Opinion
J-S09010-17 No. 215 EDA 2016
04-05-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. VINCENT JACKSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010976-2014 BEFORE: SHOGAN, STABILE, and PLATT, JJ. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Vincent Jackson, appeals from the judgment of sentence entered following his convictions of aggravated assault, promoting prostitution, corruption of the morals of a minor, possession of an instrument of crime ("PIC"), and two violations of the Uniform Firearms Act ("VUFA"). We affirm.
Appellant purported to appeal from the trial court's December 9, 2015 order denying his post-sentence motions. In Commonwealth v. Chamberlain , 658 A.2d 395 (Pa. Super. 1995), we explained that "the order denying post-sentence motions acts to finalize the judgment of sentence for purposes of appeal. Thus, the appeal is taken from the judgment of sentence, not the order denying post-sentence motions." Id. at 397. We have corrected the caption accordingly. --------
The trial court summarized the underlying facts of this matter as follows:
[CP-51-CR-0010976-2014]
Adonis Fountain rented a hotel room at the Roosevelt Inn with his friend "D" and an unknown female around midnight on March 31, 2014. N.T. 08/05/15 at pp. 50-54. While walking to their room on the second floor, Fountain got a "weird vibe" from a male, later identified as the Appellant, who was walking towards them from the other end of the hallway. Appellant was staring at Fountain as if he knew him. Appellant and Fountain crossed paths. Fountain realized that his room was at the other end of the hallway and turned around. Appellant and Fountain crossed paths a second time. Within seconds, Appellant fired multiple shots at Fountain, but missed. Id. at pp. 55-58.
Fountain dove around a corner and ran down a flight of stairs to the first floor of the hotel. As he ran towards the lobby exit, he saw Appellant running towards him with a gun from the other end of the hallway. Fountain ran back around a corner towards the stairs, crouched down in a "defensive position," and fired a single shot into the wall directly across from him. Appellant continued to run towards Fountain, firing shots in his direction. Fountain ran back up the stairs to the second floor and eventually exited the hotel. Id. at pp. 59-62, 89-95; N.T. 08/06/15 at pp. 2-17.
Video surveillance from the Roosevelt Inn captured the incident. Portions of the video were broadcasted on the news. Fountain had dreadlocks in the video and testified that he cut them off after he saw himself on television.1 He was arrested at his home in June 2014 with the firearm that he used on the night of the shooting. N.T. 08/05/15 at pp. 64-66.
1 The evidence showed that Appellant and victim MM mistook Fountain for another male who frequented the Roosevelt Inn who also had dreadlocks and with whom Appellant had a prior altercation. N.T. 08/06/15 at pp. 42-43. During the course of the investigation, Detective Cawley received a tip that a male with dreadlocks fitting the description of one of the males in the video had returned to the Roosevelt
Inn. The male, identified as Aaron Wiley, looked similar to Fountain at first glance and had been arrested at the Roosevelt Inn on prior occasions for narcotics and gun violations. Detective Cawley testified that when he spoke to Wiley at the hotel, Wiley was with three females whom [sic] appeared to be prostitutes. After viewing the video and speaking with Wiley, Detective Cawley concluded that Wiley was not the male with the dreadlocks in the video. Id. at pp. 82-87.
On May 15, 2015, Fountain entered into a negotiated guilty plea to VUFA § 6106 and VUFA § 6108. In the memorandum of agreement attached to the written guilty plea colloquy, Fountain identified the Appellant as the person who shot at him at the Roosevelt Inn. Id. at pp. 76-82; N.T. 08/06/15 at pp. 18-25. Fountain identified himself, the shooter, and his friend "D" on the video at trial. N.T. 08/05/15 at pp. 89-95; N.T. 08/06/15 at pp. 6-18.
Police Officer Gene Crozier testified that he responded to a radio call reporting a person with a weapon and shots fired at the Roosevelt Inn at approximately 12:20 a.m. on March 31, 2014. After speaking with the clerk on duty, he observed a spent shell casing near the entrance to the men's restroom on the first floor of the hotel. The door to the restroom had a bullet hole, and a projectile was visibly lodged in the doorjamb. N.T. 08/05/15 at pp. 33-39.
Detective John Cawley testified that he recovered one (1) Remington .40 caliber Smith and Wesson fired cartridge casing (FCC) and one (1) silver copper jacketed fragment near the entrance to the men's restroom. N.T. 08/06/15 at pp. 70-76. After watching the surveillance video, he returned to the Roosevelt Inn on April 7, 2014 to search for more ballistics evidence.
During that search, Detective Cawley observed strike marks on the ceiling of the hallway on the second floor, and a bullet hole on the bottom step of the staircase where Fountain was crouched, opposite from where the Appellant shot at Fountain during their second confrontation on the first floor of the hotel. Id. at pp. 80-81. Metal fragments were recovered from underneath the rubber of that step. Id. He also recovered
a projectile from the wall opposite from where Fountain fired the single shot. Id. at pp. 77-79.
MM (age 16) testified that she met "Vinnie" (the Appellant) while working as a prostitute at the Roosevelt Inn in the fall or winter of 2013. N.T. 08/06/15 at pp. 108-13, 122. MM thought Appellant was "nice" and "didn't seem like a bad person" - she "thought he was just a drug dealer." Id. at p. 114. Appellant and MM smoked marijuana together the first time they met. After they smoked, Appellant and some of the guys he was with asked her to come to another room in the hotel with them. MM understood that to mean she would be working for them as a prostitute. Id. at pp. 115-17.
The next morning, MM agreed to work for Appellant as a prostitute - she told him that she would give him all of the money she earned from prostituting as long as he gave her cigarettes, drugs, and food in return. Id. at p. 117. Appellant agreed. He then took MM to a Target on City Avenue and told her that he would buy her whatever she needed. MM purchased clothing and toiletries. She testified that Appellant made her "feel special." Id. at pp. 117-18.
Appellant and MM went to the Crown Plaza Hotel next door to the Target. Appellant posted an ad offering MM for sex on "Back Page," a website similar to Craigslist, and MM started receiving calls from men who wanted to have sex with her - she called them "dates." Id. at pp. 118-20. Appellant and MM continued to work together at different hotels. She testified that she stopped working for Appellant for a short period of time and went to work for another pimp, but started working for him again shortly thereafter. Id. at pp. 120-21.
Appellant had three or four other girls working for him in the spring of 2014. MM testified that the other girls "would give him 50 percent of the money" that they earned from prostituting. Id. at p. 122. She "gave him a hundred percent of [her] money." Id. at p. 123. MM would have sex with four to eight men in one night - she charged $60 or $70 for 15 minutes, $100 for 30 minutes, and $160 for 60 minutes. Id. at pp. 124-25.
MM testified that Appellant and she stopped going to the Roosevelt Inn in early March 2014 because Appellant shot
somebody in the leg during a shootout at the hotel. Id. at pp. 125-26, 163-64. They worked out of hotels near the airport instead. However, MM, Appellant, and two other girls who worked for him, Keya and Lexy, went to the Roosevelt Inn on the night of the shooting "because the money was supposed to be good there that day." Id. at pp. 126-28.
MM had three "dates" on the night of the shooting. She testified that when she opened the door to her room for the first date around 7 p.m., she saw Appellant and a male with dreadlocks give each other "dirty looks." Id. at pp. 128-30. Within seconds of closing the door to her room when the third date arrived, she heard "a lot" of gunshots in the hallway. Id. at pp. 129-34. MM finished her date and tried to call the Appellant on his cell phone. He would not answer, so she called and texted his brother, John. Id. at p. 135. MM testified that she met John through the Appellant, and that she had been to John's apartment near Wharton Street in South Philadelphia. Id. at p. 127. She also reached out to Appellant's friend "Fat Boy". Fat Boy told MM that he would call her if he heard from Appellant. Id. at pp. 136-37.
Appellant called MM from John's phone around 5 a.m. and said that he was "in pain from running." MM testified that Appellant told her that he dropped and shattered his phone2 while he was running on Bustleton Avenue, and that he threw his gun in a trashcan and the clip in a nearby yard. Id. at pp. 136-37. He told MM to retrieve the gun and meet him at 31st and Tasker Street. MM retrieved the gun, clip, and SIM card exactly where he told her it would be. Id. at pp. 175-77. She then took a cab to 31st and Tasker Street. Id. at pp. 137-43. Appellant and John picked MM up and drove to John's house. Appellant put the SIM card into a new phone. Id.
2 Appellant had a Samsung Galaxy with a SIM card. Id. at p. 132.
On April 5, 2014, MM and another girl who was working for Appellant as a prostitute went to the Four Points Sheraton in Northeast Philadelphia. A few hours after they arrived, an undercover officer posing as a client asked to have a "date" with both of them. They agreed. Seconds later, police entered the room and arrested MM and the other girl. Id. at pp. 144-47.
MM told officers that she had information about the instant case. Officers showed MM a video of the shooting at the Roosevelt Inn - she identified Appellant as the person in the baggy hoodie and jeans who is seen shooting at Fountain on the first and second floors of the hotel. Id. at pp. 148-53.
Detective Robert Hagy testified that MM provided detectives with Appellant's cell phone number, which was (215) 730-4015. Based on that information, he prepared and served a search warrant on T-Mobile for call detail records. N.T. 08/06/15 at pp. 186-89. He also obtained an arrest warrant for the Appellant.
On June 18, 2014, Appellant was arrested at his brother's home at 3120 Wharton Street, Apartment 1C, in South Philadelphia. Appellant's brother, John Gamble, was home at the time of the arrest. A search warrant was prepared and executed for his cell phone, (267) 325-1889. Id. at pp. 195-99. Cell phone records corroborated MM's testimony that text messages were exchanged between John Gamble and MM on March 31, 2014. Id. at pp. 199-201. Gamble had the same phone number stored for Appellant that MM provided. Id.
Records for Appellant's cell phone showed that he called MM approximately one hour prior to the shooting at 11:05 p.m. on March 30, 2014. GPS coordinates placed the phone in close proximity to the Roosevelt Inn. The last outgoing call with GPS data was made to an unknown person at 11:29 p.m. in the same location. The next traceable calls were made on March 31, 2014 at 6:41 p.m. near 65th Street and Haverford Avenue; 6:44 p.m. near 63rd and Walnut Street; and 1:03 a.m. and 8:02 a.m. near 33rd and Wharton Street, less than two blocks from Appellant's brother's home. Id. at pp. 201-16.
CP-51-CR-0010540-2014
The factual recitation for the plea under docket number CP-51-CR-0010540-2014 was read into the record by the Commonwealth. In sum, detectives executed a search warrant at the residence Appellant shared with his brother at 3120 Wharton Street, Apartment C, in South Philadelphia on June 18, 2014. Appellant was inside of the property at the time of the search. A loaded .9 millimeter [sic] Glock and two loaded .40 caliber Smith and Wesson firearms were recovered inside the
residence. None of the three firearms recovered were linked to the ballistics evidence recovered at the Roosevelt Inn.Trial Court Opinion, 5/13/16, at 3-8.
After receiving Miranda warnings, Appellant gave a signed statement admitting to having illegally purchased the .9 millimeter [sic] Glock approximately two weeks prior to the search. He paid $500 for the firearm from a man whom he met in a parking lot at 30th Street and Grays Ferry Avenue. He also admitted to firing the gun multiple times at a gun range in South Philadelphia and signing in at that gun range with a fake name. Appellant stated that the two .40 caliber firearms belonged to his brother. Appellant did not have a valid license to carry a firearm and was prohibited from possessing a firearm due to a felony conviction for possession with the intent to deliver (PWID). N.T. 10/13/15 at pp. 16-18.
In addition, the trial court set forth the procedural history of this matter as follows:
On August 7, 2015, [at docket number CP-51-CR-0010976-2014,] Appellant was found guilty after a jury trial, presided over by the Honorable Rose Marie DeFino-Nastasi, of Aggravated Assault, Attempted Serious Bodily Injury, 18 Pa.C.S. § 2702, as a felony of the first degree; Promoting Prostitution, 18 Pa.C.S. § 5902, as a felony of the third degree; Violation of the Uniform Firearms Act (VUFA), 18 Pa.C.S. § 6106, as a felony of the third degree; Corruption of the Morals of a Minor (CMOM), 18 Pa.C.S. § 6301, as a misdemeanor of the first degree; VUFA § 6108, as a misdemeanor of the first degree; and Possession of an Instrument of Crime (PIC), 18 Pa.C.S. § 907, as a misdemeanor of the first degree.
On October 13, 2015, Appellant was sentenced to seven-and-[one]-half (7½) to fifteen (15) years for the aggravated assault conviction; two-and-[one]-half (2½) to five (5) years for the promoting prostitution conviction, to run consecutively; five (5) years reporting probation for the VUFA § 6106 conviction; five (5) years reporting probation for the CMOM conviction, to run concurrently; no further penalty for the VUFA § 6108 and PIC convictions. Appellant received an aggregate sentence of ten (10) to twenty (20) years plus five (5) years [of] probation.
On October 13, 2015, [at docket number CP-51-CR-0010540-2014,] Appellant entered into an open guilty plea to VUFA § 6105, as a felony of the second degree; VUFA § 6106; and VUFA § 6108 under docket number CP-51-CR-0010540-2014. Appellant was sentenced to five (5) to ten (10) years for the VUFA § 6105 conviction, to run concurrently to the sentence under docket number CP-51-CR-0010976-2014. No further penalty was imposed for the VUFA § 6106 and VUFA § 6108 convictions.Trial Court Opinion, 5/13/16, at 1-2. This timely appeal [from the finalized judgment of sentence at docket number CP-51-CR-0010976-2014] followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
On October 23, 2015, Appellant filed a post-sentence motion [at docket number CP-51-CR-0010976-2014], which was denied without a hearing on December 9, 2015.
Appellant presents the following issues for our review:
Whether the trial court erred in denying Appellant's Motion to Quash where the testimony presented at the Preliminary Hearing of Carrying a Firearm Without a License and Carrying a Firearm in Public in Philadelphia failed to make out a prima facie case for said charges.Appellant's Brief at vi.
Whether the jury's finding on the aggravated assault charge was against the weight of the evidence when the Commonwealth witness Adonis Fountain never identified Appellant as the shooter.
Whether a consecutive sentence on the Promoting Prostitution Charge was excessive.
Appellant first argues that the trial court erred in denying his motion to quash the charges of firearm not to be carried without a license and carrying a firearm in public in Philadelphia. Appellant's Brief at 6-7. Appellant contends that the testimony at his preliminary hearing held on September 26, 2014, did not establish a prima facie case for the aforementioned charges because there was no testimony at the hearing that Appellant actually carried a firearm or transported it around Philadelphia. Id.
Pennsylvania law is clear that once a matter has gone to trial and a defendant's guilt is proven beyond a reasonable doubt, any claims that the Commonwealth failed to establish a prima facie case at a preliminary hearing become irrelevant. Commonwealth v. Rivers , 644 A.2d 710, 715 (Pa. 1994). See also Commonwealth v. Lee , 662 A.2d 645, 650 (Pa. 1995) (holding that an adjudication of guilt renders moot any allegation that the Commonwealth failed to establish a prima facie case at a preliminary hearing). Here, any alleged failure by the Commonwealth to meet its burden of proof at the preliminary hearing on September 26, 2014, was rendered irrelevant by Appellant's subsequent conviction by the jury of the two counts of VUFA on August 7, 2015. Accordingly, Appellant's contrary claim fails.
Appellant next argues that the jury's verdict was against the weight of the evidence. Appellant's Brief at 7-8. Appellant asserts that the trial court abused its discretion in not granting his motion for a new trial on this basis because the victim of the aggravated assault, Mr. Fountain, could not identify Appellant as the shooter and there were no other eyewitnesses to the crime. Id.
In Commonwealth v. Clay , 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following standards to be employed in addressing challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer , 560 Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown , 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer , 560 A.2d at 319-[3]20, 744 A.2d at 752. Rather, "the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id. at 320, 744 A.2d at 752 (citation omitted). It has often been stated that "a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Brown , 538 Pa. at 435, 648 A.2d at 1189.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Brown , 648 A.2d at 1189. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. Commonwealth v. Farquharson , 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest of justice.
Widmer , 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained:
The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
Clay , 64 A.3d at 1054-1055. "Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs , 949 A.2d 873, 879-880 (Pa. 2008).
Widmer , 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-[11]85 (1993)).
The threshold question for this Court is whether Appellant's weight issue has been preserved. Pennsylvania Rule of Criminal Procedure 607 governs challenges to the weight of the evidence and provides, in relevant part, as follows:
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
Pa.R.Crim.P. 607(A).(1) Orally, on the record, at any time before sentencing;
(2) By written motion at any time before sentencing; or
(3) In a post-sentence motion.
Moreover, we observe that a "boilerplate" post-verdict motion is a motion stating only that "the verdict was against the weight of the evidence." Commonwealth v. Holmes , 461 A.2d 1268, 1269 (Pa. Super. 1983) (en banc). "A post-verdict motion that 'the verdict was against the weight of the evidence,' will preserve no issue for appellate review unless the motion goes on to specify . . . why the verdict was against the weight of the evidence." Id. at 1270 (emphasis in original). Indeed, this Court further admonished that, "if counsel believes that the verdict was against the weight of the evidence, the post-verdict motion should specify why that was so." Id. at 1273 (emphasis in original).
Our review of the certified record reflects that, although Appellant raised the weight issue in a post-sentence motion, his motion failed to specify why the verdict was against the weight of the evidence. Rather, Appellant's post-sentence motion stated, "The jury's finding was against the weight of the evidence." Post-Sentence Motion, 10/23/15, at 2. Therefore, we are constrained to conclude that Appellant's weight of the evidence claim in the post-sentence motion was so vague as to render the issue to be waived.
Moreover, even if Appellant had preserved his weight-of-the-evidence claim, it is nonetheless meritless. The trial court aptly addressed this issue in its Pa.R.A.P. 1925(a) opinion as follows:
Appellant's claim is without merit. Both Fountain and MM identified Appellant as the shooter in video surveillance from the Roosevelt Inn. The video was played for the jury at trial. While the credibility of those identifications was exclusively within the province of the jury sitting as fact finder, Appellant is clearly identifiable in the video as the male in the baggie hoodie and jeans shooting at Fountain on the first and second floors of the hotel. Furthermore, cell phone records place Appellant in close proximity to the Roosevelt Inn at the time of the shooting. The jury's verdict in this case was not so contrary to the evidence as to shock this Court's sense of justice.Trial Court Opinion, 5/13/16, at 12.
Based upon our complete review of the record, we are compelled to agree with the trial court. Here, the jury, sitting as the finder of fact, was free to believe all, part, or none of the evidence against Appellant. The jury weighed the evidence and concluded Appellant perpetrated the crime of aggravated assault. We agree that this determination is not so contrary to the evidence as to shock one's sense of justice. We decline Appellant's invitation to assume the role of fact-finder and to reweigh the evidence. Accordingly, we would conclude that the trial court did not abuse its discretion in refusing to grant relief on Appellant's challenge to the weight of the evidence.
Appellant last argues that the trial court abused its discretion by imposing a consecutive sentence for his conviction of promoting prostitution. Appellant's Brief at 9. Appellant asserts that the sentence was unfounded and excessive. Id.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006). It is well settled that there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle , 894 A.2d 800, 805 (Pa. Super. 2006). 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).
As we observed in Commonwealth v. Moury , 992 A.2d 162 (Pa. Super. 2010):
[a]n 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. [720]; (3) whether appellant's brief has a fatal
Id. at 170 (citing Commonwealth v. Evans , 901 A.2d 528 (Pa. Super. 2006)).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).
A failure to include the Pa.R.A.P. 2119(f) statement does not automatically waive an appellant's discretionary aspects of sentencing argument. Commonwealth v. Roser , 914 A.2d 447, 457 (Pa. Super. 2006). However, we are precluded from reaching the merits of the claim when the Commonwealth lodges an objection to the omission of the statement. Id. See also Commonwealth v. Farmer , 758 A.2d 173, 182 (Pa. Super. 2000) (observing that we may not reach the merits of discretionary aspects of sentencing claims where the Commonwealth has objected to the omission of a Pa.R.A.P. 2119(f) statement and finding the issue to be waived). Cf. Commonwealth v. Lutes , 793 A.2d 949, 964 (Pa. Super. 2002) (holding that if the appellant fails to comply with Pa.R.A.P 2119(f), Superior Court may entertain discretionary sentencing claim if Commonwealth does not object to the appellant's failure to comply with Pa.R.A.P. 2119(f)).
Herein, the first of the requirements of the four-part test is met because Appellant brought a timely appeal. Likewise, our review of the record reflects that Appellant met the second requirement because he raised a similar challenge in his post-sentence motion. However, Appellant has not met the third requirement of the test because he failed to comply with the requirements of Pa.R.A.P. 2119(f). Specifically, Appellant has not filed a concise statement of reasons relied upon for the allowance of appeal in his brief. The Commonwealth is aware of the omission and has objected to this deficiency. Commonwealth's Brief at 19-20. Accordingly, because of the fatal defect in the appellate brief, we are precluded from reviewing the merits of Appellant's sentencing claim and deem it to be waived on appeal. Roser , 914 A.2d at 457.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/5/2017