J-S53023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS LOPEZ,
Appellant No. 2082 EDA 2016
Appeal from the Judgment of Sentence June 10, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014305-2012
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 18, 2017
Appellant, Luis Lopez, appeals from the judgment of sentence entered
on June 10, 2016. We affirm.
As the trial court ably explained:
[Appellant] was arrested on November 19, 2012, and
charged with aggravated indecent assault, unlawful contact
with minor, endangering the welfare of a child, corruption of
minors, indecent assault[,] and simple assault of a child
under [12 years of age]. . . . On February 18, 2015, a jury
was selected [for Appellant’s trial]. . . .
[During trial, Appellant] decided to enter a negotiated plea
to the charges of endangering the welfare of a child and
corruption of the morals of a minor[,1] in exchange for an
aggregate sentence of five years’ probation.
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1
18 Pa.C.S.A. §§ 4304(a)(1) and 6301(a)(1)(i).
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On April 27, 2015, [Appellant] incurred new charges of
intimidation of a witness, contempt, aggravated [assault,]
simple assault, conspiracy, terroristic threats[,] and
recklessly endangering another person. On January 8,
2016, [Appellant] was sentenced to one to two years’
incarceration for the intimidation of a witness offense. On
June 10, 2016, a probation violation hearing was held, after
which [Appellant] was found to have violated his probation[;
that same day, the trial court revoked Appellant’s probation
and re-sentenced Appellant to serve a term of one to two
years in prison, followed by three years of probation, for the
underlying convictions].
Trial Court Opinion, 8/30/16, at 1-2.
On June 14, 2016, Appellant filed a timely motion to modify his
sentence. See Pa.R.Crim.P. 708(E) (“[a] motion to modify a sentence
imposed after a revocation [of probation] shall be filed within 10 days of the
date of imposition. The filing of a motion to modify sentence will not toll the
30-day appeal period”). Within Appellant’s motion to modify, Appellant
claimed that the trial court abused its discretion by imposing an “unduly
harsh and excessive [sentence] in light of [Appellant’s] background,
acceptance of responsibility[,] and cooperation in this matter.” Appellant’s
Motion to Modify, 6/14/16, at 2. The trial court denied Appellant’s motion to
modify on June 21, 2016 and, on June 27, 2016, Appellant filed a timely
notice of appeal.
Appellant raises two claims on appeal:
[1.] Whether the trial court erred in finding [Appellant]
guilty of a violation of his probation where, as here, there
was no admissible evidence of a violation admitted at the
hearing?
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[2.] Whether the trial court erred in denying [Appellant’s]
motion for reconsideration of its decision finding [Appellant]
in violation where, as here, the sentence imposed by the
court for the violation was excessive given the ample
evidence offered by the defense in mitigation and the
complete lack of admissible evidence offered by the
Commonwealth?
Appellant’s Brief at vi (some internal capitalization omitted).
First, Appellant claims that there was insufficient evidence to support
the revocation of his probation because “the Commonwealth offered no
evidence [] that [Appellant] had violated his probation [and] relied only on
argument as to the appropriate sentence.” Appellant’s Brief at 9. This claim
is frivolous and demands little attention from this Court. Certainly, during
the revocation of probation hearing, the trial court noted that Appellant
violated his probation by being convicted of “witness intimidation” and
Appellant then expressly stipulated to a “direct violation” of his probation.
N.T. Violation of Probation Hearing, 6/10/16, at 3-4 and 7-8 (Appellant’s
Attorney: “I’m going to pass this up to Your Honor, because I think that
that speaks best, copies of the presentence investigation report that were
done in the direct violation matter. And, by the way we’re stipping to a
direct violation, if I didn’t say that before”) (emphasis added). The claim
thus fails.
Second, Appellant claims that the trial court abused its discretion by
imposing a manifestly excessive sentence. Appellant’s Brief at 9. Appellant
has waived his discretionary aspects of sentencing claim because he failed to
include a Pennsylvania Rule of Appellate Procedure 2119(f) statement in his
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brief and the Commonwealth has objected to the omission.
Commonwealth’s Brief at 6-7; Commonwealth v. Faulk, 928 A.2d 1061,
1071-1072 (Pa. Super. 2007) (“[t]o be reviewed on the merits, a challenge
to the discretionary aspects of sentence must raise a substantial question
that the sentence imposed is not appropriate. A substantial question is
raised when the appellant advances a colorable argument that the sentence
was either inconsistent with a specific provision of the Sentencing Code or
contrary to the fundamental norms which underlie the sentencing process.
This Court determines whether an appellant has raised a substantial
question by examination of the appellant's concise statement of the reasons
relied upon for allowance of appeal, which must be included in the
appellant's brief, pursuant to Pennsylvania Rule of Appellate Procedure
2119(f). If a Rule 2119(f) statement is not included in the appellant's brief
and the appellee objects to the omission, then this Court is precluded from
reviewing the merits of the appellant's claim”) (internal citations and
quotations omitted).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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