Com. v. Brower, J.

J. S57010/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEREMIAH BROWER, : No. 1132 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 4, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0008604-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 12, 2016
Jeremiah Brower appeals the judgment of sentence in which the Court
of Common Pleas of Allegheny County sentenced him to serve a term of
seven to fourteen years’ imprisonment for aggravated assault, serious bodily
injury.1
The facts as recounted by the trial court are as follows:
Briefly, the evidence presented at trial
established that on June 8, 2013, Alfonzo Brower
([appellant’s] brother) and his wife were at his
mother’s house for a visit. During the visit, Brower’s
mother began to cook hot sausage with green
peppers and onions for them. At some point
thereafter, [appellant] came into his mother’s house
and screamed at Alfonzo over some money Alfonzo
owed him. [Appellant] said he was going to “beat
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2702(a)(1).
J. S57010/16
[Alfonzo’s] ass” and swung at Alfonzo. Alfonzo
pushed [appellant] backwards into the refrigerator
and at that point, [appellant] reached over and
poured the contents of the frying pan onto Alfonzo.
Alfonzo suffered severe burns to his head, face,
chest, shoulder, arm, and wrist. Additionally,
Alfonzo’s wife was splashed with some of the hot oil
and sustained minor burns to her hand. Alfonzo has
permanent scarring and discoloration and continues
to suffer pain and sensitivity in the burned areas as a
result.
Trial court opinion, 1/14/16 at 2-3.
In a non-jury trial, the trial court found appellant guilty of aggravated
assault, the crime for which he was sentenced.
Appellant filed a post-sentence motion that challenged the sufficiency
and weight of the evidence. He also moved for reconsideration of his
sentence on the basis that the trial court ignored the facts and
circumstances of the crime and appellant’s personal background. Appellant
also filed a supplemental post-sentence motion. The trial court denied the
motions by order dated June 26, 2015.
Appellant raises the following issues for this court’s review:
I. WAS THE EVIDENCE INSUFFICIENT AS A
MATTER OF LAW TO CONVICT [APPELLANT] OF
AGGRAVATED ASSAULT WHERE THE
COMMONWEALTH FAILED TO PRESENT
EVIDENCE THAT [APPELLANT] ACTED
RECKLESSLY UNDER CIRCUMSTANCES
MANIFESTING EXTREME INDIFFERENCE TO
THE VALUE OF HUMAN LIFE?
II. WHERE THE COMMONWEALTH SOUGHT ONLY
A STANDARD RANGE SENTENCE, DID THE
TRIAL COURT ABUSE ITS DISCRETION AT
-2-
J. S57010/16
SENTENCING BY IMPERMISSIBLY RELYING ON
[APPELLANT’S] PRIOR CRIMINAL HISTORY AS
ITS BASIS FOR IMPOSING AN AGGRAVATED
RANGE SENTENCE OF TOTAL CONFINEMENT
AND BY FAILING TO CONSIDER NUMEROUS
MITIGATING FACTORS THAT WEIGHED
AGAINST THE IMPOSITION OF AN
AGGRAVATED RANGE SENTENCE?
Appellant’s brief at 5.
Initially, appellant contends that the evidence presented by the
Commonwealth was insufficient to establish that appellant was guilty of
aggravated assault.
A claim challenging the sufficiency of the
evidence is a question of law. Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
(2000). In that case, our Supreme Court set forth
the sufficiency of the evidence standard:
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). Where the
evidence offered to support the verdict is
in contradiction to the physical facts, in
contravention to human experience and
the laws of nature, then the evidence is
insufficient as a matter of law.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). When
reviewing a sufficiency claim the court is
required to view the evidence in the light
most favorable to the verdict winner
giving the prosecution the benefit of all
reasonable inferences to be drawn from
the evidence. Commonwealth v.
-3-
J. S57010/16
Chambers, 528 Pa. 558, 599 A.2d 630(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
A person will be found guilty of aggravated assault if he “attempts to
cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). The
term “serious bodily injury” is defined by statute as “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301. Where the victim suffers serious
bodily injury, the Commonwealth is not required to prove specific intent.
Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa.Super. 1997). Instead,
the Commonwealth must establish that the defendant acted recklessly under
circumstances that manifested an extreme indifference to the value of
human life. Id. In order to prevail on a theory of recklessness, the
Commonwealth must prove that the defendant acted with malice.
Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super. 2007).
Malice exists where there is a
“wickedness of disposition, hardness of
heart, cruelty, recklessness of
consequences, and a mind regardless of
social duty, although a particular person
may not be intended to be injured.”
Commonwealth v. Pigg, 391 Pa.Super.
-4-
J. S57010/16
418, 571 A.2d 438, 441 (1990), appeal
denied, 525 Pa. 406, 581 A.2d 565(1990) (quoting Commonwealth v.
Drum, 58 Pa. 9, 15 (1868). Where
malice is based on a reckless disregard
of consequences, it is not sufficient to
show mere recklessness; rather, it must
be shown the defendant consciously
disregarded an unjustified and extremely
high risk that his actions might cause
death or serious bodily injury. See
Commonwealth v. Scales, 437
Pa.Super. 14, 648 A.2d 1205, 1207
(1994), appeal denied, 540 Pa. 640,
659 A.2d 559 (1995) (regarding third
degree murder). A defendant must
display a conscious disregard for almost
certain death or injury such that it is
tantamount to an actual desire to injure
or kill; at the very least, the conduct
must be such that one could reasonably
anticipate death or serious bodily injury
would likely and logically result. See
[Commonwealth v.] O’Hanlon, . . .
[539 Pa. 478,] 653 A.2d [616] at 618
[(1995)] (regarding aggravated assault).
[Commonwealth v.] King, 731 A.2d [145] at 147-
148 [(Pa.Super. 1999)].
Bruce, 916 A.2d at 664.
Here, the record reflects that when appellant appeared at his mother’s
house and saw his brother, Alfonzo Brower (“the victim”), appellant said, “I
want my f***in’ money, I’m about to beat your ass.” (Notes of testimony,
12/3/14 at 7.) The victim testified that appellant then swung at him and
missed. The victim then pushed appellant back into the refrigerator. As
appellant kept swinging, the victim attempted to protect himself and push
-5-
J. S57010/16
away from appellant. Appellant took the pan which contained hot sausage,
onions, and peppers and was cooking on the stove and poured the contents
on the victim. The victim suffered severe burns to his chest, shoulder, arm,
wrist, face, and head. (Id. at 10.)
The victim’s wife, Tamika Brower, testified that appellant “picked the
pot up with the right hand and dumped it on my husband’s head. . . . It (the
pot) was on the stove boiling. It had hot sausage, onions, peppers.” (Id. at
24.)
The fact that the victim suffered severe burns which resulted in
permanent scarring and discoloration and for which he still experiences pain
establishes that there was a serious bodily injury. The action of grabbing a
boiling pot from a stove and dumping the contents on another could and did
cause a serious bodily injury. This court agrees with the trial court that
there was sufficient evidence to support a conviction for aggravated assault.
Appellant next contends that the trial court abused its discretion when
it imposed an aggravated range sentence based on appellant’s prior criminal
history and when it failed to consider mitigating factors against the
imposition of an aggravated range sentence.
[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,
-6-
J. S57010/16
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
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).
-7-
J. S57010/16
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, appellant raises two issues that challenge his sentence:
1) the trial court abused its discretion when it impermissibly relied on
appellant’s prior criminal history as a basis for imposing an aggravated
range sentence and 2) the trial court abused its discretion when it failed to
consider any mitigating factors that weighed against the imposition of an
aggravated range sentence. In his original post-sentence motion, appellant
contended:
 The sentence imposed was unjust, unreasonable,
and manifestly excessive. The sentence
impose[d] was also contrary to the Sentencing
Code, 42 Pa.C.S.A. §§ 9701-9909, and the
fundamental norms underlying the sentencing
process.
 The trial court failed to consider and apply all the
required factors under 42 Pa.C.S.A. § 9721
(Sentencing Generally) and 42 Pa.C.S.A. § 9781
(Appellate Review of Sentence). The trial court
did not adequately consider [appellant’s]
character and/or his need for rehabilitation.
Thus, the sentence imposed was based on
improper factors and/or not based on all relevant
and proper factors.
 The sentencing decision was based solely on the
nature and facts of the case and the seriousness
of the crime.
 The trial court failed to put adequate reasons on
the record to justify the sentencing decision.
-8-
J. S57010/16
Post–Sentence Motion; Motion for Leave to File Supplemental Post-Sentence
Motions; Motions for an Extension of Time to Decide All of the Post-Sentence
Motions; and Motion for the Immediate Production of the Transcripts, 2/4/15
¶ 14 at 3-4.
In the Supplemental Post-Sentence Motion, Motion to Reconsider
Sentence, appellant contended:
17. [Appellant] avers that this Honorable Court
abused its sentencing discretion. This
Honorable Court failed to follow the general
principles of sentencing consisting [sic] with
the rehabilitative needs of [appellant],
protection of the public, and impact on the life
of the victim and on the community.
18. Specifically, this Honorable Court overlooked
pertinent facts, such as the facts and
circumstances of the crime and the specific,
personal background of [appellant].
[Appellant] avers that this Honorable Court
ignored the character and background of
[appellant]. For instance:
a. The incident that resulted in the
injuries to [appellant’s] brother
was a family fight, which
unfortunately escalated after
[appellant’s] brother initiated
physical contact.
b. [Appellant] did not go out looking
to hurt anyone.
c. [Appellant] has a history of mental
health issues, which this Honorable
Court did not consider when
initiating [appellant’s] sentence.
-9-
J. S57010/16
d. [Appellant] apologized to his
brother in court, and showed
remorse for his actions.
19. Moreover, this Honorable Court did not
consider any mitigating evidence when
sentencing [appellant] to the top end of the
aggravating [sic] range.
Supplemental Post-Sentence Motion, 6/25/15 ¶¶ 17-19 at 4-5.
With regard to the first issue, the Commonwealth argues that
appellant did not properly preserve this issue in his post-sentence motions.
After a review of the post-sentence motion and supplemental post-sentence
motion, this court agrees that appellant failed to preserve the issue of
whether the trial court abused its discretion when it impermissibly relied on
appellant’s prior criminal history as a basis for imposing an aggravated
range sentence. Therefore, this court determines that this issue was
waived. However, appellant did preserve the second issue in his
post-sentence motions.
Third, appellant included a Rule 2119(f) statement in his brief in which
he avers that “the trial court abused its sentencing discretion because, in
essence, it failed to consider relevant and mandatory sentencing criteria,
including his character, personal history, and rehabilitative needs.”
(Appellant’s brief at 27.)
A substantial question is only raised on a sentence within the
guidelines when there are circumstances in which “the application of the
sentencing guidelines would be clearly unreasonable.” Commonwealth v.
- 10 -
J. S57010/16
Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161(Pa. 2014), quoting 42 Pa.C.S.A. § 9781(c)(2).
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Commonwealth
v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence,
when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial
question determination does not require the court to
decide the merits of whether the sentence is clearly
unreasonable.
Dodge, 77 A.3d at 1270.
Here, appellant alleges that the trial court failed to consider his
history, characteristics, and mitigating circumstances. This court has held
that where an appellant alleges that the sentencing court erred when it
imposed an aggravated range sentence without consideration of mitigating
circumstances, a substantial question is raised. Commonwealth v.
Hyland, 875 A.2d 1175 (Pa.Super. 2005), appeal denied, 890 A.2d 1057(Pa. 2005). We, therefore, will address his appeal on the merits.
Specifically, appellant asserts that the trial court failed to acknowledge
his longstanding mental health issues, the fact that the victim’s injuries were
the result of a physical altercation between two willing participants and
stemmed from a familial dispute, appellant did not use a weapon in the
“traditional sense of the word,” and appellant expressed remorse for his
actions.
- 11 -
J. S57010/16
At the sentencing hearing, the trial court explained its sentencing
decision:
Mr. Brower, I find that you did cause
permanent and serious injuries to your brother by
throwing a hot pan with grease on it at him. He is to
this day still suffering from wounds that you gave to
him.
Your criminal history record is abysmal.
Starting at the age of 15 almost all of your
convictions involve assaultive behavior.
You have done two years in the state for
indecent assault and threatening to kill your
girlfriend and you committed this offense that you
are charged with while you were on probation and
you have a detainer lodged against you and you
have had a number of PFAs for threatening to kill
your mother and your father as well as your
girlfriend.
You have never done well while you were on
probation, you were in technical noncompliance, and
you continue to use drugs and you continue to
commit crimes.
I did not list all of the crimes in your past, but
I listed enough so that I am able to conclude that
you are not a candidate for rehabilitation.
I find that your actions are aggravating and I
order you to pay the costs and serve 84 to
168 months in the state correctional institution with
credit for the time that you have served in jail.
Notes of testimony, 3/4/15 at 5-6.
In its subsequent opinion, the trial court further explained its decision:
As the record reflects, this Court appropriately read
and considered the pre-sentence investigation
report, considered the factors and severity of the
- 12 -
J. S57010/16
present offense, evaluated [appellant’s] potential for
rehabilitation and imposed a sentence which took all
of these factors into consideration. The sentence
imposed was an aggravated range sentence, but it
was within the statutory maximum and was,
therefore, legal. Moreover, the sentence was clearly
appropriate, given the facts of this case and the
extensive injuries which resulted. [Appellant’s]
unhappiness with the length of his sentence does not
mean it is excessive or otherwise inappropriate. This
claim must fail.
Trial court opinion, 1/14/16 at 7.
Where the sentencing court had the benefit of
a presentence investigation report (“PSI”), we can
assume the sentencing court “was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa.Super. 2005) (stating if sentencing court has
benefit of PSI, law expects court was aware of
relevant information regarding defendant’s character
and weighed those considerations along with any
mitigating factors).
Moury, 992 A.2d at 171.
The trial court stated on the record that it had received the
presentence investigation report. Because the trial court reviewed
appellant’s PSI, it is presumed that the trial court was aware of appellant’s
rehabilitative needs as well as any other mitigating factors. Devers.
Further, appellant’s contention that the victim’s injuries were the result of a
physical altercation between two willing participants is belied by the record.
Similarly, he did not use a weapon in the sense of using a gun or a knife but,
- 13 -
J. S57010/16
as the trial court stated, “you can’t take a gun to a knife fight and you can’t
take hot sausage that is boiling on the stove to a tussle.” (Notes of
testimony, 12/3/14 at 45.)
With respect to the fact that the injuries resulted from a family dispute
and that appellant expressed remorse, these factors were brought before the
trial court at the sentencing hearing. The trial court considered these factors
but concluded that an aggravated sentence was needed because of
appellant’s past criminal behavior, the severity of the crime itself, his failed
efforts at rehabilitation, and the need to protect the public. If a defendant
does not approve of the manner in which the trial court weighed his
rehabilitative potential, it does not mean that the sentence was
unreasonable and an abuse of discretion. Commonwealth v. Marts, 889
A.2d 608, 615 (Pa.Super. 2005).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
- 14 -