J-A29018-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FRANKLIN D. LONG 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3214 EDA 2017

Appeal from the Judgment of Sentence March 16, 2017

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

No(s): CP-23-CR-0002941-2016

BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.

CONCURRING/DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED 

JUNE 26, 2019

I concur with the Majority’s affirming of Appellant’s convictions. 

However, I respectfully disagree that Appellant is entitled to relief on his claim 

that his right to allocution was violated, and therefore, it is unnecessary to 

vacate Appellant’s judgment of sentence and remand for resentencing on this 

basis. 

As the Majority indicates, Pa.R.Crim.P. 704(C)(1) provides, in relevant 

part, that “[a]t the time of sentencing, the judge shall afford the defendant 

the opportunity to make a statement.” Pa.R.Crim.P. 704(C)(1). It is the 

sentencing court’s obligation to inform the defendant of his right to speak prior 

to sentencing. Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 

(1989). However, errors pertaining to the right of allocution may be waived 
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for appellate review where not properly challenged in the trial court. See 

Commonwealth v. Hardy, 99 A.3d 577 (Pa.Super. 2014). 

In the case sub judice, immediately after the trial court announced 

Appellant’s sentence, defense counsel informed the trial court that Appellant 

wished to read a statement of allocution. N.T., 3/16/17, at 78. The trial court, 

indicating that it would fully consider the statement and make any necessary 

changes to Appellant’s sentence, permitted Appellant to read his statement. 

Id. at 78-80. As Appellant read his statement, he began looking in the 

courtroom for the victim and the family; however, they had already left the 

courtroom. Id. at 79-80. After Appellant concluded his statement, the trial 

court specifically stated it considered Appellant’s statement, indicated that the 

statement did not change the court’s sentence, and confirmed Appellant’s 

aggregate sentence was ten years’ incarceration to be followed by seven years 

of probation. Id. at 80-81. Defense counsel presented no objection 

pertaining to a violation of Appellant’s right to allocution.

Thereafter, in his post-sentence motion, Appellant complained the trial 

court violated his right to allocution by not giving him an opportunity to make 

a statement prior to sentencing when the victim and family members were 

still in the courtroom. Specifically, Appellant suggested the trial court failed 

to provide him “with an opportunity to assert his Constitutional right to 

allocute and address the complaining witness[;]” “by the time he was finally 

permitted allocution, [Appellant] turned to address the family but they had
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already left[;]” and “the fact that [Appellant] was not permitted his right to 

allocution and not able to apologize to the family when they were still in the 

room, is a violation of [Appellant’s] right to allocution and should result in a 

new sentencing hearing.” Appellant’s Post Sentence Motion, filed 3/27/17, at 

¶ 6. 

However, Appellant is mistaken that his right of allocution extends to 

the victim and family. Rather, “[t]he significance of allocution lies in its 

potential to sway the court toward leniency prior to imposition of sentence.” 

Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa.Super. 2003) (bold 

added). Therefore, based on the arguments presented to the trial court with 

regard to Appellant’s allocution issue, Appellant is not entitled to relief on 

appeal, and I dissent on this basis. I concur in all other respects.