Com. v. Brown, D.

J-S35039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DIANDRE BROWN, :

:

Appellant : No. 3096 EDA 2017

Appeal from the Judgment of Sentence June 5, 2017

in the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0002768-2016

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

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 10, 2019

Diandre Brown (Appellant) appeals from the June 5, 2017 judgment of

sentence of an aggregate term of 18 to 36 years of incarceration imposed

after he pleaded guilty to third-degree murder, conspiracy to commit third-

degree murder, and firearm not to be carried without a license. We affirm.

The trial court set forth the factual and procedural history as follows.1

At approximately 8:52 p.m. on Monday, April 6, 2015, the

Norristown Police Department responded to a report of shots fired

in the area of Basin and Locust Streets in Norristown. At

approximately 9:03 p.m. that same night, a Plymouth Township

police officer observed a woman in a Hyndai [sic] sedan at a Lukoil

service station on Ridge Pike yelling to [the officer]. Upon

investigation, the officer discovered a gunshot victim seated in the

* Retired Senior Judge assigned to the Superior Court.

1The convictions in the instant appeal resulted from Appellant’s guilty pleas.

The trial court derived the facts from the transcripts of the plea and sentencing

hearings, as well as the affidavit of probable cause.

J-S35039-19

front passenger seat. Keithon Majors, age twenty-eight, was

transported to Mercy Suburban Hospital for treatment and was

pronounced dead at 10:37 p.m. by Dr. Hisham Khadr.

Members of the Norristown Police Department and the

Montgomery County Detective Bureau immediately began a joint

investigation into the apparent homicide. The Forensic Services

Unit of the Montgomery County Detective Bureau processed the

crime scene, recovering twenty fired cartridge casings and six

bullet specimens fired from three separate firearms. On April 7,

2015, Dr. Isadore Mihalakis, a forensic pathologist, conducted an

autopsy and determined that the cause of [] Majors’[s] death was

a gunshot wound to the chest and that the manner of death was

homicide.

After a thorough investigation, including interviews of

witnesses and cooperating witnesses, cellular phone records, a

wiretap recording and a grand jury investigation, law enforcement

officers determined that four men had been driving around

Norristown in a silver Chevrolet looking to exact revenge in an

“ongoing beef” with [] Desmond Young. Several witnesses told

law enforcement officers and the Montgomery County grand jury

that Terrell Slocum drove the Chevrolet with his brother Kevin

Slocum, Chad Beringer and Appellant riding as passengers with

firearms looking for [] Young. Terrell Slocum remained in the

Chevrolet while the other three codefendants exited the vehicle,

each with a firearm, and fired into a crowd on the corner of Basin

and Locust Streets.

Norristown Borough Police arrested Appellant on March 21,

2016[,] for his alleged role in the murder of [] Majors on April 6,

2015. The Commonwealth subsequently charged Appellant with

murder of the first degree, criminal conspiracy to commit murder,

aggravated assault, criminal conspiracy to commit aggravated

assault, recklessly endangering another person, firearms not to

be carried without a license, and possession of a firearm and/or

other weapon with intent. Appellant gave a statement to

Detective Wittenberger of the Montgomery County Detective

Bureau in which he admitted his active participation in the

conspiracy as well as the shooting in what turned out to be a case

of mistaken identity.

Represented by Francis J. Genovese, Esquire, Appellant

proffered open guilty pleas on May 13, 2016, to numerous

-2-

J-S35039-19

offenses on five separate matters. Appellant entered open pleas

to murder of the third degree, criminal conspiracy to murder of

the third degree and firearms not to be carried without a license

on this docket, as well as drug paraphernalia on docket number

3074-2015; aggravated assault and carrying firearms without a

license on docket number 5144-2015; carrying a firearm without

a license on docket number 5449-2015, and possession of cocaine

on docket number 5453-2015. As part of the open plea to the

charge of murder of the third degree, Appellant agreed to testify

truthfully in the homicide trial of his codefendants and in

conformity with his statements to the Montgomery County

detectives. Appellant did not have to testify at a homicide trial

because the two remaining codefendants subsequently entered

negotiated guilty pleas.

Appellant appeared before the [trial court] for sentencing on

Monday, June 5, 2017, on the open pleas entered in five matters.

The agreed-upon sentencing guidelines for the third-degree

murder conviction provided a standard[-]range sentence in light

of the offense gravity score and Appellant’s prior record score of

[] sixteen to twenty years’ incarceration.

Trial Court Opinion, 12/17/2018, at 1-5 (citations to the record, footnotes,

and parenthetical numbers omitted; some capitalization altered). Appellant

was sentenced to 18 to 36 years of incarceration each for third-degree murder

and conspiracy, and three and one-half to seven years of incarceration for the

firearm conviction, with all sentences to run concurrently.2 Appellant timely

filed a post-sentence motion seeking reconsideration of his sentence. After a

hearing, the trial court denied the post-sentence motion on September 1,

2017. This timely-filed appeal followed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

2 Our review of the certified record does not reveal the sentencing order

docketed on June 5, 2017, but the transcript from Appellant’s sentencing

hearing on that date confirms the trial court sentenced Appellant as stated

above.

-3-

J-S35039-19

On appeal, Appellant challenges the discretionary aspects of his

sentence.3 Appellant’s Brief at 4. Specifically, he claims the trial court abused

its discretion in sentencing Appellant to a term of 18 to 36 years of

incarceration for third-degree murder “in light of his cooperation with the

Commonwealth in the prosecution of his co-defendants.” Id. We consider

this issue mindful of the following.

An appellant is not entitled to the review of challenges to the

discretionary aspects of a sentence as of right. Rather, an

appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction. We determine whether the

appellant has invoked our jurisdiction by considering the following

four factors:

(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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

Here, Appellant timely filed a notice of appeal, sought reconsideration

of his sentence in a post-sentence motion, and his brief contains a Pa.R.A.P.

3 Because Appellant entered an open guilty plea as to the sentence imposed,

he is not precluded from appealing the discretionary aspects of his sentence.

Commonwealth v. DiClaudio, ___ A.3d ___, 2019 WL 2182609 at *2 n.5

(Pa. Super. 2019) (citation omitted).

-4-

J-S35039-19

2119(f) statement. We now consider whether Appellant has presented a

substantial question for our review.

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). “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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation and

quotation marks omitted).

Instantly, Appellant asserts in his 2119(f) statement that the sentence

imposed is “manifestly unreasonable and unduly harsh” in that the court failed

to consider adequately mitigating factors of Appellant’s cooperation in the

prosecution of his co-conspirators, as well as his taking full responsibility for

his actions, his letter to the court expressing remorse, and the testimony of a

close family friend. Appellant’s Brief at 11-12.

Appellant’s allegation amounts to a claim that the trial court, in imposing

a standard-range sentence for third-degree murder,4 failed to give as much

weight as Appellant would have wished to mitigating factors. Such a claim

does not raise a substantial question for our review. Commonwealth v.

4 Appellant acknowledges he was sentenced in the standard range of the

sentencing guidelines. See Motion to Reconsider Sentence, 6/14/2017, at

¶ 5.

-5-

J-S35039-19

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[A] claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”) (citation and quotation marks omitted); Griffin, 65 A.3d at 936-

37 (finding claim that trial court failed to consider adequately defendant’s

rehabilitative needs in imposing standard-range sentences did not raise a

substantial question).5 Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/10/19

5 Even if we were to determine that Appellant’s claim did raise a substantial

question, we find no merit to the underlying allegation. The trial court had

the benefit of a presentence investigation report and sentenced Appellant to

a standard-range sentence. See Griffin, 65 A.3d at 935-36 (“Where the

sentencing court had the benefit of a presentence investigation report (PSI),

we can assume the sentencing court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors. In addition, where a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.”) (internal citations and quotation

marks omitted). Furthermore, the court stated on the record that it

considered the PSI report; PPI evaluation report; sentencing guidelines;

Appellant’s age; Appellant’s letter sent to the court expressing remorse;

Appellant’s cooperation with the Commonwealth, which led to several

convictions; Appellant’s guilty plea; counsel’s arguments at sentencing;

Appellant’s allocution; Appellant’s prior criminal history, including multiple

violent incidents; and the factors set forth in 42 Pa.C.S. § 9721(b). N.T.,

6/5/2017, at 37-42; see also Trial Court Opinion, 12/17/2018, at 14-15.

-6-