J-A16001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WILLIAM COATES, III, Appellant No. 247 WDA 2015

Appeal from the Judgment of Sentence January 13, 20 15 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012614-2013

BEFORE: SHOGAN, OLSON, and STRASSBURGER, * JJ. MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 28, 2016 Appellant, William Coates, III, appeals the judgme nt of sentence entered on January 13, 2015, in the Allegheny Count y Court of Common

Pleas. We affirm. The trial court set forth the relevant facts and pr ocedural history of

this matter as follows:

Briefly, the evidence presented at trial establishe d that, beginning when she was 8 or 9 years old, [Appellant ] (who was her mother’s boyfriend), began touching the breasts and buttocks of [C.L.] on a daily basis. The touching p rogressed to [Appellant] showing her his penis, having her touch his penis and eventually to ejaculating in her hands. [C.L.] also testified that on one occasion, [Appellant] forced her to per form oral sex on him and once he climbed on top of her and attemp ted to have sex with her, but he stopped when she screamed for her mother.

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* Retired Senior Judge assigned to the Superior Cou rt.J-A16001-16

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Trial Court Opinion, 1/13/16, at 2.

[Appellant] was charged with Involuntary Deviate Se xual Intercourse, 1 Criminal Solicitation, 2 Criminal Attempt, 3 Unlawful Contact with a Minor, 4 Sexual Assault, 5 Endangering the Welfare of a Child, 6 Indecent Exposure, 7 Corruption of Minors, 8 Indecent Assault of a Person Under 13 9 and Indecent Assault. 10 Following a jury trial held before this Court, [Appellant] wa s convicted of the Unlawful Contact, Endangering the Welfare of a Child, Indecent Exposure, Corruption of Minors and both co unts of Indecent Assault. He appeared before this Court on January 13, 2015 and was found to be a Sexually Violent Predato r. He was subsequently sentenced to consecutive terms of impr isonment of three and one half (31⁄2) to seven (7) years at the Un lawful Contact charge, two and one half (21⁄2) to five (5) y ears at the Endangering the Welfare of a Child[,] [(21⁄2) to five (5) years at the] Indecent Exposure charge[,] and two (2) to fou r (4) years at the Indecent Assault of a Person Under 13 charge , for an aggregate term of imprisonment of 101⁄2 to 21 years. T his timely appeal followed.

1 18 Pa.C.S.A. §3123(a)(7) 2 18 Pa.C.S.A. §902(a) - 2 counts 3 18 Pa.C.S.A. §901(a) 4 18 Pa.C.S.A. §6318.1 5 18 Pa.C.S.A. §3124.1 6 18 Pa.C.S.A. §4304(a) 7 18 Pa.C.S.A. §3127(a) 8 18 Pa.C.S.A. §6301(a)(1)(i) 9 18 Pa.C.S.A. §3126(a)(7) 10 18 Pa.C.S.A. §3126(a)(5) Trial Court Opinion, 1/13/16, at 1-2. In his brief, Appellant presents the following issu es: I. WAS THE SENTENCE IMPOSED MANIFESTLY EXCESSIVE AN D AN ABUSE OF THE SENTENCING COURT’S DISCRETION IN TH AT:

 Three of the four sentences received were for the maximum penalty, and all were ordered to be served consecutively;J-A16001-16

- 3 -  Three sentences were above the aggravated range in the sentencing guidelines, the remaining sentenc e was in the aggravated range, yet the only recognition by the sentencing court of these facts was a single throw away comment that the aggregate sentence was “way outside” of the guidelines; and  The court focused almost exclusively on the gravity of the offense and the impact on the victim , and ignored any reference to the defendant’s rehabilitative needs?

II. WAS THE GUILTY VERDICT AGAINST THE WEIGHT OF TH E EVIDENCE PRESENTED IN THAT THE JURY’S SPLIT VERDICT INDICATED THAT IT FOUND THE COMPLAINANT TO BE INCREDIBLE; AS THE COMPLAINANT’S TESTIMONY WAS THE ONLY EVIDENCE PRESENTED AGAINST MR. COATES, SHOULD THE GUILTY VERDICT HAVE SHOCKED THE CONSCIENCE OF T HE COURT SUCH THAT A NEW TRIAL IS REQUIRED? Appellant’s Brief at 7. In his first issue, Appellant presents a challenge to the discretionary aspects of his sentence. It is well settled that a challenge to the discretionary aspects of a sentence is a petition f or permission to appeal, as the right to pursue such a claim is not absolute. Commonwealth v. Treadway , 104 A.3d 597, 599 (Pa. Super. 2014). Before this Court may review the merits of a challenge to the discretiona ry aspects of a sentence, we must engage in the following four-pronged analys is: [W]e conduct a four part analysis to determine: (1 ) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserv ed at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief ha s a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantialJ-A16001-16

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question that the sentence appealed from is not app ropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006)). While Appellant filed a timely appeal and included a statement pursuant to Pa.R.A.P. 2119(f) in his brief, we are constrained to agree with the Commonwealth’s argument that Appellant failed t o preserve his challenge in a timely-filed post sentence motion. Commonwealth’s Brief at 12. The record reveals that Appellant was sentence d on January 13, 2015. Counsel filed a motion to withdraw on January 20, 2 015. This motion reiterated his original request to withdraw, which was memorialized in the notes of testimony. N.T., 1/13/15, at 30, 33. The notes of testimony from the sentencing hearing also reflect that the trial court stated it would appoint

counsel. Id . Accordingly, following the January 13, 2015 sent encing hearing, the trial court appointed the office of th e Public Defender to represent Appellant in an order dated January 15, 2 015. The order appointing the Public Defender however, was not ent ered on the docket until January 20, 2015, and the order granting the motion to withdraw was not filed until January 26, 2015. On January 28, 2015, five days beyond the ten-day p eriod in which post-sentence motions may be filed pursuant to Pa.R .Crim.P. 720, Appellant,

pro se , filed a motion to reconsider his sentence and a m otion for a new trial challenging the weight of the evidence. These moti ons are undated, andJ-A16001-16

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therefore, a prisoner mailbox rule 1 analysis is impossible as there are no dates, pay slips, or even an envelope from which we can determine when these motions were placed in the hands of prison of ficials. The Public Defender now argues on appeal that it di d not receive the appointment order until a week after the order was filed. Appellant’s Brief at 9. Even if we accept the Public Defender’s represe ntation that it was unaware of the appointment, the record reflects tha t Appellant was represented by counsel at all times, and there is n o basis upon which the untimely nature of the post-sentence motions can be excused. Nevertheless, Appellant avers that the pro se motions should not be deemed hybrid representation, 2 as this case is akin to Commonwealth v. Leatherby , 116 A.3d 73 (Pa. Super. 2015). Appellant’s Brief at 9, n.2. We disagree.

In Leatherby , the appellant was abandoned by counsel, and the t rial court did not appoint new counsel until after the t ime to file post sentence motions had expired. Thus, this Court allowed the trial court to consider the

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1 The prisoner mailbox rule provides that, in the in terest of fairness, a pro se prisoner’s document will be considered filed on the date it is delivered to prison authorities for mailing. Commonwealth v. Leggett , 16 A.3d 1144, 1146 n.7 (Pa. Super. 2011) (citation omitted).

2 Hybrid representation is not permitted. Commonwealth v. Ellis , 626 A.2d 1137, 1139 (Pa. 1993).J-A16001-16

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appellant’s timely pro se motions without deeming them hybrid because the appellant had no counsel during the post-sentence m otion period. Here, however, the trial court appointed counsel be fore the time in which to file post-sentence motions expired. Thus, as noted, Appellant had counsel throughout the proceedings. The Public Def ender, however, did not file post-sentence motions, and Appellant filed the m pro se . Even if we excused the hybrid nature of the motions pursuant t o Leatherby , the

motions were untimely , and we discern no mechanism by which this tardiness may be exempted. The five-day delay betw een the date the postsentence motions were due, January 23, 2015, and th e date the motions were filed, January 28, 2015, cannot be excused bas ed on the record before us. Moreover, because there is nothing upon which this Court can conduct a mailbox-rule analysis, we conclude Appellant’s chal lenge to the discretionary aspects of his sentence is waived for failing to pr eserve it in a timely-filed post-sentence motion. Moury , 992 A.2d at 170. For these same reasons, we conclude that Appellant’ s challenge to the weight of the evidence is waived. The Pennsylvania Rules of Criminal Procedure require that a “claim that the verdict is against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencin g; (2) by written motion at any time before sentencing; or (3) in a post-sen tence motion.” Pa.R.Crim.P. 607. A challenge to the weight of the evidence “must beJ-A16001-16

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presented to the trial court while it exercises jur isdiction over the matter because appellate review of a weight claim is a rev iew of the exercise of discretion, not of the underlying question of wheth er the verdict is against the weight of the evidence.” Commonwealth v. Burkett , 830 A.2d 1034, 1037 (Pa. Super. 2003) (internal quotation marks an d citation omitted). Appellant failed to preserve his challenge to the w eight of the evidence claim orally or in writing prior to sentencing, and as di scussed above, his postsentence motion was untimely. As such, Appellant f ailed to properly present his post-sentence motions resulting in waiver of hi s challenge to the weight

of the evidence. Id

. For the reasons discussed above, Appellant failed t o properly preserve either of his issues on appeal. Accordingly, we af firm the judgment of

sentence. Judgment of sentence affirmed. Judge Olson Concurs in the Result. Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/28/2016J-A16001-16

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