Com. v. Brown, T.

J-S06029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TRAYVOHN BROWN :

:

Appellant : No. 1109 EDA 2020

Appeal from the Judgment of Sentence Entered October 21, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0003547-2018

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED MAY 18, 2021

Appellant Trayvohn Brown appeals from the judgment of sentence

imposed after he pled guilty to aggravated assault and endangering the

welfare of a child (EWOC).1 Appellant challenges the discretionary aspects of

his sentence. We affirm.

We adopt the trial court’s summary of the factual history relevant to this

appeal. See Trial Ct. Op., 8/24/20, at 1-2. Briefly, on March 25, 2020,

Appellant entered an open guilty plea to aggravated assault and EWOC. The

Commonwealth withdrew all other pending charges. The trial court deferred

sentencing for the preparation of a pre-sentence investigation (PSI) report

and a mental health evaluation.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a) and 4304(a)(1), respectively.

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The trial court held a sentencing hearing on October 21, 2019. Micah

Shender, Esq. of the Defender Association represented Appellant in this

matter. The Commonwealth read into the record a victim impact statement

from H.T., the victim’s mother. N.T. Sentencing, 10/21/19, at 7-10. Attorney

Shender argued that based on his prior history, emotional issues, and alcohol

abuse, Appellant was in need of help. Id. at 11-16. Appellant presented three

friends and family members as character witnesses. Id. at 16-23. Appellant

took responsibility for his actions and expressed his regret to both the victim’s

family and to his own. Id. at 28. The Commonwealth correctly stated that

the standard range sentence under the sentencing guidelines for aggravated

assault was eighty-four to 102 months, plus or minus twelve months and that

the standard range sentence for EWOC was twenty-seven to forty months plus

or minus six months. Id. at 28. Appellant did not object to Commonwealth’s

calculation of the sentencing guideline ranges. The trial court also noted it

considered Appellant’s PSI. Id. at 29. Ultimately, the trial court sentenced

Appellant to a term of ten to twenty years’ incarceration for aggravated

assault, and a consecutive term of three-and-one-half to seven years’

incarceration for EWOC. Id. at 29.

The trial court then revoked Appellant’s probation and resentenced

Appellant in a separate violation of probation (VOP) case. Separate counsel,

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Attorney Cacciamani,2 represented Appellant in the VOP case. Id. at 23, 29-

30.

At the conclusion of the sentencing hearing, the trial court advised

Appellant of his post-sentence and appellate rights as follows: “[t]en days to

ask me to modify, [thirty] days to take an appeal. All motions must be in

writing. If you cannot afford an attorney, we’ll give one free of charge.”3 Id.

at 30.

On October 31, 2019, Appellant filed a pro se motion for reconsideration

or reduction of sentence arguing that the trial court erred by imposing a

sentence above the guidelines and failing to properly weigh mitigating

circumstances. At the time Appellant filed his pro se post-sentence motion,

Attorney Shender remained counsel of record for Appellant.

Attorney Shender then filed a counseled post-sentence motion

captioned as a “supplemental post-sentence motion” on November 14, 2019,

arguing that the trial court (1) abused its discretion by not stating adequate

reasons on the record for imposing sentences above the sentencing guidelines

range, (2) failed to consider mitigating circumstances, (3) failed to consider

Appellant’s rehabilitative needs, (4) imposed a manifestly unreasonable and

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2 Ms. Cacciamani’s first name does not appear in the certified record.

Appellant did not appeal the sentence in the VOP case.

3 The trial court repeated this advisement verbatim after a discussion between

the trial court and the Commonwealth about a staggered exit from the

courthouse for a Commonwealth witness. N.T. Sentencing, 10/21/19, at 31.

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excessive overall sentence, and (5) failed to state reasons on the record for

imposing consecutive sentences.

On February 28, 2020, the trial court denied Appellant’s post-sentence

motions by operation of law. Appellant filed a notice of appeal on April 3,

2020. Appellant complied with Pa.R.A.P. 1925(b), and the trial court filed a

responsive opinion.

On appeal, Appellant raises a single issue: “Are not the individual

sentences as well as the aggregate sentence of thirteen-and-one-half to

twenty-seven years of incarceration manifestly excessive and unreasonable

where the trial court exceeded the guidelines and imposed consecutive

sentences while failing to properly consider [Appellant’s] considerable

mitigation and capacity for rehabilitation?” Appellant’s Brief at 3.

Before reaching the merits, we must first determine whether we have

jurisdiction over this appeal. See Commonwealth v. Horn, 172 A.3d 1133,

1135 (Pa. Super. 2017) (stating that appellate courts may consider the issue

of jurisdiction sua sponte). “Jurisdiction is vested in the Superior Court upon

the filing of a timely notice of appeal.” Commonwealth v. Green, 862 A.2d

613, 615 (Pa. Super. 2004) (en banc) (citation omitted). “In a criminal case

in which no post-sentence motion has been filed, the notice of appeal shall be

filed within 30 days of the imposition of the judgment of sentence in open

court.” Pa.R.A.P. 903(c)(3).

“[T]he time for filing an appeal can be extended beyond [thirty] days

after the imposition of sentence only if the defendant files a timely post-

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sentence motion.” Green, 862 A.2d at 618; see also Pa.R.Crim.P. 720(A)(2)

(stating a notice of appeal shall be filed within thirty days of the post-sentence

motion being denied or withdrawn). Pa.R.Crim.P. 720(A)(1) requires that

post-sentence motions be filed within ten days of the imposition of sentence.

It is well-established that untimely post-sentence motions do not toll the thirty

day appeal period. See Green, 862 A.2d at 618.

Our courts do not permit hybrid representation. Generally, when a

counseled defendant files a pro se document, courts do not act on the filing,

but instead note it on the docket and forward a copy to counsel. See

Pa.R.Crim.P. 576(A)(4); Commonwealth v. H. Williams, 151 A.3d 621, 623

(Pa. Super. 2016) (citation omitted) (noting this Court “will not accept a pro

se motion while an appellant is represented by counsel; indeed, pro se motions

have no legal effect and, therefore, are legal nullities”). Accordingly, a pro se

document filed when a defendant is counseled generally will not toll the time

for taking an appeal. See H. Williams, 151 A.3d at 623 (citing Pa.R.Crim.P.

576, Comment). However, this Court has recognized that a breakdown in the

operations of the trial court may occur when there is confusion about who

would file post-sentence motions on a defendant’s behalf. See

Commonwealth v. Leatherby, 116 A.3d 73, 78-79 (Pa. Super. 2015).

Here, the trial court advised Appellant that he had a right to ask the trial

court to modify his sentence within ten days and a right to appeal within thirty

days. N.T. Sentencing at 30. The trial court also informed Appellant that if

he could not afford an attorney, one would be appointed for him. Id.

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However, the trial court did not indicate if Attorney Shender would continue

to represent Appellant in this matter, or if the trial court would appoint new

counsel.

Under the circumstances of this case, we conclude that a breakdown in

the operation of the court occurred because the trial court’s statement of

Appellant’s post-sentence and appellate rights was unclear as to who would

file post-sentence motions on Appellant’s behalf. See Leatherby, 116 A.3d

at 78. Therefore, we decline to hold that Appellant’s pro se post-sentence

motion, which was timely filed, was a nullity under the circumstances of this

case. See id. Moreover, Appellant’s counsel filed a supplemental post-

sentence motion, and Appellant thereafter timely filed his notice of appeal

from the order denying his post-sentence motions pursuant to the extensions

related to the COVID-19 pandemic.4 Accordingly, we proceed to the merits of

Appellant’s claims.

Appellant challenges the discretionary aspects of his sentence.

Appellant’s Brief at 18-28. Appellant contends the trial court abused its

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4 On March 16, 2020, the Pennsylvania Supreme Court declared a general,

statewide judicial emergency due to the COVID-19 pandemic. See In re:

General Statewide Judicial Emergency, 228 A.3d 1281 (Pa. filed 2020)

(per curiam). As part of the statewide judicial emergency due to the COVID-

19 pandemic, the Supreme Court suspended nearly all filing deadlines, and

ordered that all “legal papers or pleadings . . . which are required to be filed

between March 19, 2020, and May 8, 2020, generally shall be deemed to have

been filed timely if they are filed by close of business on May 11, 2020.” In

re: General Statewide Judicial Emergency, 230 A.3d 1015 (Pa. 2020) (per

curiam) (emphasis omitted). Therefore, Appellant’s notice of appeal, which

normally would have been due on March 30, 2020, was timely filed on April 3,

2020.

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discretion by imposing a manifestly excessive, clearly unreasonable, and

disproportionate overall sentence. Id. at 18-21, 27-28. Specifically,

Appellant claims that the individual sentences for aggravated assault and

EWOC are clearly unreasonable. Id. at 21-24, 27-28. Appellant additionally

claims his aggregate sentence is unreasonable because the trial court ran the

sentences for the two counts consecutively. Id. at 22-23, 27-28. Appellant

additionally argues the trial court erred by not considering the mitigation

evidence presented and Appellant’s potential for rehabilitation. Id. at 24-28.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013) (citations omitted). Before reaching the merits of a

discretionary aspects issue, this Court must conduct a four-part test to

determine:

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

his or her issue; (3) whether Appellant’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. F. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)

(citation and brackets omitted). “To preserve an attack on the discretionary

aspects of sentence, an appellant must raise his issues at sentencing or in a

post-sentence motion. Issues not presented to the sentencing court are

waived and cannot be raised for the first time on appeal.” Commonwealth

v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted).

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Instantly, as discussed previously, Appellant has timely filed a notice of

appeal, and preserved his issues in his post-sentence motions. See F.

Williams, 198 A.3d at 1186. Additionally, Appellant has included a Rule

2119(f) statement in his brief. See id. We further conclude that Appellant

has raised substantial questions for our review. See Commonwealth v.

Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (determining that the defendant

raised a substantial question where the defendant claimed that sentencing

court imposed a manifestly excessive sentence, failed to consider mitigating

factors, and focused solely on the serious nature of the offenses). Therefore,

we will address Appellant’s claim.

Our review is governed by the following principles:

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, the sentencing court is required to

consider the sentence ranges set forth in the Sentencing

Guidelines, but it [is] not bound by the Sentencing Guidelines.

The court may deviate from the recommended guidelines; they

are merely one factor among many that the court must consider

in imposing a sentence. A court may depart from the guidelines

if necessary, to fashion a sentence which takes into account the

protection of the public, the rehabilitative needs of the defendant,

and the gravity of the particular offense as it relates to the impact

on the life of the victim and the community. When a court chooses

to depart from the guidelines however, it must demonstrate on

the record, as a proper starting point, his awareness of the

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sentencing guidelines. Further, the court must provide a

contemporaneous written statement of the reason or reasons for

the deviation from the guidelines.

When reviewing a sentence outside of the guideline range, the

essential question is whether the sentence imposed was

reasonable. An appellate court must vacate and remand a case

where it finds that the sentencing court sentenced outside the

sentencing guidelines and the sentence is unreasonable.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citations

omitted and formatting altered). The inquiry into the reasonableness of a

sentence is difficult to define. Commonwealth v. Walls, 926 A.2d 957, 964

(Pa. 2007).

When reviewing the record, 42 Pa.C.S. § 9781 requires that we

consider:

(1) The nature and circumstances of the offense and the history

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

“A sentence may be found to be unreasonable after review of Section

9781(d)’s four statutory factors. . . .” Walls, 926 A.2d at 964. Additionally,

a sentence may also be unreasonable if it was imposed “without express or

implicit consideration” of the protection of the public, the rehabilitative needs

of the defendant, and the gravity of the particular offense as it relates to the

impact on the life of the victim and the community as required by 42 Pa.C.S.

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§ 9721(b). Id. Where a PSI exists, we “presume that the sentencing judge

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

and weighed those considerations along with mitigating statutory factors.” Id.

at 967 n.7.

This Court has held:

Where the trial court deviates substantially from the sentencing

guideline range it is especially important that the court consider

all factors relevant to the determination of a proper sentence.

Such factors justifying an upward departure, however, may not

include those already taken into account in the guidelines’

calculations.

Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super. 2004)

(citations omitted and formatting altered). This Court should not reweigh the

proper sentencing factors considered by the trial court and impose our own

judgment in the place of the trial court. Commonwealth v. Macias, 968

A.2d 773, 778 (Pa. Super. 2009).

Here, based on our review of the record, we discern no abuse of

discretion by the trial court. See Sheller, 961 A.2d at 190. The trial court

possessed a PSI, therefore we presume that it was aware of and weighed

mitigating factors. See Walls, 926 A.2d at 967 n.7. The trial court thoroughly

addressed the factors it considered when imposing Appellant’s sentences for

aggravated assault and EWOC and for running the sentences consecutively.

See N.T. Sentencing, 10/21/19, 28-29; Trial Ct. Op. at 4-6. Therefore, we

affirm on the basis of the trial court’s analysis of this issue. See Trial Ct. Op.

at 4-6.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2021

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