Com. v. Brannon, M. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARIO BRANNON, : No. 2017 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, October 30, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0010168-2014
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 12, 2016
Mario Brannon appeals from the October 30, 2014 judgment of
sentence following his conviction of rape (forcible compulsion), burglary,
terroristic threats, indecent assault, and simple assault.1
The trial court provided the following facts:
[T]he attack which gave rise to the instant charges
occurred on August 25, 1991. [The victim,] then
21 years old, was a student at the University of
Pittsburgh and was living in an off-campus
apartment at 340 Atwood Street in Oakland. On the
evening of August 25, a man entered her bedroom
through an open window, held a knife to her throat
and raped her. Because [the victim] never saw her
attacker’s face, the police were unable to develop a
suspect at that time.
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18 Pa.C.S.A. §§ 3121(a)(1), 3502(c)(1), 2706(a)(1), 3126(a)(1), and
2701(a)(3), respectively.
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Thereafter, on October 23, 1991, [appellant]
was extradited to Georgia on a warrant for charges
of rape and kidnapping and was eventually tried and
convicted of those charges. He continued to be
arrested in Georgia on additional charges: on
June 1, 1993 for rape and kidnapping; on
February 8, 1994 for rape, criminal trespass, escape,
giving false information to police and related
charges; on August 23, 2001 for battery and criminal
trespass; and on March 14, 2002 for failure to
appear for prior rape and kidnapping charges. In
2002, [appellant] was sentenced to a term of
imprisonment of 40 years and has been incarcerated
in Georgia since that time. The investigation was
found that [appellant] had no employment or
residence in the Commonwealth of Pennsylvania
following his initial extradition to Georgia in 1991.
In July, 2013, Detective April Campbell was
working on cold cases and submitted a DNA sample
taken from [the victim’s] bedding for analysis. The
analysis returned a match to [appellant.] The within
charges were subsequently filed on September 9,
2013 and [appellant] was extradited from Georgia.
Trial court opinion, 7/20/15 at 3-4.
On October 30, 2014, the trial court convicted appellant of the
aforementioned crimes following a stipulated non-jury trial. The trial court
sentenced appellant immediately following trial to a term of 10-20 years’
imprisonment for the rape conviction and 10-20 years’ imprisonment for the
burglary conviction, to be served consecutively. At the time of trial,
appellant was serving a 40-year prison sentence in Georgia, which is due to
expire on February 7, 2041. The trial court imposed its sentence to begin
immediately, so appellant is currently serving his Georgia and Pennsylvania
sentences concurrently. (See notes of testimony, 10/30/14 at 18.)
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On November 7, 2014, appellant filed a post-sentence motion, which
the trial court denied on November 17, 2014. Appellant timely filed a notice
of appeal on December 11, 2014. On December 17, 2014, the trial court
ordered appellant to produce a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied with the trial
court’s order on April 24, 2015. The trial court filed an opinion on July 20,
2015, pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Were the consecutive 10-to-20 year sentences
of imprisonment imposed on Appellant on
October 30, 2014 for the crimes of forcible
rape and residential burglary manifestly
excessive, and therefore substantively
unreasonable under 42 Pa.C.S. § 9781(c)(3),
with the appropriate remedy being vacation of
the sentences imposed and a remand for a
de novo re-sentencing hearing?
2. Were the consecutive 10-to-20 year sentences
of imprisonment imposed on Appellant on
October 30, 2014 for the crimes of forcible
rape and residential burglary imposed based
on the sentencing court’s undue focus on the
severity of the underlying criminal acts and
based on the sentencing court’s
misunderstanding of Georgia law on a point
that it believed was important to its sentencing
decision, thus making those sentences
procedurally unreasonable under 42 Pa.C.S.
§ 9781(c)(3), with the appropriate remedy
being vacation of the sentences imposed and a
remand for a de novo re-sentencing hearing?
3. Should Appellant’s motion to dismiss owing to
a violation of the Pennsylvania statute of
limitations have bene [sic] granted?
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Appellant’s brief at 3.
Under his first two issues, appellant requests that we review his
sentence imposed by the trial court.
[T]he proper standard of review when considering
whether to affirm the sentencing court's
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: 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,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
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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.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging his sentence.
First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902
and 903. Second, he properly preserved the issue in a motion to modify
sentence which was filed on November 7, 2014. The sentencing court
denied appellant’s motion on November 17, 2014.
Third, appellant included a Rule 2119(f) statement in his brief, in
which he avers that the two sentences that he received for rape and
burglary were outside the guidelines. (See appellant’s brief at 11.)
Specifically, appellant notes that the minimum sentence imposed by the trial
court was in excess of the maximum sentence in the aggravated range of
the sentencing guidelines. (Id. at 13.) As the Commonwealth noted on the
record, the maximum sentence in the aggravated range of the sentencing
guidelines for rape is 106 months and the maximum sentence in the
aggravated range of the guidelines for burglary is 36 months. (Notes of
testimony, 10/30/14 at 16.) The trial court’s minimum sentence of
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120 months for each count is clearly in excess of the guidelines. Finally, in
light of appellant’s Rule 2119(f) statement, we find that appellant has
advanced a substantial question. See 42 Pa.C.S.A. § 9781(c)(3).
“In every case where the court imposes a sentence
outside the sentencing guidelines . . . the court shall
provide a contemporaneous written statement of the
reason or reasons for the deviation from the
guidelines. Failure to comply shall be grounds for
vacating the sentence and resentencing the
defendant.” Commonwealth v. Rodda, 723 A.2d
212, 215 (Pa.Super. 1999); 42 Pa.C.S. § 9721(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
When sentencing appellant, the trial court made the following notation
for the record:
Okay. Although the Court understands that
rehabilitation is a part of sentencing and that the
defendant’s rehabilitative needs should be taken into
account, the Court also recognizes that sentencing is
just not for the purpose of punishment.
I agree with [the Commonwealth] on some basis
that, I don’t know, they could parole you tomorrow
for all I know. So all things considered what I am
going to do at Count 1 I’m going to give you 10 to
20 years effective today; and at Count 2 I’m going to
give you 10 to 20 years consecutive to the sentence
at Count 1, which means that you are going to have
a total of 20 to 40 years. So you would not be
eligible for your minimum under my sentence until
2034.
Notes of testimony, 10/30/14 at 17-18.
The trial court’s statement does not set forth a demonstration of
awareness of the sentencing guidelines. While the Commonwealth did
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articulate the guideline sentencing ranges for both counts on the record, at
no point did the sentencing court even acknowledge the guidelines. (See
notes of testimony, 10/30/14 at 16-18.) Additionally, the trial court did not
have the benefit of a pre-sentence report as none was prepared. As noted
above, failure to provide a contemporaneous written statement of reasons
for deviating from the guidelines requires us to vacate the lower court’s
judgment of sentence and remand the case for resentencing. See Rodda,
723 A.2d at 215; 42 Pa.C.S.A. § 9721(b).
We need not address appellant’s second issue raised on appeal, as the
issue is now moot.
For his third issue, appellant avers that the Pennsylvania Statute of
Limitations should have barred prosecution against him. (See appellant’s
brief at 50; 42 Pa.C.S.A. § 5552(b)(1).) Specifically, appellant avers that
because he was extradited to Georgia to face prosecution in 1991, the
Pennsylvania Statute of Limitations should not have tolled because his
absence from Pennsylvania was not “taken with evasive action.”
(Appellant’s brief at 53.)
Appellant concedes that his,
assertion contravenes a published decision of a
three-judge panel of this Court -- specifically, the
decision reached in Commonwealth v. Mascitti,
534 A.2d 524, 526 (Pa.Super. 1987) (rejecting
argument that 42 Pa.C.S. § 5554(1)’s statute-of-
limitations tolling provision, said to apply to those
who were “continuously absent from th[e]
Commonwealth,” did not apply to a defendant who
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had “left the Commonwealth legitimately to seek
new employment and not to escape prosecution, and
at no time [sought to] hide his identity or
whereabouts”), rev’d on other grounds, 546 A.2d
819 (Pa. 1988).
Appellant’s brief at 50-51.
A three-judge panel of this court may not overrule a decision by
another three-judge panel unless our supreme court has called the previous
panel’s decision into question. Commonwealth v. Pepe, 897 A.2d 463,
465 (Pa.Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert.
denied, 555 U.S. 881 (2008), citing Commonwealth v. Hull, 705 A.2d
911, 912 (Pa.Super. 1998); Commonwealth v. Prout, 814 A.2d 693,
695 n.2 (Pa.Super. 2002). Therefore, we affirm on this issue.
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2016
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