J-S63025-18

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JEFFREY WAYNE TARPLEY, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 403 WDA 2018

Appeal from the Judgment of Sentence March 1, 2018

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

No(s): CP-56-CR-0000472-2017, 

CP-56-CR-0000493-2017

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

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 22, 2018

Jeffrey Tarpley, Jr. (Appellant) appeals from the judgment of sentence 

imposed after he pled guilty to two counts of possession with intent to deliver.1 

We affirm. 

The trial court summarized:

[Appellant] was identified as a suspect during a Pennsylvania 

State Police (“PSP”) investigation into an overdose death that 

happened on March 3, 2017. The investigation determined that 

[Appellant] was part of the “chain of events” that led to [the 

victim’s] death. On March 10, 2017, as part of the ongoing PSP 

investigation, [Appellant] was arrested for selling fentanyl to a 

PSP confidential informant.

Trial Court Opinion, 6/29/18, at 1 (citations to notes of testimony omitted). 

On December 12, 2017, Appellant appeared before the trial court and 

pled guilty to the above crimes. On March 1, 2018, the trial court sentenced 

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1 35 P.S. § 780-113(a)(30). 
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Appellant to 6 to 14 years of incarceration. Appellant did not file a postsentence motion. On March 13, 2018, Appellant filed this timely appeal. Both 

the trial court and Appellant have complied with Pennsylvania Rule of 

Appellate Procedure 1925.

Appellant presents a single issue for our review: 

WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN 

SENTENCING [APPELLANT], SUCH THAT THE LOWER COURT DID 

NOT CONSIDER APPELLANT’S INDIVIDUAL CIRCUMSTANCES IN 

FASHIONING THE SENTENCE AND THE SENTENCE IS UNFAIR. 

Appellant’s Brief at 28. 

Appellant challenges the discretionary aspects of his sentence. “The 

right to appellate review of the discretionary aspects of a sentence is not 

absolute, and must be considered a petition for permission to appeal.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), 

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a fourpart test to invoke this Court’s jurisdiction when challenging the discretionary 

aspects of a sentence.” Id. We conduct this four-part test to determine 

whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). 
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Here, Appellant has failed to comply with first prong of the discretionary 

aspect test because he did not raise his sentencing issue at sentencing or in a 

post-sentence motion. His issue is therefore waived. 

Pennsylvania Rule of Appellate Procedure 302 mandates that “issues not 

raised in the lower court are waived and cannot be raised for the first time on 

appeal.” Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003) 

(citation omitted). This Court has stated: 

[I]ssues 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. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) 

(internal citations omitted). See also Commonwealth v. Yockey, 158 A.3d 

1246, 1259 (Pa. Super. 2017), (citing Pa.R.Crim.P. 720; Pa.R.A.P. 302(a))

(“Appellant did not preserve his discretionary aspects of sentencing claim at 

sentencing or in a post-sentence motion. Therefore, the claim is waived.”). 

Our review of the record reveals that Appellant did not raise his 

sentencing issue with the trial court at sentencing. See N.T., 3/1/18, at 1-

22. Also, Appellant failed to file a timely post-sentence motion.2 Appellant 

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2 Appellant additionally failed to comply with the third prong of the 

discretionary aspect test because he failed to include a 2119(f) statement in 

his appellate brief. See Commonwealth v. Karns, 50 A.3d 158, 168 n.9 

(Pa. Super. 2012) (“It is well settled that ‘when a challenge to the 

discretionary aspect of a sentence is raised, an appellant must provide a 

separate statement specifying where the sentence falls in the sentencing 
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has not properly preserved his discretionary sentencing claim and the issue is 

waived. Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2018

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guidelines, what provision of the sentencing code has been violated, what 

fundamental norm the sentence violates, and the manner in which it violates 

the norm. Pa.R.A.P. 2119(f).’”) (citations omitted). The Commonwealth has 

objected to Appellant’s failure to include a Rule 2119(f) statement, which also 

mandates waiver of Appellant’s sentencing claim. See Commonwealth Brief 

at 2-3, see also Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 

2004) (holding that the Superior Court is precluded from reviewing the merits 

of a discretionary aspects of sentencing claim when the appellant has failed to 

include a Rule 2119(f) statement, and the appellee has objected to the 

omission).