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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES DALLAS D GREEN

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2069 EDA 2021 Appeal from the Judgment of Sentence Entered September 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0002204

- 2019
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J. MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 28, 2022
Charles Dallas D Green (“Green”) appeals from the judgment of sentence imposed after he pleaded guilty to third

- degree murder , robbery , and possessing an instrument of crime (“PIC”)

. 1 We affirm.

O n the morning of March 7, 2019 , Green and Michael Warren (“Warren”) got into a fight at a subway station . D uring the altercation, Green chased and fatally stabbed Warren . Police arrested Green shortly after the stabbing, and
he later gave statements admitting that he and Warren had fought over

money that Warren owed him. Green entered open guilty pleas to the above

mentioned offenses , and on September 8, 2021, the trial court sentenced him

to eighteen and one

- half to thirty

- seven years of incarceration for th ird

- degree murder, a consecutive nine and one

- half to nineteen years of incarceration for

_________________ __________ ______ ____ _______
1 See 18 Pa.C.S.A. §§ 2502 (c) , 3701(a)(1)(i) , 907(a).J

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- 2

-

robbery , and no further penalty for PIC. 2 Green did not file a post

- sentence

motion , 3 but timely appealed. Both he and the trial court complied with

Pa.R.A.P. 192 5. Green raises the following issue on appeal:

Whether the court’s sentencing was inconsistent with the Sentencing Code [,] 42 Pa.C.S. [A. §] 9721(b) and/or contrary to the fundamental norms which buttress the sentencing process?
Green’s Brief at 5. Green’s issue presents a challenge to the discretionary aspects of his sentence. A challenge to the discretionary aspects of a sentence does not entitle an appellant to review as of right. See Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). Rather, such a challenge must be

_________________ __________ ______ ____ _______
2 Green ’s pri or record score was “RFEL” and the sentences for robbery and third

- degree murder were on the low

- end of the standard range minim um sentence s called for by the deadly weapon used matrix

. See Commonwealth’s Sentencing Memorandum , 9/1/21, at 3

.

3 Green apparently filed a document five days after sentencing, an d the trial court regarded that document as a post

- sentence motion. See Trial Court Opinion, 1/24/22, at 3. However, the document appears to be a copy of a pre - sentencing memorandum because it was dated September 7, 2021, one day before sentencing, and co ntained a recommended sentence without stating the sentence imposed by the trial court. See Memorandum of Law, filed 9/13/21, at 1

- 2. Green’s counsel, who had signed the memorandum of law and filed the appeal, did not reference a post

- sentence motion. Rather, Green’s counsel suggests that after sentencing , Green filed the document of law pro se , s ee Green’s Brief at 7, which would render the fil ing a legal n ullity. See Commonwealth v. Williams , 151 A.3d 621, 623 (Pa. Super. 2016 ) (noting that we “will not accept a pro se motion while an appellant is represented by counsel; indeed, pro se motions have no legal effect and, therefore, are legal nullities” ) (internal citation omitted). Under these circumstances, we conclude that Green did not timely file a post

- sentence motion.J

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- 3

-

considered a petition for permission to appeal. See Commonwealth v.
Christman , 225 A.3d 1104, 1107 (Pa. Super. 2019). Before reaching the merits of a discretionary sentencing issue,
[w]e conduct a four

- part analysis to de termine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Moury , 992 A.2d at 170 (internal citation and brackets omitted). T he failure to object to a sentence at the hearing or in a post

- sentence motion waives a challeng e to the discretionary aspects of a sentence

. See Commonwealth
v. Padilla
- Vargas , 204 A.3d 971, 975

- 76 (Pa. Super. 2019) . Further, if the appellant fai ls to i nclude a Rule 2119(f) statement in his brief , and the Commonwealth objects , this Court cannot review the issue. See

Com monwealth v. Dawson , 132 A.3d 996, 1005 (Pa. Super. 2015)

. Following our review, we conclude that Green waived his issue challeng ing the discretionary aspects of his sentence

. Green did not file a
proper post

- sentence motion preserving his claims

. See Padilla
- Vargas , 204
A.3d at 975

- 76; see also footnote 2 , supra
. Moreover , Green’s brief does not

contain a sepa rate Rule 2119(f) statement , and the Commonwealth has object ed to this omission

. See Dawson , 132 A

. 3d at 1005; see also
Commonwealth’s Brief at 5

. Accordingly, as we are precluded from reviewingJ

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- 4

-

the merits of Green’s sole issue in this appeal, we affirm the judgment of

sentence. See Dawson , 132 A.3d at 1005. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/28/2022