in a Rule 1925(b) statement will be
deemed waived.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011);
accord Pa.R.A.P. 1925(b)(4)(vii). Instantly, Appellant has failed to include
his first issue on appeal in his 1925(b) statement. See Appellant’s Rule
1925(b) Statement, 9/19/14. Accordingly, the issue is waived.
-3-
J-S35006-15
In his second issue, Appellant challenges the discretionary aspects of
his sentence. Appellant’s Brief at 9.
It is well settled that, with regard to the
discretionary aspects of sentencing, there is no
automatic right to appeal. [Therefore, b]efore we
reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the
sentence is appropriate under the sentencing code.
The third and fourth of these requirements arise
because Appellant’s attack on his sentence is not an
appeal as of right. Rather, he must petition this
Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there
is a substantial question. [I]f the appeal satisfies
each of these four requirements, we will then
proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Upon review of the record, we conclude Appellant has failed to
preserve his claim. Appellant did not object to his sentence at the
sentencing hearing, nor did Appellant file a post-sentence motion.
Therefore, Appellant has waived the issue for failure to raise it in the trial
court. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”). Further,
Appellant failed to include a statement pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f) in his brief, and the Commonwealth has noted
-4-
J-S35006-15
its objection to its absence. Commonwealth Brief at 9. “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.”
Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation
omitted), appeal denied, 65 A.3d 413 (Pa. 2013).
Based on the foregoing, we conclude Appellant has waived all of his
challenges on appeal, and we affirm the June 5, 2014 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
-5-