J-S80018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD HARTZELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 771 EDA 2017

Appeal from the Judgment of Sentence March 4, 2016

In the Court of Common Pleas of Bucks County Criminal Division at No(s): 

CP-09-CR-0001483-2012, 

CP-09-CR-0008163-2011

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2018

Appellant, Edward Hartzell, appeals nunc pro tunc from the judgment 

of sentence entered following the revocation of his probation at trial court 

docket numbers CP-09-CR-0008163-2011 and CP-09-CR-0001483-2012. 

Appellant filed this direct appeal after his appellate rights were reinstated as 

a result of a petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we affirm.

We glean from the record the following factual and procedural history. 

On April 13, 2015, the trial court sentenced Appellant on a separate criminal 

case at trial court docket number CP-09-CR-0001084-2015, to a term of 

three and one-half to seven years of incarceration followed by seven years 
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of probation for the crime of burglary. PCRA Petition, 8/23/16, at ¶12.

1

 At 

the time Appellant was sentenced at CP-09-CR-0001084-2015, he was 

serving sentences of probation at CP-09-CR-0008163-2011 and CP-09-CR0001483-2012.2

 On March 4, 2016, the trial court held a hearing and 

concluded that Appellant violated his probation at CP-09-CR-0008163-2011 

and CP-09-CR-0001483-2012. The trial court revoked Appellant’s probation 

at each case and resentenced Appellant to terms of three to six years of 

incarceration followed by ten years of probation at both CP-09-CR-0008163-

2011 and CP-09-CR-0001483-2012.3 These sentences were ordered to be 

served concurrently to each other and consecutively to the sentence 

imposed at docket number CP-09-CR-0001084-2015. Appellant did not file 

post-sentence motions at CP-09-CR-0008163-2011 or CP-09-CR-0001483-

2012.

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1 Appellant did not file an appeal from the judgment of sentence at CP-09-

CR-0001084-2015. Therefore, the record in that matter is not before this 

Court. Nevertheless, there is no dispute among the parties and the trial 

court that this sentence was the impetus for the probation revocation and 

subsequent sentences at CP-09-CR-0008163-2011 and CP-09-CR-0001483-

2012. N.T., 3/4/16, at 5. 

 

2 Appellant was also serving a sentence of probation at CP-09-CR-0003920-

2013. However, Appellant stated in his PCRA petition that the sentence in 

that case was closed. PCRA Petition, 8/23/16, at ¶17. Appellant did not file 

an appeal at that docket number. 

3 The trial court also revoked Appellant’s parole at CP-09-CR-0008163-2011 

and CP-09-CR-0001483-2012.

 
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On August 23, 2016, Appellant filed a timely PCRA petition at both CP09-CR-0008163-2011 and CP-09-CR-0001483-2012 seeking reinstatement 

of his post-sentence and appellate rights. The PCRA court appointed 

counsel, and on February 6, 2017, the PCRA court reinstated Appellant’s 

direct appeal rights nunc pro tunc. The February 6, 2017 order did not 

mention Appellant’s post-sentence rights, and Appellant did not file postsentence motions. On February 24, 2017, Appellant filed a timely nunc pro 

tunc appeal from the judgment of sentence at CP-09-CR-0008163-2011 and 

CP-09-CR-0001483-2012.

On appeal, Appellant raises one issue for this Court’s consideration:

A. Did the trial court abuse its discretion by imposing a 

manifestly excessive and unjust sentence on the aforesaid 

docket numbers as it did not consider the rehabilitation needs 

of [A]ppellant or other sentences he was serving at the time 

the above sentence was imposed?

Appellant’s Brief at 5 (full capitalization omitted).

Allegations that a sentencing court failed to consider certain factors or

imposed a manifestly excessive sentence are challenges to the discretionary 

aspects of a sentence. See Commonwealth v. Cruz–Centeno, 668 A.2d 

536, 545 (Pa. Super. 1995) (a claim that the sentencing court failed to 

consider certain factors implicates the discretionary aspects of a sentence); 

see also Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005) (a 

claim alleging a sentence is manifestly excessive is a challenge to the 

discretionary aspects of the sentence). We note that “[t]he right to 
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appellate review of the discretionary aspects of a sentence is not absolute.” 

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, 

where an appellant challenges the discretionary aspects of a sentence, the 

appeal should be considered a petition for allowance of appeal. 

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). 

Additionally, we point out that while Appellant has appealed the 

discretionary aspects of sentences imposed following the revocation of 

probation, such challenges are permitted. See Commonwealth v. 

Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (challenges to the 

discretionary aspects of an appellant’s sentence in an appeal following a 

revocation of probation are allowed). 

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to 

determine: (1) whether appellant has filed a timely 

notice of appeal, see Pa.R.A.P. 902 and 903; (2) 

whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [708]; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 

2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. 

Super. 2006)). 

We begin with the second prong of the test set forth in Moury as it is 

dispositive. “[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.” See 

Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274 (Pa. Super. 2006)

(citation omitted). At the sentencing hearing following the revocation of his 

probation, Appellant did not challenge the sentences imposed at trial court 

docket numbers CP-09-CR-0008163-2011 or CP-09-CR-0001483-2012. 

Moreover, as discussed above, Appellant did not file a post-sentence motion

to reconsider or modify his sentences at trial court docket numbers CP-09-

CR-0008163-2011 or CP-09-CR-0001483-2012. Accordingly, we are 

constrained to conclude that Appellant failed to preserve his challenges to 

the discretionary aspects of the sentences imposed therein. Shugars, 895 

A.2d at 1273-1274. Due to Appellant’s waiver of his sole issue on appeal,

we affirm Appellant’s judgment of sentence. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/18