Commonwealth v. Rivera

HOFFMAN, Judge,

concurring:

In the present posture in which I find this appeal, I am constrained to concur in Judge Olszewski’s view that we cannot reach the merits of appellant’s claim which chal*364lenges a discretionary aspect of sentencing. I write separately to emphasize, however, that while I agree that appellant’s brief does not comply with Pa.R.A.P. 2119(f), I do not agree that Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) ineluctably requires that we may not reach the merits of the appeal at this early stage. In my opinion, the better course would be to issue an order granting appellant thirty (30) days leave to supplement his brief to provide a concise statement of the reasons relied upon for allowance of appeal as required by Pa.R.A.P. 2119(f).

Appellant contends that the lower court abused its discretion in imposing its sentence by refusing to consider specific alternatives to incarceration. Before we can examine claims challenging the discretionary aspects of a sentence, we first must determine whether there is a “substantial question that the sentence imposed is not appropriate____” 42 Pa.C.S.A. § 9781(b). It has been the practice of this Court to make this determination based upon an evaluation of the substantive argument advanced by appellant in his or her brief. See Commonwealth v. Easterling, 353 Pa. Superior Ct. 84, 509 A.2d 345 (1986); Commonwealth v. Dixon, 344 Pa. Superior Ct. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa. Superior Ct. 468, 491 A.2d 1352 (1985). Our Supreme Court recently disapproved of this practice, holding that an appellant must set forth in a separate section of his or her brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence imposed. Commonwealth v. Tuladziecki, supra, 513 Pa. at 511, 522 A.2d at 19 (citing Pa.R.A.P. 2119(f)). The purpose of this separate section is to provide this Court with adequate information upon which to base our decision to exercise, our discretion to consider claims of this nature.

Here, appellant has failed to include in his brief a statement of the reasons he relies upon for allowance of appeal with respect to his sentencing claim. Our Rules of Appellate Procedure impose a duty on this Court to liberally construe the rules in order to “secure the just, speedy and *365inexpensive determination of every matter to which they are applicable.” Pa.R.A.P. 105(a). Keeping this duty in mind, I believe that allowing appellant to supplement his brief would secure a more just and speedy determination than would dismissing the appeal. Such a supplement will ensure more effective appellate review, allow us to make a knowledgeable determination as to whether we should exercise our discretion in this matter, and curtail the inevitable claim that counsel was ineffective for failing to properly petition for appeal.

Absent such a procedure, however, I am faced with a brief that does not comply with Rule 2119(f). Because of this failure to comply with the Rule, and because this Court has chosen not to follow the procedure I have outlined above, I agree that we cannot reach the merits of appellant’s sentencing claim. Accordingly, I am constrained to concur reluctantly, in Judge Olszewski’s decision.