J-S12021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

IAN DAVID SCOTT,

Appellant No. 1384 MDA 2017

Appeal from the Judgment of Sentence entered July 19, 2017,

in the Court of Common Pleas of Lackawanna County,

Criminal Division, at No(s): CP-35-CR-0000233-2017.

BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E., 

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 16, 2018

Ian Scott files this appeal challenging the discretionary aspects of his 

sentence. Scott entered a guilty plea to burglary, robbery, and unauthorized

use of a motor vehicle.1 The court imposed an aggregate sentence of ten to 

twenty years in prison. The Commonwealth argues that Scott waived his 

sentencing claims by failing to address them in the trial court. We agree. 

Before we will grant allowance of appeal under Section 9781(b), the 

petitioner “must invoke this Court’s jurisdiction by satisfying a four-part test.” 

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1

In exchange for Scott’s guilty plea, the Commonwealth dropped several 

other charges it had pending against him. Trial Court Opinion, 7/31/17 at 1. 

Thirteen other charges were withdrawn, including another two additional 

counts of burglary and robbery.
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Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). First, the 

petition for allowance of appeal must have been filed within 30 days of the 

judgment of sentence under Pennsylvania Rules of Appellate Procedure 902 

and 903. Second, the petitioner must have properly preserved the issues for 

appeal by having raised them at the time of sentencing, or in a Pennsylvania 

Rule of Criminal Procedure 720 motion to reconsider or to modify the 

sentence. Third, Pennsylvania Rule of Appellate Procedure 2119(f) requires a 

concise statement in appellant’s brief to justify the allowance of appeal.

2

 And, 

fourth, the Rule 2119(f) statement must present “a substantial question that 

the sentence imposed is not appropriate under” Chapter 97, Sentencing. 42 

Pa.C.S.A. § 9781(b). “Only if the appeal satisfies these requirements may we 

proceed to decide the substantive merits of Appellant’s claim.” 

Commonwealth v. Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017).

The Commonwealth draws our attention to the test’s second prong. 

Commonwealth’s Brief at 5. It contends that Scott failed to raise the issues 

he argues on appeal in either the sentencing proceeding or in his “Motion for 

Reconsideration and Reduction of Sentence.” Id. at 6. 

Scott frames the issues he would raise before this Court as follows:

I. Whether the Judge abused his discretion regarding 

aspects of the Sentence pursuant to 42 Pa.C.S.A.

Subsection 9781(c)(2) where the Sentence, although within 

the Sentencing Guidelines, involved circumstances where 

the application of the Guidelines was clearly unreasonable?

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2 See Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).
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a) Whether the Judge abused his discretion in failing 

to consider mitigating circumstances?

b) Whether the Judge abused his discretion by 

considering aggravating circumstances?

c) Whether the Judge abused his discretion by failing 

to balance mitigating circumstances against any 

potential aggravating circumstances in crafting the 

excessive sentence?

Scott’s Brief at 4. 

Scott raised none of these alleged errors at his sentencing hearing, and 

they do not match the single issue in his post-sentence motion – i.e., that “the 

sentence was excessive.” Here, by contrast, Scott seeks allowance to argue 

that the trial court (1) applied the sentencing guidelines in a clearly 

unreasonable fashion, (2) failed to consider mitigating circumstances, (3) 

considered inappropriate aggravating circumstances, and (4) improperly

balanced any mitigating circumstances against the aggravating ones. Clearly, 

none of these four issues is the same one issue that appears in Scott’s postsentence motion. 

The only issue that even mentions an excessive sentence is his fourth 

one, but this is an afterthought to the main complaint of error: that the trial 

court failed “to balance mitigating circumstances against any potential 

aggravating circumstances” in fashioning the sentence. Scott’s Brief at 4. His

post-sentence motion did not challenge the trial judge’s discretion in 

fashioning his sentence relative to the balancing of circumstances. Instead, 

Scott reiterated facts that he believed weighed against the imposition of a 
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sentence in the aggravated range, but he did not compare and contrast them 

with the factors that the judge found necessitated aggravated sentencing. 

Thus, the type of argument that might have satisfied the second prong of our 

allowance-of-appeal test was not raised in Scott’s “Motion for Reconsideration 

and Reduction of Sentence.”

Moreover, even if Scott’s fourth issue appeared in his post-sentence 

motion, he did not include it in his Pennsylvania Rule of Appellate Procedure

1925(b) statement.3 The issue’s omission from his Rule 1925(b) statement

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3 We note that Scott’s 1925(b) statement was not a concise statement of 

errors. Rather, it made a full re-argument to the trial judge, over the course 

of several pages, more like a second motion for reconsideration. Making the 

1925(b) statement a verbatim precursor of the “[s]tatement of the questions 

involved” page of the appellate brief is the surest way to avoid this waiver

dilemma. Pennsylvania Rule of Appellate Procedure 2111(a)(4). 

As far as which issues Scott raised in this statement, the best we can 

surmise is that they appear in paragraphs 6-8, as follows:

The Court abused its discretion by not following the 

implicit agreement and understanding of the parties with 

regard to a standard sentence and, furthermore, by 

fashioning an excessive and manifestly unreasonable 

sentence under the total circumstances of this case. The 

sentence is clearly unreasonable and disproportionate to 

Defendant/Appellant’s conduct.

Furthermore, the court also did not adequately state its 

reasons for the egregious sentence and for disregarding the 

implicit agreement and understanding of the 

Defendant/Appellant and Commonwealth.

Additionally, the Court failed to take into consideration 

the mitigating factors of the Defendant/Appellant’s 

circumstances, the cooperation the Defendant/Appellant 
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“may be considered by the appellate court as a waiver...” Pa.R.A.P. 1925(b). 

As this Court has explained:

failure to raise a particular issue in the concise statement of 

matters complained of on appeal may result in a waiver of 

that issue. Gilmore by Gilmore v. Dondero, 399 

Pa.Super. 599, 582 A.2d 1106, 1108 (1990). See also 

Commonwealth v. Forest, 427 Pa.Super. 602, 607, 629 

A.2d 1032, 1035 (1993), allocatur denied, 536 Pa. 642, 

639 A.2d 28 (1994). It is, however, within the appellate 

court's discretion to review the issue unless the failure to 

raise the issue in the Pa.R.App.P. 1925(b) statement hinders 

appellate review. Gilmore by Gilmore v. Dondero, supra

at 604, 582 A.2d at 1108. The rationale behind this rule is 

that when an appellant fails to raise an issue in the 

Pa.R.App.P. 1925(b) statement, an appellate court may not 

have the benefit of the rationale of the trial court in support 

of its decision. Id. at 604, 582 A.2d at 1108. In the event 

that an issue raised in the Pa.R.App.P. 1925(b) statement is 

analogous to and essentially presents the same legal 

question as a properly raised challenge, this Court will often 

review the entire case. See id. at 604, 582 A.2d at 1108.

Taylor v. Owens-Corning Fiberglas Corp., 666 A.2d 681, 688–89 (Pa. 

Super. 1995). None of Scott’s other three issues survive the Commonwealth’s 

waiver challenge. Thus, his fourth issue cannot come under our exception to 

Pa.R.A.P. 1925(b) waiver, even if he had included it in his post-sentence

motion.

____________________________________________

gave to the Commonwealth, and the fact that this case 

clearly arose from the contributions and actions of another, 

un-charged, Codefendant, who was the mastermind of the 

incident.

Scott’s 1925(b) Statement at 3. Scott did not mention an improper balancing 

of circumstances anywhere in these paragraphs.
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We therefore conclude that Scott did not afford the trial court proper

opportunity to address any alleged errors regarding the discretionary aspects 

of sentencing prior to filing this petition for allowance of appeal. He would, 

instead, be raising them “for the first time on appeal.” Commonwealth v. 

Foster, 960 A.2d 160, 163 (quoting Pennsylvania Rule of Appellate Procedure 

302(a)). This we cannot allow.4 Id.

Petition for allowance of appeal denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/2018

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4 Because Scott has failed to satisfy the second prong of the four-part test to 

challenge the discretionary aspects of sentence, Moury, supra, we need not 

consider the other three prongs.