J-S35006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LYNELL LEE

Appellant No. 1878 EDA 2014

Appeal from the Judgment of Sentence June 5, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0700791-2005

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2015

Appellant, Lynell Lee, appeals from the June 5, 2014 judgment of 

sentence of three to six years’ imprisonment imposed following the 

revocation of his probation. After careful review, we affirm.

On August 9, 2005, Appellant pled guilty to burglary,1 pursuant to a 

negotiated plea agreement, and the trial court sentenced him to 111⁄2 to 23 

months’ imprisonment, followed by one year of reporting probation, with 

immediate parole to a drug treatment facility, once a bed became available. 

N.T., 8/9/05, at 10. On January 22, 2009, Appellant appeared before the 

trial court for a violation of probation hearing and was found to be in direct 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3502. 
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violation of probation. The trial court revoked his probation and resentenced 

him to two to four years’ imprisonment, followed by six years’ probation, 

concurrent to any other sentence Appellant was then serving. Trial Court 

Order, 1/22/09. On February 18, 2014, the trial court, following a violation 

of probation hearing, found Appellant had committed technical violations of 

his probation, but the trial court continued Appellant’s probation. Trial Court 

Order, 2/18/14. On June 5, 2014, Appellant again appeared before the trial 

court for a hearing for alleged violations of his probation. The trial court 

found Appellant was in technical violation of his probation, revoked 

probation, and resentenced Appellant to three to six years’ imprisonment. 

Appellant filed a timely notice of appeal on July 2, 2014. The trial 

court ordered Appellant to file a statement of matters complained of on 

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) on 

August 11, 2014, and Appellant complied. The trial court filed a responsive 

opinion pursuant to Rule 1925(a) on October 1, 2014.2 Appellant's Rule 

1925(b) statement advances the following sole claim of error. 

The trial court’s sentence was excessively harsh and 

an abuse of discretion for a violation of probation 

where it failed to consider all the sentencing factors 

____________________________________________

2 We note the trial court found Appellant’s 1925(b) statement was one day 

late. Trial Court Opinion, 10/1/14, at 4 n.1. However, the trial court 

granted Appellant an extension of 21 days to file the statement on August 

29, 2014. Trial Court Order, 8/29/14. On September 19, 2014, Appellant 

timely complied. Thus, his statement was timely.
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on the record and was excessive in light of the 

violation and the [Appellant’s] mitigating evidence.

Appellant’s Rule 1925(b) Statement, 9/19/14.

On appeal, Appellant seeks review of the following two issues.

1. Whether the [trial court] [e]rred in [f]inding

[Appellant] in [v]iolation of [h]is 

[p]robation/[p]arole?

2. Whether the [trial court] abused its discretion 

and imposed an excessive sentence without giving 

weight to [Appellant’s] mitigating evidence?

Appellant’s Brief at 3.

By its plain text, Rule 1925(b) requires that statements “identify each 

ruling or error that the appellant intends to challenge with sufficient detail to 

identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). The 

Rule also requires that “[e]ach error identified in the Statement will be 

deemed to include every subsidiary issue contained therein which was raised 

in the trial court ....” Id. at 1925(b)(4)(v). Finally, any issues not raised in 

accordance with Rule 1925(b)(4) will be deemed waived. Id. at 

1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a brightline rule, and “any issues not raised in a Rule 1925(b) statement will be 

deemed waived.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011); 

accord Pa.R.A.P. 1925(b)(4)(vii). Instantly, Appellant has failed to include 

his first issue on appeal in his 1925(b) statement. See Appellant’s Rule 

1925(b) Statement, 9/19/14. Accordingly, the issue is waived.
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In his second issue, Appellant challenges the discretionary aspects of 

his sentence. Appellant’s Brief at 9. 

It is well settled that, with regard to the 

discretionary aspects of sentencing, there is no 

automatic right to appeal. [Therefore, b]efore we 

reach the merits of this issue, we must engage in a 

four part analysis to determine: (1) whether the 

appeal is timely; (2) whether Appellant preserved his 

issue; (3) whether Appellant’s brief includes a 

concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary 

aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the 

sentence is appropriate under the sentencing code. 

The third and fourth of these requirements arise 

because Appellant’s attack on his sentence is not an 

appeal as of right. Rather, he must petition this 

Court, in his concise statement of reasons, to grant 

consideration of his appeal on the grounds that there 

is a substantial question. [I]f the appeal satisfies 

each of these four requirements, we will then 

proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013) 

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

Upon review of the record, we conclude Appellant has failed to 

preserve his claim. Appellant did not object to his sentence at the 

sentencing hearing, nor did Appellant file a post-sentence motion. 

Therefore, Appellant has waived the issue for failure to raise it in the trial 

court. See Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”). Further, 

Appellant failed to include a statement pursuant to Pennsylvania Rule of 

Appellate Procedure 2119(f) in his brief, and the Commonwealth has noted 
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its objection to its absence. Commonwealth Brief at 9. “If a defendant fails 

to include an issue in his Rule 2119(f) statement, and the Commonwealth 

objects, then the issue is waived and this Court may not review the claim.” 

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation 

omitted), appeal denied, 65 A.3d 413 (Pa. 2013). 

Based on the foregoing, we conclude Appellant has waived all of his 

challenges on appeal, and we affirm the June 5, 2014 judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015