J. S20005/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JEFFREY BIDELMAN, : No. 1982 WDA 2013

:

 Appellant :

Appeal from the Judgment of Sentence, July 11, 2013,

in the Court of Common Pleas of Cambria County

Criminal Division at Nos. CP-11-CR-0000433-2012,

CP-11-CR-0001900-2010, CP-11-CR-0001901-2010

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2015

Jeffrey Bidelman appeals from the judgment of sentence entered on 

July 11, 2013, in the Court of Common Pleas of Cambria County. We affirm. 

The charges filed at Docket Numbers 

1901-2010 and 433-2012 stem from an incident in 

which [appellant] and Jason Truscott 

[“Co-Defendant”] conspired to steal, inter alia, a ring 

and savings bond from a home. Several years later, 

[appellant] and Co-Defendant discussed cashing the 

stolen bonds during a conversation that was 

wire-tapped by police. Subsequently, [appellant] 

was found to be in possession of the bonds. The 

charges filed at Docket Number 1900-2010 stem 

from an incident in which [appellant] and two other 

individuals were in possession of various stolen 

items, which were recovered at [appellant’s] place of 

employment. [Appellant] admitted his involvement 

to the investigating detective. 

On May 30, 2013, [appellant] pleaded 

nolo contendere to Receiving Stolen Property (a 
J. S20005/15

- 2 -

Felony 3) (Docket No. 1901-2010); Criminal 

Conspiracy to Commit Theft by Unlawful Taking (a 

Misdemeanor 1) (No. 433-2012); and Receiving 

Stolen Property (a Misdemeanor 1) (No. 1900-2010). 

On July 11, 2013, this Court sentenced [appellant] to 

nine months[’] house arrest followed by 

12 months[’] probation on the felony Receiving 

Stolen Property charge; 12 months[’] consecutive 

probation on Criminal Conspiracy to Commit Theft by 

Unlawful Taking; and 12 months[’] consecutive 

probation on the misdemeanor Receiving Stolen 

Property charge. On October 17, 2013, the Court 

conducted a restitution hearing in the case entered 

to Docket No. 433-2012 and ordered [appellant] and 

Co-Defendant to pay restitution in the amount of 

$14,917.50 jointly and severally. [Appellant] filed 

timely post-sentence motions, which were denied by 

Order dated November 12, 2013. [Appellant] now 

submits a Concise Statement of Matters Complained 

of on Appeal, raising five properly preserved issues.

Trial court opinion, 2/17/14 at 1-2 (citations and footnote omitted).

The following claims have been presented for our review:

A. Whether the lower court erred in sentencing 

Appellant to a period of house arrest rather 

than a period of probation[?]

B. Whether the lower court erred by sentencing 

Appellant without sufficient information as to 

the facts of the case prior to imposing 

sentence[?]

C. Whether the lower court erred by sentencing 

Appellant to a period of home confinement 

while a co-defendant received a probation 

term[?]

D. Whether the lower court erred by failing to find 

trial counsel ineffective by promising Appellant 

he would only receive a probation term[?]
J. S20005/15

- 3 -

E. Whether the lower court erred by failing to find 

trial counsel ineffective because he failed to 

withdraw Appellant’s nolo contendre plea[?]

Appellant’s brief at 4. 

Appellant’s first three claims challenge the discretionary aspects of his 

sentence. Appellant’s plea of nolo contendere does not bar a discretionary 

sentencing challenge because there was no agreement as to the sentence 

appellant would receive. See Commonwealth v. Ritchey, 779 A.2d 1183, 

1185 (Pa.Super. 2001) (acknowledging precedent that where there are no 

sentencing restrictions in the plea agreement, the entry of a guilty plea will 

not preclude a subsequent challenge to the discretionary aspects of 

sentencing).

“Issues challenging the discretionary aspects of a sentence must be 

raised in a post-sentence motion or by presenting the claim to the trial court 

during the sentencing proceedings. Absent such efforts, an objection to a 

discretionary aspect of a sentence is waived.” Commonwealth v. McAfee, 

849 A.2d 270, 275 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 

2004). As noted, appellant filed a timely motion for reconsideration of 

sentence. 

The right to appeal the discretionary aspects of a sentence is not 

absolute. Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa.Super. 

2003). 

When challenging the discretionary aspects of the 

sentence imposed, an appellant must present a 
J. S20005/15

- 4 -

substantial question as to the inappropriateness of 

the sentence. Two requirements must be met before 

we will review this challenge on its merits. First, an 

appellant must 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. Second, the appellant must show that 

there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing 

Code. That is, [that] the sentence violates either a 

specific provision of the sentencing scheme set forth 

in the Sentencing Code or a particular fundamental 

norm underlying the sentencing process. We 

examine an appellant’s Pa.R.A.P. 2119(f) statement 

to determine whether a substantial question exists. 

Our inquiry must focus on the reasons for which the 

appeal is sought, in contrast to the facts underlying 

the appeal, which are necessary only to decide the 

appeal on the merits. 

Commonwealth v. Ahmad, 961 A.2d 884, 886-887 (Pa.Super. 2008) 

(citations, quotation marks, and footnote omitted).

Appellant has included in his brief a concise statement of the reasons 

relied on for allowance of appeal as to the discretionary aspects of his 

sentence; thus, he has complied with the procedural requirement of 

Pa.R.A.P. 2119(f). Commonwealth v. Hornaman, 920 A.2d 1282, 1284 

(Pa.Super. 2007). Therefore, we proceed to determine whether appellant 

has presented a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code. Id.
J. S20005/15

- 5 -

In his Rule 2119(f) statement, appellant presents two claims.1 First, 

appellant argues the sentencing court abused its discretion in failing to take 

into account all relevant information resulting in a disparate sentence of 

home confinement for appellant while his co-defendant received probation.2 

We conclude this claim raises a substantial question. Commonwealth v. 

Cleveland, 703 A.2d 1046 (Pa.Super. 1997) (holding substantial question 

raised where the appellant averred an unexplained disparity between his 

sentence and that of his co-defendant); Commonwealth v. Krysiak, 535 

A.2d 165, 167 (Pa.Super. 1987) (“[D]isparate sentences between two or 

more co-defendants constitutes a substantial question necessitating our 

exercise of jurisdiction to review.”). This claim, however, is meritless and 

we affirm based on the trial court’s Rule 1925(a) opinion. (See trial court 

opinion, 2/17/14 at 3-4.) 

Appellant’s Rule 2119(f) statement also challenges the propriety of the 

court’s restitution award.3 Specifically, he posits that the court determined 

 

1 At the outset, we note appellant’s Rule 2119(f) statement fails to describe 

what the guidelines were or where appellant’s sentence falls in relation to 

those guidelines.

2 As noted, appellant filed a post-sentence motion which alleged that the 

trial court abused its discretion when it sentenced appellant to house arrest 

rather than probation which his co-defendant received. 

3 See In the Interest of M. W., 725 A.2d 729, 731 n.4 (Pa. 1999) (holding 

that, while challenges concerning the amount of restitution involve the 

discretionary aspects of sentencing, questions regarding the court’s authority 

with respect to ordering restitution implicate the legality of a sentence).
J. S20005/15

- 6 -

restitution based on speculation. (Appellant’s brief at 9.) We find this claim 

to be waived as appellant failed to present this issue to the trial court in his 

concise statement of errors complained of on appeal filed pursuant to 

Pa.R.A.P. 1925(b). See Pa.R.A.P. 302(a) and Docket #68.

Appellant’s next two claims concern the effective assistance of counsel. 

We find these claims to be premature and should properly be raised, if 

necessary, in a petition pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. Our supreme court recently reaffirmed the 

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in 

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Therein, the Holmes

court held “claims of ineffective assistance of counsel are to be deferred to 

PCRA review; trial courts should not entertain claims of ineffectiveness upon 

post-verdict motions; and such claims should not be reviewed upon direct 

appeal.” Id. at 576. The court noted two narrow exceptions for 

“extraordinary circumstances” to the broader rule, “where the trial court, in 

the exercise of its discretion, determines that a claim (or claims) of 

ineffective assistance is both meritorious and apparent from the record so 

that immediate consideration and relief is warranted,” and allowing review 

for “good cause,” such as the shortness of a sentence, or “multiple, and 

indeed comprehensive, ineffectiveness claims if such review is accomplished 

by a waiver of PCRA rights.” Id. at 577-578.
J. S20005/15

- 7 -

Instantly, the trial court did not find the claim to be meritorious, 

appellant has not alleged any “good cause” for seeking unitary review, and 

appellant has not stated his intention to waive collateral review. Thus, 

neither of the exceptions outlined in Holmes is applicable here, and the 

instant claim is not reviewable on this direct appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2015
:''; 

charges filed at Docket Number 1900-2010'stem from an incident in which Defendant and two 

BACKGROUND 

The charges filed at Docket Numbers 1901·2010 and 433-2012 stem from an incident in 

which Jeffrey Bidelman ["Defendant')] and Jason Truscott ["Co-Defendant"] conspired lo steal; 

inter alia, a ring and savings bonds from a home. N.T. (May 30, 2013), p. 9; AMENDED 

INFORMATIONS (May 23, 2013). Several years later, Defendant and Co-~efendarit' discussed· 

cashing the stolen bonds during a conversation that was wire-tapped by police. N.T. (May 30, 

2013), p. 10. · Subsequently, Defendant was found to be in :possession of the bonds. Ii The· 

' . ' ' 

FLEMING, J., February 17, 2014. Pursuant to Pennsylvania Rule of Appellate 

Procedure 1925( a), the .trial court P!esents the following Statement in_ Support of Orders dated 

'-.. 

November:-12;· 2013; December 4, 2013; and December 13, 2013: 

STATEMENT IN SUPPORT OF ORDER PURSUANT TO 

PENNSYLVANIA RULE OF APPELLATE PROCEDURE 192S(a) 

************** 

For Defendant/ Appellant: KEVIN J. ROZICH, ESQUIRE 

SCOTT M. LILLY, ESQUIRE 

Chief Deputy, Appellate Division 

Office of the District Attorney 

For the Commonwealth: 

APPEARANCES: 

,:;::, N i.. .. , ************'** 

( .. ,) .. - . .. 

Defendant/Appellant. 

JEFFREY BIDELMAN; 

V. 

1900-2010; 1901·2010; 

433.2012 '•, ~ 

... :;:: 1·. 

•.:r: Io , • ...,., ,·-:~! 

.,~'.: r1 ··:.1 

aJ 

COJ:vrMON\VEALTH O Nos. F PENNSYL V AL~IA,: 

IN THE COURT OF COMMON PLEAS OF CAMBIUA COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

FEB 210 20f4 

Circulated 03/31/2015 10:15 AM 
2 

1 . . . 

~de Court also filed an Amended Order on December 13, 2013, which specified 'to whom restitution was to be 

pm . ORDER DATED DEC. 13, 2013. 

,r I. "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a 

sentence will not be .disturbcd on appeal absent a manifest abuse of discretion." Commw. v .: 

Rodda, 723 A.2d 212,.214 (Pa. Super. 1999) (internal citations and quotations omitted). At 

De~endant's · sentencing, trial counsel and the Court reviewed the standard minimum range of 

sentence with Defendant, i.e., restorative sanctions to nine months incarceration (RS-9). N.T. 

(May 30, 2.013), p. 3; N.T. (July 11, .2013), pp. 3-4. Defendant's sentence of nine months 

Pumorted Error No. 1 

. First, Defendant argues the Trial Court erred .in sentencing Defendant to house arrest 

rather than probation in the case entered to Docket Number 1901-2010. CONCISE STATEMENT 

. ' 

other individuals were in possession of various stolen items, which were recovered at 

Defendant's place of employment Id. at p. 10. Defendant admitted his involvement to the 

investigating detective. Id. , 

On May 30, 2013, Defendant pleaded nolo coniendre to Receiving Stolen Property (a 

' . 

Felony 3) (Docket No. 1901-2010); Criminal Conspiracy to Commit Theft by Unlawful Taking 

. (a Misdemeanor 1) (No. 433-2012); and Receiving Stolen Property (a Misdemeanor 1) (No. 

1900-2010). See generally, N.T. (May 30, 2013), p 2; and Noui CONTENDRE' PLEA 

EXPLANATION OF DEFENDANT'S ~GHTS (May 3t 2013). On July 11, 2013, this Court 

sentenced Defendant to nine months house arrest followed by 12 months probation on the 

felony Receiving Stolen Property charge; 12 months consecutive probation on Criminal 

.Conspiracy to Commit Theft by Unlawful Taking; and 12 months consecutive probation on the 

. . 

misdemeanor Receiving Stolen Property charge. SENTENCES (July 1 t 2013). On October 17, 

2013, the Court conducted a restitution hearing in the case entered to Docket No. 433-2012, 

and ordered Defendant and Co-Defendant to pay restitution in the amount of $14,917.50, 

jointly and severally. ORDER DATED DEC. 4, 2013.1 Defend~t filed timely. post-sentence 

motions, whichwere denied by Order dated November 12, 2013. Defendant now submits a 

Concise Statement of Matters Complained of.on Appeal, raising five properly preserved issues. 

· DISCUSSION 

Circulated 03/31/2015 10:15 AM 
Commw. v. Myers, 536 A.2d 428,_430 (Pa Super. i 988) (internal citations omitted). 

In the case at· bar, Co--Defendant pleaded guilty in a separate proceeding and was 

sentenced by a different judge than D~fendant. Thus, no explanation of the disparity in 

sentencing is required." Nonetheless, there jg an obvious reason why Defendant's sentence 

differs from that of his C_o-Defendant. On June 6, 2013, Co-Defendant pleaded guilty to three 

first-degree misdemeanors. On July 15, 2013, he was sentenced by President Judge Timothy P. 

Creany to 54 months probation. CAt.,IBRIA COUNTY DOCKE'f .NUMBERS' 737.2012; 1899-2010; 

AND 1902-2010. It is axiomatic that Co-Defendant's sentence for three misdemeanor offenses 

Elli:gorted Error No. 3 

Next, Defendant asserts that house arrest was not appropriate in light'Co-Defendant's 

probationary sentence. CoNCIS.E STATEMENT,~ 3. Our appellate courts have provided guidance 

· to trial courts regarding tbe sentencing of co-defendants as follows: 

b sentencing court is not required to impose the same sentence on all participants 

in a crime. Moreover, when a defendant's accomplice is tried, or pleads guilty, in 

a separate proceeding! and is sentenced by a different judge, the sentencing court 

is not required to explain a disparity between the defendant's sentence and that of 

theaccomplice. 

Purported Error No. 2 

Defendant argues the Trial 'Court lacked sufficient information to impose sentence. 

CONCISE STATEMENT, 1 2. Defe;}~ant pleaded nolo contendre to the fa~ts set forth by the 

Assistant District Attorney at the plea hearing. N.T.. (May 30, 2013), pp. 9-10. The Court 

reviewed the .elements of the crimes. and Defendant acknowle_dged that the facts.as presented, 

satisfied. the elements of the crimes. Id. at p. 11. Regarding the restitution imposed, this Court 

relies on its Opinion d;ted December 41 2013. For the aforementioned reasons and the reasons 

set forth in its December 4, 2013 Opinion, Defendant's second purported e1TOr should be 

denied. 

incarceration is within the standard mLnimum range of sentence. Accordi:ngly, Defend·ant's 

first alleged error should be denied. 

Circulated 03/31/2015 10:15 AM 
4 

2 Ostensibly, Defendant referred to Assistant District Attorney Tamara Bernstein. 

OOQ.rted Error No. 5 

Finally, Defendant claims counsel wa~ ineffective for failing to file a motion to 

- . withdraw the plea. CONCISE -STAT~MENT, is. When considering a petition to withdraw a plea 

submitted after sentencing, "it is well-established that a showing of prejudice on the order of 

manifest injustice is required bef?re withdrawal is properly justified." Commw. v. Johns, 812 

A.2d 1260, 1262 (Pa. Super. 2002). Ostensibly, Defendant now argues that trial counsel was 

. . DEFENDANT'S RIGHTS (May. 31, 2013 ). It is clear Defendant was aware no promise existed as 

to. sentencing. Accordingly, Defendant's fourth purported error should be denied. 

N.T. (May 30, 2013), p. 11-12; see also NOLO CONTENDRE PLEA EXPLANATION OF 

2 If you mean with her, no. 

Anyone. 

No. 

Defendant: 

Court. 

Defendant: 

Court: 

Okay. 

That is not the same as aprornise to you that you would receive a certain 

sentence. So I know that 1Y1r. Sottile has discussed the sentence. with 

you. Has anyone promised you that you would get any certain senten~_e? 

Defendant: 

I. Purported Error No. 4 · . . 

I · Next, Defendant asserts that trial counsel was ineffective in ''promising1' he would 

I receive. a probationary sentence. CONCISE STATEtv[ENT, ~ 4. At sentencing, Defendant was 

unequivocally advised that no such "promise" existed: . 

Court: Have any promises been made to you regarding the sentence you would 

receive? There's a difference - I know you discussed the range of 

sentences with your attorney and he explained to you the sentencing 

matrix and how the offense gravity score of the offenses is combined 

with your prior record, if any, to determine a permissible range of 

sentences for me to impose. 

For these 

· b ared to Defendant's sentence foe two misdemeanors and a felony. 

· cannot e con1pu;. v.l' < 

reasons, Defendant's third purported error cannot succeed. 

Circulated 03/31/2015 10:15 AM 
,e" 

RESPECTFULLY SUBMITTED, 

CONCLUSION 

For the reasons set forth above, 'Defendant's appeal should be denied and the Trial 

Court's Orders of November 12, 2013; December 4, 2013; and December 13, 2013 should be 

affirmed. 

cannot succeed as he fails to demonstrate a "showing of prejudice on the order of manifest 

ineffective for failing to file a motion to withdraw the when Defendant did not receive the 

probationary sentence allegedly promised to h.im. CONCISE STATE,MENT, ,1,r 4, 5. For the 

reasons set forth above, no such promise existed. Therefore, Defendant's fifth purported error 

I ' injustice." 

11 

I 

Circulated 03/31/2015 10:15 AM