Com. v. Brown, A.

J-S66016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AUMBREY LANEL BROWN

Appellant No. 2021 WDA 2014

Appeal from the Judgment of Sentence November 17, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0010361-2005

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2016

Appellant Aumbrey Lanel Brown appeals from the November 17, 2014

judgment of sentence entered in the Court of Common Pleas of Allegheny

County (“trial court”), following revocation of his probation. Upon review,

we affirm.

The facts and procedural history underlying this case are undisputed.1

On January 9, 2007, the trial court sentenced Appellant at three separate

dockets numbers. Specifically, at docket number 2005-10361,2 Appellant

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*

Retired Senior Judge assigned to the Superior Court.

1

Unless another source is cited, the facts are taken from pages 2 and 3 of

the trial court’s July 7, 2015 Pa.R.A.P. 1925(a) opinion.

2

Appellant pled guilty at 2005-10361 to one count of delivery of cocaine

related to his sale of 25.03 grams of cocaine to an undercover officer on May

4, 2005.

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was sentenced to two to five years’ incarceration with a recommendation for

boot camp followed by three years’ probation. At docket number 2005-

15297,3 Appellant received a concurrent sentence of two to nine months in

prison; at docket number 2005-09459,4 he received a concurrent sentence

of six to twelve months’ imprisonment. Appellant finished serving his state

sentence on January 18, 2013, and began his probationary term of three

years.

On February 24, 2013, at docket number 2013-3267, Appellant was

charged with carrying a firearm without a license, person not to possess a

firearm and receiving stolen property. On May 15, 2014, Appellant pled

guilty to all charges and was sentenced to 11½ to 23 months’ imprisonment

at 2013-3267.

Because Appellant was on probation when he committed the crimes at

2013-3267, a probation violation hearing was held on November 17, 2014.

Following the hearing, the trial court revoked Appellant’s probation and

sentenced him to 2 to 4 years’ imprisonment at 2005-10361. Appellant

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3

At 2005-15297, Appellant pled guilty to one count of fleeing or eluding a

police officer following a high-speed chase on August 4, 2005, which ended

with Appellant striking a parked car and fleeing on foot before being

apprehended.

4

At 2005-09459, Appellant pled guilty to possession with intent to deliver

cocaine and possession of a small amount of marijuana. On March 26,

2005, Appellant was stopped for a traffic violation and found in possession of

6.898 grams of cocaine, 30 grams of marijuana, $2,405.00 in cash and two

cell phones.

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timely filed a post-sentence motion, challenging the discretionary aspects of

his new sentence. On December 8, 2014, the trial court denied the motion.

Appellant timely appealed to this Court. At the trial court’s direction,

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, challenging only the discretionary aspects of his sentence. In

response, the trial court issued a Rule 1925(a) opinion, rejecting Appellant’s

assertion of error.

On appeal, Appellant raises only a single issue for our review, namely:

In revoking [Appellant’s] probation and re-sentencing him to a

sentence of total confinement of 2-4 years[’] state incarceration,

whether the trial court abused its discretion when it failed to

consider relevant and required sentencing criteria, including the

protection of the public, the gravity of [Appellant’s] conduct, and

the character, personal history, and rehabilitative needs of

[Appellant], thereby violating 42 Pa.C.S.A. § 9721(b)[.]

Appellant’s Brief at 4. In essence, Appellant argues that the trial court

abused its discretion in failing to consider mitigating evidence pertaining to

his character, personal history, and rehabilitative needs in fashioning

Appellant’s sentence. Specifically, Appellant contends that the trial court

failed to take into consideration Appellant’s age, remorse, acceptance of

responsibility for the crimes, ties to Pittsburgh, employment status,

educational history, familial obligations, and treatment plans for mental

health and substance abuse. Id. at 14-15.

When reviewing a challenge to the trial court’s discretion, our standard

of review is as follows:

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

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absent a manifest abuse of discretion. An abuse of discretion is

more than just an error in judgment and, on appeal, the trial

court will not be found to have abused its discretion unless the

record discloses that the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-

will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.

2002)), appeal denied, 64 A.3d 630 (Pa. 2013).

It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011). Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction by satisfying a

four-part test:

[W]e conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

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case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.5 We, therefore, must determine only if

Appellant’s sentencing issue raises a substantial question.

We have found that a substantial question exists “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.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super.

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This

Court does not accept bald assertions of sentencing errors. See

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying

the appeal, which are necessary only to decide the appeal on the merits.”

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5

Rule 2119(f) provides that “[a]n appellant who challenges the discretionary

aspects of a sentence in a criminal matter shall set forth in his brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory provisions and pronouncements of conclusions of law[.]”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

Nonetheless, [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. Disalvo, 70 A.3d 900 (Pa.

Super. 2013) (citations omitted); see also Commonwealth v. Berry, 785

A.2d 994 (Pa. Super. 2001) (explaining allegation that sentencing court

failed to consider certain mitigating factor generally does not raise a

substantial question); see also Commonwealth v. Cruz-Centeno, 668

A.2d 536, 545 (Pa. Super. 1995) (“[a]n allegation that a sentencing [judge]

‘failed to consider’ or ‘did not adequately consider’ certain factors does not

raise a substantial question that the sentence was inappropriate,”), appeal

denied, 676 A.2d 1195 (Pa. 1996); see also Commonwealth v. Bershad,

693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of substantial

question where appellant argued the trial court failed to adequately consider

mitigating factors and to impose an individualized sentence).

Here, as revealed by Appellant’s Rule 2119(f) statement, he argues

only that the trial court failed to consider certain mitigating evidence in

support of Appellant’s character, personal history, and rehabilitative needs,

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when it fashioned the sentence. Appellant’s Brief at 12, 15. Thus, given the

nature of his Rule 2119(f) statement, we cannot conclude he has raised a

substantial question. See Disalvo, supra; Berry, supra; Cruz-Centeno,

supra; Bershad, supra. We, therefore, deny Appellant’s petition for

allowance of appeal.

Even if Appellant had a raised a substantial question, he still would not

have obtained relief because the trial court here had the benefit of a

presentence investigation (“PSI”) report. “Where the sentencing [judge]

had the benefit of a [PSI], we can assume the sentencing [judge] was aware

of relevant information regarding the defendant’s character and weighed

those considerations along with mitigating statutory factors.” Moury, 992

A.2d at 171; see also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.

Super. 2005) (“Since the sentencing court had and considered a [PSI], this

fact alone was adequate to support the sentence, and due to the court’s

explicit reliance on that report, we are required to presume that the court

properly weighed the mitigating factors present in the case.”).

Here, at sentencing the trial court explicitly stated:

In the present case[, Appellant’s] educational and employment

background and his family circumstances were considered along

with [his] repeated history of drug and gun related offenses.

Since the imposition of the original sentence on cases that

involved possession with intent to deliver, [Appellant]

demonstrated a repeated willingness to commit crimes involving

the “dangerous combination” of guns and drugs. In imposing

the sentence of two to four years [sic] it was noted:

The problem I’ve got is I understand when you are in

jail and you can’t get high and you can’t get drugs

and they [get you] medicated, everyone is

wonderful. Then [you] get out on the street, [you]

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don’t take [the] medication and the next thing you

know you’re selling drugs and you got a gun again.

This has happened over and over again.

Trial Court’s Rule 1925(a) Opinion, 7/7/15, at 4 (record citation omitted).

Accordingly, Appellant’s argument that the trial court failed to consider

mitigating evidence would fail. See Moury, supra; Fowler, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2016

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