Com. v. Brown, G.

J-S13002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GENE BROWN :
:
Appellant : No. 751 WDA 2016
Appeal from the Judgment of Sentence February 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002887-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 11, 2018
Appellant, Gene Brown, appeals from the judgment of sentence entered
in the Allegheny County Court of Common Pleas, following his bench trial
conviction for robbery.1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises two issues for our review:
SHOULD APPELLANT…HAVE BEEN ACQUITTED ON THE
CRIME OF ARMED ROBBERY DUE TO THE
COMMONWEALTH’S FAILURE TO PRESENT EVIDENCE
PROVING, BEYOND A REASONABLE DOUBT, THAT HE WAS
THE PERSON WHO ROBBED THE VICTIM…?
EVEN IF THE COMMONWEALTH’S EVIDENCE WAS
SUFFICIENT FOR A CONVICTION, SHOULD NOT
____________________________________________
1 18 Pa.C.S.A. § 3701.
J-S13002-18
APPELLANT’S POST-SENTENCE [MOTION] SEEKING A NEW
TRIAL HAVE BEEN GRANTED?
(Appellant’s Brief at 3).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable David R.
Cashman, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed May 16, 2017, at 6-11) (finding:
(1) Commonwealth’s evidence was sufficient to identify Appellant as Victim’s
assailant, despite inaccuracies; Appellant ignores fact that Victim identified
Appellant at photo array, at preliminary hearing, and at trial; Appellant’s own
statements to his sister on recorded prison phone call supported Victim’s
identification testimony; Appellant actually identified himself as perpetrator,
in phone conversation with his sister, when he said this Victim lived behind
Sunoco station; Appellant testified at trial that he knew Victim lived behind
Sunoco station through information acquired at preliminary hearing when he
reviewed discovery material, which he said included Victim’s address;
however, criminal complaint and affidavit of probable cause did not list
Victim’s address, and preliminary hearing took place after Appellant’s phone
call with his sister; (2) court as fact-finder evaluated credibility of Victim and
Appellant, who both testified at trial; Victim was unequivocal in her
identification of Appellant at photo array, at preliminary hearing, and at trial;
discrepancies between Victim’s initial physical description of assailant and
-2-
J-S13002-18
Appellant’s actual height, age, and weight did not mean Victim misidentified
Appellant; during phone conversation with his sister, Appellant did not deny
robbing Victim, and Appellant provided his sister with information about Victim
that he could not have learned at preliminary hearing, because preliminary
hearing took place two months after phone call; verdict was not against weight
of evidence). Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2018
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IN THE FIFTH JUDICIAL DISTRICT OF THE COMM NWEALTH OF
PENNSYLVANIA
COUNTY OF ALLEGHENY
COMMONWEALTH OF PENNSYLVANJA CRIMINAL DIVISION
CC No. 201 02887
Superior Co No. 751WDA2016
vs.
GENE BROWN
OPINION
DR. CASHMAN
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Pittsburgh, A 15219
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IN THE FIFTH JUDICIAL DISTRICT OF THE COMM NWEALTH OF
PENNSYLVANIA
COUNTY OF ALLEGHENY
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA) CC No. 20150 87
vs. ) Superior Cour No. 751WDA2016
GENE BROWN )
OPINION
On February 17, 2016, following a non-jury trial, t e appellant, Gene
Brown, (hereinafter referred to as "Brown"), was found ilty of the charge of
robbery, graded as a felony in the first degree. A present nee report was
ordered and in light of the fact that a presentence report ad been prepared
for Judge Williams as a result of Brown's conviction of a ther robbery
charge, this Court scheduled sentencing for February 22, 2016. Following a
sentencing hearing, Brown was sentenced to a period of i carceration of not
less than three and one-half nor more than seven years c nsecutive to any
sentence he was now serving, which was to be followed b a period of
probation of seven years, during which he was to underg random drug
screening. Brown filed timely post-sentence motions on arch 3, 2016, which
motions, following a hearing, were denied on April 26, 20 6.
Brown filed a timely appeal to the Superior Court nd was directed,
pursuant to Pennsylvania Rule of Appellate Procedure 1 25(b), to file a
concise statement of matters complained of on appeal. I that statement,
Brown has raised seven claims of error. Initially Brown aintains that the
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evidence was insufficient to support the conviction for ro bery since the
Commonwealth did not prove beyond a reasonable doubt the identity of the
individual who committed this crime. Brown next maint
grading of the charge of robbery should have been a felo in the second
degree since the Commonwealth did not establish that h threatened the
victim with or put her in fear of serious bodily injury. Br wn also maintains
that his conviction for the crime of robbery was against t e weight of the
evidence. Brown also maintains that the Court erred in entencing him when
the guidelines incorporated the deadly weapons enhance ent. Brown also
suggests that this Court abused its discretion when it im osed what he
believes to be a manifestly excessive sentence in view of e totality of the
circumstances. Brown further maintains that this Court abused its
discretion when it imposed the sentence consecutive to a y sentence that he
was now serving. Finally, Brown maintains that this Co rt abused its
discretion when it denied his request to modify his sente ce which was filed
in his post-sentence motions.
On December 27, 2014, at approximately 11:45 p. ., the victim,
Taneisha Helms, (hereinafter referred to as "Helms"), wa returning to her
residence located at 2337 Reed Street in the City of Pitts urgh after making
purchases of some snacks and cigarettes at a Sunoco ser ce station. In
addition to the bag containing her purchases, she also ha a cell phone. As
she was walking in an alleyway from the Sunoco station o her residence,
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someone ran up behind her and told her to "Shut the "F" p or he would blow
her head off." This individual demanded her money and er phone then
pushed her into a corner of the alley while he was holdin a shotgun that was
pointed at her head. Helms gave him the ten dollars tha she had and her
phone. He then ordered her to take off her clothing and s she dropped each
article of clothing, the assailant would grab those items a d put them in a bin
at the other end of the alleyway. He did this with her sh es, socks, pants and
her underwear, each time separately taking those items the end of the
alley.
Helms had an opportunity to view her assailant in ight of the
numerous times that he picked up her clothing from her nd she described
him as being all dressed in black with a black hoodie, a b ck Carhartt jacket,
black jeans and black shoes. When her assailant was pla ing the last item of
her clothing at the other end of the alley, someone opene their window,
looked down and saw her attacker, at which point he told Helms to get out of
there and she ran from him and never looked back.
Helms ran to her mother's residence which was tw doors down from
hers and had her mother make a call to the police since s e no longer had a
phone. The police arrived and she advised them of what ad transpired and
also told them about the fact that she had been forced to trip and that her
attacker placed her items of clothing at the other end oft e alley. The police
went to the alley and then recovered her clothing. When he was interviewed
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by the police, she described her attacker as being a black male, somewhere
between the ages of eighteen and twenty-two, approxim ely five foot six to
five foot seven and one hundred fifty pounds with a thin uild. She told them
that she did not know this person and that she was able o recognize him
because although he had a hoodie, it was covering his he d and not his face.
She was shown a photo array and immediately picked ou Brown as the
individual who robbed her. After she identified him fro the photo array,
Helms remembered that she had babysat for him until h was approximately
two years old and that she knew Brown's mother.
Brown was arrested on January 12, 2015, and he ad a telephone
conversation with his sister on January 16, 2015. In tha phone
conversation, Brown asked his sister to contact Delisha oodson and try to
talk to her. His sister then asked him is that the woman that he made strip
and he said no, that woman lives behind the Sunoco stat" n. His sister then
advised him that the one that he made strip is the one th tis on the news.
She asked him ifhe knew that to which he provided nor sponse. His sister
then told him that the woman he made strip is the one t t she should talk
to.
Brown elected to testify and when he was asked b his counsel how he
knew that the woman was caused to be stripped lived be ind the Sunoco
station, Brown stated that before this phone call to his si ter, he went to a
preliminary hearing and received the paperwork which p ovided him with
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the address for the victim and incident report with respe t to what had
happened. With this information he became aware ofw re she lived and
what her address was. On cross-examination, Brown sta ed that he got the
information from watching news coverage while he was· the jail.
Brown has maintained that the evidence was insu cient to support
the verdict against him since the Commonwealth did not stablish beyond a
reasonable doubt the identity of Helms' attacker. He fur er maintains that
the verdict was against the weight of the evidence. In C monwealth v.
Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000), th Supreme Court set
forth the standards to be employed when confronted wit the claims that the
evidence was insufficient to support the verdict and the v rdict was against
the weight of the evidence and the significance of those p rticular claims
Appellant's remaining claim of error is that he Superior Court
misstated the standard of review for a weight of th evidence claim.
The standard of review refers to how the reviewin court examines the
question presented. Morrison, 646 A.2d at 570. Ap ellant asserts that
the Superior Court improperly interjected sufficie y of the evidence
principles into its analysis and thus adjudicated t trial court's
exercise of discretion by an incorrect measure.
In order to address this claim we find it nee ssary to delineate
the distinctions between a claim challenging the s ffi.ciency of the
evidence and a claim that challenges the weight of he evidence. The
distinction between these two challenges is critical A claim
challenging the sufficiency of the evidence, if grant d, would preclude
retrial under the double jeopardy provisions of the ifth Amendment to
the United States Constitution, and Article I Sect" n 10 of the
Pennsylvania Constitution, Tibbs v. Florida 457 .S. 31 102 S.Ct.
2211. 72 L.Ed.2d 652 (1982); Commonwealth v. Vo el 501 Pa. 314 461
A.2d 604 (1983), whereas a claim challenging the eight of the
evidence if granted would permit a second trial Id
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A claim challenging the sufficiency of the e dence is a question
of law. Evidence will be deemed sufficient to supp the verdict when
it establishes each material element of the crime c arged and the
commission thereof by the accused, beyond a reaso able doubt.
Commonwealth v. Karkaria 533 Pa. 412 625 A.2d 1167 1993 . Where
the evidence offered to support the verdict is in co tradiction to the
physical facts, in contravention to human experie e and the laws of
nature, then the evidence is insufficient as a matt oflaw.
Commonwealth v. Santana 460 Pa. 482 333 A.2d 76 1975 . When
reviewing a sufficiency claim the court is required o view the evidence
in the light most favorable to the verdict winner gi ing the prosecution
the benefit of all reasonable inferences to be draw from the evidence.
Commonwealth v. Chambers 528 Pa. 558 599 A.2 630 1991 .
A motion for new trial on the grounds that t e verdict is
contrary to the weight of the evidence, concedes th t there is sufficient
evidence to sustain the verdict. Commonwealth v. iteman 336
Pa.Super. 120, 485 A.2d 459 (1984). Thus, the tria court is under no
obligation to view the evidence in the light most fa orable to the
verdict winner. Tibbs 457 U.S. at 38 n. 11 102 S. t. 221I.FN3 An
allegation that the verdict is against the weight of he evidence is
addressed to the discretion of the trial court. Com onwealth v. Brown
538 Pa. 410, 648 A.2d 1177 (1994). A new trial sho d not be granted
because of a mere conflict in the testimony or beca se the judge on the
same facts would have arrived at a different concl ion. Thompson,
supra. A trial judge must do more than reassess th credibility of the
witnesses and allege that he would not have assen ed to the verdict if
he were a juror. Trial judges, in reviewing a claim hat the verdict is
against the weight of the evidence do not sit as the thirteenth juror.
Rather, the role of the trial judge is to determine t at
"notwithstanding all the facts, certain facts are so !early of greater
weight that to ignore them or to give them equal w ight with all the
facts is to deny justice." Id.
FN3. In Tibbs, the United States Supreme urt found the
following explanation of the critical distincti n between a weight
and sufficiency review noteworthy:
When a motion for new trial is made on the ound that the
verdict is contrary to the weight of the evide ce, the issues are
far different .... The [trial] court need not vie the evidence in
the light most favorable to the verdict; it ma weigh the
evidence and in so doing evaluate for itself t e credibility of the
witnesses. If the court concludes that, despit the abstract
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sufficiency of the evidence to sustain the ve ict, the evidence
preponderates sufficiently heavily against t e verdict that a
serious miscarriage of justice may have occ ed, it may set
aside the verdict, grant a new trial, and sub it the issues for
determination by another jury.
Tibbs 457 U.S. at 38 n. 11, 102 S.Ct. 2211 quoting nited States v.
Lincoln, 630 F.2d 1313 (Cir.8th 1980).
With respect to the claim that the evidence was insuffici t to support the
verdict against him because the Commonwealth failed to stablish the
identity of the individual who robbed him, Brown points ut the conflict in
the information given to the police and Brown's physical escription. When
Helms was initially interviewed by the police, she told th m that her
assailant was anywhere between five six and five seven, ne hundred and
fifty pounds, with a thin build and was approximately ei teen to twenty-two
years old. Brown was eighteen at the time, six feet one a d two hundred and
twenty pounds. Brown believes that this testimony was ore than sufficient
to discredit Helms' identification of him as her assailant. This contention
ignores the fact that Helms identified him from a photo a ray, identified him
at the preliminary hearing that was ultimately held on arch 2, 2015, and
also identified him at the time of trial While there was me dispute as to
the description given by Helms as to the person that rob d her, her
identification of Brown was supported by Brown's own st tements in a phone
conversation that he had with his sister. When he sister sked him if Delisha
Woodson was the individual he made strip, he said no, th t individual lived
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right behind the Sunoco station. Brown maintained tha
make this statement based upon the information that he ad acquired at the
preliminary hearing when he was given the discovery ma erial in his case
and was given the victim's address. It should be noted t t a review of the
criminal complaint and the affidavit of probable cause do s not disclose the
victim's address and Brown's preliminary hearing occurr d almost two
months after he was arrested since it had been continued several times. If he
would have obtained the information in the discovery ma rials as to the
victim's address when he got that material at his prelimi ary hearing, then
he would have obtained that information almost two mo hs after he had the
conversation with his sister, which was four days after h was arrested. In
viewing in the light most favorable to the Commonwealt and all reasonable
inferences drawn therefrom, it is clear that the Common ealth established
the identity of Helms' attacker and that Brown was prop rly convicted of that
charge.
An Appellate Court's standard of review when pre nted with the
claim that the verdict was against the weight of the evid ce is distinct from
the standard of review applied by the Trial Court
Appellate review of a weight claim is a revie of the exercise of
discretion, not of the underlying question of whether the verdict is against
the weight of the evidence. Brown, 648 A.2d at 1189. ecause the trial
judge has had the opportunity to hear and see the evi ence presented, an
appellate court will give the gravest consideration to the findings and
reasons advanced by the trial judge when reviewing trial court's
determination that the verdict is against the weight o the evidence.
Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 5 (1976). One of the
least assailable reasons for "'322 granting or denying new trial is the
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lower court's conviction that the verdict was or was ot against the weight
of the evidence and that a new trial should be grante in the interest of
justice. Brown, supra.Com. v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 7 3 (2000).
The term. 'discretion' imports the exercise of judgme t, wisdom and skill
so as to reach a dispassionate conclusion, within the amework of the
law, and is not exercised for the purpose of giving ef ct to the will of the
judge. Discretion must be exercised on the foundati of reason, as
opposed to prejudice, personal motivations, caprice arbitrary actions.
Discretion is abused when the course pursued repres nts not merely an
error of judgment, but where the judgment is manife tly unreasonable or
where the law is not applied or where the record sho s that the action is a
result of partiality, prejudice, bias or ill will.
Com. v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 ( 000)
In using these standards, it is clear that this Court actin as the fact-finder
in the non-jury trial, had a full opportunity to review the estimony in this
matter and observe the witnesses that were called to test fy, specifically the
victim and the appellant, who elected to testify. Helms w s unequivocal in
her identification of Brown at the time that she was pres nted with a photo
array, at the preliminary hearing and at the time of trial. Although there
was a discrepancy in what she initially reported to the po ice and Brown's
physical size, that description did not mean.that she was accurate in
identifying him as the person that robbed her. Brown on he other hand
never denied robbing her to his sister during their phone onversation and, in
fact, provided his sister with information that he had to k ow prior to his
preliminary hearing since he had not been given the disc ery material until
almost two months after he was arrested, In taking thes
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consideration, it is clear that the verdict was appropriate and not against the
weight of the evidence.
Brown next maintains that be was improperly con icted of the crime of
robbery graded as a felony in the first degree as opposed o robbery, a felony
in the second degree. The crime of robbery is set forth at 18 Pa.C.S.A. §3701
as follows:
§3701. Robbery
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of c itting a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him i
serious bodily injury;
(iii) commits or threatens immediately to commit an felony of the first or
second degree;
(iv) inflicts bodily injury upon another or threatens other with or
intentionally puts him in fear of immediate bodily inj ry;
(v) physically takes or removes property from the pe son of another by
force however slight; or
(vi) takes or removes the money of a financial institu on without the
permission of the financial institution by making a d mand of an
employee of the financial institution orally or in writi g with the intent to
deprive the financial institution thereof.
(2) An act shall be deemed "in the course of committi g a theft" if it
occurs in an attempt to commit theft or in flight after e attempt or
commission.
(3) For purposes of this subsection, a "financial insti tion" means a bank,
trust company, savings trust, credit union or similar.i stituti.on.
(b) Grading.--
(1) Except as provided under paragraph (2), robbery der subsection
(a)(l)(iv) and (vi) is a felony of the second degree; ro ery under
subsection (a)(l)(v) is a felony of the third degree; ot erwise, it is a felony
of the first degree.
(2) If the object of a robbery under paragraph (1) is a ontrolled substance
or designer drug as those terms are defined in sectio 2 of the act of April
14, 1972 (P.L. 233, No. 64),1 known as The Controlled Substance, Drug,
Device and Cosmetic Act, robbery is a felony of the fi st degree.
Brown maintains that based upon the evidence presente at the time of trial,
he should have been convicted of the crime of robbery as i entified under
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§3701(e)(l)(iv), which means that at the time of the com ission of the
robbery, the victim was threatened or intentionally put · fear of immediate
bodily injury as opposed to the crime of robbery under §3 Ol(a)(2), where the
victim is threatened with or intentionally put in fear of ·
bodily injury. The undisputed testimony in this case is t at Brown came up
from behind Helms with a shotgun and pointed it at her ead and told her to
be quiet or he would blow her head off. This threat can o y be considered a
threat to inflict serious bodily injury or death. Brown co tinued these
threats when he continually pointed the shotgun at Hel s' head during the
course of this robbery and when he was forcing her to dis obe. Nothing about
this threat which would suggest that the injury that was hreatened was
anything but serious bodily injury. It is clear that when e threatened to
blow her head off that he was placing her in fear of serio s bodily injury or
death.
Brown next maintains that this Court erred when t used the deadly
weapons enhancement in determining the guidelines for rown's sentence.
In this regard while Brown maintains that the applicab ·
weapon enhancement had to be proven beyond a reasona le doubt in light of
the decisions in Alleyne v. United States, 133 S.Ct. 21 1 (2013) and
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848 2000). This
contention has been rejected in Pennsylvania in Commo wealth v.
Buterbaugh, 91 A.3d 1247, 1270 (Pa. Super. 2014), w en the Court noted
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that the deadly weapon enhancement did not prescribe a tandard range
beyond the statutory maximum and, accordingly, the fac rs to consider the
deadly weapon enhancement only had to be proved by th preponderance of
the evidence. It should be noted that even using the sent ncing guidelines
where the deadly weapon enhancement has been invoke Brown's sentence
of three and one-half to seven years was near the bottom nd of the standard
range.'
Brown's final three claims of error all deal with se tencing in that he
maintains that his sentence was manifestly excessive in iew of the totality of
the circumstances; that this Court abused its discretion hen it ordered that
his sentence be served consecutive to any sentence he wa now serving; and,
that this Court abused its discretion when it denied the odification of his
sentence. In Commonwealth v. Mouzon, 828 A.2d 11 , 1128-1129 (Pa.
Super. 2003), the Court examined the claim of whether r not a sentence
was excessive and set forth the factors that were to be co sidered in making
that determination.
Sentencing is a matter vested in the soun discretion of the
sentencing judge, and a sentence will not be distu ed on appeal
absent a manifest abuse of discretion. Commonuie lth v. Johnson, 446
Pa.Super. 192, 666 A.2d 690 (1995). "To constitute an abuse of
discretion, the sentence imposed must either exce the statutory
limits or be manifestly excessive." Commonwealth . Gaddis, 432
Pa.Super. 523, 639 A.2d 462, 469 (1994) (citations mitted). In this
context, an abuse of discretion is not shown merel by an error in
judgment. Commonwealth u. Kocher, 529 Pa. 303, 02 A.2d 13081 The Sentencing Guidelines using the deadly weapon enhancement how a mitigated range
sentence of twenty-eight months, a standard range sentence of forty o fifty-four months, and
an aggravated range of sixty-six months.
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(1992). Rather, the appellant must establish, by re erence to the
record, that the sentencing court ignored or misap lied the law,
exercised its judgment for reasons of partiality, pr iudice, bias or ill
will, or arrived at a manifestly unreasonable decis · n. Commonwealth
v. Rodda, 723 A.2d 212 (Pa.Super.1999).
In determining whether a sentence is manifi stly excessive, the
appellate court must give great weight to the sent cing court's
discretion, as he or she is in the best position to m asure factors such
as the nature of the crime, the defendant's charact r, and the
defendant's display of remorse, defiance, or indiffe ence.
Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Sup r.1997). Where an
excessiveness claim is based on a court's sentencin outside the
guideline ranges, we look, at a minimum, for an in ication on the
record that the sentencing court understood the su gested sentencing
range. 42 Pa.C.S.A. § 9721(b); Rodda, 723 A.2d at 14. When the court
so indicates, it may deviate from the guidelines, if ecessary, to fashion
a sentence which takes into account the protection fthe public, the
rehabilitative needs of the defendant, and the grav ty of the particular
offenses as it relates to the impact on the life of th victim and the
community, so long as the court also states ofreco "the factual basis
and specific reasons which compelled him to devia from the guideline
range." Commonwealth v. Cunningham, 805 A.2d 66, 575
(Pa.Super.2002) (quoting Commonwealth v. Burkh Ider, 719 A.2d 346,
350 (Pa.Super.1998)).
In evaluating a claim of this type, an appell te court must
remember that the sentencing guidelines are mere y advisory, and the
sentencing court may sentence a defendant outsid of the guidelines so
long as it places its reasons for the deviation on th record.
Cunningham, 805 A.2d at 575. "Our Supreme Cou t has indicated that
if the sentencing court proffers reasons indicating at its decision to
depart from the guidelines is not unreasonable, we must affirm a
sentence that falls outside those guidelines .... " Co monwealth v.
Davis, 737 A.2d 792, 798 (Pa.Super.1999) (citing C mmonwealth v.
Smith, 543 Pa. 566, 673 A.2d 893 (1996)).
In reviewing Brown's sentence, it is clear that ther is nothing
manifestly excessive about his sentence. His sentence w near the bottom
end of the standard range and was three and one-half to even years to be
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followed by a period of probation of seven years. This Co rt had the benefit
of those guidelines and a presentence report which show d a continuing
escalation of Brown's violent criminal behavior. His first contact with the
criminal justice system occurred when he was eleven ye sold when his
mother filed a petition for dependency stating that her s was out of control,
aggressive and defiant and would leave their residence fi a week without
permission. Approximately one year later on December 2, 2008, a petition
was filed charging him with failure to comply with a law sentence for his
failure to pay fines and costs relative to an adjudication
Another petition for dependency was filed on February 3, 2009 when it was
alleged that he would not follow the rules at his home, in luding curfew and
school attendance and he was being verbally abusive to s mother. On
January 19, 2011, another petition was filed charging fa' ure to comply as a
result of his purchase of alcoholic beverages by a minor, isorderly conduct
and harassment. During the summer of 2012, he was se t to Orlando,
Florida to reside with a relative and while there, he was barged as a juvenile
with sexually assaulting an eleven-year-old boy. On Dec mber 13, 2012, his
mother once again filed a petition for dependency and a tition for
protection of abuse since he continued to be violent and as threatening
everyone in his house and was using drugs. His mother tated in this
petition that he had pictured himself on Facebook holdin a gun and
displaying various gang signs. His mother's petition for rotection from
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abuse was granted and the defendant was adjudicated de endent and placed
with his grandparents. In 2013 he was suspended from s hool for five days
for bringing marijuana to school. While he was at the W rd home, he was
charged and adjudicated of the charges of simple assault, terroristic threats
and recklessly endangering another person.
As an adult, he was convicted of the charge of poss ssion with intent to
deliver a controlled substance in January of 2015. In No ember of 2015, he
was found guilty following a bench trial before the Honor ble Joseph
Williams of the crime of robbery, serious bodily injury, a criminal
conspiracy. On January 5, 2016, he pied guilty to receivi g stolen property,
although he had also been charged with burglary and the by unlawful
taking, which charges were withdrawn in exchange for · plea to the charge
of receiving stolen property. In reviewing his continually ggressive and
violent behavior, his failure to avail himself of the rehabi itation
opportunities offered to him in the Juvenile Court syste and his threat to
kill his victim, it is clear that the sentence that was impo ed upon him was
not manifestly excessive but appropriate for the protectio of the public, his
rehabilitative needs and for protection of society in gener 1.
This Court decided to run his sentence consecutive to the sentence
imposed upon him by Judge Williams for the other robbe in which he was
involved which followed almost the same pattern as the r bbery in this case
with the exception that he did not require his victim to st ip. The
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presentence report in this matter clearly showed an indi dual who was
violent, who was armed with deadly weapons and made t reats to use those
deadly weapons if his desires were not met. In weighing ll of the factors to
be considered, it was clear that his sentence should be co secutive rather
than concurrent which would have provided him with a v lume discount for
the commission of his crimes.
Brown filed a post-sentence motion seeking to mod fy his sentence in
which he alleged that in light of Brown's young age, that e should be
afforded an opportunity to reestablish his life since he ha lost his
educational opportunity and his ability to play football. one of these
contentions impact the configuration of his sentence beca se Brown was
willing to use a deadly weapon and threatened people wi the use of that
deadly weapon by stating that he would blow the victim's head off if she did
not do what he said. Compounding his violent nature wa the fact that he
sought to demean and to degrade his victim by forcing be to strip off her
clothes to ensure his getaway from this robbery. There s no basis that this
Court saw that would necessitate the changing either the length of Brown's
sentence or the fact that it should be served consecutive t his other sentence
for robbery.
DATED: , May 16, 2017
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