Com. v. Brown, J.

Opinion

J-S18027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JABRIEL M. BROWN, : : Appellant : No. 2324 EDA 2022

Appeal from the Judgment of Sentence Entered August 13, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004458-2017

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JUNE 21, 2023

Appellant, Jabriel M. Brown, appeals from the August 13, 2019 judgment

of sentence entered in the Philadelphia County Court of Common Pleas

following his guilty plea to twenty-three offenses stemming from a home

break-in and assault.1 Appellant challenges the discretionary aspects of his

sentence. After careful review, we affirm the judgment of sentence.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Appellant pled guilty to two counts each of Aggravated Assault, Robbery, Burglary, Conspiracy, Criminal Trespass, Theft-by Unlawful Taking, Receiving Stolen Property, Simple Assault, Recklessly Endangering Another Person, and one count each of Possession of a Firearm by a Person Prohibited, Firearms Not to be Carried Without a License, Carrying Firearms in Public in Philadelphia, Possession of Instrument of a Crime, and Criminal Mischief. See 18 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 3502(a)(1)(i), 903, 3503(a)(1)(ii), 3921(a), 3925(a), 2701(a), 2705, 6105(a)(1), 6106(a)(1), 6108, 907(a), and 3304(a)(1), respectively. J-S18027-23

The relevant facts and procedural history are as follows. At

approximately 7:30 AM on May 3, 2017, Steven Wallace and Nasir Hall

(collectively, Victims) were sleeping in Wallace’s bedroom when Appellant and

Jordan Hudson (“Codefendant”) broke into the house and kicked in the

bedroom door. Appellant pointed a gun at Victims and struck Wallace in the

face with the gun. One of the assailants also kicked Hall in the face. Although

the assailants wore masks, Wallace identified them from the neighborhood.

The assailants proceeded to take approximately $900, an iPhone, and a

designer belt from Victims.

Ultimately, Appellant pled guilty to the listed offenses. On August 13,

2019, after the court reviewed Appellant’s mental health and presentence

investigation reports and considered the sentencing guidelines, it sentenced

Appellant to an aggregate term of 5-12 years of incarceration. Appellant filed

a Motion for Reconsideration/Reduction of Sentence on August 20, 2019,

which the sentencing court denied by operation of law on January 7, 2020.

Although Appellant did not initially file a direct appeal, he subsequently

sought reinstatement of his appellate rights by filing a Post-Conviction Relief

Act (“PCRA”) Petition.2 The PCRA court granted reinstatement of his rights

nunc pro tunc on August 23, 2022. On September 9, 2022, Appellant filed a

notice of appeal. Appellant and the trial court complied with Pa.R.A.P. 1925.

2 42 Pa.C.S. §§ 9541-9546.

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Before this Court, Appellant raises the following question: “Whether

Appellant’s sentence was unduly harsh and excessive[?]” Appellant’s Br. at 4.

A.

Appellant challenges the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentence are not appealable as of

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

Instead, an appellant challenging the discretionary aspects of his sentence

must comply with the following requirements: (1) file a timely notice of

appeal; (2) preserve the issue at sentencing or in a motion to reconsider and

modify sentence; (3) include in his appellate brief a separate section setting

forth a concise statement of the reasons relied upon for allowance of appeal

as required by Pa.R.A.P. 2119(f); and (4) raise a substantial question that the

sentence is inappropriate under the Sentencing Code. Id.

The record and his brief reflect that Appellant satisfied the first three

requirements. Thus, we consider whether Appellant has presented a

substantial question for review.

“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.”

Commonwealth v. Summers, 245 A.3d 686, 692 (Pa. Super. 2021), appeal

denied, 276 A.3d 700 (Pa. 2022) (citation omitted). “While a bald claim of

excessiveness does not present a substantial question for review, a claim that

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the sentence is manifestly excessive, inflicting too severe a punishment, does

present a substantial question.” Commonwealth v. Hicks, 151 A.3d 216,

227 (Pa. Super. 2016) (citation omitted). Moreover, a claim that the

“sentencing court disregarded [a defendant’s] rehabilitative potential and

sentenced [him] to a manifestly excessive sentence” constitutes a substantial

question. Commonwealth v. Snyder, 289 A.3d 1121, 1126 (Pa. Super,

2023).

In the instant case, Appellant maintains that his sentence was so

“manifestly excessive as to constitute too severe a punishment.” Appellant’s

Br. at 8. He further asserts that the sentencing court “did not provide adequate

reasons for the sentence being so high nor did the court give due consideration

to the defense arguments for a lesser sentence[,]” including his asserted

rehabilitative potential. Id. Based upon the above precedent, we find that

Appellant has asserted a substantial question.

B.

“Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Sexton, 222 A.3d 405, 420 (Pa. Super.

2019) (citation omitted). To demonstrate an abuse of discretion, the

defendant must “establish, by reference to the record, that the sentencing

court ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable

decision.” Id.

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In sentencing a defendant, a trial court should consider the following

factors: “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.” 42 Pa.C.S. § 9721(b). When, as in the

instant case, the sentencing court has the benefit of a pre-sentence

investigation report, “we presume that [it] was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with any mitigating factors.” Sexton, 222 A.3d at 422 (citation omitted).

Moreover, we defer to the sentencing court’s assessment of the sentencing

factors as it is “in the best position to measure factors such as the nature of

the crime, the defendant’s character, and the defendant’s display of remorse,

defiance, or indifference.” Summers, 245 A.3d at 696 (citation omitted).

C.

While Appellant acknowledges that his sentence was within the

guidelines, he claims that his sentence is “unduly harsh and unreasonable”

and that the sentencing court failed to “give sufficient weight to the

rehabilitation of Appellant.” Appellant’s Br. at 10. He emphasizes that he was

19 at the time of the crime, was seeking treatment for Attention-Deficit-

Hyperactivity Disorder, and had substantial family and community support.

Id. at 11. Appellant claims that the sentencing court improperly considered

that Appellant possessed a firearm during the incident and engaged in

violence, attributes which Appellant contends are already incorporated into

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the sentencing guidelines. Id. at 13. Our review of the record, however,

reveals that the sentencing court did not abuse its discretion.

At the sentencing hearing and in its Rule 1925(a) Opinion, the trial court

thoroughly explained its reasons for the sentence imposed, balancing what it

viewed as mitigating and aggravating factors.3 The court identified the

following mitigating factors: “that Defendant accepted responsibility, that he

was youthful at the time of the crime, that he had incredible family support,

and that his prior conviction was over five years old, committed when he was

a minor at the age of fourteen.” Tr. Ct. Op. at 6. The court, however,

recognized “that were aggravating factors present when considering the

sentence, such as the premeditation required for the crime, the violence

involved and the fact a firearm was posses[s]ed, that there was information

of intimidation against the victim and the victim’s family, the fact that his

previous conviction was a Felony I robbery, and that Defendant, while on bail

for the case at bar, committed another robbery.” Id. Ultimately, the court

declined to impose consecutive sentences, deviated from the guidelines by

mitigating the minimum sentence by six months, but included “a longer tail[,]”

explaining that it wanted to “keep him on [the court’s] supervision when he

does get out.” N.T., 8/13/2019, at 60. In light of the court’s careful and

3 Given his prior record score of 4 and the offense gravity score of 10, the standard guideline sentence was 48-60 months, plus or minus 12 months, which increased to 66-78 months, with the inclusion of the deadly weapon enhancement. See 204 Pa. Code §§ 303.16, 303.17(b). The court mitigated by 6 months the minimum sentence, imposing a sentence of 60-144 months.

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reasonable assessment of the sentencing factors, we conclude that the court

did not abuse its discretion in fashioning Appellant’s sentence.

Judgment of Sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/21/2023

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