Com. v. Brown, S. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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