The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMIYA T. BROWN, :
:
Appellant : No. 2322 EDA 2022
Appeal from the Judgment of Sentence Entered July 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000774-2020
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 30, 2023
Samiya T. Brown appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after pleading guilty to third-
degree murder,1 endangering the welfare of children (EWOC),2 and possession
of an instrument of crime (PIC).3 On July 26, 2022, the trial court sentenced
Brown to consecutive terms of 20 to 40 years’ incarceration for third-degree
murder and 10 to 20 years’ incarceration for EWOC, the statutory maximum
for each offense, and no further penalty for PIC. Brown filed a timely notice
of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(c).
2 Id. at § 4304(a)(1).
3 Id. at § 907(a).
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complained of on appeal. After careful review, we vacate Brown’s judgment
of sentence and remand for resentencing.
On appeal, Brown claims that the trial court erred by imposing a
statutory maximum sentence without indicating an awareness of the
sentencing guidelines, without placing the guidelines on the record, without
considering Brown’s rehabilitative needs, and by imposing an excessive
sentence where the court ran the sentences consecutively.4 See Appellant’s
Brief, at 3. The Commonwealth agrees that the trial court failed to mention
the sentencing guidelines and place on the record the court’s reasons for its
upwards deviation from them. See Appellee’s Brief, at 2.
The Sentencing Code requires that the trial court consider the
sentencing guidelines, and “make as a part of the record, and disclose in open
court at the time of sentencing, a statement of the reason or reasons for the
sentence imposed.” 42 Pa.C.S.A. § 9721(b). Moreover, when a trial court
imposes a sentence outside the guidelines, a judge “must set forth on the
record, at sentencing, in the defendant’s presence, the permissible range of
sentences under the guidelines and, at least in summary form, the factual
basis and specific reasons which compelled the court to deviate from the
sentencing range.” Commonwealth v. Royer, 476 A.2d 453, 458 (Pa.
Super. 1984) (emphasis added). “Failure to comply shall be grounds for
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4 We need not reach Brown’s excessive sentencing claim as we are vacating
Brown’s judgment of sentence and remanding for resentencing. See
Commonwealth v. Beatty, 227 A.3d 1277, 1282 n.5 (Pa. Super. 2020).
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vacating the sentence . . . and resentencing the defendant.” 42 Pa.C.S.A. §
9721(b).
Here, the sentencing transcript reveals that the sentencing court failed
to set forth, in Brown’s presence, the permissible range of sentences she could
receive under the guidelines, nor did the sentencing judge mention the
guidelines at any point during Brown’s sentencing proceeding. At the outset
of sentencing, the sentencing court stated the counts at issue and that Brown’s
prior record score was zero. See N.T. Sentencing Hearing, 7/26/22, at 5.
When issuing Brown’s sentence, the trial court stated:
[T]his sentence that the Court is going to impose today is going
to be on the upper end of the allowable sentence in this matter.
[D]espite the . . . psycho[-]social report, that was provided by the
defense, the [c]ourt believes that the actions of Ms. Brown [do]
show wickedness of heart. It is such that the [c]ourt’s intention is
to limit the possibility of her having access to other children as
she goes forward.
On the charge of murder in the third-degree, the [c]ourt is going
to impose the maximum sentence of 20 to 40 years.
On the charge of [EWOC], the [c]ourt will impose . . . the
maximum sentence there, which is 10 to 20 years.
On the charge of [PIC], the [c]ourt will impose no further
[penalty].
So the sentence that is imposed here is 30 to 60 years to be
served in a state correctional institution.
Id. at 62-63.
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The court failed to mention the existence of a pre-sentence investigative
report (PSI),5 and whether the court had reviewed same, only referencing a
psycho-social report provided by Brown. See id. Nowhere did the court
indicate what the applicable guideline ranges were, that it considered the
guidelines, that it was sentencing Brown outside the guidelines, or provide a
statement of its reasons for such deviation. Accordingly, we are constrained
to vacate the judgment of sentence and remand for sentencing in accordance
with the Sentencing Code. See Royer, supra; 42 Pa.C.S.A. § 9721(b).
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Date: 11/30/2023
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5 See N.T. Guilty Plea Hearing, 5/19/22, at 24 (ordering PSI and mental health
reports prior to sentencing).
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