# Com. v. Brown, S. > Superior Court of Pennsylvania · October 17, 2014 URL: https://www.frixlaw.com/law-library/cases/2743576 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** October 17, 2014 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2743576 ## Opinion text J-S18019-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. SPENCEL BROWN, Appellant No. 1674 EDA 2013 Appeal from the Judgment of Sentence April 30, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003785-2011 BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.* MEMORANDUM BY JENKINS, J. FILED OCTOBER 17, 2014 Following a bench trial, the trial court found Spencel Brown guilty of aggravated assault1, simple assault2, carrying a firearm without a license3, carrying a firearm on public streets in Philadelphia4, possession of an instrument of crime5 and reckless endangerment of another person6. The court found Brown guilty of these charges based on evidence that Brown shot at a man multiple times after chasing him across a street in the Overbrook section of Philadelphia. On April 30, * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2702. 2 18 Pa.C.S. § 2701. 3 18 Pa.C.S. § 6106. 4 18 Pa.C.S. § 6108. 5 18 Pa.C.S. § 908. 6 18 Pa.C.S. § 2705. J-S18019-14 2013, the court sentenced Brown to 5½-11 years imprisonment plus two consecutive five year terms of probation. Brown filed timely post-sentence motions challenging the weight of the evidence and a timely notice of appeal7. Both Brown and the trial court complied with Pa.R.A.P. 1925. 7 In a memorandum dated April 22, 2014, we remanded this case to the trial court and directed it to determine whether Brown filed his post-sentence motions on May 10, 2013 or on May 13, 2013. The record was unclear as to which of these dates was correct, and we needed to determine the correct date in order to ascertain whether Brown’s appeal was timely. Our memorandum explained that “a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1) (emphasis added). When the defendant files a timely post-sentence motion, the 30-day appeal period is tolled either until (1) the court decides the motion or (2) the clerk of courts enters an order denying the motion by operation of law. Pa.R.Crim.P. 720(A)(2)(a-b). An untimely post-sentence motion does not toll the appeal period. The trial court imposed sentence on April 30, 2013. If Brown filed his post-sentence motions on May 10, 2013, (1) they were timely under Rule 720, (2) his appeal period did not begin running until May 13, 2013, when the trial court denied his motions, and (3) his appeal on June 7, 2013 is timely. If Brown filed his post-sentence motions on May 13, 2013, (1) they were untimely under Rule 720, (2) his appeal period expired on May 30, 2013, and (3) his notice of appeal on June 7, 2013 was untimely. On June 10, 2014, the trial court determined that Brown filed his post-sentence motions on May 10, 2013. Based on this finding of fact, we conclude that Brown’s appeal on June 7, 2013 was timely and that we have jurisdiction over his appeal. 2 J-S18019-14 Brown raises two issues in this appeal: (1) the verdict is against the weight of the evidence; and (2) his sentence is excessive. Neither issue has merit. We affirm. With regard to Brown’s first issue, a challenge to the weight of the evidence, our standard of review is as follows: A verdict is not contrary to the weight of the evidence because of a conflict in testimony or because the reviewing court on the same facts might have arrived at a different conclusion than the fact[-]finder. Rather, a new trial is warranted only when the jury's verdict is so contrary to the evidence that it shocks one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Where, as here, the judge who presided at trial ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. One of the least assailable reasons for granting or denying a new trial is the lower court's determination that the verdict was or was not against the weight of the evidence and that new process was or was not dictated by the interests of justice. Thus, only where the facts and inferences disclose a palpable abuse of discretion will the denial of a motion for a new trial based on the weight of the evidence be upset on appeal. Commonwealth v. Morales, 91 A.3d 80, 91-92 (Pa.2014) (citations omitted). 3 J-S18019-14 The trial court acted within its discretion by denying Brown’s post-sentence motions objecting to the weight of the evidence. The trial court opinion explains that Brown chased another male down the street on a crowded street in the Overbrook section of Philadelphia on March 12, 2011 and then fired a gun at him several times. One eyewitness observed Brown shooting the gun. The eyewitness’s description of the shooter matched the description of Brown observed by two police officers walking down the street moments before the shooting was reported. Brown fled the scene after shooting the gun. Shell casings recovered at scene of the shooting came from a dismantled weapon discovered in the residence where Brown was arrested. We incorporate by reference the trial court’s careful presentation of the evidence and analysis in pages 2-7 of its opinion. Brown’s second issue on appeal, a claim that his sentence is excessive, raises a discretionary challenge to his sentence. “Challenges to the discretionary aspects of sentencing do not entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000)). An appellant must satisfy the following four- part test to invoke this Court’s jurisdiction when challenging the discretionary aspects of a sentence: 4 J-S18019-14 (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 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. Allen, 24 A.3d at 1064. Brown filed a timely notice of appeal, preserved the issue at sentencing8, and included a statement of reasons pursuant to Rule 2119(f) in his brief (albeit in the wrong location) 9. We must therefore determine whether his issue raises a substantial question. 8 We disagree with the Commonwealth’s argument that Brown failed to raise the issue of excessiveness at sentencing. The record reflects that Brown’s attorney argued that the sentence should be in the “middle of the guidelines”, an implicit request that the Court refrain from an aggravated sentence. N.T., 4/30/13, p. 18. The Commonwealth responded by seeking an “aggravated sentence” above the guidelines. Id., pp. 18-24. We find under these circumstances that defense counsel adequately addressed the issue of excessiveness at sentencing. 9 Rule 2119(f) requires the appellant to include a separate section in his brief, immediately preceding the argument section, which explains concisely the reasons for granting appeal with regard to the discretionary aspects of his sentence. Brown neglects to include a separate Rule 2119(f) section in his brief and attempts instead to discuss this subject in his argument. While we do not approve of this methodology, we decline to find that the absence of a separate Rule 2119(f) statement constitutes a waiver of Brown’s objections to the discretionary aspects of his sentence. See Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa.Super.2003) (where appellant failed to provide separate Rule 2119(f) statement in his brief but instead raised challenge to discretionary aspect of sentence in the first 5 J-S18019-14 “The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists where a defendant raises a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super.2003)). Brown’s prior record score is two, and the offense gravity score for aggravated assault is ten. The standard sentencing range under these circumstances is 54-60 months. The court sentenced Brown to 66 months, within the aggravated range of the guidelines, based on his membership in a violent gang, his history of stops and arrests, and his brazen conduct in shooting at another male on a crowded street. Brown argues that the court ignored several factors, such as his desire to go to college, his remorse over this incident, his history of legitimate employment, and his desire to set a positive example for younger relatives. In essence, Brown argues the court failed to paragraph of argument portion of his brief on this issue, “we shall consider this first paragraph in the argument portion of Appellant's brief on this issue as Appellant's Rule 2119(f) statement”). 6 J-S18019-14 consider certain mitigating factors and, as a result, imposed an excessive sentence. This claim does not present a substantial question for review. See Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) (“Appellant’s claim that the court did not consider his personal life situation of having a drug problem does not raise a substantial question”); Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.1995) (“an 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”). Further, his claim that the sentence is excessive does not raise a substantial question, for he fails to explain how his sentence violated a provision of the Sentencing Code or a fundamental norm of the sentencing process. See Commonwealth v. Mouzon, 812 A.2d 617 (Pa.2002) (only if the defendant sufficiently articulates the manner in which the sentence violates a specific provision of the Sentencing Code or a particular fundamental norm will a claim of excessiveness raise a substantial question). Even if Brown raises a substantial question, it is meritless. “Sentencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse of discretion requires the trial court to 7 J-S18019-14 have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Id. (citing Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)). “A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, but the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender.” Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super.2006)). The sentencing hearing transcript and the court’s opinion demonstrates that it reviewed all of the relevant evidence, including the mitigating factors presented by Brown, and determined after careful consideration that a sentence in the aggravated range was necessary. Therefore, the court acted within its discretion by sentencing Brown to 5½--11 years’ imprisonment. Judgment of sentence affirmed. Judge Shogan joins in the memorandum. Judge Platt concurs in the result. 8 J-S18019-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/17/2014 9 Circulated 08/04/2014 02:07 PM Circulated 08/04/2014 02:07 PM Circulated 08/04/2014 02:07 PM --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2743576. Public record. Not legal advice.