Com. v. Rivera

• Decision Date: 06 August 1987
• Citation: 365 Pa.Super. 361,529 A.2d 1099
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Daniel RIVERA, Sr., Appellant. 02418 Phila. 1986
• Court: Pennsylvania Superior Court

Page 1099

529 A.2d 1099

365 Pa.Super. 361

COMMONWEALTH of Pennsylvania, Appellee, v. Daniel RIVERA, Sr., Appellant.

02418 Phila. 1986

Superior Court of Pennsylvania.

Submitted May 4, 1987.

Filed Aug. 6, 1987.

Michael A. Filingo, Bangor, for appellant.

John L. Obrecht, Asst. Dist. Atty., Northampton, for Com., appellee.

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered following appellant's plea of guilty to a charge of delivery of heroin. The sole question before us is whether the trial court abused its discretion by failing to consider the alternatives to incarceration. We conclude that this appeal has not been properly presented, and consequently, must be dismissed.

Where a party appeals a discretionary aspect of the sentence, the brief must set forth a substantial question regarding the appropriateness of the sentence and, in a separate section, a "concise statement of the reasons relied upon for allowance of appeal." Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987), citing, Pa.R.App.P. 2116(b) and 2119(f). As in Tuladziecki, appellant's brief fails to satisfy the procedural requirement of Rule 2119(f). Therefore, in accordance with Tuladziecki, the appeal is dismissed. ¹

Appeal dismissed. Judgment of sentence affirmed. Jurisdiction is relinquished.

HOFFMAN, J., files a concurring opinion.

WIEAND, J., files a dissenting opinion.

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 challenges 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 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 inexpensive 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.

WIEAND, Judge, dissenting.

I respectfully dissent.

The right of appeal from a final judgment of sentence is guaranteed by Article 5, § 9 of the Pennsylvania Constitution. The exclusive jurisdiction to hear such appeals, except in capital cases, is vested in the Superior Court. 42 Pa.C.S. § 742. Such an appeal may generally be taken as of right by filing a notice of appeal with the clerk of the lower court within the time allowed for such appeal. Pa.R.App.P. 902. With respect to appeals challenging the discretionary aspects of sentencing, however, the legislature has provided at 42 Pa.C.S. § 9781 as follows:

(a) Right to appeal.--The defendant or the Commonwealth may appeal as of right the legality of the sentence.

(b) Allowance of appeal.--The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. (Emphasis added).

Pursuant to its authority to prescribe rules governing practice and procedure in the courts, the Supreme Court has promulgated rules to implement this statutory provision. By a note accompanying Pa.R.A.P. 902 the proper procedure to be followed in cases brought under Section 9781(b) has been explained as follows:

Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a "petition for allowance of appeal" of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see Rule 904 (content of the notice of appeal)) operates as the "petition for allowance of appeal" under the Sentencing Code. It automatically raises all possible questions under 42 Pa.C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside of the range of discretion vested by law in the sentencing court) is presented. No additional wording is required or appropriate in the notice of appeal.

In effect, the filing of the "petition for allowance of appeal" contemplated by the statute is deferred by these rules until the briefing stage, where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner.

The proper procedure for filing the "petition for allowance of appeal" at the briefing stage is set forth in Pa.R.A.P. 2119(f) as follows:

[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the defendant, who had been convicted of various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-113(a)(16), (30), was sentenced to pay a fine of $1,000 and to serve a five year term of probation. The Commonwealth appealed. This Court vacated the judgment of sentence and remanded for resentencing on the ground that the sentence was outside the sentencing guidelines and unreasonable. The Supreme Court reversed, holding that it had been error for this Court to consider the merits of the Commonwealth's appeal where the Commonwealth had failed to comply with the mandates of Rule 2119(f). The Court said:

It must first be observed that our rules make a careful distinction between "questions relating to the discretionary aspects of the sentence" and "the issue whether the appellate court should exercise its discretion to reach such question." Pa.R.A.P. 2116. Recognizing this distinction, the language from the Note to Pa.R.A.P. 902 ... speaks only to the fact that the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal. It does not and cannot obviate the need for such a statement.

The procedure outlined in the Note accompanying Rule 902 was published in the interest of maintaining consistency between practice under this section of the Sentencing Code and typical appellate practice in Superior Court, which does not ordinarily have discretion as to the exercise of its jurisdiction....

So long as the Commonwealth is required at some point to demonstrate a "substantial question" in accordance with the statute ... this procedure is sound. Superior Court may not, however, be permitted to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists. If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the Commonwealth has in effect obtained an appeal as of...