J-S20018-16

* Retired Senior Judge assigned to the Superior Cou rt NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DAMONTAE ANTHONY WILLIAMS, Appellant No. 857 WDA 2015

Appeal from the Judgment of Sentence of April 28, 2 015 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001398-2012 BEFORE: PANELLA, OLSON and PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED MARCH 11, 2016 Appellant, Damontae Anthony Williams, appeals from the judgment of sentence entered on April 28, 2015. We affirm. This Court previously set forth the factual backgr ound of this case as

follows: On July 25, 2012, at approximately 5:00 [p.m.], App ellant was transported in a silver Plymouth Neon automobile by Odell Littles (Littles) . . . to the Cricket Wireless Store locat ed in the Walmart Plaza Shopping Center on Route 18 in Center Townshi p, Beaver County, for the intended purpose of making payment of Appellant’s [cellular] telephone bill. Upon arriva l, Appellant exited the vehicle while Littles remained in the ca r. Appellant entered the Cricket Wireless Store and conversed wi th the salesperson, Daniel Clear (Clear), regarding access ories for his cellular telephone. After choosing the desired accessories and preparin g to pay for the items at the cash register, Appellant displayed a black semiautomatic handgun pointed within six to twelve inch es of Clear’s chest and demanded money from the cash register. C learJ-S20018-16

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complied by placing what was later determined to be $1,163.00 into a green plastic bag, together with the merchan dise that Appellant had chosen. Appellant then departed the store. . . . After entering the vehicle, much to the surprise of Littles, Appellant informed Littles that he had robbed the s tore. Upon learning of Appellant’s actions, Littles drove the vehicle into Monaca Borough, proceeding on Pennsylvania Avenue, the main thoroughfare. Officer Alan Shaffer of the Monaca P olice Department . . . . entered his police vehicle and p ulled out of the station parking lot on to Pennsylvania Avenue headi ng in the direction of the Center Township Walmart Plaza for the purpose of rendering assistance, when he observed the silve r Neon approaching on Pennsylvania Avenue from the opposit e direction. He entered a parking lot, reversed his direction, activated his emergency lights[,] and began pursuit of the Neon automobile. Littles observed Officer Shaffer’s pol ice vehicle and informed Appellant that the police were following b ehind their car. Upon reaching the traffic signal at the inter section of Pennsylvania Avenue and 14 th Street, the Neon vehicle stopped for the red traffic signal. Appellant exited the front passenger side door and ran into the parking lot of CoGo’s Convenience Store located at the intersection. Officer Shaffer, while still in his vehicle, followed Appellant into the parking lot and inadvertently st ruck Appellant with the police vehicle in the leg, causing him to fall. Appellant immediately got up and continued to run from Office r Shaffer, who was in full uniform and in a marked police vehi cle. Officer Shaffer pursued Appellant on foot into the alley be hind CoGo’s, when Appellant turned, removed from his waist a han dgun[,] and fired three shots at Officer Shaffer, striking him with the first shot in the inner thigh of his right leg. Officer Shaffer drew his weapon and returned fire as Appellant hid behind se veral vehicles parked in the alley. As Officer Shaffer co ntinued his approach toward the vehicles, Appellant threw out h is weapon, laid face down on the ground[,] and surrendered. O fficer Rachel Dietz, the on-duty partner of Officer Shaffer, took Appellant into custody. . . . Officer Dietz inquired of Appellant as to whether h e possessed any other weapons and Appellant replied that a load ed weapon was located in his right shorts pocket. Appellant further stated that if his hands were free, he would shoot the off icers in theJ-S20018-16

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face. Upon arrival of other officers, the weapon i n Appellant’s pocket was removed together with a cigarette pack i n which a baggie, containing 40 packages of cocaine weighing 4.4 grams, was found. The weapon with which Appellant fired u pon Officer Shaffer was determined to be a .40 caliber semiauto matic weapon that had been stolen on July 12, 2012. The firearm located in his pocket was a .32 caliber fully loade d revolver. [Appellant] was not licensed to carry a firearm.

Commonwealth v. Williams , 97 A.3d 793 (table), 2014 WL 10982082, at *1 (Pa. Super. 2014) (unpublished memorandum) (inte rnal alterations and citation omitted; paragraph breaks added). The relevant procedural history of this case is as follows. On March 13, 2013, a jury found Appellant guilty of attempte d murder, 1 two counts of aggravated assault, 2 assault of a law enforcement officer, 3 robbery, 4 two counts of receiving stolen property, 5 possession of a firearm by a prohibited

person, 6 carrying a firearm without a license, 7 theft by unlawful taking, 8

1 18 Pa.C.S.A. §§ 901, 2502.

2 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(3).

3 18 Pa.C.S.A. § 2702.1(a).

4 18 Pa.C.S.A. § 3701(a)(1)(ii).

5 18 Pa.C.S.A. § 3925(a).

6 18 Pa.C.S.A. § 6105(a)(1).

7 18 Pa.C.S.A. § 6106(a)(1).

8 18 Pa.C.S.A. § 3921(a).J-S20018-16

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simple assault, 9 recklessly endangering another person, 10 possession with intent to deliver a controlled substance, 11 and possession of a controlled

substance. 12 Prior to sentencing, the Commonwealth filed notice of its intent to seek a mandatory minimum sentence of five years’ impriso nment for possession

with intent to deliver a controlled substance. See 42 Pa.C.S.A. § 9712.1,

held unconstitutional , Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) ( en banc ), appeal denied , 121 A.3d 496 (Pa. 2015). The

Commonwealth also filed notice of its intent to see k a mandatory minimum sentence of five years’ imprisonment for robbery wh ile in possession of a

firearm. See 42 Pa.C.S.A. § 9712, held unconstitutional , Commonwealth

v. Valentine , 101 A.3d 801 (Pa. Super. 2014), appeal denied , 124 A.3d 309 (Pa. 2015). On June 3, 2013, Appellant was sentenc ed to an aggregate term of 40 to 80 years’ imprisonment. The aggregat e sentence included mandatory minimum sentences of five to ten years’ i mprisonment for possession with intent to deliver a controlled subs tance and five to ten years’ imprisonment for robbery while in possession of a f irearm. Appellant filed a

9 18 Pa.C.S.A. § 2701(a)(1).

10 18 Pa.C.S.A. § 2705.

11 35 P.S. § 780-113(a)(30).

12 35 P.S. § 780-113(a)(16).J-S20018-16

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direct appeal and this Court affirmed. Commonwealth v. Williams , 97 A.3d 793 (Pa. Super. 2014) (unpublished memorandum)

. On October 2, 2014, Appellant filed a pro se petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel was appointed and counsel filed an amended petition. T he amended petition alleged that Appellant’s direct appellate counsel w as ineffective for failing to object to the mandatory minimum sentences as violat ing the right to a jury trial as interpreted by Alleyne v. United States , 133 S.Ct. 2151 (2013). The Commonwealth conceded that Appellant was entitl ed to relief. On April 28, 2015, the PCRA court granted Appellant’s petiti on and granted a new sentencing hearing as to the robbery and possession with intent to deliver a

controlled substance counts. The trial court then resentenced Appellant to four to eight years’ imprisonment for robbery and two to four years’ imp risonment for possession with intent to deliver a controlled subs tance. With the revised sentences, Appellant’s aggregate sentence was 36 to 72 years’ imprisonment. Appellant did not object to the sent ence at the PCRA/sentencing hearing on April 28, 2015 nor did h e file a post-sentence motion. This timely appeal followed. 13

13 On May 28, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(a). On June 18, 2015, Appellant fil ed his concise statement. (Footnote Continued Next Page)J-S20018-16

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Appellant presents one issue for our review: [Did t]he [t]rial [c]ourt abuse[] its discretion . . . by directing that certain parts of [Appellant’s] sentence [] be served consecutively[?] Appellant’s Brief at 6. In his lone issue, Appellant argues that his senten ce is excessive. This issue challenges the discretionary aspects of Appel lant’s sentence. See Commonwealth v. Haynes , 125 A.3d 800, 806 (Pa. Super. 2015). Pursuant to statute, Appellant does not have an aut omatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for per mission to appeal the discretionary aspects of his sentence. Id. As this Court has explained, in order to reach the merits of a discretionary aspects claim, [w]e conduct a four-part analysis to determine: (1) whether [the] appellant has filed a timely notice of appeal , see Pa.R.A.P. 902 and 903; (2) whether the issue was properly pre served at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether [the] appellant’s br ief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether th ere is a substantial question that the sentence appealed fro m is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Leatherby , 116 A.3d 73, 83 (Pa. Super. 2015) (citation omitted).

(Footnote Continued) _______________________ On August 18, 2015, the trial court issued its Rule 1925(a) opinion. Appellant’s lone issue on appeal was included in hi s concise statement.J-S20018-16

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In this case, Appellant failed to object to the di scretionary aspects of his sentence at the resentencing hearing. See N.T., 4/28/15, at 27-29. Furthermore, Appellant did not file a post-sentence motion. Appellant argues that he preserved the issue in his amended P CRA petition. See Appellant’s Brief at 17. It is axiomatic, however, that a discretionary aspects claim may only be preserved after the sentence is pronounced. The issue cannot be preserved in a presentence filing, e.g. , a sentencing memorandum or a PCRA petition. Therefore, Appellan t waived his discretionary aspects claim. See Leatherby , 116 A.3d at 83. Accordingly, we may not reach the merits of Appellant’s discreti onary aspects claim. As Appellant has waived his lone issue on appeal, we a ffirm the judgment of

sentence. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 3/11/2016