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Commonwealth v. Ahmad

November 18, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DAVID A. AHMAD, APPELLANT



Appeal from the Judgment of Sentence entered October 5, 2007 In the Court of Common Pleas of Philadelphia County. Criminal at No(s): CP-51-CR-0407521-2005.

The opinion of the court was delivered by: Panella, J.

BEFORE: PANELLA, DONOHUE, and COLVILLE*fn1, JJ

OPINION

¶ 1 Appellant, David Ahmad, appeals from the judgment of sentence entered on October 5, 2007, by the Honorable Pamela Pryor Dembe, Court of Common Pleas of Philadelphia County. After careful review, we affirm.

¶ 2 On June 1, 2005, Ahmad entered a negotiated guilty plea to the charges of endangering the welfare of a child,*fn2 and corrupting the morals of a minor*fn3 arising from the repeated fondling of his 14-year-old step-daughter. Under the terms of the plea agreement, he was initially sentenced to 3 to 23 months confinement, fulfilled through house arrest, and followed by a consecutive term of five years reporting probation. At that time, he was also ordered to participate in sex offender counseling and refrain from further contact with the victim.

¶ 3 Subsequently, on February 10, 2006, while still under probation, Ahmad moved back in with the victim and her mother in direct violation of the trial court's order. He then proceeded to have improper contact with the victim on numerous occasions, making a practice of fondling her and grinding his genitals into her buttocks. He was eventually arrested for this pattern of conduct on the charges of unlawful contact with a minor*fn4 and indecent assault.*fn5

¶ 4 Thereafter, while incarcerated, Ahmad contacted the victim in an attempt to suborn perjury from her and to persuade her to comply with an alibi he concocted concerning the dates of their prior sexual episodes. He then filed papers with the court alleging this fictitious alibi, but was subsequently charged with obstruction of justice and hindering prosecution for his conduct.*fn6

¶ 5 On March 21, 2007, Ahmad pled guilty to the new charges and sentencing was deferred for purposes of a Megan's Law evaluation. On October 5, 2007, following this evaluation, the trial court found Ahmad to be a sexually violent predator. His probation was revoked in the initial case.

He was subsequently sentenced to serve 23 months of back time and further ordered to serve a term of two and one-half years to five years imprisonment for endangering the welfare of a child and a consecutive sentence of two to five years imprisonment for corrupting the morals of a minor. Following the filing of a post-sentence motion challenging the discretionary aspects of his sentence, which was denied by the trial court, Ahmad brought this timely appeal.

¶ 6 On appeal, Ahmad raises the following issue for our consideration:

WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING AN EXCESSIVE SENTENCE OF 23 MONTHS PLUS FOUR AND ONE-HALF TO TEN YEARS CONFINEMENT WHERE IT PURPORTEDLY FAILED TO CONSIDER AHMAD'S PERSONAL HISTORY IN ACCORDANCE WITH THE SENTENCING CODE?

Appellant's Brief, at 3. After careful review, we affirm.

¶ 7 Ahmad maintains that the sentencing court abused its discretion by imposing an excessive sentence. A challenge to an alleged excessive sentence is a challenge to the discretionary aspects of a sentence. See, e.g., Commonwealth v. Pennington, 751 A.2d 212, 215 (Pa. Super. 2000), appeal denied, 564 Pa. 729, 766 A.2d 1246 (2000). "Issues 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." Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006). "Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Id., at 1274.

ΒΆ 8 Instantly, Ahmad filed a timely post-sentence motion asserting that the discretionary sentence he received was excessive and constituted an abuse of discretion because the trial court failed to consider his personal history, failed to consult pre-sentence reports, and failed to comply with Section 9721(b) of the Sentencing Code. As ...


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