Com. v. Brown, R.

J. S25042/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

ROLAND BROWN, : No. 1348 EDA 2016

:

Appellant :

Appeal from the Judgment of Sentence, April 22, 2016,

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos. CP-51-CR 0013828-2014,

CP-51-CR-0013829-2014, CP-51-CR-0013830-2014,

CP-51-CR-0013831-2014, CP-51-CR-0013834-2014,

CP-51-CR-0013836-2014, CP-51-CR-0013837-2014

BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 12, 2017

Roland Brown appeals from the April 22, 2016 aggregate judgment of

sentence of 45 to 90 years’ imprisonment imposed after he was found guilty

of multiple counts of robbery, robbery of a motor vehicle, theft by unlawful

taking or disposition, receiving stolen property, use or possession of an

electronic incapacitation device, criminal conspiracy, possessing an

instrument of crime, simple assault, aggravated assault, recklessly

endangering another person, terroristic threats, and criminal attempt. 1 After

careful review, we affirm.

1

18 Pa.C.S.A. §§ 3701, 3702, 3921, 3925, 908.1, 903, 907, 2701, 2702,

2705, 2706, and 901, respectively.

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The trial court summarized the facts pertinent to the issues appellant

raises on appeal as follows:

On August 11, 2013, at about 1:00 in the

morning, Erin Norton was leaving a 7-Eleven in the

area of 1200 Leopard Street when she encountered

[a]ppellant and a woman. Ms. Norton testified that

she heard footsteps behind her and put her arms in

the air. She said [a]ppellant tased her and grabbed

her pocketbook. She did not see the taser, but knew

what it felt like, and testified that she was tased in

her back. Inside the purse were car keys, $150

worth of cosmetics, social security cards, and a

smaller bag worth $75. On October 3, 2013,

Ms. Norton was shown a photo array of eight men,

and identified [a]ppellant as the individual who had

taken her bag. Ms. Norton was also shown a photo

array of eight women, and she was able to identify

the woman with [a]ppellant. She also identified

[a]ppellant in a six-person lineup approximately one

year later.

....

Mary Jefferies also testified at trial. In August

of 2013 she and [a]ppellant lived at the same

address (along with others) in North Philadelphia.

Ms. Jefferies testified that at that time she was in a

relationship with [a]ppellant. On August 11, 2013,

at about 1:00 in the morning, [a]ppellant and

Ms. Jefferies left their home, at his instigation. She

testified that he asked her to come with him, and

that he was going to go on a robbery spree. When

she refused at first, he burned her upper arm with

the “Dutch” [cigar] he had been smoking. After that

she went with him, and they saw a white woman,

approximately late twenties-early thirties, walking

alone. Ms. Jefferies testified that [a]ppellant ran

toward the woman and grabbed her purse. When

the woman fought him, [a]ppellant tased her, and

was ultimately able to take the purse.

Trial court opinion, 9/21/16 at 2, 6 (citations to notes of testimony omitted).

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Following the robbery of Norton, appellant robbed eight additional

individuals over the course of a four-week span from mid-August until mid-

September 2013. Specifically, on August 13, 2013, appellant robbed

Jennifer Gallo of her purse near the 6600 block of Castor Avenue in

Philadelphia, tasering her repeatedly when she resisted. (Notes of

testimony, 11/23/15 at 132-136.) On August 20, 2013, appellant robbed

Tysheia Parker of her cell phone and money near C and Louden Streets in

Philadelphia. (Id. at 31-32.) Two day later, on August 22, 2013, appellant

stole Richmond Jackson, III’s Nissan Altima from a convenience store

parking lot. That same afternoon, appellant punched Sam Chen six times

while he was standing at a mailbox on 1100 Knorr Street in Philadelphia and

robbed him of his wallet. (Id. at 51-54, 138-142.) On September 2, 2013,

appellant assaulted and robbed Richard Kauffman and Megan Matuzak near

Front Street and Girard Avenue in Philadelphia. (Id. at 71-74.) Matuzak

sustained a knife cut to her thigh that required six stiches to close and

Kauffman sustained multiple cuts and bruises. (Id. at 75-88). Thereafter,

on September 16, 2013, appellant robbed Erin Burke and William Conroy at

knifepoint in the area of 7000 Brous Avenue in Philadelphia. (Notes of

testimony, 11/24/15 at 32-36.) In each instance, appellant was

accompanied by his cousin and then-girlfriend, Mary Jefferies, who actively

participated in the robberies to varying degrees. (See notes of testimony,

11/23/15 at 123-159.)

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Appellant waived his right to a jury and proceeded to a bench trial on

November 23, 2015. Following a two-day trial, appellant was found guilty of

the aforementioned offenses and sentenced to an aggregate term of 45 to

90 years’ imprisonment on April 22, 2016. At the sentencing hearing,

appellant made an oral motion for reconsideration of his sentence, which

was denied by the trial court that same day. (Notes of testimony, 4/22/16

at 31-32.) This timely appeal followed on April 23, 2016. On May 2, 2016,

the trial court directed appellant to file a timely concise statement of errors

complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant

filed his Rule 1925(b) statement on May 6, 2016, and the trial court filed its

Rule 1925(a) opinion on September 21, 2016.

Appellant raises the following issues for our review:

A. DO APPELLANT’S SENTENCES CONSTITUTE AN

ABUSE OF DISCRETION AND SHOULD THE

MATTERS BE REMANDED FOR RESENTENCING?

B. SHOULD APPELLANT’S CONVICTION FOR

CONSPIRACY FOR CASE CP-51-CR-0013836-

2014 BE VACATED BECAUSE IT IS

INSUFFICIENT AS A MATTER OF LAW DUE TO

THE FACT THAT THERE WAS NO CONSPIRACY

SINCE THERE WAS NO AGREEMENT WITH THE

CODEFENDANT, THERE WAS NO MEETING OF

MINDS, AND THE CODEFENDANT DID NOT ACT

AS A COCONSPIRATOR BUT UNDER DURESS?

Appellant’s brief at 4.

We begin by addressing appellant’s claim that his sentence of 45 to

90 years’ imprisonment was manifestly excessive and unreasonable (Id. at

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11-13.) Specifically, appellant contends that the trial court’s imposition of

consecutive sentences on four of the six counts of robbery effectively

constituted a life sentence and “is shocking to the conscience.” (Id.)

Appellant further argues that the trial court failed “to state any adequate

reasons for [his] lengthy sentence” and did not take into consideration his

“individual deterrence, rehabilitation, and retribution” nor the fact he

apologized for his actions and made a “plea for mercy.” (Id. at 11, 13.)

Our standard of review in assessing whether a trial court has erred in

fashioning a sentence is well settled.

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. In this context, an abuse of discretion is

not shown merely by an error in judgment. Rather,

the appellant must establish, by reference to the

record, that the sentencing court ignored or

misapplied the law, exercised its judgment for

reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

Where an appellant challenges the discretionary aspects of his

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:

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(1) whether the appeal is timely; (2) whether

[a]ppellant preserved his issue; (3) whether

[a]ppellant’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.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

Here, the record reveals that appellant filed a timely notice of appeal

and challenged the discretionary aspects of his sentence in his oral motion

for reconsideration of his sentence. (See notes of testimony, 4/22/16 at

31-32.) Appellant also included a statement in his brief that comports with

the requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at 11-15.)

Accordingly, we must determine whether appellant has raised a substantial

question.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538

(Pa. 2013). “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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).

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Instantly, appellant has failed, at least in part, to raise a substantial

question for our review. The “[l]ong standing precedent of this [c]ourt

recognizes that 42 Pa.C.S.A. [§] 9721 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.”

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super. 2005).

Generally, the imposition of consecutive sentences does not raise a

substantial question. See Commonwealth v. Pass, 914 A.2d 442, 446

(Pa.Super. 2006) (stating that a challenge to the trial court’s discretion to

impose a consecutive sentence does not raise a substantial question). Such

a claim 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.”

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013) (citation

omitted), appeal denied, 91 A.3d 161 (Pa. 2014). This case simply does

not present “extreme circumstances,” and appellant’s sentence is not unduly

harsh considering the extensive criminal conduct that occurred in the case,

the nature of the crimes, and the length of imprisonment. Accordingly, the

trial court’s decision to impose consecutive, rather than concurrent,

sentences on four of appellant’s six robbery convictions does not present a

substantial question for our review.

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However, to the extent appellant argues that the trial court failed to

consider his individual rehabilitative needs or any of the other relevant

factors in Section 9721(b), we find this claim presents a substantial question

for our review. (See appellant’s brief at 11, 13.) This court has recognized

that a “claim that the sentencing court disregarded rehabilitation and the

nature and circumstances of the offense in handing down its sentence

presents a substantial question for our review.” Dodge, 77 A.3d at 1273.

Accordingly, we proceed to consider the merits of these discretionary

aspects of sentencing claims.

Herein, the record reveals that the trial court considered and weighed

numerous factors in fashioning appellant’s sentence, including appellant’s

age, prior criminal history, and mental health; the safety and impact of his

crimes on the community; and the sentencing guidelines. Specifically, the

trial court stated as follows:

Thank you. I’ve considered the fact these are

second strikes; I’ve considered the guidelines; I’ve

considered the presentence mental health reports,

the facts and circumstances of this case, the

argument of counsel, what the witness has said

today, as well as what [appellant] has said today.

[Appellant], I don’t really know what to say to you,

the number of robberies, the way they were

perpetrated the number of victims involved and

everything else. I think the facts -- the trial speaks

for itself[,] which I would also refer to because I sat

through the waiver trial of this case. You obviously

have skills and abilities. I heard from your family,

you’re working, school, etc. but for whatever reason

you chose to go a different route which makes you []

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very dangerous. I think the words [sic] []

summarizes a lot of issues we’re dealing with.

....

And [appellant], you’re 36. I think that should

be sufficient to protect the community.

Notes of testimony, 4/22/16 at 26-28.

The record further reveals that the trial court heard testimony from

appellant’s mother and sister with regard to his character, educational

background, and upbringing. (Id. at 6-8.) Additionally, the trial court heard

testimony from appellant, who apologized to the court, the victims, and his

family and made an extensive plea for leniency. (Id. at 24-26.) Although

the record reflects that the trial court did not specifically state that it

considered appellant’s rehabilitative needs, the trial court was in possession

of a presentence investigation (“PSI”) report and indicated that he

“considered it.” (Id. at 26.) Where the trial court has the benefit of a PSI

report, as is the case here, “we shall . . . presume that the sentencing judge

was aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014). Accordingly, we

find no abuse of the trial court’s discretion, and appellant’s challenge to the

discretionary aspects of his sentence must fail.

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Appellant next argues that there was insufficient evidence to sustain

his conviction for criminal conspiracy with respect to the robbery of Norton

because he “burn[ed] . . . Jefferies[] using a cigar so that she would

accompany him on the [r]obbery” and “[t]here was no meeting of the minds,

only duress.” (Appellant’s brief at 14.) This claim is meritless.

In reviewing the sufficiency of the evidence,

we must determine whether the evidence admitted

at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, is sufficient to

prove every element of the offense beyond a

reasonable doubt. As an appellate court, we may

not re-weigh the evidence and substitute our

judgment for that of the fact-finder. Any question of

doubt is for the fact-finder unless the evidence is so

weak and inconclusive that as a matter of law no

probability of fact can be drawn from the combined

circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009)

(citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

Criminal conspiracy requires the Commonwealth to prove that

appellant “(1) entered into an agreement to commit or aid in an unlawful act

with another person or persons; (2) with a shared criminal intent; and

(3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa.Super. 2016),

appeal denied, 145 A.3d 725 (Pa. 2016); see also 18 Pa.C.S.A. § 903(a).

A conspiratorial agreement can be proven by circumstantial evidence and

“inferred from a variety of circumstances including, but not limited to, the

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relation between the parties, knowledge of and participation in the crime,

and the circumstances and conduct of the parties surrounding the criminal

episode.” Commonwealth v. Feliciano, 67 A.3d 19, 26 (Pa.Super. 2013)

(en banc) (citation and internal quotation marks omitted), appeal denied,

81 A.3d 75 (Pa. 2013).

Viewing the evidence in the light most favorable to the

Commonwealth, the verdict winner, we find that there was sufficient

evidence to establish that appellant entered into a criminal conspiracy with

Jefferies to rob Norton. As noted, appellant committed a string of robberies

that commenced with the robbery of Norton in the early morning of August

11, 2013, and appellant was accompanied by a woman matching Jefferies’

description in each instance. (Notes of testimony, 11/24/15 at 55-61, 63.)

At trial, Jefferies testified that she was present during each of the robberies

and acknowledged actively participating in them to varying degrees. (Notes

of testimony, 11/23/15 at 123-159.) Contrary to appellant’s contention, we

find there was a tacit agreement between appellant and Jefferies to rob

Norton on the evening in question. The record reflects that Jefferies initially

refused to accompany appellant after he informed her that they were going

on a “robbery spree,” and appellant burned her arm with cigar. (Id. at 125-

130.) Ultimately, however, Jeffries did accompany appellant to the location

of the robbery in question and stood in close proximity to appellant as he

tasered Norton and stole her purse, electing not to withdraw from this

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conspiracy, despite the apparent opportunity to do so. (Id. at 130-31;

notes of testimony, 11/24/15 at 55-57.)

Appellant’s attempt to assert duress on Jefferies’ behalf does not

render the evidence presented in support of his criminal conspiracy charges

insufficient. In Pennsylvania, it is well settled that the defense of duress is

available to a person who was coerced to commit a crime, not the person

alleged to have committed the coercion. See 18 Pa.C.S.A. § 309(a) (stating

that duress “is a defense that the actor engaged in the conduct charged to

constitute an offense because he was coerced to do so by the use of, or a

threat to use, unlawful force against his person or the person of another,

which a person of reasonable firmness in his situation would have been

unable to resist.”). Notably, Jefferies did not even raise this defense herself

and took full responsibility for her participation in the conspiracy at issue,

pleading guilty to all the charges brought against her. (See notes of

testimony, 11/23/15 at 166.) Accordingly, we conclude that appellant’s

claim that there was insufficient evidence to sustain his conviction for

conspiring to rob Norton must fail.

For all the foregoing reasons, we affirm the April 22, 2016 judgment of

sentence of the trial court.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/12/2017

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