Com. v. Brown, I.

J. 573013/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

' PENNSYLVANIA

v.

ISAIAH BROWN, : No. 1997 WDA 2015

Appellant

Appeal from the Judgment of Sentence, November 2, 2015,

in the Court of Common Pleas of A||egheny County

Criminal Division at No. CP-OZ-CR-0015843-2014

BEFORE: FORD ELLIO`|_|', P.J.E., LAZARUS AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIO'|'|', P.J.E.: FILED NOVEMBER 08, 2016

Isaiah Brown appeals from the judgment of sentence of November 2,

2015, following his conviction of robbery and related charges. We affirm.

The Honorable Jill E. Rangos has set forth the history of this case as

follows:

On August 10, 2015, Appellant, Isaiah Brown,

pled guilty to one count each of Robbery, Burglary,

Criminal Conspiracy, Theft by Unlawful Tal<ing, and

two counts of Receiving Stolen

Property.[l][Footnote 1] On November 2, 2015, this

1 The Commonwealth set forth the factual basis for the plea as follows:

[MA`|'|'HEW J. WHOLEY, ESQ., ADA]: Thanl< you,

Your Honor. At CC's ending 201415843, 15841, and

15779, Commonwealth would have called as

witnesses Detective Paul Ewin, E-w-i-n, excuse me,

A||egheny County Police, General Investigations, as

well as others, including civilian witnesses

Ann Wilford and Walter J. Duffin, D-u-f-f-i-n. They

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Court sentenced Appellant at the Robbery count to

eighteen to fifty-six months['] incarceration with a

consecutive period of probation of three years, and a

three-year period of probation at the Criminal

Conspiracy count concurrent to the first probation,

with no further penalty as to the remaining counts.

Appellant filed a Post-Sentence Motion which this

Court denied on November 17, 2015. Appellant filed

a Notice of Appeal on December 17, 2015 and a

Concise Statement of Errors Complained Of[Z] on

March 31, 2016.

would have testified that on November 6 of 2014, at

approximately 3:51 a.m., the defendants - the three

defendants entered the residence located at 433 East

Eleventh Avenue. They were unauthorized to enter

the residence. They did so by force. They,

Mr. Hunter produced a firearm, and aroused

Ann Wilford, the victim, out of bed, asking her,

where is the money, give me the car keys, things of

that nature, while pointing a gun at her. The other

two co-defendants rummaged through the home. At

one point Miss Wilford was taken downstairs where

she produced $200 in currency, as well as the car

keys to the vehicle owned by Walter J. Duffin, who

was, also, asleep in the residence. The victims then

left with $200 and the car keys. They took

Mr. Duffin's vehicle. Police alerted to the vehicle. A

high speed chase ensued, at which point the car

went through several municipalities, ending up on

Walnut Street in Homestead, crashing into a hillside.

The occupants of the vehicle fled from the vehicle

and were later apprehended, at which point each

defendant gave a confession admitting to the said

facts of the case. That in essence, Your Honor,

would have been the Commonwealth's case.

Notes of testimony, 8/10/15 at 15-16.

2 Pa.R.A.P. 1925(b).

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[Footnote 1] 18 Pa.C.S. §§ 3701(A)(II),

3502(A)(1), 903(C), 3921(A), and

3925(A), respectively.

Trial court opinion, 6/20/16 at 2.

Appellant has raised the following issue for this court's review,

challenging the discretionary aspects of his sentence:

Did the sentencing court abuse its discretion by

imposing a sentence inconsistent with the norms

underlying the Sentencing Code, failing to consider

all relevant factors and focus[ing] almost exclusively

on the seriousness of the offense and prior juvenile

offenses to the exclusion of other pertinent factors?

Appellant's brief at 5 (capitalization omitted).

Preliminarily, we note that “there is no absolute right

to appeal when challenging the discretionary aspect

of a sentence." Commonwealth v. Ahmad, 961

A.2d 884, 886 (Pa.Super. 2008). An appellant must

first satisfy a four-part test to invoke this Court's

jurisdiction. We examine

(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).

Commonwealth v. Griffin, 65 A.3d 932, 935

(Pa.Super. 2013) (citation omitted).

Commonwealth v. Schrader, 141 A.3d 558, 563 (Pa.Super. 2016).

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Here, appellant filed a timely notice of appeal. He also filed a timely

post-sentence motion challenging the discretionary aspects of his sentence.

Appellant has included the requisite Rule 2119(f) statement in his brief.

(Appellant's brief at 11-14.) Therefore, we turn to whether appellant has set

forth a substantial question for this court's review.

“The determination of what constitutes a substantial

question must be evaluated on a case-by-case

basis." Commonwealth v. Edwards, 71 A.3d 323,

330 (Pa.Super. 2013) (citations omitted). “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. (citations

omitted). “Additionally, we cannot look beyond the

statement of questions presented and the prefatory

2119(f) statement to determine whether a

substantial question exists." Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012).

Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa.Super. 2016).

In his Rule 2119(f) statement, appellant claims that he received “an

excessive sentence outside of the aggravated range of the sentencing

guidelines." (Appellant's brief at 13.) Appellant also alleges that he

received two consecutive 3-year periods of probation, for a total of 6 years'

probation. (Id.) Neither statement is true. In fact, the record is clear that

appellant received a mitigated range sentence of 18 to 56 months'

incarceration followed by 3 years of probation. (Notes of testimony, 11/2/15

at14-15.)

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Despite the fact that he received a mitigated range sentence, appellant

complains that the sentencing court focused solely on the seriousness of the

offense and his juvenile record, and failed to consider all of the factors

required by 42 Pa.C.S.A. § 9721(b). (Appellant's brief at 12-13.) At

sentencing, appellant asked for a county sentence of 111/z to 23 months,

which would have represented a significant departure from the guidelines.

Nevertheless, an allegation that the trial court focused solely on the

seriousness of the offense sets forth a “substantial question” for review.

Commonwealth v. Trimble, 615 A.2d 48, 54 (Pa.Super. 1992) (citations

omitted). Therefore, we will briefly address the merits of appellant's

argument on appeal.

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 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.

More specifically, 42 Pa.C.S.A. § 9721(b)

offers the following guidance to the trial

court's sentencing determination:

[T]he sentence imposed

should call for confinement

that is consistent with the

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protection of the public, the

gravity of the offense as it

relates to the impact on the

life of the victim and on the

community, and the

rehabilitative needs of the

defendant.

42 Pa.C.S.A. § 9721(b).

[Commonwealth v.] Bricker, 41 A.3d [872] at 875

[(Pa.Super. 2012)] (quotation omitted). Thus, under

42 Pa.C.S.A. § 9721(b), a “sentencing court must

formulate a sentence individualized to that particular

case and that particular defendant."

[Commonwealth v.] Boyer, 856 A.2d [149] at 153

[(Pa.Super. 2004)].

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014).

Our review of the record reveals that the trial court considered all

relevant factors and did not focus solely on the serious nature of the crime.

The trial court was well aware of various alleged mitigating factors in

appellant's favor, including the fact that he took responsibility for his

actions; that he cooperated with the police investigation; that he was not

the individual with the gun; that he suffered from depression and ADHD;

that he grew up not knowing his father; that his grandparents who raised

him passed away; and that he completed high school with a 4.0 GPA.

(Notes of testimony, 11/2/15 at 3-5, 7-8.) In addition, the trial court had

the benefit of a pre-sentence investigation (“PSI”) report. (Id. at 2.)

Appellant had no additions or corrections to make to the PSI report. (Id.)

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“[W]here the sentencing judge had the benefit of a [PSI] report, it will be

presumed that he or she was aware of the relevant information regarding

the defendant's character and weighed those considerations along with

mitigating statutory factors.” Clarke, 70 A.3d at 1287, quoting Bricker, 41

A.3d at 876 n.9 (quotation and quotation marks omitted); Commonwealth

v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“It would be foolish, indeed, to take

the position that if a court is in possession of the facts, it will fail to apply

them to the case at hand”).

Judge Rangos ultimately rejected appellant's request for a county

sentence but did agree to a mitigated range sentence, stating:

I do think it is important to give young people a

chance to turn their lives around. As I said at the

earlier hearing, their behavior on this instance was

very concerning. And I do not have a crystal ball. I

do, however, have the benefit of a [PSI] Report.

And with regard to [appellant], as a juvenile, two

prior gun cases.[3] *** So I do not see any reason

to go below the mitigated range for either of them. I

do want to give them an opportunity, though, to be

successful, and I will allow them to demonstrate that

to me by giving them the bottom of the mitigated

range with a longer tail so that they can obtain their

GEDs, do all of the things that they've indicated the

desire to do and demonstrate that they do want to

become productive members of society.

3 To the extent that appellant argues his juvenile history was already

accounted for in his prior record score and should not have been considered,

this particular issue was not raised either in his post-sentence motion or in

his Rule 1925(b) statement; therefore, it is waived on appeal.

Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Reeves,

778 A.2d 691, 692 (Pa.Super. 2001) (“issues challenging the discretionary

aspects of sentencing must be raised in a post-sentence motion or by raising

the claim during the sentencing proceedings” (citation omitted)).

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Notes of testimony, 11/2/15 at 13-14.

There is no merit to appellant's claim that the trial court abused its

discretion in sentencing. As demonstrated supra, the trial court

thoughtfully considered all relevant factors and did not focus solely on the

seriousness of the charges. To the extent appellant argues that the trial

court gave insufficient weight to certain mitigating factors, including his

mental health issues and family history, he fails to raise a substantial

question of inappropriateness. Commonwealth v. Lopez, 627 A.2d 1229

(Pa.Super. 1993) (allegation that sentencing court failed to attach sufficient

weight to mitigating factors of record does not present a substantial

question); Commonwealth v. ]0nes, 613 A.2d 587 (Pa.Super. 1992),

appeal denied, 629 A.2d 1377 (Pa. 1993) (arguments that sentencing

court improperly weighed various legitimate factors does not raise a

substantial question); Commonwealth v. Williams, 562 A.2d 1385, 1388

(Pa.Super. 1989) (an allegation that the trial court did not adequately

consider certain mitigating factors is, in effect, a request that this court

substitute its judgment for that of the trial court in fashioning appellant's

sentence).

Judgment of sentence affirmed.

J. 573013/16

Judgment Entered.

Joseph D. Seletyn, Es .

Prothonotary

Date: 11/8/2016