Com. v. Brown, S.

J-S21036-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SHAWN BROWN :

:

Appellant : No. 3082 EDA 2024

Appeal from the Judgment of Sentence Entered September 12, 2024

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0008581-2023

BEFORE: KUNSELMAN, J., KING, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2025

Appellant, Shawn Brown, appeals from the judgment of sentence

imposed by the Court of Common Pleas of Philadelphia County after he

entered a guilty plea to third-degree murder, possession of a firearm by a

prohibited person, and possessing an instrument of crime. 1 He challenges the

discretionary aspects of his sentence, claiming both that his aggregate twenty-

five-to-fifty-year imprisonment term is excessive and further that the

sentencing court failed to properly weigh mitigating factors. We affirm.

At 12:21 a.m. on September 18, 2023, police responded to a report of

a person with a gun in the 2400 block of Aramingo Avenue in Philadelphia and

found the victim, Luis Cordero, suffering from multiple gunshot wounds to his

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c), 6105(a)(1), and 907(a), respectively.

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arm and back. See N.T. Guilty Plea Hearing, 7/11/24, 15. The victim was

pronounced dead at 12:48 a.m. and later determined to have died as a result

of his gunshot wounds. Id. at 15, 19. During the ensuing police investigation,

multiple witnesses identified Appellant as the person who shot the victim. Id.

at 15-16. The victim was the ex-boyfriend of Appellant’s girlfriend and had

been in “an abusive relationship” with her. Id. at 16. The girlfriend told the

police that the victim “had been looking for her and threatening her.” Id.

Appellant told his girlfriend, inter alia, on the day of the shooting, “If I die

tonight, I love you,” before he kissed her on the head and left her. Id. at 16-

17. The girlfriend thereafter called him numerous times after he left, and he

did not answer the calls. Id. at 17. Appellant later met with the girlfriend

and told her that he shot the victim, recalling that he fired four shots, though

he was unsure how many of them hit the victim. Id. at 17-18. Following

Miranda2 warnings, Appellant gave a statement to the police, captured by

both audio and video recordings, wherein he admitted that he shot the victim

after the victim had destroyed an encampment tent in which Appellant and

his girlfriend had been living. Id. at 16, 18. Appellant did not have a license

to carry a firearm due to a prior conviction for possession of a controlled

substance with intent to deliver. Id. at 19.

On July 11, 2024, Appellant entered the guilty plea to the above-

referenced offenses. See N.T. Guilty Plea Hearing, 7/11/24, 19-20. The

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2 Miranda v. Arizona, 384 U.S. 436 (1966).

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parties did not reach any agreement as to a joint sentencing recommendation;

however, the Commonwealth agreed, in exchange for the plea, to recommend

that the sentence in the instant case be served concurrent with other

sentences that were to be imposed in separate matters at CP-51-CR-0008243-

2023 and MC-51-CR-0006178-2024.3 See Guilty Plea Colloquy, 7/11/24, 3

(“Plea Bargain or Agreement”); N.T. Guilty Plea Hearing, 7/11/24, 13. The

Commonwealth also agreed to nolle prosse additional pending charges in

exchange for the plea.4 See Trial Disposition and Dismissal Form, 7/11/24,

1-2. The plea court deferred sentencing for the preparation of a pre-sentence

investigation report and a mental health evaluation report. See Request for

Post-Plea Hearing Reports, 7/11/24, 1; N.T. Guilty Plea Hearing, 7/11/24, 28.

On September 12, 2024, the plea court imposed an aggregate

imprisonment term of twenty-five to fifty years, including twenty to forty years

for third-degree murder and a consecutive five-to-ten-year term for

possession of a firearm by a prohibited person. See Order (sentencing),

9/12/24, 1; N.T. Sentencing Hearing, 9/12/24, 64-65. The murder sentence

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3 On the same day, Appellant pleaded guilty for unrelated charges to criminal

trespass and criminal conspiracy at CP-51-CR-0008243-2023 and possessing

an instrument of crime and possessing a weapon or implement of escape at

MC-51-CR-0006178-2024 in exchange for recommended terms of six to

twelve months’ imprisonment in each of those cases. See N.T. Guilty Plea

Hearing, 7/11/24, 5-9, 13.

4 The nolle prossed charges included carrying a firearm without a license,

carrying a firearm on public streets or public property in Philadelphia, and

recklessly endangering another person. See Trial Disposition and Dismissal

Form, 7/11/24, 1-2; 18 Pa.C.S. §§ 6105(a)(1), 6108, 2705, respectively.

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was both a maximum imprisonment term and at top of the standard range

recommended by Pennsylvania’s Sentencing Guidelines. 5 See N.T.

Sentencing Hearing, 9/12/24, 6. The firearms possession sentence was at the

bottom of the mitigated range recommended by the Sentencing Guidelines. 6

Id. No further penalty was imposed for possessing an instrument of crime.

See Order (sentencing), 9/12/24, 1. The sentencing court designated

Appellant’s sentences at CP-51-CR-0008243-2023 and MC-51-CR-0006178-

2024 to be served concurrent with the sentence in this case, consistent with

his plea agreement. See N.T. Sentencing Hearing, 9/12/24, 62, 65.

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5 Appellant had a prior record score of five for purposes of calculating the

applicable minimum imprisonment recommendations of the Sentencing

Guidelines. See N.T. Guilty Plea Hearing, 7/11/24, 14; N.T. Sentencing

Hearing, 9/12/24, 6. The offense gravity score for third-degree murder was

fourteen. See 204 Pa. Code § 303.15 (offense list; 7th ed., amend. 6); N.T.

Sentencing Hearing, 9/12/24, 6. Properly applying the Guidelines’ “deadly

weapon used” matrix since Appellant fatally shot his victim, the recommended

standard range for third-degree murder is 210 months to 240 months (i.e.,

half the statutory maximum of forty years). See 18 Pa.C.S. § 1102(d) (setting

a forty-year maximum for imprisonment for third-degree murder); 204 Pa.

Code § 303.17(b) (deadly weapon enhancement/used matrix; 7th ed., amend.

6).

6 The offense gravity score for possession of a firearm by a prohibited person

as a felony of the first degree, where the possessed firearm was loaded, is

eleven. See 204 Pa. Code § 303.15; N.T. Sentencing Hearing, 9/12/24, 6.

Properly applying the Guidelines’ basic sentencing matrix, the Sentencing

Guidelines recommended a minimum imprisonment term for that offense of

seventy-two to ninety months’ imprisonment, plus or minus twelve months

for aggravating or mitigating circumstances. See 204 Pa. Code § 303.16(a)

(basic sentencing matrix; 7th ed., amend. 6); N.T. Sentencing Hearing,

9/12/24, 6.

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Appellant timely filed a post-sentence motion for reconsideration of

sentence.7 See Post-Sentence Motion, 9/23/24, 1-2. Following the denial of

that motion, he timely filed a notice of appeal and a court-ordered concise

statement of errors complained of on appeal pursuant to Pennsylvania Rule of

Appellate Procedure 1925(b). See Order (post-sentence motion denial),

10/21/24, 1; Notice of Appeal, 11/14/24, 1; Order (Rule 1925), 11/14/24, 1;

Rule 1925(b) Statement, 11/23/24, 1.

Appellant presents the following question for our review:

Did the lower court abuse its discretion by sentencing appellant to

a manifestly excessive sentence of [twenty-five] to [fifty] years,

where this sentence far surpassed what was required to protect

the public, and failed to adequately take into account Appellant’s

rehabilitative needs, mitigating evidence, and the circumstances

of the offense?

Appellant’s Brief, 5 (suggested answer and trial court answer omitted).

Appellant claims that the plea court abused its discretion by imposing a

“manifestly excessive” aggregate sentence that was “disproportionate[ and]

unreasonable.” Appellant’s Brief, 7-8. He argues that the court based the

sentence “solely on on the gravity of the offense factors,” and failed to

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7 Because the ten-day deadline for filing a timely post-sentence motion,

pursuant to Pa.R.Crim.P. 720(a), would have been Sunday, September 22,

2024, the post-sentence motion was timely filed on the next day. See

Pa.R.Crim.P. 101(c) (incorporating by reference the rules of construction in

the Pennsylvania Rules of Judicial Administration including Pa.R.J.A. 107(a)-

(b), relating to computation of time for the rule of construction relating to the

exclusion of the first day and inclusion of the last day of a time period and the

omission of the last day of a time period which falls on Saturday, Sunday, or

a legal holiday).

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“adequately consider [his] rehabilitative factors, mitigating evidence, and the

circumstances of the offense.” Id. at 8.

“[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Lawrence, 313 A.3d

265, 284 (Pa. Super. 2024) (citation omitted). Before we may address the

substantive merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved

his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.

2119(f)] concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of

sentence; and (4) whether the concise statement raises a

substantial question that the sentence is inappropriate under the

[S]entencing [C]ode.

Commonwealth v. Thompson, 333 A.3d 461, 467 (Pa. Super. 2025)

(citation omitted). “The determination of what constitutes a substantial

question must be evaluated on a case-by-case basis.” Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A substantial question exists

only when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Id. (citation and internal quotation marks omitted).

As noted above, Appellant filed a timely notice of appeal to invoke our

jurisdiction. As for issue preservation, Appellant presented no challenge to

his discretionary aspects of his sentence at his sentencing hearing after the

imposition of the term. See N.T. Sentencing Hearing, 9/12/24, 64-66. In his

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post-sentence motion, Appellant averred as follows in support of his request

for relief:

3. [Appellant] requests his sentence on count one [(third-

degree murder)] be lowered into the mitigated range for the

various reasons set forth at his sentencing hearing, in his

pre-sentence investigation report, and his mental health

evaluation.

4. [Appellant]’s admissions of guilt to the police, acceptance of

responsibility for his wrongs, substantial past trauma[,] and

resultant substance abuse issues, combined with the facts

of the crime at issue call for a substantially mitigated

sentence and not the statutory maximum that he received

on count one.

Post-Sentence Motion, 9/23/24, ¶¶ 3-4. Appellant’s post-sentence motion

claim only addressed the sentence for the third-degree murder charge at

count one whereas his appellate claim is focused on the aggregate sentencing

scheme as a whole. At most, the claims in the post-sentence motion only

preserved an argument that mitigating factors compelled a lower term of

imprisonment for the third-degree murder conviction, specifically in the

mitigated guideline range. The post-sentence motion did not preserve

Appellant’s present claim that the aggregate imprisonment term was

“manifestly excessive[, …] disproportionate[, and] unreasonable.” Appellant’s

Brief, 7-8.

Based on the record before us, we find that Appellant only preserved a

subset of his appellate challenge to the discretionary aspects of his sentence.

See Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015)

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(trial court must be given the opportunity to reconsider its sentence either at

sentencing or in a post-sentence motion); Pa.R.Crim.P. 720(B)(1)(a)

(regarding post-sentence motions, “[a]ll requests for relief from the trial court

shall be stated with specificity and particularity”); see, e.g., Commonwealth

v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (concluding that Mann

waived his discretionary aspects of sentencing claim regarding the sentencing

court’s failure to state the reasons for his sentence on the record where Mann’s

post-sentence motion only argued that his sentence was unduly severe and

that the trial court abused its discretion under the Sentencing Code).

Accordingly, we conclude that Appellant waived the portions of his appellate

claim beyond the general assertion in his post-sentence motion that the

sentencing court should have imposed a mitigated range sentence for third-

degree murder based on his attendant mitigating factors. See

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (challenges

to the discretionary aspects of a trial court’s sentence are waived unless raised

at the time of sentencing or in a post-sentence motion); Pa.R.A.P. 302(a)

(“Issues not raised in the trial court are waived and cannot be raised for the

first time on appeal.”).

Our review next proceeds to determining whether Appellant satisfied the

requirements for review under Rule 2119(f). Appellant presents a separate

section of his brief, before his argument section, addressing whether he has

presented a substantial question as required by Rule 2119(f). See Appellant’s

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Brief 6-7. That section, however, addresses only whether his appellate claim,

which combines an excessive sentence claim with a claim alleging a failure to

properly consider mitigating factors, presents a substantial question. The

claim from the post-sentence motion, however, did not explicitly preserve an

excessive sentence claim and instead only alleged a failure to properly

consider mitigating factors. That claim, the only preserved claim for appeal,

does not present a substantial question permitting our review. See

Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021) (“this

Court repeatedly has held that ‘a claim of inadequate consideration of

mitigating factors does not raise a substantial question for our review’”),

citing Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007);

Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (“[a]n

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately

consider’ certain factors does not raise a substantial question that the

sentence was inappropriate”), citing Commonwealth v. Cruz-Centeno,

668 A.2d 536, 545 (Pa. Super. 1995).

After a review of the record, we conclude that the only portion of the

claim preserved for appeal regarding the discretionary aspects of his sentence

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fails to raise a substantial question.8 For this reason, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

Date: 7/10/2025

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8 Even if Appellant had raised a substantial question for this Court’s

consideration, we would find that the preserved claim about the failure to

adequately consider or weigh mitigating factors did not demonstrate an abuse

of discretion. Here, the sentencing court ordered a pre-sentence investigation

report prior to sentencing, thoroughly reviewed the content of that report on

the record, and specifically addressed the mitigating factors included in the

report. See N.T. Sentencing Hearing, 9/12/24, 7-13. Where the trial court

has the benefit of a pre-sentence investigation report, “we shall … presume

that the sentencing judge was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors. A pre-sentence report constitutes the record and speaks for

itself.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014),

quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

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