Com. v. Brown, S.

J-S01037-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

SHAKOUR BROWN, :

:

Appellant : No. 2631 EDA 2018

Appeal from the Judgment of Sentence Entered January 30, 2018

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012829-2015

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 12, 2020

Shakour Brown (Appellant) appeals nunc pro tunc from the January

30, 2018 judgment of sentence entered after the trial court granted

Appellant’s petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546, and restored his right to file a direct appeal. We

affirm.

We provide the following background. On October 11, 2017, Appellant

entered an open guilty plea to robbery, robbery of a motor vehicle, receiving

stolen property, unlawful restraint, and fleeing.1 That same day, Appellant

1 The following summary of facts was offered by the Commonwealth at

Appellant’s guilty plea hearing:

[O]n August 28[], 2015[,] at approximately 12:48 [a.m.],

Officer[s] Ngo[] and Mortarel were on patrol in the area of 1400

South 17th Street [in Philadelphia], the officers observed a black

(Footnote Continued Next Page)

*Retired Senior Judge assigned to the Superior Court.

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was sentenced to five years of probation for unlawful restraint. Sentencing

was deferred on the remaining counts to allow for a pre-sentence

investigation report and mental health assessment. On January 30, 2018,

the trial court sentenced Appellant to concurrent terms of two to seven years

of incarceration for receiving stolen property and fleeing. Consecutive to

those terms of incarceration, the trial court sentenced Appellant to

concurrent terms of 6 to 20 years for robbery and robbery of a motor

vehicle.

(Footnote Continued) _______________________

Ford Mustang disregard a stop sign in the intersection of 17th

and Reed [streets]. The officers activated their lights and sirens

and pulled the vehicle over at 17th and Dickinson [streets]. As

soon as they exited their patrol vehicle, the Mustang took off at

a high rate of speed. The offending vehicle then traveled

westbound on Dickinson [street], which is an eastbound street.

The officers pursued the Mustang eastbound on Mifflin [street]

where the Mustang rear-ended a white Nissan Altima[]. The

fleeing vehicle then made a right onto Mifflin [street] off of 1900

South Camac Street where it struck an unattended parked

vehicle. The officers gave chase and pursued the fleeing male

on foot as he ran south on 1900 Camac [street] with the

following flash information given to police radio: Black male,

dreadlocks, white T-shirt.

The offender, later identified as [Appellant], then ran to

the corner of Camac and McKean [streets] and pulled the

operator of a gray Nissan Maxima out of the driver’s seat of the

vehicle and sped off, which was occupied with two females in the

rear of the vehicle. This vehicle was later found at 9th and

Ritner [streets], however, the offender was not apprehended at

that time.

N.T., 10/11/2017, at 10-11. Among the items recovered from the Mustang

were identification cards bearing Appellant’s name. Additionally, “[l]ineups

were shown and two positive identifications were made of [Appellant].” Id.

at 11-12.

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On February 8, 2018, Appellant filed a post-sentence motion. That

motion was denied by operation of law on June 11, 2018. On September 6,

2018, Appellant filed a PCRA petition to reinstate his appellate rights nunc

pro tunc. The trial court granted Appellant’s petition, and this timely-filed

appeal followed.2

On appeal, Appellant argues that the aggregate sentence imposed was

“manifestly excessive in that the lower court failed to give adequate weight

to [Appellant’s] family life, the fact that he is [a] father to a young daughter,

and the other mitigating evidence presented on his behalf at the sentencing

hearing[.]” Appellant’s Brief at 3.

Appellant challenges the discretionary aspects of his sentence.3 Thus,

we consider this issue mindful of the following.

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.

***

When imposing [a] sentence, a court is required to

consider the particular circumstances of the offense and the

2 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

3 Because Appellant entered an open guilty plea, he is not precluded from

appealing the discretionary aspects of his sentence. See Commonwealth

v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).

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character of the defendant. In considering these factors, the

court should refer to the defendant’s prior criminal record, age,

personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

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).

Appellant has satisfied the first three requirements: he timely filed a

notice of appeal nunc pro tunc, preserved the issue in a post-sentence

motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore,

we now consider whether Appellant has raised 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

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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).

In his Pa.R.A.P. 2119(f) statement, Appellant contends that a

substantial question exists because the trial court failed “to give adequate

weight to [Appellant’s] family life, the fact that he is [a] father to a young

daughter, and the other mitigating evidence such as his acceptance of

responsibility.” Appellant’s Brief at 8. Such a claim does not present a

substantial question for our review. Commonwealth v. Zirkle, 107 A.3d

127, 133 (Pa. Super. 2014) (“[W]e have held that a claim that a court did

not weigh the factors as an appellant wishes does not raise a substantial

question.”).

Even if Appellant had raised a substantial question, his argument on

appeal is nothing more than a request for this Court to reweigh the

sentencing factors differently than the trial court. See Appellant’s Brief at 9-

10. This we cannot do. See Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010) (citation omitted) (“An abuse of discretion may not be

found merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

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prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.”).

Moreover, the trial court had the benefit of a pre-sentence

investigation (PSI) report, Appellant’s prior record score, sentencing

guidelines, Appellant’s allocution, and statements from Appellant’s mother

and counsel on his behalf. See N.T., 1/30/2018, at 4-9, 14-17. “[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.” Commonwealth v. Finnecy, 135 A.3d 1028,

1038 (Pa. Super. 2016). Thus, we conclude that, even if Appellant had

raised a substantial question for review, Appellant has failed to demonstrate

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” in imposing Appellant’s sentence.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super.

2015) (quoting Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.

2013)).

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/20

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