J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL HARRIS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2255 EDA 2020

Appeal from the Judgment of Sentence Entered October 20, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0000081

- 2018

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JA NUARY 11, 2 022

Michael Harris appeals from the judgment of sentence entered following

his jury trial conviction for attempted sexual assault. 18 Pa.C.S.A. § § 901,

3124.1. Harris challenges the discretionary aspects of his sentence. We affirm.

The trial court set forth the following factual and procedural history:

Harris, was arrested and was charged with attempted rape

and attempted sexual assault of the complainant, [M.G.]

, on

October 27, 2016. [M.G.] had been working with [Harris] as

a publicist and assistant organizing fundraising and speaker

events for him for approximately eight to ten months.

Evidence at trial revealed that on the evening in question,

[M.G.] had attended a client event with [Harris] and at the

end of the evening when he was driving her home; [Harris]

had isolated and secluded the complainant in Fairmount

Park instead of taking her home as she had repeatedly

requested. Instead of heeding her requests, [Harris] drove

her to a dark part of the park, parked his car, [and] forced

her out of the vehicle when she had stated that she had to

urinate. After she had alighted from the vehicle, he forced

himself upon her by approaching her from behind, puttingJ

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- both of his arms under her armpits and grabbing her away

from the street and past the bushes.

[Harris]

, a considerably larger individual, then bent [M.G.’s]

body facedown over a park bench, restrained her with one

hand on her neck and used his other hand to pull down her

pants and underwear. Once she had been pinned, he pulled

out his penis and attempted to insert it into her vagina. As

[Harris] restrained her, the complainant struggled,

screamed, and cried.

As she pleaded for him to stop, she reminded [Harris] that

she had been raped before and asked him how he could do

this to her as his friend. [Harris] finally stopped when his

penis went limp.

Frustrated, [Harris] then told the complainant that she had

“ messed up ” and that she “ just made it harder ” on herself

the next time. He claimed that the next time was going to

be more “ volatile. ” Scared that he was going to kill her,

[M.G.] got back in [Harris’s] car and he dropped her off at

a nearby home of her cousin. Later that same day, the

complainant told her mom what had happened and they

called the police to report what had happened. Two days

later, on October 29, 2016, [Harris] e

- mailed the

complainant, “ You okay? You okay? ” The complainant did

not respond right away. When she did respond, she replied

that she had gotten his text messages and calls, but to

answer his questions, “ No, I'm not okay; ” “ How dare you

have the audacity to act like nothing happened, that you

didn't try to rape me in the park. When you bent me over

the bench and told me it would be more volatile for me next

time. So to answer your question, No, Mike, I ’ m not okay.

Stop contacting me. ” [Harris’s] response was not a denial;

he simply said that he had been joking. (N.T. 2/19/2020,

pp. 33

— 119).

Trial Court Opinion, filed June 8, 2021, at 1

- 3 (footnotes omitted)

.J

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On February 24, 2020, a jury convicted Harris of attempted sexual

assault. 1 After receiving a presentence report and mental health evaluation

,

the court sentenced Harris to a term of four to eight years ’ incarceration

followed by three years ’ reporting proba tion and designat ed Harris as a Tier

III sex offender. On October 13, 2020, Harris filed post

- sentence motions

asserting that the jury verdict was against the weight of the evidence and

requesting reconsideration and modification of the sentence. On October 20,

2020, t he trial court denied the motion seeking a new trial but granted the

motion to reconsider the sentence. After a hearing, t he court re

- sentenced

Harris to a reduced term of 3 1⁄2 to 7 years ’ incarceration followed by three

years of state supervised probation. Harris did not file a post

- sentence motion

following his re

- sentencing. Harris filed a timely notice of appeal.

Harris raises the following issues on appeal:

1. Whether the lower court erred and abused its discretion

in sentencing [Harris]

.

A. [Harris’s] sentence was manifestly extreme,

excessive, and clearly unreasonable.

B. The trial court improperly considered as aggravating

factors matters already considered by the standard

guideline range.

i. The trial court improperly sentenced [Harris] in the

aggravated range when the facts found by the jury did

not deviate from the norm contemplated by the

sentencing guidelines for Attempted Sexual Assault;

_________________ __________ ______ ____ _______

1 The jury found Harris not guilty of attempted rape

, 18 Pa.C.S.A. §

3121(a)(1).J

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- ii. The trial court, by sentencing [Harris] in the

aggravated range, penalized [Harris] for exercising

trial rights.

C. The trial court sentenced [Harris] out of partiality,

prejudice, bias and/or ill will.

D. The trial court’s findings and opinion of [Harris] at

sentencing is unsupported by the record, including but

not limited to, where the trial court opined that

[Harris] denigrated and stalked the victim and used

his position as a weapon, and that [Harris] had deep

seated issues and/or resentment with women.

i. Although [Harris] had juvenile adjudications and

this conviction, [Harris] otherwise lived a life of

positive mentorship and positive relationships, even

with women, in his family, community, and business,

as indicated by his character letters tha t the Trial

Court failed to properly weigh and consider.

E. The trial court improperly disregarding or failed to

properly weigh [Harris’s] character, family

relationships, rehabilitation efforts and amenability,

and remorse for the impact upon the victim, along

with mitigating statutory factors.

F. [Harris] believes that the trial court sentenced him out

of prejudice and more harshly misjudged him because

he is an African American ma le who showed pride in

his business and mentorships.

G. The trial court sentenced [Harris] in the aggravated

range with fi nding of facts under 18 Pa.C.S.A. § 3133,

sexual extortion, for which he was not charged or

convicted. [ 2 ]

H. The trial court sentenced [Harris] in the aggravated

range with finding of facts of attempted rape by

forcible compulsion and/or threat of force, 18

Pa.C.S.A. § 3121, and rape, 18 Pa.C.S.A. [§] 901(A),

_________________ __________ ______ ____ _______

2 Although Harris included this issue in his statement of issues, he withdrew it

in the argument section of his brief. Harris’s Br. at 23.J

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- when the jury rejected those facts and acquitted

[Harris]

.

Harris’s Br. at 6

- 7.

Harris argues that the trial court abused its discretion when imposing

sentence. He claims it misapplied the law, imposed a manifestly excessive

sentence, and exercised judgment for reasons of partiality, prejudice, bias, or

ill

- will. H e asserts that running the term of probation consecutive to the term

of incarceration resulted in an excessive aggregate sentence

. Further, he

claims the court failed to consider the mitigating facts before it, including the

trauma Harris endured as a child, his health problems and hospitalizations,

and his acceptance of responsibility and remorse. He argues this claim of

excessiveness coupled with failure to consider mitigating factors raises a

substantial question.

Harris further claims the court “improperly sentenced [him] in the

aggravated range when the facts found by the jury did not deviate from the

norm contemplated by the sentencing guidelines for Attempted Sexual

Assault.” Harris’s Br. at 13

- 14. He claims the court’s only basis for re

sentencing him in the aggravated range was his decision to go to trial.

Harris next claims the court’s sentenc e could only have been out of

partiality, prejudice, bias, or ill will. He claims the court sentenced him more

harshly because he was an African American male who showed pride in hi s

business. He alleges the record does not support the court’s findings or its

opinion of Harris, including the court’s opinions that Harris denigrated and

stalked the victim, used his position as a weapon, and had deep seated issuesJ

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with women. Harris further claims the court based the sentence on facts of

attempted rape by forcible compulsion, of which the jury acquitted him. The

use of such facts was therefore improper.

In his issues, Harris challenges the discretion aspects of his sentence.

There is no absolute right to appeal the discretionary aspects of a sentence.

Commonwealth v. Cartrette

, 83 A.3d 1030, 1042 (Pa.Super. 2013) ( en

banc ). Rather, we follow a four

- part analysis before addressing a challenge to

discretionary aspects of sentence. We must determine whether the appellant:

(1) filed a timely notice of appeal; (2) properly preserved the sentencing issue

at sentencing or in a motion to reconsider or modify sentence; (3) included in

the appellate brief a concise statement of the reasons relied upon for

allowance of appeal ; and (4) asserted a substantial question that the sentence

is not appropriate under the Sentencing Code. See Commonwealth v.

Austin

, 66 A.3d 798, 808 (Pa.Super. 2013); 42 Pa.C.S.A. § 9781(b). “[I]f the

appeal satisfies each of these four requirements, we will then proceed to

decide the substantive merits of the case.” Austin , 66 A.3d at 808 (citation

omitted).

Here, Harris filed a timely notice of appeal. However, he did not file a

post

- sentence motion following his re

- sentencing and therefore waived the

claims. See Commonwealth v. Levy

, 83 A.3d 457, 467 (Pa.Super. 2013)

(failure to file new post

- sentence motion after resentencing waived

defendant ’ s appeal of discretionary aspects of sentence) ; Commonwealth v.

Kephart

, 2021 WL 1716642, at *4 (Pa.Super. filed Apr. 30, 2021) (notingJ

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that if counsel failed to file a post

- sentence motion following re

- sentencing,

any challenge to the discretionary aspects of the appellant’s sentence would

be waived) ; see also Commonwealth v. Broadie

, 4 89 A.2d 218, 220

(Pa.Super. 1985) (finding “[a] modified sentence constitutes a new sentence

from the date of which the time for filing a notice of appeal will begin to run

anew ” and that “[i] f the party who filed the original motion is still dissatisfied

with the sentence, a second motion gives the sentencing court the first

opportunity to modify the new sentence ”)

. Harris furthermore did not include

a concise statement of reasons relied upon for allowance of appeal in a

separately

- title d section of the brief , and the Commonwealth has objected

.

See Pa.R.A.P. 2119(f). Although he included in the body of his brief some

argument that the issues raised were substantial questions, because such

argument was not in a separate sec tion, we cannot review the claims

. See

Commonwealth v. Weir , 201 A.3d 163, 175 (Pa.Super. 2018) ;

Commonwealth v. Griffin , 149 A.3d 349, 353 (Pa.Super. 2016 )

.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/2022