The opinion
J-S07036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JACQUEZ DAVON BROWN
Appellant No. 832 MDA 2014
Appeal from the Judgment of Sentence January 27, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007081-2011
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 24, 2015
Jacquez Davon Brown appeals from the judgment of sentence imposed
on January 27, 2014, in the Court of Common Pleas of York County,
following his conviction by a jury of first-degree murder.1 Because Brown
was a minor at the time of the crime, he was not subject to the mandatory
life sentence imposed upon adults.2 He received a sentence of 50 years to
life imprisonment. In this timely appeal, Brown claims the verdict was
insufficient as a matter of law, in that the Commonwealth failed to disprove
his claim of self-defense beyond a reasonable doubt. He also argues the
trial court abused its discretion in imposing a minimum sentence fifteen
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1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 1102.1.
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years greater than the 35-year statutory mandatory minimum. After a
thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm.
The factual and procedural histories of this matter are well known to
the parties. Therefore, we simply incorporate the trial court’s able
recitation, found at pages 2-9 of the August 26, 2014, Pa.R.A.P. 1925(a)
opinion. However, we note the following salient facts.
Two eyewitnesses to the crime testified they saw a fight between
Brown and the victim. The victim apparently believed Brown had taken his
cell phone. At one point during the fight, the victim had Brown on the
ground in a headlock. However, both eyewitnesses testified the first shot
fired by Brown at the victim occurred as the victim knelt and Brown stood
nearby. Brown fired several other shots as he walked away from the fallen
victim.
The victim was struck three times and the medical examiner could not
determine the order the wounds were suffered. The fatal wound entered the
victim’s lower back, fractured the 10th thoracic vertebra, lacerated his aorta
and esophagus, and transected the carotid artery before exiting his neck.
This shot was fired from a distance of between one and three feet from the
victim. The other two wounds were non-fatal; one went through the victim’s
hand before lodging in his arm, the other went into the victim’s buttocks.
Another bullet struck a nearby car. Brown was apprehended shortly after
the attack as he left the roof of a house that was several blocks away from
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the crime scene. The victim’s cell phone was found on the roof. The gun
was found approximately two months later, under a desk in an apartment of
the building at which Brown was apprehended. The gun was a 9 mm, Sturm
and Ruger, semi-automatic handgun with a laser sight attached. Brown
gave a statement to the police, admitting having shot the victim, but
claiming he did so in self-defense, as he attempted to escape the headlock.
The certified record demonstrates the victim was approximately four years
older than Brown, and was taller and approximately 50 pounds heavier than
Brown. Brown was approximately four months from his 16th birthday at the
time of the crime.
Our scope and standard of review to a challenge to the sufficiency of
the evidence is well settled:
“Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Murray, 83 A.3d 137,
151 (Pa. 2013). We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the jury to find every element of a
crime beyond a reasonable doubt. Commonwealth v. Cahill,
95 A.3d 298, 300 (Pa. Super. 2014).
In applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
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evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Id. (citation omitted).
Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa. Super. 2015).
Here, Brown argues the Commonwealth failed to disprove beyond a
reasonable doubt his claim of self-defense. The application of self-defense is
governed by 18 Pa.C.S. § 505,3 which states, in relevant part:
[t]he use of deadly force is not justifiable under this section
unless the actor believes that such force is necessary to protect
himself against death [or] serious bodily injury.
18 Pa.C.S. § 505(b)(2).
Additionally, the use of deadly force is not justifiable if:
The actor knows that he can avoid the necessity of using such
force with complete safety by retreating.
18 Pa.C.S. § 505(b)(2)(ii).
The evidence, viewed in the light most favorable to the
Commonwealth, as verdict winner, shows that Brown was not in a headlock
at the time he fired any shot at the victim. Two independent eyewitnesses
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3
On August 29, 2011, shortly after this crime took place, the current version
of the self-defense statute became effective. We have quoted the law
applicable at the time of the crime.
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testified that Brown was essentially standing over the kneeling victim when
the first shot was fired and subsequent shots were fired as the victim lay on
the ground. Therefore, Brown was no longer under the threat of death or
serious bodily injury when he fired the gun. As Brown was standing at the
time and his victim was kneeling, he could have retreated safely, rather than
pulling the trigger. Therefore, Brown was not entitled to an acquittal based
upon his claim of self-defense. Accordingly, this claim for relief must fail.
Next, Brown challenges the discretionary aspect of his sentence,
arguing the trial court abused its discretion in imposing a 50-year minimum
term of incarceration. Specifically, Brown claims, “the trial court abused its
discretion in sentencing him to a half-century of imprisonment, without
proper consideration of several mitigating factors in support of a lower
sentence.” Appellant’s Brief, at 17. This statement mirrors Brown’s claim in
his required Pa.R.A.P. 2119(f) statement. Specifically, Brown claims the trial
court failed to consider his statement of remorse, his limited criminal history
with successful completion of a prior probationary sentence, and the fact his
actions, in both the simple assault and the instant murder, were in response
to action taken by the victims.
Regarding a challenge to the discretionary aspects of a sentence:
This Court does not review such issues as a matter of right. “An
appellant must satisfy a four-part test to invoke this Court's
jurisdiction when challenging the discretionary aspects of a
sentence.” Commonwealth v. Buterbaugh, 91 A.3d 1247,
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1265 (Pa. Super. 2104). The appellant must satisfy all of the
following:
(1) the appellant preserved the issue either by raising it at
the time of sentencing or in a post[-]sentence motion; (2)
the appellant filed a timely notice of appeal; (3) the
appellant set forth a concise statement of reasons relied
upon for the allowance of his appeal pursuant to Pa.R.A.P.
2119(f); and (4) the appellant raises a substantial
question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).
Tejada, supra, 107 A.3d at 797-98.
Furthermore, with respect to the claim of failure to consider mitigating
circumstances,
“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a
substantial question for our review.” Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010)(citation
omitted). Accordingly, we conclude Appellant's argument that
the trial court failed to give adequate weight to mitigating factors
does not present a substantial question appropriate for our
review. See Id.; see also Commonwealth v. Kraft, 737 A.2d
755, 757 (Pa. Super. 1999), appeal denied, 560 Pa. 742, 747
A.2d 366 (1999)(determining appellant's claim that sentence of
incarceration for DUS violation was excessive because
sentencing court failed to adequately consider certain mitigating
factors did not raise substantial question).
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013).4
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4
We are cognizant of a recent opinon, Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014), that stated the failure to consider mitigating
circumstances does present a substantial question. Raven cited
Commonwealth v. Felmlee, 828 A.2d 1105 (Pa. Super. 2005) for that
proposition. Felmlee addressed an aggravated range imposed sentence
(Footnote Continued Next Page)
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However, recognizing that we are reviewing a sentence imposed
pursuant to 18 Pa.C.S. § 1102.1, sentencing of a minor for murder, we will
address Brown’s argument.
In response to Miller v. Alabama, 132 S.Ct. 2455 (2012),5 the
Commonwealth of Pennsylvania has enacted special sentencing provisions
applying to persons under the age of 18 who committed first-degree murder.
In relevant part, the statute provides:
§ 1102.1. Sentence of persons under the age of 18 for
murder, murder of an unborn child and murder of a law
enforcement officer
(a) First degree murder.--A person who has been
convicted after June 24, 2012, of a murder of the first
degree, first degree murder of an unborn child or murder
of a law enforcement officer of the first degree and who
was under the age of 18 at the time of the commission of
the offense shall be sentenced as follows:
(1) A person who at the time of the commission of
the offense was 15 years of age or older shall be
sentenced to a term of life imprisonment without
parole, or a term of imprisonment, the minimum of
which shall be at least 35 years to life.
18 Pa.C.S. § 1102.1(a)(1) (emphasis in original).
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(Footnote Continued)
without consideration of mitigating circumstances, which did not occur here.
We do not believe Felmlee stands for the general proposition that failure to
consider mitigating circumstances presents a substantial question.
5
In 2012, in Miller, the United States Supreme Court determined that
mandatory life imprisonment for juveniles convicted of murder offended the
8th Amendment prohibition against cruel and unusual punishment.
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Because Brown was 15 years-old at the time of the commission of the
crime, he was subject to a 35-year mandatory minimum term of
incarceration. Prior to sentencing, a pre-sentence investigation was
generated by the York County Probation Department. This report detailed
Brown’s prior juvenile record as well as various social, educational and
financial factors, including those issues Brown has raised herein. The report
also included victim impact statements from five members of the victim’s
family. The report noted Brown had successfully completed a prior
probationary period for a simple assault (shooting a person in the face with a
BB gun), but had been written up several times for various infractions,
including fighting and causing a disturbance, during his pre-trial
incarceration.6 Ultimately, the report recommended the court impose a
sentence of 50 years to life incarceration.
In issuing Brown’s sentence, the trial court stated it reviewed the pre-
sentence investigation, specifically noting the above mentioned prior assault
adjudication at the age of 13, as well as the assaultive behavior during his
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6
In his Appellant’s Brief, Brown refers to information regarding his criminal
history that was developed in the decertification hearing. This hearing was
not held before the sentencing judge. It is unclear from the certified record
if the sentencing judge was aware of the testimony from the decertification
hearing or considered any of the psychological reports from that hearing.
We have reviewed the entire record and note that the decertification hearing
also contained significant information that might be considered detrimental
to Brown’s current argument. Because it is unclear if the trial court
considered any of this information, we will not consider any of it in our
analysis.
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pre-trial detention. We note that “because the trial court had the benefit of
a presentence report, we presume that the court was aware of relevant
information regarding the defendant's character and weighed those
considerations along with any mitigating factors.” Commonwealth v.
Seagraves, 103 A.3d 839, 847 (Pa. Super. 2014).
The trial court also heard and considered both the written victim
impacts statements and testimony of relatives of the victim presented at the
sentencing hearing. The trial court stated:
Let me simply say this, when the Court has some discretion as to
what to impose as far as a sentence after a life is lost, there’s a
tendency by those who have lost that life to believe that no
sentence that we impose is sufficient to compensate for that life.
We think that’s a simplistic – too simplistic a way to approach
the Court’s duty. To equate a person’s life with a certain
number of years tends to diminish the value of that life, and
accordingly, obviously there’s no sentence that we could impose
that would satisfy those who have lost the memory and
experiences of the victim in this particular case.
That having been said, our focus really has to turn to the
Defendant in this particular matter, and as we previously
indicated, it is clear to us that the Defendant has to be
segregated from society for a significant period of time.
Obviously attempts at rehabilitation under the juvenile system
failed. The Defendant obviously quickly escalated his criminal
behavior by committing this offense two years after he was
placed on formal probation for the simple assault. Accordingly,
our sentencing objective has to change from one of rehabilitation
to simply incapacitation for a substantial period of time. We
would note that a lesser sentence would depreciate the
seriousness of the crime of which the defendant stands
convicted.
N.T. Sentencing, 1/27/2014, at 10-11.
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Contrary to Brown’s assertion, the record supports the trial court’s
belief regarding the failure of the juvenile system to rehabilitate Brown. The
commission of a first-degree murder so quickly after his first criminal
episode does not bespeak a successful rehabilitative process. While Brown
asserted both the simple assault and the murder were the product of self-
defense, the adjudication and conviction, especially regarding the instant
crime, indicate otherwise. The trial court demonstrably considered the
elements presented and did not improperly ignore mitigating factors in
imposing a sentence greater than the statutory mandatory minimum.
Accordingly, Brown is not entitled to relief on this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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