J-A16001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM COATES, III,
Appellant No. 247 WDA 2015
Appeal from the Judgment of Sentence January 13, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012614-2013
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 28, 2016
Appellant, William Coates, III, appeals the judgment of sentence
entered on January 13, 2015, in the Allegheny County Court of Common
Pleas. We affirm.
The trial court set forth the relevant facts and procedural history of
this matter as follows:
Briefly, the evidence presented at trial established that,
beginning when she was 8 or 9 years old, [Appellant] (who was
her mother’s boyfriend), began touching the breasts and
buttocks of [C.L.] on a daily basis. The touching progressed to
[Appellant] showing her his penis, having her touch his penis
and eventually to ejaculating in her hands. [C.L.] also testified
that on one occasion, [Appellant] forced her to perform oral sex
on him and once he climbed on top of her and attempted to have
sex with her, but he stopped when she screamed for her mother.
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*
Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion, 1/13/16, at 2.
[Appellant] was charged with Involuntary Deviate Sexual
Intercourse,1 Criminal Solicitation,2 Criminal Attempt,3 Unlawful
Contact with a Minor,4 Sexual Assault,5 Endangering the Welfare
of a Child,6 Indecent Exposure,7 Corruption of Minors,8 Indecent
Assault of a Person Under 139 and Indecent Assault.10 Following
a jury trial held before this Court, [Appellant] was convicted of
the Unlawful Contact, Endangering the Welfare of a Child,
Indecent Exposure, Corruption of Minors and both counts of
Indecent Assault. He appeared before this Court on January 13,
2015 and was found to be a Sexually Violent Predator. He was
subsequently sentenced to consecutive terms of imprisonment of
three and one half (3½) to seven (7) years at the Unlawful
Contact charge, two and one half (2½) to five (5) years at the
Endangering the Welfare of a Child[,] [(2½) to five (5) years at
the] Indecent Exposure charge[,] and two (2) to four (4) years
at the Indecent Assault of a Person Under 13 charge, for an
aggregate term of imprisonment of 10½ to 21 years. This timely
appeal followed.
1
18 Pa.C.S.A. §3123(a)(7)
2
18 Pa.C.S.A. §902(a) - 2 counts
3
18 Pa.C.S.A. §901(a)
4
18 Pa.C.S.A. §6318.1
5
18 Pa.C.S.A. §3124.1
6
18 Pa.C.S.A. §4304(a)
7
18 Pa.C.S.A. §3127(a)
8
18 Pa.C.S.A. §6301(a)(1)(i)
9
18 Pa.C.S.A. §3126(a)(7)
10
18 Pa.C.S.A. §3126(a)(5)
Trial Court Opinion, 1/13/16, at 1-2.
In his brief, Appellant presents the following issues:
I. WAS THE SENTENCE IMPOSED MANIFESTLY EXCESSIVE AND
AN ABUSE OF THE SENTENCING COURT’S DISCRETION IN THAT:
Three of the four sentences received were for the
maximum penalty, and all were ordered to be served
consecutively;
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Three sentences were above the aggravated range
in the sentencing guidelines, the remaining sentence
was in the aggravated range, yet the only
recognition by the sentencing court of these facts
was a single throw away comment that the
aggregate sentence was “way outside” of the
guidelines; and
The court focused almost exclusively on the
gravity of the offense and the impact on the victim,
and ignored any reference to the defendant’s
rehabilitative needs?
II. WAS THE GUILTY VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE PRESENTED IN THAT THE JURY’S SPLIT VERDICT
INDICATED THAT IT FOUND THE COMPLAINANT TO BE
INCREDIBLE; AS THE COMPLAINANT’S TESTIMONY WAS THE
ONLY EVIDENCE PRESENTED AGAINST MR. COATES, SHOULD
THE GUILTY VERDICT HAVE SHOCKED THE CONSCIENCE OF THE
COURT SUCH THAT A NEW TRIAL IS REQUIRED?
Appellant’s Brief at 7.
In his first issue, Appellant presents a challenge to the discretionary
aspects of his sentence. It is well settled that a challenge to the
discretionary aspects of a sentence is a petition for permission to appeal, as
the right to pursue such a claim is not absolute. Commonwealth v.
Treadway, 104 A.3d 597, 599 (Pa. Super. 2014). Before this Court may
review the merits of a challenge to the discretionary aspects of a sentence,
we must engage in the following four-pronged analysis:
[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 preserved at
sentencing or in a motion to reconsider and modify sentence,
see 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
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question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
While Appellant filed a timely appeal and included a statement
pursuant to Pa.R.A.P. 2119(f) in his brief, we are constrained to agree with
the Commonwealth’s argument that Appellant failed to preserve his
challenge in a timely-filed post sentence motion. Commonwealth’s Brief at
12. The record reveals that Appellant was sentenced on January 13, 2015.
Counsel filed a motion to withdraw on January 20, 2015. This motion
reiterated his original request to withdraw, which was memorialized in the
notes of testimony. N.T., 1/13/15, at 30, 33. The notes of testimony from
the sentencing hearing also reflect that the trial court stated it would appoint
counsel. Id. Accordingly, following the January 13, 2015 sentencing
hearing, the trial court appointed the office of the Public Defender to
represent Appellant in an order dated January 15, 2015. The order
appointing the Public Defender however, was not entered on the docket until
January 20, 2015, and the order granting the motion to withdraw was not
filed until January 26, 2015.
On January 28, 2015, five days beyond the ten-day period in which
post-sentence motions may be filed pursuant to Pa.R.Crim.P. 720, Appellant,
pro se, filed a motion to reconsider his sentence and a motion for a new trial
challenging the weight of the evidence. These motions are undated, and
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therefore, a prisoner mailbox rule1 analysis is impossible as there are no
dates, pay slips, or even an envelope from which we can determine when
these motions were placed in the hands of prison officials.
The Public Defender now argues on appeal that it did not receive the
appointment order until a week after the order was filed. Appellant’s Brief at
9. Even if we accept the Public Defender’s representation that it was
unaware of the appointment, the record reflects that Appellant was
represented by counsel at all times, and there is no basis upon which the
untimely nature of the post-sentence motions can be excused.
Nevertheless, Appellant avers that the pro se motions should not be deemed
hybrid representation,2 as this case is akin to Commonwealth v.
Leatherby, 116 A.3d 73 (Pa. Super. 2015). Appellant’s Brief at 9, n.2. We
disagree.
In Leatherby, the appellant was abandoned by counsel, and the trial
court did not appoint new counsel until after the time to file post sentence
motions had expired. Thus, this Court allowed the trial court to consider the
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1
The prisoner mailbox rule provides that, in the interest of fairness, a pro se
prisoner’s document will be considered filed on the date it is delivered to
prison authorities for mailing. Commonwealth v. Leggett, 16 A.3d 1144,
1146 n.7 (Pa. Super. 2011) (citation omitted).
2
Hybrid representation is not permitted. Commonwealth v. Ellis, 626
A.2d 1137, 1139 (Pa. 1993).
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appellant’s timely pro se motions without deeming them hybrid because the
appellant had no counsel during the post-sentence motion period.
Here, however, the trial court appointed counsel before the time in
which to file post-sentence motions expired. Thus, as noted, Appellant had
counsel throughout the proceedings. The Public Defender, however, did not
file post-sentence motions, and Appellant filed them pro se. Even if we
excused the hybrid nature of the motions pursuant to Leatherby, the
motions were untimely, and we discern no mechanism by which this
tardiness may be exempted. The five-day delay between the date the post-
sentence motions were due, January 23, 2015, and the date the motions
were filed, January 28, 2015, cannot be excused based on the record before
us. Moreover, because there is nothing upon which this Court can conduct a
mailbox-rule analysis, we conclude Appellant’s challenge to the discretionary
aspects of his sentence is waived for failing to preserve it in a timely-filed
post-sentence motion. Moury, 992 A.2d at 170.
For these same reasons, we conclude that Appellant’s challenge to the
weight of the evidence is waived. The Pennsylvania Rules of Criminal
Procedure require that a “claim that the verdict is 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 challenge to the weight of the evidence “must be
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presented to the trial court while it exercises jurisdiction over the matter
because appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict is against
the weight of the evidence.” Commonwealth v. Burkett, 830 A.2d 1034,
1037 (Pa. Super. 2003) (internal quotation marks and citation omitted).
Appellant failed to preserve his challenge to the weight of the evidence claim
orally or in writing prior to sentencing, and as discussed above, his post-
sentence motion was untimely. As such, Appellant failed to properly present
his post-sentence motions resulting in waiver of his challenge to the weight
of the evidence. Id.
For the reasons discussed above, Appellant failed to properly preserve
either of his issues on appeal. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judge Olson Concurs in the Result.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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