J-S25027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DUANE COOLEY, SR.
Appellant No. 1293 WDA 2015
Appeal from the Judgment of Sentence July 29, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001836-2014
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 04, 2016
Appellant, Duane Cooley, Sr., appeals from the July 29, 2015
aggregate judgment of sentence of 13½ to 27 years’ imprisonment, imposed
after he was found guilty of possession with intent to deliver (PWID),
intentional possession of a controlled substance, possession of drug
paraphernalia, receiving stolen property, and persons not to possess a
firearm.1 After careful review, we affirm.
We summarize the relevant procedural history of this case as follows.
On August 15, 2014, the Commonwealth filed an information, charging
Appellant with the above-mentioned offenses. Appellant filed a brief in
support of a motion to suppress on June 10, 2015, although at that point, no
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1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), 18 Pa.C.S.A.
§§ 3925(a) and 6105(a.1)(1), respectively.
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suppression motion had been filed. Appellant filed his suppression motion
on June 17, 2015, the day before trial. The certified record does not indicate
any action by the trial court on the motion. The next day, on June 18, 2015,
Appellant filed a motion to allow a suppression motion to be filed nunc pro
tunc. Again, the record does not reveal that the trial court acted on the
motion.
Appellant proceeded to a two-day jury trial beginning on June 18,
2015, at the conclusion of which, the jury found Appellant guilty of all
charges. On July 29, 2015, the trial court imposed an aggregate sentence of
13½ to 27 years’ imprisonment.2 That same day, Appellant filed a timely
post-sentence motion, raising the merits of his untimely suppression motion
and an ineffective assistance of counsel claim, which the trial court denied
on August 6, 2015. On August 21, 2015, Appellant filed a timely notice of
appeal.3
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2
Specifically, the trial court sentenced Appellant to 72 to 144 months’
imprisonment for PWID, no further penalty for intentional possession of a
controlled substance, 6 to 12 months for possession of drug paraphernalia,
30 to 60 months for receiving stolen property and 60 to 120 months for the
firearms charge. The sentence for possession of drug paraphernalia was to
run concurrently to the sentence for PWID, but all other sentences were to
run consecutively.
3
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Although Appellant filed a pro se Rule 1925(b)
statement on August 17, 2015, before his notice of appeal was filed, the trial
court properly forwarded the same to counsel pursuant to Pennsylvania Rule
(Footnote Continued Next Page)
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On appeal, Appellant raises the following three issues for our review.
[1.] [Whether] the search of the house in this case
was conducted without a warrant and without
exigent circumstances and was therefore
illegal, and all fruits of the search should be
suppressed in this case[?]
[2.] [Whether] the verdict in this case was against
the weight of the evidence in that there was no
evidence presented that [Appellant] had
touched the gun that was found or that the
scales were used for drug transactions[?]
[3.] [Whether] the sentence in this case was
manifestly excessive and clearly unreasonable
when the [trial] court sentenced him in the
aggravated range without providing sufficient
reasons for the sentence on the record[?]
Appellant’s Brief at 2-3 (footnote omitted).
In his first issue, Appellant avers that the search of the house at issue
in this case was unconstitutional, as it was done with neither a warrant nor
exigent circumstances. Appellant’s Brief at 8. However, the trial court’s
Rule 1925(a) opinion states that Appellant’s omnibus pre-trial motion was
untimely filed. Trial Court Opinion, 9/5/15, at 1; see also Pa.R.Crim.P.
579(A) (stating, “omnibus pretrial motion for relief shall be filed and served
within 30 days after arraignment, unless opportunity therefor did not exist,
or the defendant or defense attorney, or the attorney for the
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(Footnote Continued)
of Criminal Procedure 576(A)(4). The trial court filed a one-page Rule
1925(a) opinion on September 15, 2015. It appears to address the issues
raised in Appellant’s post-sentence motion.
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Commonwealth, was not aware of the grounds for the motion, or unless the
time for filing has been extended by the court for cause shown[]”).
Appellant’s brief only addresses the merits of the suppression motion, not
the trial court’s conclusion as to its untimeliness. See generally Appellant’s
Brief at 8-10. Nor does Appellant pursue the issue that the trial court should
have granted his motion to allow him to file a suppression motion nunc pro
tunc. Because Appellant’s brief is devoid of any argument that challenges
the trial court’s conclusion on the motion’s untimeliness, Appellant has
waived this issue. See generally Pa.R.A.P. 2119(a); Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (concluding that courts will not
consider an argument where an appellant fails to cite to any legal authority
or otherwise develop the issue), cert. denied, Johnson v. Pennsylvania,
562 U.S. 906 (2010). Since Appellant has waived all arguments regarding
the trial court’s untimeliness conclusion, and we may not raise the issue sua
sponte, we are precluded from reaching the merits of Appellant’s
suppression claim. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010) (citation omitted) (stating, “[t]his Court will not act as counsel
and will not develop arguments on behalf of an appellant[]”), appeal denied,
29 A.3d 796 (Pa. 2011).
In his second issue, Appellant argues that the jury’s verdict was
against the weight of the evidence. Appellant’s Brief at 10-11. However,
before we may address these claims, we must consider whether Appellant
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has waived these issues for lack of preservation in the trial court.
Pennsylvania Rule of Criminal Procedure 607 discusses claims pertaining to
the weight of the evidence and provides, in relevant part, as follows.
Rule 607. Challenges to the Weight of the
Evidence
(A) A claim that the verdict was against the weight
of the evidence shall be raised with the trial judge in
a motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before
sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A); see also 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[]”). Our Supreme Court has explained that preserving a weight of
the evidence claim in the trial court is important because the failure to do so
“deprive[s the trial] court of an opportunity to exercise discretion on the
question of whether to grant a new trial.” Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood
v. Pennsylvania, 559 U.S. 1111 (2010).
As noted above, Appellant filed a timely post-sentence motion, but
said motion was limited to the claim that his untimely suppression motion
had merit, and that trial counsel was ineffective for not filing said motion in
a timely manner. Appellant’s Post-Sentence Motion, 7/29/15, at 1.
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Appellant did not raise, in his post-sentence motion, the argument that the
jury’s verdict was against the weight of the evidence. In addition, we have
reviewed the record, and Appellant did not raise this issue in any manner
prior to or during sentencing. Instead, Appellant raised this issue for the
first time in his appellate brief. As a result, we conclude Appellant’s weight
of the evidence claim is waived for want of preservation. See id.;
Pa.R.Crim.P. 607(A); Pa.R.A.P. 302(a).
In his third issue, Appellant avers that the trial court imposed a
sentence that is “manifestly extreme and clearly unreasonable, and not
individualized as required by law.” Appellant’s Brief at 11. At the outset, we
note that Appellant’s argument pertains to the discretionary aspects of his
sentence. It is axiomatic that in this Commonwealth, “[t]here is no absolute
right to appeal when challenging the discretionary aspect of a sentence.”
Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation
omitted). When an appellant raises an argument pertaining to the
discretionary aspects of the sentence, this Court considers such an argument
to be a petition for permission to appeal. Commonwealth v. Buterbaugh,
91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal
denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this
Court determines that there is a substantial question that the sentence was
not appropriate under the sentencing code.” Commonwealth v. Cartrette,
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83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks
and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[720]; (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.A.] § 9781(b).
Id.
In the case sub judice, Appellant filed a timely post-sentence motion
and notice of appeal. However, as we have explained, Appellant’s post-
sentence motion was limited to the claim that his untimely suppression
motion had merit, and that trial counsel was ineffective for not filing said
motion in a timely manner.4 Appellant’s Post-Sentence Motion, 7/29/15, at
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4
Appellant’s brief correctly acknowledges that any issue as to counsel’s
ineffectiveness must wait until collateral review pursuant to the Post
Conviction Relief Act. Appellant’s Brief at 10 n.4; see also Commonwealth
(Footnote Continued Next Page)
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1. Appellant did not raise any issue pertaining to the discretionary aspects
of his sentence in his post-sentence motion. Moreover, we have reviewed
the sentencing transcript, and Appellant did not raise this issue during the
sentencing hearing. As a result, Appellant has failed to preserve this issue
for our review, and we deny his petition for permission to appeal the
discretionary aspects of his sentence on this basis. See Trinidad, supra.
Based on the foregoing, we conclude all of Appellant’s issues on appeal
are either waived or devoid of merit. Accordingly, the trial court’s July 29,
2015 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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(Footnote Continued)
v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (stating that in general, “claims of
ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal[]”).
We therefore express no opinion on any ineffectiveness issue.
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