Com. v. Braxton, T.

• Court: Superior Court of Pennsylvania
• Decided: June 27, 2025
• Docket: 2127 EDA 2024
• Status: Unpublished

Opinion

J-S08042-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYREE BRAXTON : : Appellant : No. 2127 EDA 2024

Appeal from the Judgment of Sentence Entered February 1, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002733-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYREE BRAXTON : : Appellant : No. 2128 EDA 2024

Appeal from the Judgment of Sentence Entered February 1, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002734-2023

BEFORE: DUBOW, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 27, 2025

Appellant, Tyree Braxton, appeals from the judgments of sentence

entered on multiple dockets by the Court of Common Pleas of Philadelphia

County following his guilty pleas to murder of the third degree, aggravated J-S08042-25

assault, and possessing an instrument of crime. 1 Appellant alleges the

sentencing court abused its discretion by imposing an aggregate term of 18

to 36 years in prison. We affirm.

On the morning of December 29, 2022, Appellant bludgeoned Steven

Turner, his stepfather, about the head with a clothes iron in his stepfather’s

bedroom in their home in the 900 block of Atwood Street in Philadelphia,

Pennsylvania. At noon, that same day, police officers arrived on that block in

response to a call concerning an attack on a UPS driver, Antonio Reaves. The

driver informed the officers that Appellant had entered the truck while he was

in it and pushed, punched, and choked him before biting his finger. Appellant

was standing near the truck while the officers spoke to Mr. Reaves. When

police arrested Appellant, they found him in possession of a wallet with

identification cards in the name of Steven Turner. When the officers knocked

on Mr. Turner’s door to show him the wallet, there was no answer. See N.T.

Guilty Plea, 12/7/23, 14-26.

At about 4:50 p.m. the same day, police officers returned to Steven

Turner’s home and discovered his body in a second-floor bedroom with a large

laceration on his head. The walls of the bedroom were splattered with blood.

Pieces of a shattered clothes iron were scattered on the floor of the bedroom

and covered in blood. Officers collected blood evidence from multiple locations

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*Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c), 2702(a)(1) and 907(a), respectively.

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from the second-floor bedroom to the door of the house, including Appellant’s

blood-stained clothing. The body of the deceased was brought to the

Philadelphia County Medical Examiner’s Office where an autopsy was

conducted. There were multiple abrasions and lacerations on the deceased’s

head. The cause of death was determined to be blunt impact head trauma.

The manner of death was homicide. See N.T. Guilty Plea, 12/7/23, 14-26.

On December 7, 2023, Appellant entered guilty pleas in two cases.

Under docket number CP-51-CR-0002733-2025, which is the subject of appeal

number 2127 EDA 2024, Appellant entered an open guilty plea to aggravated

assault with respect to Mr. Reaves. N.T. Guilty Plea, 12/7/23, 27-29. Under

docket number CP-51-CR-0002734-2025, which is the subject of appeal

number 2128 EDA 2024, Appellant entered open guilty pleas to murder in the

third degree with respect to Mr. Turner and to possessing an instrument of

crime. Id., 28-29. The court ordered a presentence investigation report

(“PSI”) and a mental health evaluation (“MHE”). Id., 29. Appellant’s counsel

also agreed on the record that the sentencing guidelines for the aggravated

assault conviction suggested 22 to 36 months imprisonment in the standard

range, less 12 months for the mitigated range, and plus 12 months for the

aggravated range. Id., 31.

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The plea court presided over the sentencing proceeding on February 1,

2024.2 The court explained it had reviewed the PSI and MHE. It also

acknowledged the sentencing memorandum filed by Appellant. The court then

reviewed the sentencing guideline range for the murder conviction, which was

90 months to the statutory maximum of 40 years imprisonment in the

standard range, less 12 months for the mitigated range, and plus 12 months

for the aggravated range. N.T. Sentencing, 2/2/24, 3-4. See 18 Pa.C.S.

1102(d) (setting forth 40-year maximum for a first offense of murder of the

third degree).

Although it deferred to the court’s discretion at sentencing, the

Commonwealth presented evidence and argument to support a lengthy term

of imprisonment. It presented two of the decedent’s family members to

explain the deleterious effect the murder had on Turner’s relatives. The

Commonwealth also proffered that Mr. Reaves would have testified he

continued to suffer from post-traumatic distress syndrome since Appellant’s

assault. It argued that the rage exhibited by Appellant in attacking two people

2 We note there is a discrepancy in the record as to the date of sentencing.

The notes of testimony for sentencing are dated February 2, 2024, and the notices of appeal state that sentencing was on February 2, 2024. However, the dockets indicate that sentencing occurred on February 1, 2024, the sentencing orders are dated February 1, 2024, and the trial court states that sentencing occurred on February 1, 2024. We believe that that the February 2, 2024, date is scrivener’s error, and the correct date is February 1, 2024. Because Appellant obtained permission to file an appeal nunc pro tunc, the discrepancy is immaterial to our jurisdiction to entertain this appeal. Nonetheless, we will refer to the date noted on the title page of the notes of testimony when citing to them.

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on the same day, as well as his bench warrant status from an assault charge

in Florida, demonstrated a need to protect public safety generally. Id., 5-26.

In his presentencing memorandum, Appellant included, inter alia, the

opinion of Heather L. Harris, a forensic chemistry consultant, who wrote about

the possible effects that smoking synthetic marijuana could have had on

Appellant which might provide a possible explanation for his otherwise

unexplained explosion of rage. See Appellant’s Presentencing Memorandum,

1/22/24, Attachment (letter from Heather L. Harris, dated 1/22/24).

Appellant’s counsel admitted there was no direct evidence to support the claim

that Appellant had, immediately prior to attacking his stepfather, consumed

synthetic marijuana, but offered the opinion as a possible explanation for the

allegedly out-of-character behavior. See N.T. Sentencing, 2/1/24, 13-19.

Appellant requested the court impose a sentence in the mitigated range. Id.,

20.

The court determined that an aggregate term of 18 to 36 years’

imprisonment was appropriate. On docket number CP-51-CR-0002734-2025

(2128 EDA 2024), the court imposed a term of 15 to 30 years’ imprisonment

on the conviction of murder of the third degree and no further punishment for

possessing an instrument of crime. On docket number CP-51-CR-00027334-

2025 (2127 EDA 2024), the court imposed a consecutive term of three to eight

years’ imprisonment on the conviction for aggravated assault. The court also

ordered Appellant to pay the agreed-upon restitution of $5,723.50. N.T.

Sentencing, 2/2/24, 25.

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Appellant filed a timely motion for reconsideration of sentence arguing

that the court abused its discretion by ordering the terms to run consecutively

because the two incidents were, “in essence, the result of one continuing

intoxicated/psychotic episode.” Appellant’s Motion for Reconsideration of

Sentence, 2/2/24, ¶¶ 2-3. The court denied the motion on March 4, 2024.

See Order, 3/4/24.

Counsel for Appellant did not file a direct appeal at either docket.

Instead, on June 20, 2024, Appellant, through counsel filed a petition pursuant

to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (“PCRA”), alleging

the ineffective assistance of counsel for failing to file a requested appeal, and

seeking reinstatement of the right to file a direct appeal. It argued further that

the single claim preserved in Appellant’s post-sentence reconsideration

motion did not present “any possible claims that could be raised on appeal.”

Appellant’s PCRA Petition, 6/20/24, ¶ 10. It therefore also requested the right

to file new post-sentence motions. Id., ¶¶ 12-13.

The trial court appointed new counsel. See Order, 6/28/24. New counsel

filed an amended PCRA petition, alleging prior counsel’s per se ineffective

assistance in failing to file a direct appeal and requested reinstatement of

appellate rights nunc pro tunc. See Appellant’s Amended PCRA Petition,

7/12/24, 7. By order of the PCRA court, Appellant’s direct appeal rights were

reinstated nunc pro tunc. Order, 8/6/24.

Appellant’s counsel filed timely notices of appeal nunc pro tunc in both

dockets on August 7, 2024. The trial court ordered Appellant to file a concise

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statement, pursuant to Pa.R.A.P. 1925, and Appellant complied. In addition,

Appellant sought consolidation for disposition of the separately docketed

appeals. See Appellant’s Application to Consolidate, 10/21/24. This Court

granted consolidation and designated appeal number 2127 EDA 2024 as the

lead appeal. Superior Court Order, 11/18/24.

Appellant raises the following issue for our review:

Did the sentencing court abuse its discretion in sentencing Appellant to 18 to 36 years of incarceration with consecutive sentencing schemes for crimes essentially stemming from the same continuing episode when Appellant accepted responsibility for his actions, had an adverse reaction to narcotics, and when sentencing counsel objected to predicting Appellant’s potential for dangerousness long into the future when academic studies have shown that older individuals pose a lesser threat of violence to the community and there was, thus, an overemphasis on protection of society rather than consideration of Appellant's potential for rehabilitation?

Appellant’s Brief, 4.

In the single claim raised by Appellant, he challenges the exercise of the

trial court’s sentencing discretion. He requests the aggregate sentence of 18

to 36 years in prison be vacated and the matter be remanded for resentencing

because the court did not properly weigh the sentencing factors. In particular,

he contends that he “sincerely apologized for his actions and fully accepted

responsibility,” thereby saving “the trial court time and resources” by pleading

guilty. Appellant’s Brief, 13. But, according to his appellate argument, “the

sentencing court engaged in a unitary focus on retribution and imposed an

unjustified excessive sentence … with minimal consideration of [his]

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background and genuine potential for rehabilitation.” Id. We do not reach the

questions Appellant raises about the court’s exercise of its sentencing

discretion. Instead, we conclude that only a limited portion of his appellate

claim was preserved, and that portion does not present a substantial question

for review.

Discretionary sentencing claims are not appealable as of right.

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).

Rather, an appellant challenging the sentencing court’s discretion must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing norms. An appellant must satisfy all four requirements.

Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022) (internal

citations omitted), appeal denied, 302 A.2d 626 (Pa. 2023). Appellant

satisfied the first element by filing a timely appeal after his appellate rights

were reinstated nunc pro tunc.

Appellant also filed a timely post-sentence motion for reconsideration of

sentence that raised a challenge to the imposition of consecutive sentence

terms. See Appellant’s Motion for Reconsideration of Sentence, ¶¶ 2-3. The

argument was predicated on an Appellant’s alleged adverse reaction to

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synthetic marijuana that supposedly yielded a singular continuing episode of

intoxication or psychosis.3

“[I]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). “As such, issues challenging

the discretionary aspects of sentencing must be raised in a post-sentence

motion or by raising the claim during the sentencing proceedings.”

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003). “Absent

such efforts, an objection to a discretionary aspect of a sentence is waived.”

Id. More specifically, an appellate discretionary sentencing claim must be

raised in a manner that would “give the sentencing judge an opportunity to

reconsider or modify his sentence on [that] basis.” Id. “The purpose of

requiring a party to object to a sentence after it is imposed, is to give the trial

judge an opportunity to reconsider or modify the sentence imposed; failure to

do so deprives the trial court of this chance.” Commonwealth v. Perzel, 291

A.3d 38, 48 (Pa. Super.), appeal denied, 301 A.3d 426 (Pa. 2023).

3 Further, Appellant posited that he “came to be unknowingly under the influence of some strain of a synthetic cannabinoid (commonly known as K2[)] that he smoked after he left his brothers” that morning, and suggested that “[p]erhaps he bought it on the way home or had it in his pocket from a previous buy.” Appellant’s Presentence Memorandum, 1/22/24, 2-5; N.T. Sentencing, 2/24/24, 16-20. Notably, the sentencing court in its opinion recognized that the argument was based on conjecture as Appellant had not “provided conclusive evidence that Appellant was indeed intoxicated or that narcotic caused his adverse reaction” or, for that matter that it was the adverse reaction that “caused Appellant to attack [the UPS truck driver] and kill[ his stepfather].” Trial Court Opinion, 9/12/24, 9-10.

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At sentencing, Appellant objected to the Commonwealth’s argument

suggesting future dangerousness, but did not include that objection in his

post-sentence motion as a basis for the court to reconsider its sentence and

therefore waived the claim for appellate review. See N.T. Sentencing, 2/2/24,

22. Appellant also argued in writing prior to sentencing that he is “a serious,

extremely remorseful young man” and “is taking his mental health and

substance abuse very seriously.” Appellant’s Presentence Memorandum,

1/22/24, 5. He also presented factors that would support his ability to

rehabilitate. See id., Attachment (Psychosocial History dated 9/28/23). In his

allocution, Appellant expressed his sorrow for putting his family, which was

also the murder victim’s family, “through so much pain and suffering.” N.T.

Sentencing, 2/24/24, 21. However, Appellant did not suggest in his post-

sentence motion that the sentencing court should reconsider any of his

mitigation evidence. Therefore, none of these additional arguments were

preserved for appellate review. Perzel, 291 A.3d at 48; Mann, 820 A.2d at

794.

Our next task is to determine whether the single preserved claim raised

by Appellant, his challenge to the consecutive terms of sentence, sets forth a

substantial question by examining his Rule 2119(f) statement in his brief. We

make the determination on a case-by-case basis. Commonwealth v.

Crawford, 257 A.3d 75, 78 (Pa. Super. 2021). “We cannot look beyond the

statement of questions presented and the prefatory Rule 2119(f) statement

to determine whether a substantial question exists.” Id. at 78-79 (quoting

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Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018))

(brackets omitted).

Appellant alleges that the aggregate term of 18 to 36 years’

incarceration is “excessive.” Appellant’s Brief, 9. Appellant also argues:

While punishment in the form of retribution was warranted, there was an excessive and unitary consideration for retribution. Appellant received consecutive sentences on multiple counts. This is also indicative of a rigid, solitary focus on retribution. … Such an over-emphasis on retribution and protection of society, ignores potential for rehabilitation. … [T]he lengthy homicide sentence, imposed without adequate justification, goes beyond that required to protect the public because a lesser sentence would potentially lead to earlier parole when Appellant would be older and pose limited, if any, threat to the public. … The near maximum sentence for murder in the third-degree, even if a guideline sentence, was excessive.

Appellant’s Brief, 19-11. Because the only preserved claim for review is

whether the court abused its discretion by imposing consecutive terms,

Appellant’s reliance on unpreserved mitigation and/or balancing of factor

arguments is unreviewable. We therefore examine only whether the claim that

the aggregate term of 18 to 36 years’ imprisonment is excessive raises a

substantial question warranting review. We find it is not for the following

reasons.

A substantial question is presented where:

… an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.

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Commonwealth v. Mastromarino, 2 A.3d 581, 585–586 (Pa. Super. 2010)

(quoting Commonwealth v. Bullock, 948 A.2d 818, 826 n.6 (Pa. Super.

2008)) (citation omitted).

Appellant’s excessiveness claim based on the imposition of consecutive

sentences generally does not raise a substantial question for review. 4 See,

e.g., Commonwealth v. Ahmad, 961 A.2d 884, 887 n.7 (Pa. Super. 2008);

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008). “The

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

The “key to resolving the preliminary substantial question inquiry is

whether the decision to sentence consecutively raises the aggregate sentence

to, what appears upon its face to be, an excessive level in light of the criminal

conduct at issue in the case.” Mastromarino, 2 A.3d at 587; see also ____________________________________________

4 Appellant’s unpreserved allegation that the court failed to give adequate weight to his mitigation evidence also would not raise a substantial question. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). See Commonwealth v. Sexton, 222 A.3d 405, 422 (Pa. Super. 2019) (noting that “given our deferential standard of review when considering a challenge to the discretionary aspects of sentencing, it would be inappropriate for us to second-guess the trial court’s weighing of [mitigating] factors”). In contrast, we have held that a combined argument that a sentencing court imposed an excessive sentence and failed to consider a defendant’s rehabilitative needs raises a substantial question. See, e.g., Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015). We are unable to find a substantial question here because, as addressed above, Appellant did not preserve for review any claim concerning the sentencing court’s alleged failure to consider mitigating factors.

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Moury, 992 A.2d at 171–72 (only “unduly harsh” aggregate term “considering

the nature of the crimes,” raises a substantial question).

After our review, we conclude that an aggregate term of 18 to 36 years’

incarceration for violent, physical attacks on two victims, resulting in

convictions for murder of the third degree and aggravated assault is neither

“grossly disparate” to Appellant’s conduct nor does it “viscerally appear as

patently unreasonable.” See Mastromarino, 2 A.3d at 589.

Because there were two victims of Appellant’s violence, even if we were

to find, contrary to the sentencing court, that Appellant’s theory of intoxication

or psychosis was established fact and there had been only one criminal

incident as a result of that psychosis, we still would not find consecutive

sentence terms excessive or grossly disparate in this matter. Appellant fails

to raise a substantial question where he “is seeking a further ‘volume discount’

because the crimes occurred during one criminal enterprise.” Mastromarino,

2 A.3d at 589; see also Commonwealth v. Morrobel, 311 A.3d 1153, 1157

(Pa. Super. 2024) (holding that an aggregate sentence of 16 to 32 years’

imprisonment was not on its face excessive in light of criminal conduct at

issue, the straw-purchase of 40 firearms, and therefore failed to raise a

substantial question); Commonwealth v. Radecki, 180 A.3d 441, 469-470

(Pa. Super. 2018) (neither running nine terms of imprisonment for sexual

misconduct consecutively where there were nine victims, nor running three

additional convictions consecutively where they related to his scheme to

assault the victims, raises a substantial question); Commonwealth v. Zirkle,

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107 A.3d 127, 134 (Pa. Super. 2014) (holding that a 17-year-and-one-month

aggregate term of imprisonment, “may seem harsh at first blush,” but in light

of three burglary convictions and other related charges, it did not raise a

substantial question warranting review). Therefore, on the one challenge to

the trial court’s sentencing discretion preserved for review, we conclude that

Appellant fails to raise a substantial question. We therefore decline to grant

review of the merits of his sentencing claim. Accordingly, we affirm the

judgments of sentence.

Judgments of sentence affirmed.

Date: 6/27/2025

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