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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN MICHAEL MARCHAND,
Appellant No. 1341 WDA 2015
Appeal from the Judgment of Sentence July 27, 2015
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000020-2014
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 26, 2016
Steven Michael Marchand (“Appellant”) appeals from the judgment of
sentence imposed after a jury convicted him of two counts of identity theft,
one count of conspiracy to commit identity theft, one count of theft by
deception, one count of conspiracy to commit theft by deception, two counts
of forgery, and one count of conspiracy to commit forgery. We affirm.
The trial court summarized the operative facts of this case as follows:
The charges in this case arise out of two separate transactions
for the sale of timber. The first of these contracts was presented
by Appellant to Frederick Clelland, a self-employed timberer,
purportedly bearing the signature of one Sylvia Weed, the owner
of the real property in question. Clelland in turn paid the
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*
Retired Senior Judge assigned to the Superior Court.
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Appellant a substantial amount of money in consideration[1] of
the Appellant’s acting as a broker for Sylvia Weed. It was later
revealed that Weed never actually signed or authorized the
contract in question.
The second series of contracts were presented by the
Appellant to David A. Sholtis, an employee of Sugar Grove
Hardwood, bearing the purported signatures of James and Helen
Berry. Sugar Grove Hardwood provided significant
compensation to Appellant in consideration of his acting as a
broker for two parcels belonging to James and Helen Berry.[2]
During the course of negotiations between Sholtis and Appellant
for the sale of timber on a third parcel, this one purportedly
owned by Sylvia Weed, Sholtis came to discover that, contrary
to Appellant’s representations, the actual owners of the parcel
were James and Helen Berry. It was moreover revealed that the
true landowners never actually authorized any of the
transactions, in large part because they were in fact deceased.
Trial Court Opinion, 5/2/16, at 2–3.
Following Appellant’s conviction on March 20, 2015, the trial court
sentenced him on July 27, 2015, as follows:
On Counts 1 and 4, he received concurrent sentences of twelve
(12) months less three (3) days to twenty-four (24) months less
one (1) day [of incarceration]. With respect to Counts 2, 6, 7
and 8, he was sentenced to terms of probation of seven (7)
years, to run concurrently with each other, and consecutively to
the sentence of incarceration imposed at Counts 1 and 4. With
respect to Counts 3 and 5, the Appellant was sentenced to terms
of probation of seven (7) years, to run concurrent to one another
and consecutive to the term of probation imposed on Counts 2,
6, 7, and 8.
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1
Mr. Clelland paid Appellant $45,000. N.T., 3/16/15, at 9.
2
The first contract was for $38,000, and the second contract was for
$25,000. N.T., 3/16/15, at 37, 39.
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Trial Court Opinion, 5/2/16, at 2. Also, Appellant was ordered to pay a total
of $81,100.88 in restitution. N.T. (Sentencing), 7/27/15, at 24. This appeal
followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our consideration:
The verdict in this case was against the weight of the evidence
when information was presented that supported his version of
the events and the handwriting on the contracts in question
supported his testimony
The sentence in this case was manifestly excessive and clearly
unreasonable when the court sentenced Mr. Marchand to a
period of incarceration and did not take into account mitigating
factors such as the Defendant’s background and the nature of
the crime
Appellant’s Brief at 2 (verbatim; full capitalization omitted).
Appellant first raises a weight-of-the-evidence challenge, which he has
failed to preserve for our review. A weight challenge must be raised in the
trial court or it will be waived. Pursuant to Pa.R.Crim.P. 607, 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.” A weight claim must be presented to the
trial court while it exercises jurisdiction over a matter since “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).
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Here, the trial court found—and our review of the record confirms—
that Appellant failed to raise his weight claim orally or in writing prior to or
after sentencing. Trial Court Opinion, 5/2/16, at 3.3 In fact, Appellant
raised the evidentiary challenge for the first time in his Rule 1925(b)
statement. Pa.R.A.P. 1925(b) Statement, 2/1/16, at ¶ 5. Accordingly, we
hold that Appellant’s weight claim has been waived.4
Appellant next argues that his sentence is excessive and that the
sentencing court failed to consider mitigating factors. Appellant’s Brief at
12. These issues are challenges to the discretionary aspects of Appellant’s
sentence. Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa. Super.
2014).
It is well settled that there is no absolute right to appeal the
discretionary aspects of a sentence. Commonwealth v. Finnecy, 135 A.3d
1028, 1031 (Pa. Super. 2016). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. Johnson, 125 A.3d
822, 825 (Pa. Super. 2015).
As we observed in Johnson:
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3
The record contains a post-sentence motion in which Appellant seeks only
a hearing for consideration of after-discovered evidence. Post Sentence
Motion, 9/28/15, at ¶¶ 3–7.
4
Were this challenge not waived, we would affirm on the basis of the trial
court’s well-reasoned analysis. Trial Court Opinion, 5/2/16, at 3–5.
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Before 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.
Johnson, 125 A.3d at 825–826 (quoting Commonwealth v. Clarke, 70
A.3d 1281, 1286 (Pa. Super. 2013) (citation omitted)).
Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Objections to the discretionary aspects
of a sentence are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed. Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing Commonwealth v.
Mann, 820 A.2d 788 (Pa. Super. 2003)).
Our review of the certified record reflects that Appellant waived his
challenge to the discretionary aspects of his sentence by failing to raise the
claim either at the sentencing proceeding or by means of a post-sentence
motion.5 N.T. (Sentencing), 7/27/15, at 22, 25–26; Post Sentence Motion,
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5
At sentencing, Appellant requested a county sentence and bond pending
appeal, both of which he received. N.T. (Sentencing), 7/27/15, at 19, 22,
26. Appellant’s post-sentence motion does not include a challenge to the
discretionary aspects of his sentence.
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9/28/15. Appellant challenged the sentence imposed for the first time in his
Rule 1925(b) statement. Pa.R.A.P. 1925(b) Statement, 2/1/16, at ¶ 6.
Accordingly, Appellant’s sentencing challenge has been waived.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2016
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6
Neither the Commonwealth nor the trial court responds to Appellant’s
sentencing challenge with waiver. Were this challenge not waived, we would
affirm on the basis of the trial court’s well-reasoned analysis. Trial Court
Opinion, 5/2/16, at 5–8.
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