Com. v. Mosley, R. (memorandum)
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J-S25038-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. RASHAWN MOSLEY, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2192 MDA 2012 Appeal from the Judgment of Sentence entered on November 2, 2012 in the Court of Common Pleas of Dauphin County, Criminal Division, No. CP-22-CR-0003813-2004 BEFORE: OTT, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED MAY 23, 2014 imposed following his convictions of one count each of criminal homicide, robbery, recklessly endangering another person and carrying a firearm without a license.1 The trial court set forth the relevant facts in its Opinion, which we adopt herein by reference. See Trial Court Opinion, 8/7/13, at 3-9. Following a long and complex procedural history, a jury convicted Mosley of the above-mentioned crimes. The sentencing court sentenced Mosley to an aggregate sentence of life in prison, followed by thirteen and one-half to twenty-seven years in prison. 1 Mosley filed a Post-Sentence See 18 Pa.C.S.A. §§ 2501(a), 3701(a)(1), 2705, 6106(a). J-S25038-14 Motion, which the sentencing court denied. Thereafter, Mosley filed a timely Notice of Appeal. On appeal, Mosley raises the following issues for our review: 1. Whether the trial court erred when it failed to suppress atement to police where he did not understand and could not knowingly, voluntarily, and intelligently waive his Miranda[2] rights and where [Mosley] requested counsel prior to giving statements, but the request was denied him[,] and officers continued to interrogate him in violation of his constitutional rights? 2. motion for recusal when the trial court had previously 3 ] [P]etition, the denial of [Post Conviction Relief which was overturned and remanded by the Superior Court of Pennsylvania resulting in a new trial and proceedings before the same court? 3. Sentence Motion] where there was no reasonable basis upon which to impose an aggravated range sentence [for robbery and carrying a firearm without a license], and the trial court did not place any reasons on the record in order to justify this excessive departure from the guidelines? 4. post-sentence [M]otion requesting [a] new trial or an arrest of judgment where the verdict was against the weight of the statement to police was a result of coercion, was not voluntary, and should not have been considered, [and] where his statement to police was a result of coercion and was not voluntary and should not have been considered, and where the only known eye[]witness to the crimes, Daniel Giorgione 2 See Miranda v. Arizona, 384 U.S. 436 (1966). 3 See 42 Pa.C.S.A. §§ 9541-9546. -2- J-S25038-14 the crimes and it was not [Mosley], but another individual? Brief for Appellant at 11-12 (footnotes added). In his first issue, Mosley contends that the trial court erred by failing to suppress his statements to police because they were made without a knowing, voluntary and intelligent waiver of his Miranda rights. Id. at 20. Mosley asserts that, due to his young age, limited education4 and the manner in which the detectives were treating him, his waiver was not voluntary. Id. Mosley also contends that he requested to speak to an attorney both prior to and while detectives were questioning him, but was denied that right. Id. at 21. In its Opinion, the trial court set forth the relevant law, addressed Opinion, 8/7/13, at 9-12. We agree with the sound reasoning of the trial court and affirm on this basis. See id. In his second issue, Mosley contends that the trial judge erred by failing to recuse himself after the case was remanded for a new trial, following a prior appeal. Brief for Appellant at 23. Mosley notes that the his pretrial Motions. Id. at 23. Further, Mosley notes that this Court twice Id. at 24. 4 For these Mosley claims that his statements were made to police when he was nineteen years of age and had only completed school through the eighth grade. Brief for Appellant at 21. -3- J-S25038-14 reasons, Mosley claims that the trial judge appeared biased, and Mosley did not believe that the trial judge could give him a fair trial. Id. at 23. In its Opinion, the trial court set forth the relevant law, addressed Trial Court Opinion, 8/7/13, at 12-14. We discern no abuse of discretion by the trial court and affirm on this basis. See id. In his third claim, Mosley contends that the trial court erred by imposing sentences for robbery and carrying a firearm without a license in the aggravated guideline range without placing reasons for doing so on the record. Brief for Appellant at 25. Mosely asserts that the record is devoid of any reasons to support the imposition of aggravated sentences, despite the fact that the sentencing court was provided with a pre-sentence investigation report and victim impact statements. Id. Mosley challenges appellant 170 (Pa. Super. 2010). the discretionary aspects of his sentence. Commonwealth v. Moury, 992 A.2d 162, Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] 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 has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from -4- J-S25038-14 is not appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. § 9781(b). Moury, 992 A.2d at 170 (citation omitted). Here, Mosley filed a timely Notice of Appeal. Post-Sentence Motion. He also filed a timely However, Mosley has not included a concise statement of the reasons relied upon for allowance of appeal in his brief, pursuant to Pa.R.A.P. 2119(f). Because Mosley failed to comply with the prerequisites for challenging the discretionary aspects of his sentence, we cannot address this issue. See Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987) (holding that any discretionary sentencing issue that is not raised in a Rule 2119(f) statement is waived on appeal); see also Pa.R.A.P. 2119(f) discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal In his fourth claim, Mosley contends that the verdict was against the weight of the evidence. Brief for Appellant at 26. In support of this argument, Mosley contends that his confession was given as a result of his inability to understand his Miranda rights and the denial of his right to speak with an attorney. Id. at 26-27. Mosley also contends that Stevenson was coerced by police to implicate Mosley in the homicide. Id at 27. Finally, Mosley contends that Giorgione, as the only witness to the shooting, identified James Cousins as the shooter, rather than Mosley. Id. -5- J-S25038-14 In its Opinion, the trial court set forth the relevant law, addressed claim, and concluded that it lacks merit. Trial Court Opinion, 8/7/13, at 18-19. We agree with the sound reasoning of the trial court and affirm on this basis. See id. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/23/2014 -6-
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