Com. v. Brown, G.

Opinion

J-S17043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GORDON BROWN

Appellant No. 1895 WDA 2014

Appeal from the Judgment of Sentence June 18, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008256-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 15, 2015

Appellant, Gordon Brown, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his bench

trial convictions for recklessly endangering another person (REAP),

obstruction of administration of law or other governmental function

(“obstruction”), and disorderly conduct.1 We affirm.

In its opinion, the trial court fully set forth the relevant facts of this

case. Therefore, we have no reason to restate them. Procedurally, following

a bench trial, Appellant was convicted of REAP, obstruction, and disorderly

conduct. On June 18, 2014, the court sentenced Appellant to a term of

____________________________________________

1 18 Pa.C.S.A. §§ 2705, 5101, 5503(a)(4), respectively.

___________________________

*Former Justice specially assigned to the Superior Court. J-S17043-15

twelve (12) to twenty-four (24) months’ imprisonment for the REAP

conviction, and a consecutive term of six (6) to twelve (12) months’

imprisonment for the obstruction conviction. The court imposed no further

penalty for disorderly conduct. Thus, Appellant received an aggregate

sentence of eighteen (18) to thirty-six (36) months’ imprisonment.

On June 26, 2014, Appellant filed a timely post-sentence motion.

Appellant filed another post-sentence motion on June 27, 2014. While the

motions were pending, and despite having counsel of record, Appellant pro

se filed a PCRA petition and a notice of appeal on September 16, 2014.2 In

light of Appellant’s pro se filings, the court appointed new counsel on

September 23, 2014. On October 14, 2014, Appellant, through new

counsel, filed a motion for permission to file amended post-sentence motions

and to receive a thirty-day extension for decision on the motions. The court

granted Appellant’s request. Appellant filed amended post-sentence motions

on November 7, 2014, which the court denied on November 13, 2014.

Appellant timely filed a notice of appeal on November 18, 2014. The court

ordered Appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied. ____________________________________________

2 A defendant may not take a direct appeal while his post-sentence motions are pending. Commonwealth v. Cooper, 611 Pa. 437, 27 A.3d 994 (2011). Moreover, a defendant may not engage in hybrid representation by submitting pro se filings while still represented by counsel. Commonwealth v. Willis, 29 A.3d 393 (Pa.Super. 2011). Therefore, Appellant’s pro se PCRA petition and notice of appeal were legal nullities.

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Appellant raises a single issue for our review:

DID THE TRIAL COURT ERR IN DENYING APPELLANT’S POST SENTENCING MOTIONS SINCE THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE AGGREGATE SENTENCE (BY RUNNING THE TWO SENTENCES CONSECUTIVELY), AND IN IMPOSING AN EXCESSIVE SENTENCE FOR THE REAP CONVICTION, SINCE APPELLANT HAD NO PRIOR CONVICTIONS SINCE 1991, HE HAD BEEN A BUSINESS OWNER AND WAS A CONTRIBUTING MEMBER OF AND TO THE MCKEESPORT, PA COMMUNITY, HE HAD BEEN COOPERATIVE IN THE JAIL PENDING SENTENCING, HE HAD TWO SONS AND WAS A POSITIVE AND HELPFUL FATHER TO ESPECIALLY HIS TEN- YEAR-OLD SON, APPELLANT WAS ONLY TRYING TO SAVE HIS MOTHER-IN-LAW’S CATS, AND APPELLANT FELT REMORSE FOR, AND NEVER INTENDED TO CAUSE, LIEUTENANT LOPRETTO’S HORRIFIC INJURIES?

(Appellant’s Brief at 3).

On appeal, Appellant argues his sentence for the REAP conviction is

manifestly excessive in light of various mitigating factors, including the

length of time since Appellant’s last offense in 1991; his business ownership

and contributions to the community; his cooperation in jail pending

sentencing; his fatherhood; his motivation for reentering the house in an

attempt to save the cats; and his remorse for Lieutenant Lopretto’s injuries.

Appellant suggests the court based its sentence solely on the seriousness of

the crime. For the same reasons, Appellant also asserts the court imposed

too severe a punishment when it made Appellant’s REAP and obstruction

convictions run consecutively. Appellant concludes this Court should vacate

the judgment of sentence and remand for resentencing. Appellant’s

challenge is to the discretionary aspects of his sentence. See

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Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010)

(explaining challenge to imposition of consecutive sentences implicates

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating claim that sentencing court failed to consider or

did not adequately consider certain factors challenges discretionary aspects

of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue:

[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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

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the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal ‘furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting

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Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a

sentence is manifestly excessive might raise a substantial question if the

appellant’s Rule 2119(f) statement sufficiently articulates the manner in

which the sentence imposed violates a specific provision of the Sentencing

Code or the norms underlying the sentencing process. Mouzon, supra at

435, 812 A.2d at 627. Generally, “[a]n allegation that a sentencing court

failed to consider or did not adequately consider certain factors does not

raise a substantial question that the sentence was inappropriate.” Cruz-

Centeno, supra at 545. A challenge to the trial court’s exercise of

discretion in imposing sentences consecutively also generally fails to raise a

substantial question. Commonwealth v. Pass, 914 A.2d 442, 446

(Pa.Super. 2006).

Instantly, Appellant’s amended post-sentence motion and Rule 2119(f)

statement properly preserved his claims that the court imposed an excessive

sentence for the REAP conviction, without adequate consideration of certain

factors, and abused its discretion when it made the REAP and obstruction

sentences run consecutively.3 Nevertheless, neither of these claims presents

a substantial question warranting review. See Pass, supra; Cruz- ____________________________________________

3 To the extent Appellant also appears to argue in his brief that the court failed to state adequate reasons on the record for the sentence imposed, this claim is waived because Appellant failed to raise it at sentencing or in a timely post-sentence motion. See Mann, supra.

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Centeno, supra. Moreover, the court had the benefit of a PSI report at

sentencing. Therefore, we can presume the court considered the relevant

information and mitigating factors. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa.Super 2005) (stating where sentencing court had benefit

of PSI, law presumes court was aware of and weighed relevant information

regarding defendant’s character and mitigating factors). The court also

imposed a standard range sentence for the REAP and obstruction

convictions. See Cruz-Centeno, supra (explaining that, absent more,

standard range sentence cannot be considered excessive or unreasonable

where court had benefit of PSI).

Additionally, at the sentencing hearing, the court reasoned as follows:

The [c]ourt received a memorandum in aid of mitigation at sentencing filed by [Appellant’s] counsel. I reviewed it.

* * *

In your case, [Appellant], you have had other opportunities throughout the course of your life to interact, unfortunately, within the criminal justice system, and it has failed in [the court’s] view to persuade you to rehabilitate your view, that you are going to do what you want to do when you damn well want to do it even in the face of being ordered by police to do something else.

I know that you didn’t mean it that way. I believe you when you say that. I believe that you didn’t mean to hurt this officer, but you were going to do what you were going to do regardless of the orders that you got from the law enforcement officer in a very chaotic, dangerous situation just like you had done in the past with the fleeing and eluding and ignoring the demands of the officer and you are 40 some years old now. You are not a kid.

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You can tell me that it was motivated by your mother[-in- law’s] desire to have the cat saved, I understand all that, but it was a very dangerous situation and a real harmful result occurred to that man individually and to the community of McKeesport generally. You have obstructed the officers and others in their attempt to handle a very dangerous public situation….

I am sorry to have to do this, [Appellant] but based on the [c]ourt’s view, your prior interaction with the law did not refocus your understanding that you are to abide by lawful commands of police particularly in a very dangerous setting for the community. You did just the opposite.

It is a very stern sentence, [Appellant], but the results of your knowing conduct, your decision to ignore lawful commands of the police, to actually interfere with their ability to try to handle the very dangerous public situation resulted in very severe harm to the individual victim and to the community, measurable harm to the community, and people have to know that when an officer gives them a lawful command that they have to follow it whether they like it or not.

(N.T. Sentencing Hearing, 6/18/14, at 33-34). Thus, the record indicates

the court was aware of the relevant sentencing considerations and weighed

them in a meaningful fashion. Based on the foregoing, we conclude

Appellant’s sentences should remain undisturbed. Accordingly, we affirm the

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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Joseph D. Seletyn, Esq. Prothonotary

Date: 4/15/2015

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OPINION

Mariani, J.

This is a direct appeal wherein the defendant, Gordon Brown, appeals from the

Judgment of Sentence imposed on June 18, 2014 which became final upon this Court's

denial of post-sentencing motions on November 13, 2014. On March 26, 2014 the

defendant was convicted, after a non- jury trial, of recklessly endangering another person,

obstructing the administration of law and summary disorderly conduct. This Court

sentenced the defendant to a term of imprisonment of not less than one year nor more

than 2 years relative to the conviction for recklessly endangering another person.

Relative to the conviction obstructing the administration of law, this Court imposed a

consecutive sentence of imprisonment of not less than six months nor more than twelve

months. No additional penalty was imposed at the disorderly conduct conviction. The

defendant filed a timely Notice of Appeal. Defendant filed a Concise Statement of (/) ¥3-tter!@;~liiplainedof on Appeal alleging that this Court imposed an excessive sentence. \,(') 0 0-;,,,-- .. u-'z F~the @~~g reasons, the judgment of sentence should be affirmed. 0 ~ ....... 1- ciO \...~

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The credible facts at trial established that on January 30, 2013, officers from the

McKeesport Police Department as well as firefighters from the McKeesport Fire

Department responded to a residence at 413 Long Run Road that was fully engulfed by

fire. This residence was a house that was partitioned into apartments. Officer Daniel

Krejdovsky testified that he initially responded to the fire scene. Upon arriving at the

scene, he secured the residence to make sure nobody was inside. All of the residents

were outside toward the rear of the residence. Officer Krejdovsky spoke with a number

of people who resided in the residence, including the defendant. At some point, the

defendant attempted to enter the side door of the residence. The defendant walked into

the kitchen area Officer Krejdovsky told the defendant to get out of the house. The

defendant continued to walk around the kitchen and firefighters had to maneuver around

him to fight the fire. Officer Krejdovsky then physically removed the defendant from

the residence.

Assistant Police Chief Green also arrived on the scene. He testified that he

encountered the defendant standing on the front porch of the residence. According to

Assistant Chief Green, the house was so engulfed in flames that it was a "very

dangerous" situation. Assistant Chief Green asked the defendant to leave the area due to

the volatility of the fire site. The defendant refused, telling Assistant Chief Green that

his cat was inside the house. Assistant Chief Green was unable to convince the

defendant to leave the area. Assistant Chief Green testified that he had to enter the porch

area that led to the area where flames were engulfing the house. The front door of the

residence was open and smoke was "pouring" out of the house. Assistant Chief Green

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had to physically drag the defendant off the porch and away from the fire site. Assistant

Chief Green then ordered the defendant to leave the area of the fire. The defendant

initially appeared to comply with those orders.

Lieutenant Dennis Lopretto of the McKeesport Police Department testified that

when he first arrived on the scene, the defendant was standing on the front porch of the

residence attempting to fight the fire with a garden hose. The defendant was standing on

the porch and flames were coming outside the front door. Lieutenant Lopretto ordered

the defendant to leave the porch. When the defendant refused, he physically removed

him from the porch. The defendant "wrestled" with him in an effort to remain on the

porch. Even after being removed from the porch, the defendant continued a few more

times to enter the porch. Lieutenant Lopretto left the defendant with neighbors and

instructed them not to permit him to enter the house.

Lieutentant Lopretto then heard a female's voice from the rear of the house

scream that her cat was still in the residence. When he got to the rear of the residence, he

observed the defendant make a "dash" toward the residence. Lieutenant Lopretto ran

toward the defendant to stop him from entering the residence. While running, Lieutenant

Lopretto slipped on the wet deck of the residence and fell. As a result of the fall,

Lieutenant Lopretto suffered brain swelling, a severe concussion, loss of speech, vision

issues, neck pain, balance issues and a tom rotator cuff. The injuries have caused him to

lose his job as a police officer and his quality of life has substantially diminished.

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The defendant testified at trial. He essentially testified that he did encounter

police officers on the day of the fire but he did not repeatedly attempt to enter the

residence and he did not engage in any skirmishes with them. He attempted to place

blame for his conduct on a person in a "camouflage jacket." This Court did not find his

testimony credible.

Defendant claims that the imposition of consecutive sentences was inappropriate.

A sentencing judge is given a great deal of discretion in the determination of a sentence,

and that sentence will not be disturbed on appeal unless the sentencing court manifestly

abused its discretion." Commonwealth v. Boyer, 856 A2d 149, 153 (Pa. Super. 2004),

citing Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001) appeal denied, 568 ·

Pa. 695, 796 A.2d 979 (2002); 42 Pa.C.S.A. §9721. An abuse of discretion is not a mere

error of judgment; it involves bias, partiality, prejudice, ill-will, or manifest

unreasonableness. See Commonwealth v. Flores. 921 A.2d 517, 525 (Pa.Super. 2007),

citing Commonwealth v. Busanet. 817 A.2d 1060, 1076 (Pa. 2002).

The imposition of consecutive rather than concurrent sentences lies within the

sound discretion of the sentencing court. Commonwealth v. Lloyd, 878 A.2d 867, 873

(Pa. Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). Title 42 Pa.C.S.A. §

9721 affords the sentencing court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same time or to sentences already

imposed. _Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing

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Commonwealth v. Graham, 661 A.2d 1367, 1373 (1995)). "In imposing a sentence, the

trial judge may determine whether, given the facts of a particular case, a sentence should

run consecutive to or concurrent with another sentence being imposed." Commonwealth

v. Perry, 883 A.2d 599 (Pa. Super. 2005), quoting Commonwealth v. Wright, 832 A.2d

1104, 1107 (Pa.Super.2003); see also Commonwealth v. L.N., 787 A.2d 1064, 1071

(Pa.Super.2001), appeal denied 569 Pa. 680, 800 A.2d 931 (2002).

Furthermore, the "[s]entencing court has broad discretion in choosing the range of

permissible confinements which best suits a particular defendant and the circumstances

surrounding his crime." Boyer, supra, quoting Commonwealth v. Moore, 617 A.2d 8, 12

(1992). Discretion is limited, however, by 42 Pa.C.S.A. §9721(b), which provides that

a sentencing court must formulate a sentence individualized to that particular case and

that particular defendant. Section 9721(b) provides: "[t]he court shall follow the general

principle that the sentence imposed should call for confinement that is consistent with 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 . . . . "

Boyer, supra at 153, citing 42 PaC.S.A. §972l(b). Furthermore,

In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant's prior criminal record, age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a presentence investigative report, it will be presumed that he or she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors.

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Boyer. supra at 154, citing Commonwealth v. Burns, 765 A.2d 1144, 1150-1151(Pa.Super.

2000) ( citations omitted).

Moreover, "the sentencing court must state its reasons for the sentence on the record."

Boyer, supra at 154, citing 42 Pa.C.S.A. § 9721(b). The sentencingjudge can satisfy the

requirement that reasons for imposing sentence be placed on the record by indicating that he

or she has been infonned by the pre-sentencing report; thus properly considering and

weighing all relevant factors. Boyer. supra, citing Burns, supra, citing Commonwealth v.

Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996). In fashioningan appropriate sentence,

courts must be mindful that the sentencing guidelines "have no binding effect, in that they

do not predominate over individualized sentencing factors and that they include

standardized recommendations, rather than mandates, for a particular sentence."

Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d 957, 964 (2007). A sentencing

court is, therefore, permitted to impose a sentence outside the recommended guidelines.

If it does so, however, it "must provide a written statement setting forth the reasons for

the deviation .... " Id., 926 A.2d at 963.

A sentencing judge can satisfy the requirement of placing reasons for a particular

sentence on the record by indicating that he or she has been informed by the pre-

sentencing report; thus properly considering and weighing all relevant factors. Boyer.

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supra, citing Bums. supra, citing Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d

237 (1996). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (if

sentencing court has benefit of pre-sentence investigation, law expects court was aware

of relevant information regarding defendant's character and weighed those considerations

along with any mitigating factors).

The sentencing record demonstrates that the Court considered all relevant

information. The record indicates that the Court also reviewed the presentence report as

it commented on the defendant's prior criminal convictions for fleeing and eluding the

police and recklessly endangering another person.

This Court also noted that the defendant intentionally and defiantly disobeyed

direct orders from police officers at a very dangerous public scene. Had the defendant

complied with those orders, Lieutenant Lopretto would not have sustained the very

serious injuries from which he now suffers. The sentencing record indicates that the

Court considered the rehabilitative needs of the defendant, protection of the public and

public deterrence. As this Court explained:

In your case, Mr. Brown, you have had other opportunities through the course of your life to interact, unfortunately, within the criminal justice system, and it has failed in my view to persuade you to rehabilitate your view, that you are going to do what you want to do when you damn well want to do it even in the face of being ordered by police to do something else.

***************

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I know that you didn't mean it that way. I believe you when you say that. I believe that you didn't mean to hurt this officer, but you were going to do what you were going to do regardless of the orders that you got from the law enforcement officer in a very chaotic, dangerous situation just like you had done in the· past with the fleeing and eluding and ignoring the demands of the officer and you are 40 some years old now. You are not a kid.

You can tell me that it was motivated by your mother, your stepmom' s desire to have the cat saved, I understand all that, but it was a very dangerous situation and a real harmful result occurred to that man individually and to the community of McKeesport generally. You have obstructed the officers and others in their attempt to handle a very dangerous public situation and disorderly conduct. Well that seems to flow from that.

************** I am sorry to have to do this, Mr. Brown, but based on the Court's view, your prior interaction with the law did not refocus your understanding that you are to abide by the lawful commands of police, particularly in a very dangerous setting for the community. You did just the opposite.

The sentencing record contains a sufficient written justification for the Court's

sentence in this case. The aggravated-range substantive sentence relative to the

recklessly endangering another person conviction was not improper. Imposing a

consecutive sentence for obstructing the administration of law was not an abuse of

discretion. Accordingly, the judgment of sentence should be affirmed.

Date: