Com. v. Brundage, R.

J-S38027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT BRUNDAGE, JR. :
:
Appellant : No. 567 EDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2015
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000033-2014
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 10, 2019
Appellant, Robert Brundage, Jr., appeals from the August 20, 2015
Judgment of Sentence imposed after he entered an open guilty plea to one
count of Criminal Attempt-Criminal Homicide.1 On appeal, Appellant
challenges the discretionary aspects of his sentence. After careful review, we
affirm.
We glean the following factual and procedural history from this Court’s
June 26, 2018 unpublished memorandum and the certified record. On May 7,
2015, the Appellant entered an open guilty plea to one count of Criminal
Attempt-Criminal Homicide. The trial court ordered a Pre-Sentence
Investigation (“PSI”). Appellant submitted a pre-sentence memorandum,
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1 18 Pa.C.S. § 901(a).
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* Retired Senior Judge assigned to the Superior Court.
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which included letters from family members, friends, and co-workers attesting
to Appellant’s good character.
On August 20, 2015, the court held a sentencing hearing, at which
Appellant exercised his right to allocution. In addition, the Victim testified on
Appellant’s behalf, and Appellant’s counsel argued for a mitigated range
sentence. The sentencing court denied Appellant’s request to have one family
member speak on behalf of his extensive family, but the court indicated it had
considered letters submitted from Appellant’s family members.2 Appellant’s
counsel did not object.
After reviewing Appellant’s sentencing report, PSI, numerous letters
from family members, friends, and co-workers, and testimony, the sentencing
court declined to impose a mitigated range sentence, and sentenced Appellant
to a standard range sentence of 96 to 240 months’ imprisonment.
Appellant filed a Motion for Reconsideration of Sentence, which the trial
court denied. Appellant did not file a direct appeal.
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2The court explained that based on past negative experiences, it had a policy
of precluding family members from speaking on behalf of defendants at
sentencing hearings. N.T. Sentencing, 8/20/15, at 12.
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Upon the reinstatement of his appellate rights nunc pro tunc after a
PCRA3 proceeding,4 this timely appeal followed. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Did the trial [c]ourt commit reversible error where its policy of
refusing to hear from defense witnesses [wa]s in clear violation
of the Sentencing Code?
2. Did the trial [c]ourt arrive at a manifestly unreasonable
sentence for [Appellant] considering the discretionary aspects
of sentencing?
Appellant’s Br. at 7.
In his first issue, Appellant asserts that his sentence was unreasonable
because the sentencing court’s policy of prohibiting defendants’ family
members from testifying at the sentencing hearing denied him the opportunity
to present mitigating evidence relevant to sentencing in violation of his right
to allocution. Appellant’s Br. at 8, 13, 19, 23-26 (citing 42 Pa.C.S. § 9752 and
Pa.R.Crim.P. 704(C)(1)). In his second issue, Appellant asserts that he should
have been sentenced in the mitigated range based on his level of cooperation,
the Victim’s testimony at sentencing, his remorse, and his rehabilitation. Id.
at 28-29. Both of Appellant’s issues challenge the discretionary aspects of
sentencing.
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3 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
4 Commonwealth v. Brundage, No. 3549 EDA 2017, unpublished
memorandum at 11 (Pa. Super. filed June 26, 2018).
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Challenges to the discretionary aspects of sentencing are not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue, we must determine: (1) whether appellant has
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence; (3) whether
appellant’s brief sufficiently addresses the challenge in a statement included
pursuant to 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. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
With respect to the second factor, a defendant must object and request
a remedy at sentencing, or raise the challenge in a post-sentence motion.
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). The
Pennsylvania Rules of Criminal Procedure specifically caution defendants that,
when filing Post-Sentence Motions, “[a]ll requests for relief from the trial court
shall be stated with specificity and particularity[.]” Pa.R.Crim.P. 720(B)(1)(a).
See Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015)
(noting that the trial court must be given the opportunity to reconsider its
sentence either at sentencing or in a post-sentence motion). See, e.g.,
Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (holding
that defendant waived discretionary aspects of sentencing claim regarding
sentencing court’s failure to state the reasons for his sentence on the record
where defendant filed a post-sentence motion, but only argued that his
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sentence was unduly severe and the trial court abused its discretion under the
sentencing code).
Appellant did not preserve this first issue at sentencing. During the
hearing, Appellant’s counsel inquired about whether one of his family
members could speak on behalf of Appellant’s extended family, stating, “I just
didn’t know if the [c]ourt would entertain that at this time.” N.T. Sentencing
at 5. The court answered, “No. No[,]” to which Appellant’s counsel responded,
“Fair enough, Your Honor.” Id. After the court explained the reasons for its
policy of not allowing family members to testify on a defendant’s behalf,
Appellant did not object. Id. at 12-15.
Appellant also did not preserve the issue in a post-sentence motion. In
his Post-Sentence Motion, he argued only that a low-end standard range
sentence or a mitigated range sentence was warranted in this matter based
on his acceptance of responsibility, remorse, rehabilitative efforts, past record,
age, family ties, work history, and community reputation. Motion for
Reconsideration of Sentence, filed 8/25/15. He did not challenge the court’s
refusal to allow a family representative to testify at sentencing or the trial
court’s policy of prohibiting Appellant’s family members from testifying at the
sentencing hearing. Because Appellant failed to preserve the issue at
sentencing or a post-sentence motion, his first issue is waived.5
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5 Appellant also asserts that his right to allocution was denied because his
family representative was not allowed to testify. This is not a legally
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However, Appellant properly preserved his second issue—that the
sentencing court should have sentenced him in the mitigated range rather
than the standard range—by preserving the issue in a Post-Sentence Motion
and including a statement pursuant to Pa.R.A.P. 2119(f) in his brief. See
Appellant’s Br. at 14-15. Thus, we proceed to address whether this sentencing
challenge raises a substantial question for our review.
Whether a substantial question has been raised regarding discretionary
sentencing is determined on a case-by-case basis. Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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.” Id. (citation and quotation omitted).
Here, the trial court imposed a standard range sentence, but Appellant
avers that the trial court should have imposed a mitigated-range sentence
based on his cooperation, the Victim’s testimony, his remorse, and his
subsequent rehabilitation. Appellant’s Br. at 28-29.
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sustainable assertion. A defendant’s right to allocution is personal to the
defendant. See Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989)
(discussing the history of the right of a defendant “to personally address the
court prior to sentencing”). See also Commonwealth v. Hague, 840 A.2d
1018, 1019 (Pa. Super. 2003) (holding that the right to allocution requires the
court to inform a defendant that he has the right, and afford a defendant the
right, to address the court prior to sentencing). The right to allocution does
not include a right to have family members speak on a defendant’s behalf.
Here, Appellant did exercise his right to allocution. N.T. Sentencing at 10-11.
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Claims that the sentencing court did not adequately consider mitigating
factors generally do not raise a substantial question. Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). A specific claim that the court
refused to weigh mitigating factors as an appellant wished, absent more, does
not raise a substantial question. Moury, 992 A.2d at 175; 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”).
Appellant’s claim amounts to no more than a bald allegation that the
court abused its discretion in failing to consider mitigating factors as he
wished. Pursuant to the above case law, Appellant has failed to raise a
substantial question.6 His challenge to the discretionary aspects of his
sentence, thus, fails.
Judgment of Sentence affirmed.
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6 Even if his argument had raised a substantial question, we would conclude
that there is no merit to Appellant’s challenge. The trial court considered the
Appellant’s sentencing report, PSI, acceptance of responsibility, prior
convictions, gravity of the offense, rehabilitation, numerous letters from
family members, the Victim’s testimony, Appellant’s allocution, and the
sentencing guidelines. N.T. Sentencing at 11-15. Additionally, the court
sentenced Appellant within the standard range of the sentencing
guidelines. Id. at 15. “[W]here a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Moury, 992 A.2d at 171.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/19
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