Com. v. Brown, L.

J-S55035-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

LESLIE L. BROWN, :

:

Appellant : No. 535 WDA 2015

Appeal from the Judgment of Sentence Entered November 19, 2014,

in the Court of Common Pleas of Allegheny County,

Criminal Division, at No(s): CP-02-CR-0008030-2009

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2015

Leslie L. Brown (Appellant) appeals from a judgment of sentence

entered in connection with his conviction for, inter alia, second-degree

murder. We affirm.

This Court previously summarized the background underlying this

matter as follows.

At approximately 12:00 a.m. on the morning of September

29, 2006, 16-year-old [Appellant] was in the Swissvale

neighborhood of Allegheny County with friends Lamar Meggison

(“Meggison”), Keith Smith (“Smith”), and Daniel Holmes. As the

group proceeded to a local convenience store, [Appellant]

approached Michael Stepien (“Stepien” or “the victim”), who was

walking in a nearby alley, and demanded money, holding a gun

to Stepien’s head. Stepien told [Appellant] he had no money.

[Appellant] fired two warning shots—one in the air and one into

the ground—and demanded money a second time. When

Stepien again told him he did not have any money, [Appellant]

shot him in the head. [Appellant] and his friends, who were still

in the area, ran to the home of Terico Ross, another friend who

*Retired Senior Judge assigned to the Superior Court.

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lived in the neighborhood. While there, in the presence of his

friends, [Appellant] said that he killed someone.

Paramedics responded to a call of a man lying in the alley

between Nied’s Funeral Home and the volunteer fire department

and transported the victim to the hospital. Stepien was

pronounced dead from the gunshot wound to his head at

approximately 3:00 a.m. on September 29, 2006. Medical

personnel removed a badly damaged .22 caliber bullet from

Stepien’s head.

On October 6, 2006, at a bus stop in Swissvale several

blocks from where the murder occurred, [Appellant] approached

Francis Yesco (“Yesco”) from behind, put a gun to his head, told

him not to move, and reached into Yesco’s pants pocket. Yesco

brushed [Appellant’s] hand away and turned to strike

[Appellant], at which [time Appellant] fled, still holding the gun.

Yesco and Swissvale Police Officer Justin Keenan, who was

patrolling in the area and observed what happened, chased

[Appellant] for approximately half a block, during which

[Appellant] discarded the firearm over a fence. Officer Keenan

ultimately caught [Appellant] and arrested him, and recovered

the gun shortly thereafter.

A ballistics expert for the Commonwealth test-fired

[Appellant’s] gun, a .22 caliber revolver, and compared the test

bullet with the bullet removed from the victim. The bullet

recovered from Stepien’s head was so badly damaged it could

not be matched, but because it shared certain similarities with

the test bullet, [Appellant’s] gun could not be excluded as the

murder weapon.

The police had no further evidence linking [Appellant] to

Stepien’s murder until 2008, when they arrested Carl Smith,

Smith’s brother, who told police that Smith was present at the

time [Appellant] shot Stepien. This led police to interview other

witnesses, who also implicated [Appellant] in Stepien’s murder.

A grand jury was subsequently convened, and ultimately

[Appellant] was arrested.

The Commonwealth charged [Appellant] by information

with criminal homicide, robbery, carrying a firearm without a

license, and possession of a firearm by a minor. Following a

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three-day trial, a jury convicted [Appellant] of second-degree

murder, robbery, carrying a firearm without a license, and

possession of a firearm by a minor. On May 23, 2011, the trial

court sentenced [Appellant] to a mandatory term of life in prison

without the possibility of parole for second-degree murder and to

a consecutive term of three to six years of imprisonment for

carrying a firearm without a license. The court imposed no

further penalty on the remaining convictions.

Following sentencing, the trial court granted trial counsel’s

motion to withdraw. The trial court did not appoint new counsel

until July 14, 2011. On September 30, 2011, [Appellant] filed a

counseled petition pursuant to the Post Conviction Relief Act

seeking reinstatement of his post-sentence rights. The trial

court granted his request on December 1, 2011, ordering the

filing of post-sentence motions nunc pro tunc within 10 days of

its order. [Appellant] complied on December 7, 2011, raising a

challenge to the weight of the evidence and two claims of trial

court error. On January 20, 2012, the trial court granted

[Appellant] permission to file amended post-sentence motions,

which [Appellant] did on March 30, 2012, raising an additional

claim of trial court error. On May 16, 2012, [Appellant’s] post-

sentence motions were denied by operation of law. [Appellant

timely filed a notice of appeal.]

Commonwealth v. Brown, 71 A.3d 1009, 1011-12 (Pa. Super. 2013)

(footnotes omitted).

On appeal, Appellant raised a challenge to the weight of the evidence,

presented an evidentiary issue, and claimed that his sentence was illegal

pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012), which holds that

“[m]andatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition on cruel and

unusual punishments.” Brown, 71 A.3d at 1017 (citation and quotation

marks omitted). This Court rejected Appellant’s challenge to the weight of

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the evidence and his evidentiary issue. However, the Court agreed with

Appellant that Miller rendered illegal his mandatory sentence of life without

the possibility of parole. Consequently, this Court vacated Appellant’s

judgment of sentence and remanded for resentencing.1 Appellant

subsequently sought, but was denied, review in our Supreme Court.

Commonwealth v. Brown, 77 A.3d 635 (Pa. 2013).

The trial court held a sentencing hearing on November 19, 2014. At

the conclusion of the hearing, the court sentenced Appellant to 40 years to

life in prison for the murder conviction and to a consecutive sentence of

three to six years of prison for carrying a firearm without a license. The

court imposed no further sentences on the remaining convictions.

Appellant timely filed a post-sentence motion, which the trial court

denied. Appellant timely filed a notice of appeal and an unsolicited Pa.R.A.P.

1

As this Court noted in Brown,

the Pennsylvania Legislature passed new legislation setting forth

the sentence for persons who commit murder, murder of an

unborn child and murder of a law enforcement officer prior to the

age of 18. 18 Pa.C.S.A. § 1102.1. This statute expressly applies

only to defendants convicted after June 24, 2012. Id. As the

trial court sentenced [Appellant] on May 23, 2011, this statute is

inapplicable to the case at bar.

Brown, 71 A.3d at 1017 n.7 (citation omitted). Consequently, this Court

directed the trial court to sentence Appellant pursuant to Miller and

Commonwealth v. Knox, 50 A.3d 749 (Pa. Super. 2012). Brown, 71 A.3d

at 1017.

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1925(b) statement. The trial court subsequently issued an opinion

consistent with Pa.R.A.P. 1925(a).

In his brief to this Court, Appellant asks us to consider one question,

namely,

Did the trial court err in denying Appellant’s post-sentencing

motions since Appellant’s murder 2 sentence of 40 years to life

imprisonment, and the imposition of a consecutive sentence for

VUFA, resulting in an aggregate sentence of 43 years to life

imp[]risonment, were both manifestly excessive since Appellant

showed remorse for his crimes, he was taking steps to

rehabilitate himself and demonstrated that he was a changed

person, and it is unreasonable to believe that it will take another

37.4 years for Appellant to reach the point at which he can

return to and become a productive and positive member of

society?

Appellant’s Brief at 3 (unnecessary capitalization omitted). Appellant

challenges the discretionary aspects of his sentence.

It is well settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to

the discretionary aspects of a sentence], we must engage

in a four part analysis to determine: (1) whether the

appeal is timely; (2) whether Appellant preserved his

issue; (3) whether Appellant’s brief includes a 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 appropriate under

the sentencing code.... [I]f the appeal satisfies each of

these four requirements, we will then proceed to decide

the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

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Appellant timely filed a notice of appeal; he preserved his issue in his

post-sentence motion; and his brief contains a Pa.R.A.P. 2119(f) statement.

Thus, we must determine whether Appellant has raised a substantial

question worthy of appellate review.

The determination of whether a substantial question exists

must be made on a case-by-case basis. It is only where

an aggrieved party can articulate clear reasons why the

sentence issued by the trial court compromises the

sentencing scheme as a whole that we will find a

substantial question and review the decision of the trial

court. This [C]ourt has been inclined to find that a

substantial question exists where 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 underlying the sentencing process.

Also, a bald allegation that a sentence is excessive does not

raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the trial

court could have sentenced him to a minimum of 30 years in prison and

could have run his sentences concurrently rather than consecutively.

Appellant believes he was entitled to a lesser sentence because he

expressed remorse for his crimes and because he has taken steps to

rehabilitate himself while incarcerated. Lastly, Appellant speculates that “it

is unreasonable to believe that it will take another 37.40 years for

[Appellant] to reach the point in his development and life at which he could

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return to and become a productive and contributing member of our society.”

Appellant’s Brief at 13.

Appellant fails to explain how these factors, for lack of a better word,

render his sentence inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process. Indeed, a close

scrutiny of Appellant’s issue and Pa.R.A.P. 2119(f) statement reveals that his

sentencing challenge amounts to little more than a bald allegation that his

sentence was excessive.

A review of the sentencing transcript makes clear that the trial court

was aware of its sentencing options. Moreover, the court knew Appellant’s

age and heard his testimony expressing his regrets regarding the murder

and his attempts at rehabilitation. To the extent that these “factors”

constitute “mitigating factors” and that Appellant believes the court failed to

consider them adequately, he fails to raise a substantial question. Disalvo,

70 A.3d at 903 (“[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.”) (citation and quotation marks omitted).

To the extent that Appellant is claiming that the consecutive nature of

his murder and his firearms sentences renders his aggregate sentence

excessive, we observe the following.

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Generally, Pennsylvania law affords the sentencing court

discretion to impose its sentence concurrently or consecutively

to other sentences being imposed at the same time or to

sentences already imposed. Any challenge to the exercise of

this discretion ordinarily does not raise a substantial question.

In fact, this Court has recognized the imposition of consecutive,

rather than concurrent, sentences may raise a substantial

question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature

of the crimes and the length of imprisonment. That is[,] in our

view, the key to resolving the preliminary substantial question

inquiry is whether the decision to sentence consecutively raises

the aggregate sentence to, what appears upon its face to be, an

excessive level in light of the criminal conduct at issue in the

case.

Commonwealth v. Austin, 66 A.3d 798, 808-09 (Pa. Super. 2013)

(citations and quotation marks omitted).

Here, Appellant was sentenced to serve an aggregate sentence of 43

years to life in prison for shooting Michael Stepien in the head with a gun he

illegally possessed after Mr. Stepien could not produce money at Appellant’s

gun-point demands. Given the extreme nature of Appellant’s criminal

conduct, we cannot conclude that the consecutive nature of Appellant’s

sentences raises his aggregate sentence to a facially-excessive level.

Appellant has failed to present this Court with a substantial question

worthy of appellate review. Thus, we affirm his judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2015

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