Com. v. Brown, J. ( 2023 )

J-S18027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JABRIEL M. BROWN, :
:
Appellant : No. 2324 EDA 2022
Appeal from the Judgment of Sentence Entered August 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004458-2017
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 21, 2023
Appellant, Jabriel M. Brown, appeals from the August 13, 2019 judgment
of sentence entered in the Philadelphia County Court of Common Pleas
following his guilty plea to twenty-three offenses stemming from a home
break-in and assault.1 Appellant challenges the discretionary aspects of his
sentence. After careful review, we affirm the judgment of sentence.
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* Former Justice specially assigned to the Superior Court.
1 Appellant pled guilty to two counts each of Aggravated Assault, Robbery,
Burglary, Conspiracy, Criminal Trespass, Theft-by Unlawful Taking, Receiving
Stolen Property, Simple Assault, Recklessly Endangering Another Person, and
one count each of Possession of a Firearm by a Person Prohibited, Firearms
Not to be Carried Without a License, Carrying Firearms in Public in
Philadelphia, Possession of Instrument of a Crime, and Criminal Mischief. See
18 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 3502(a)(1)(i), 903, 3503(a)(1)(ii),
3921(a), 3925(a), 2701(a), 2705, 6105(a)(1), 6106(a)(1), 6108, 907(a), and
3304(a)(1), respectively.
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The relevant facts and procedural history are as follows. At
approximately 7:30 AM on May 3, 2017, Steven Wallace and Nasir Hall
(collectively, Victims) were sleeping in Wallace’s bedroom when Appellant and
Jordan Hudson (“Codefendant”) broke into the house and kicked in the
bedroom door. Appellant pointed a gun at Victims and struck Wallace in the
face with the gun. One of the assailants also kicked Hall in the face. Although
the assailants wore masks, Wallace identified them from the neighborhood.
The assailants proceeded to take approximately $900, an iPhone, and a
designer belt from Victims.
Ultimately, Appellant pled guilty to the listed offenses. On August 13,
2019, after the court reviewed Appellant’s mental health and presentence
investigation reports and considered the sentencing guidelines, it sentenced
Appellant to an aggregate term of 5-12 years of incarceration. Appellant filed
a Motion for Reconsideration/Reduction of Sentence on August 20, 2019,
which the sentencing court denied by operation of law on January 7, 2020.
Although Appellant did not initially file a direct appeal, he subsequently
sought reinstatement of his appellate rights by filing a Post-Conviction Relief
Act (“PCRA”) Petition.2 The PCRA court granted reinstatement of his rights
nunc pro tunc on August 23, 2022. On September 9, 2022, Appellant filed a
notice of appeal. Appellant and the trial court complied with Pa.R.A.P. 1925.
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2 42 Pa.C.S. §§ 9541-9546.
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Before this Court, Appellant raises the following question: “Whether
Appellant’s sentence was unduly harsh and excessive[?]” Appellant’s Br. at 4.
A.
Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentence are not appealable as of
right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).
Instead, an appellant challenging the discretionary aspects of his sentence
must comply with the following requirements: (1) file a timely notice of
appeal; (2) preserve the issue at sentencing or in a motion to reconsider and
modify sentence; (3) include in his appellate brief a separate section setting
forth a concise statement of the reasons relied upon for allowance of appeal
as required by Pa.R.A.P. 2119(f); and (4) raise a substantial question that the
sentence is inappropriate under the Sentencing Code. Id.The record and his brief reflect that Appellant satisfied the first three
requirements. Thus, we consider whether Appellant has presented a
substantial question for review.
“A substantial question exists only when the 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. Summers, 245 A.3d 686, 692 (Pa. Super. 2021), appeal
denied, 276 A.3d 700 (Pa. 2022) (citation omitted). “While a bald claim of
excessiveness does not present a substantial question for review, a claim that
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the sentence is manifestly excessive, inflicting too severe a punishment, does
present a substantial question.” Commonwealth v. Hicks, 151 A.3d 216,
227 (Pa. Super. 2016) (citation omitted). Moreover, a claim that the
“sentencing court disregarded [a defendant’s] rehabilitative potential and
sentenced [him] to a manifestly excessive sentence” constitutes a substantial
question. Commonwealth v. Snyder, 289 A.3d 1121, 1126 (Pa. Super,
2023).
In the instant case, Appellant maintains that his sentence was so
“manifestly excessive as to constitute too severe a punishment.” Appellant’s
Br. at 8. He further asserts that the sentencing court “did not provide adequate
reasons for the sentence being so high nor did the court give due consideration
to the defense arguments for a lesser sentence[,]” including his asserted
rehabilitative potential. Id. Based upon the above precedent, we find that
Appellant has asserted a substantial question.
B.
“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.” Commonwealth v. Sexton, 222 A.3d 405, 420 (Pa. Super.
2019) (citation omitted). To demonstrate an abuse of discretion, the
defendant 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.” Id.-4-
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In sentencing a defendant, a trial court should consider the following
factors: “the protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). When, as in the
instant case, the sentencing court has the benefit of a pre-sentence
investigation report, “we presume that [it] was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with any mitigating factors.” Sexton, 222 A.3d at 422 (citation omitted).
Moreover, we defer to the sentencing court’s assessment of the sentencing
factors as it is “in the best position to measure factors such as the nature of
the crime, the defendant’s character, and the defendant’s display of remorse,
defiance, or indifference.” Summers, 245 A.3d at 696 (citation omitted).
C.
While Appellant acknowledges that his sentence was within the
guidelines, he claims that his sentence is “unduly harsh and unreasonable”
and that the sentencing court failed to “give sufficient weight to the
rehabilitation of Appellant.” Appellant’s Br. at 10. He emphasizes that he was
19 at the time of the crime, was seeking treatment for Attention-Deficit-
Hyperactivity Disorder, and had substantial family and community support.
Id. at 11. Appellant claims that the sentencing court improperly considered
that Appellant possessed a firearm during the incident and engaged in
violence, attributes which Appellant contends are already incorporated into
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the sentencing guidelines. Id. at 13. Our review of the record, however,
reveals that the sentencing court did not abuse its discretion.
At the sentencing hearing and in its Rule 1925(a) Opinion, the trial court
thoroughly explained its reasons for the sentence imposed, balancing what it
viewed as mitigating and aggravating factors.3 The court identified the
following mitigating factors: “that Defendant accepted responsibility, that he
was youthful at the time of the crime, that he had incredible family support,
and that his prior conviction was over five years old, committed when he was
a minor at the age of fourteen.” Tr. Ct. Op. at 6. The court, however,
recognized “that were aggravating factors present when considering the
sentence, such as the premeditation required for the crime, the violence
involved and the fact a firearm was posses[s]ed, that there was information
of intimidation against the victim and the victim’s family, the fact that his
previous conviction was a Felony I robbery, and that Defendant, while on bail
for the case at bar, committed another robbery.” Id. Ultimately, the court
declined to impose consecutive sentences, deviated from the guidelines by
mitigating the minimum sentence by six months, but included “a longer tail[,]”
explaining that it wanted to “keep him on [the court’s] supervision when he
does get out.” N.T., 8/13/2019, at 60. In light of the court’s careful and
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3 Given his prior record score of 4 and the offense gravity score of 10, the
standard guideline sentence was 48-60 months, plus or minus 12 months,
which increased to 66-78 months, with the inclusion of the deadly weapon
enhancement. See 204 Pa. Code §§ 303.16, 303.17(b). The court mitigated
by 6 months the minimum sentence, imposing a sentence of 60-144 months.
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reasonable assessment of the sentencing factors, we conclude that the court
did not abuse its discretion in fashioning Appellant’s sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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