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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK DEON COBBS, :
:
Appellant : No. 861 WDA 2018
Appeal from the Judgment of Sentence February 2, 2018
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004617-2009
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 02, 2019
Appellant, Derrick Deon Cobbs, appeals pro se from the Judgment of
Sentence entered in the Westmoreland County Court of Common Pleas on
February 2, 2018, following remand from this Court for resentencing. After
careful review, we affirm.
A prior panel of this Court set forth the relevant facts and prior
procedural history as follows:
The Commonwealth charged Appellant with [drug possession and
firearms offenses] after a woman reported to police that Appellant
had held her against her will at a home in Jeannette and
threatened her. She also reported that he had firearms, crack
cocaine, and marijuana in the residence. Following Appellant’s
jury conviction of [drug possession and firearms offenses], the
court sentenced Appellant on August 12, 2014, to an aggregate
term of 16 to 40 years’ incarceration, including a term of 5 to 15
years[] for Possession with Intent to Deliver Heroin (“PWID”),
pursuant to 42 Pa.C.S. § 9712.1. Eight days later, this Court held
Section 9712.1 to be unconstitutional. See Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (applying Alleyne[v.
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* Retired Senior Judge assigned to the Superior Court.
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United States, 133 S.Ct. 2151 (2013))]. Appellant filed a Post-
Sentence Motion challenging, inter alia, the legality of his
sentence. On February 6, 2017, the trial court entered an Order
denying Appellant’s Post-Sentence Motion by operation of law.
Commonwealth v. Cobbs, No. 376 WDA 2017 (Pa. Super. filed December
11, 2017) (judgment order).
Appellant filed a direct appeal from his Judgment of Sentence,
challenging the sufficiency of the Commonwealth’s evidence supporting his
convictions of three counts of PWID, four counts of Possession of Drugs, and
one count of Person Not to Possess Firearms.1 Appellant also challenged the
legality of his sentence. This Court affirmed Appellant’s convictions, finding
that Appellant had waived his sufficiency claims by failing to develop them in
his Brief, but vacated his illegal sentence and remanded for resentencing.2
Id.
Upon remand, the trial court sentenced Appellant on February 2, 2018
on two of his PWID convictions to concurrent terms of a term of 27 months’
to 5 years’ incarceration and 3½ to 10 years’ incarceration. In all other
respects, Appellant’s sentence remained the same, including the imposition of
consecutive sentences for his Person Not to Possess conviction and one of his
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1In particular, the jury convicted Appellant of 3 counts each of 35 P.S. § 780-
113(a)(16) and 35 P.S. § 780-113(a)(30), and one count each of 35 P.S. §
780-113(a)(31) and 18 Pa.C.S. § 6105(a)(1).
2Appellant did not file a Petition for Allowance of Appeal with the Pennsylvania
Supreme Court following this Court’s affirmance of his convictions.
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PWID convictions. Thus, Appellant’s new aggregate sentence was 11 to 25
years’ incarceration.3
On February 9, 2018, while represented by counsel, Appellant filed pro
se a “Motion to Dismiss Counsel for Ineffectiveness, Conflict of Interest,
Irreconcilable Differences.” The following day, Appellant’s counsel filed a
Motion for Modification of Sentence, claiming that the court abused its
discretion in imposing consecutive sentences.
On February 14, 2018, while still represented by counsel, Appellant pro
se filed a “Petition to Proceed Pro Se during Litigation of Direct Appeal” and,
on February 28, 2018, he pro se filed a “Post-Sentence Motion.”
On March 3, 2018, the trial court scheduled a Grazier4 hearing for April
24, 2018. On April 24, 2018, the court attempted to conduct the Grazier
hearing, with Appellant participating by video. Appellant, however, refused to
remain in the video room during the hearing. Thus, the court ordered that
Appellant’s attorney continue to represent him.
On May 10, 2018, the trial court denied Appellant’s Post-Sentence
Motion.
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3 During the resentencing hearing at which Appellant’s counsel appeared and
Appellant participated by video, Appellant requested that the court reschedule
the hearing so that the court could appoint him new counsel. The court denied
Appellant’s request, causing him to become visibly angry and to leave the
video room prior to resentencing. Thus, the court sentenced him in abstentia.
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)
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This timely appeal followed. Appellant complied with the court’s Order
pursuant to Pa.R.A.P 1925 and the court filed a Rule 1925(a) Opinion adopting
its May 10, 2018 Order in support of its decision.
On August 28, 2018, Appellant filed a pro se Application for Relief in
which he requested that this Court permit him to proceed pro se. This Court
remanded this matter for the trial court to conduct another Grazier hearing.
Following the hearing, on September 19, 2018, the court ordered that
Appellant may proceed pro se.
Appellant raises the following nine issues in his pro se appellate Brief:
I. Whether the verdicts of guilty were rendered against the
weight of the evidence?
II. Whether the verdicts of guilty are supported by the
sufficiency of the evidence?
III. Whether the sentence constituted an excessive sentence?
IV. Whether the trial court committed reversible error in
allowing trial evidence to be tampered with and placed [sic] during
trial?
V. Whether the trial court erred in permitting inadmissible
testimony at trial?
VI. Whether the trial court erred in denying the Motion for
Double Jeopardy?
VII. Whether the trial court erred in denying the Motion for
Suppression?
VIII. Appellant’s appellate counsel rendered ineffective
assistance of counsel which prejudiced Appellant by
“discontinuing” Appellant’s direct appeal issues without consulting
Appellant.
IX. Appellant’s second appellate counsel rendered ineffective
assistance of counsel in appellate review which prejudiced
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Appellant by his filing a deficient and incompetent appellant brief,
as identified by this Honorable Court.
Appellant’s Brief at 3.
Before we address the merits of Appellant’s claims, we must determine
which, if any, of Appellant’s issues are properly before us. Issues one, two,
four, five, six, and seven, challenge Appellant’s underlying convictions. Where
an appellant has already had the benefit of a direct appeal, which resulted in
remand for resentencing, he is precluded from raising any issues other than a
challenge to the sentence imposed on remand. Commonwealth v.
Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (citing Commonwealth v.
Anderson, 801.A2d 1264, 1266 (Pa. Super. 2002)). See also
Commonwealth v. Sepulveda, 144 A.3d 1270, 1280 n.19 (Pa. 2016)
(“[W]here a case is remanded for a specific and limited purpose, issues not
encompassed within the remand order may not be decided on remand as a
remand does not permit a litigant a proverbial second bite at the apple.”)
(internal quotation marks and citation omitted). Any issues that should have
been raised in the initial direct appeal are waived. Williams, 151 A.3d at 625.
Accordingly, these issues, which Appellant could have raised on direct appeal,
but did not, are waived.5
In his eighth and ninth issues, Appellant challenges the effectiveness of
his prior counsel. It is well-settled that, generally, a defendant “should wait
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5 As noted supra, Appellant did challenge the sufficiency of the
Commonwealth’s evidence in support of his convictions, but waived the issue
by failing to develop it in his appellate brief.
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to raise claims of ineffective assistance of counsel until collateral review.”
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Because this
appeal is a direct appeal from Appellant’s new Judgment of Sentence and not
a post-sentence collateral appeal, we conclude that Appellant’s eighth and
ninth issues are premature. We, thus, dismiss them without prejudice to
Appellant’s right to raise them in a timely first Petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S §§ 9541-9546.
In his remaining issue—issue three—Appellant claims that his new
sentence is excessive. This issue presents a challenge to the discretionary
aspects of Appellant’s sentence.
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Rather, an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)
properly preserving the issue at sentencing or in a motion to reconsider and
modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of a sentence; and (4) presenting a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §
9781(b). Id.
Appellant preserved this sentencing challenge in a post-sentence
motion, and filed a timely Notice of Appeal. Appellant has not, however,
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included a Pa.R.A.P. 2119(f) Statement in his Brief. Appellant has, thus,
waived his challenge to the discretionary aspects of his sentence. See
Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004) (holding
that appellant waived challenge to discretionary aspects of sentence where he
failed to include in his brief a Pa.R.A.P. 2119(f) Statement).
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2019
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