J-A29031-17




NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :      IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
                 Appellee                      :
                                               :
                    v.                         :
                                               :
BRANDON MENLEY,                                :
                                               :
                 Appellant                     :      No. 340 EDA 2017

          Appeal from the Judgment of Sentence August 25, 2016
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0014148-2014

BEFORE:      LAZARUS, PLATT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED DECEMBER 29, 2017

     Brandon Menley (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to, rape, robbery, aggravated assault, burglary,

possessing    instruments    of   a   crime,       unlawful   restraint,   and   false

imprisonment. We affirm.

           The charges herein stemmed from an incident that
     occurred on October 4, 2014, during which [Appellant] entered
     an art school and approached X.R. the victim herein, and
     subdued her by striking her in the head several times with a
     hammer and strangling her. [Appellant] then forced the victim
     to engage in sexual intercourse after which he robbed the victim
     of $650.00 in cash before leaving the school.        The victim
     suffered a serious head injury requiring that her wound be
     stapled shut as well as mental health therapy.

          The incident was captured on a video surveillance system
     and police soon apprehended [Appellant], who, at first, denied
     responsibility for the attack. However, upon being confronted


*Retired Senior Judge assigned to the Superior Court.
J-A29031-17


        with the video recording of the attack, he soon confessed that he
        assaulted the victim but indicated that he had no memory of
        having raped her.       During their investigation, police also
        recovered a hammer and sales receipts from two stores from a
        storage locker [Appellant rented [] on October 6, 2014, along
        with $245.00 from [Appellant’s] person.

Trial Court Opinion, 3/23/2017, at 2.

        On March 15, 2016, Appellant entered an open guilty plea to the

aforementioned crimes.       On August 25, 2016, the trial court imposed an

aggregate sentence of 30 to 60 years’ incarceration followed by 15 years’

probation.1 Appellant timely filed a motion to modify sentence, which was

denied by operation of law.       Appellant thereafter filed a timely notice of

appeal.2

        Appellant raises the following issues for this Court’s consideration.

        [1.] At sentencing, a 30 year-old [Appellant] presented the
        [trial] court with mitigating evidence including his mental illness
        and brain injury, his history of homelessness and substance
        abuse, his lack of violent history, his repeated expressions of
        remorse, his confession, and acceptance of responsibility. Did
        the sentencing court fail to adequately consider all these
        mitigating factors when it sentenced him to an aggregate
        sentence of 30 [to] 60 years of incarceration?

        [2.] Did the sentencing court fail to provide sufficient reasons for
        sentencing a mentally ill, first-time offender, with no history of
        violence to a 30 [to] 60 year sentence that was outside the
        guidelines?


1
  An assessment performed subsequent to Appellant’s guilty plea revealed
that Appellant was not a sexually violent predator (“SVP”) pursuant to 42
Pa.C.S. § 9799.24.
2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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Appellant’s Brief at 3 (trial court answers omitted).

      Appellant’s questions challenge the discretionary aspects of his

sentence. Accordingly, we bear in mind the following.

      Challenges to the discretionary aspects     of sentencing do not
      entitle an appellant to review as of        right.   An appellant
      challenging the discretionary aspects of    his [or her] sentence
      must invoke this Court’s jurisdiction by    satisfying a four-part
      test:

         We 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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant filed a timely post-sentence motion and a notice of

appeal, and included a statement pursuant to Rule 2119(f) in his brief. We

now turn to consider whether Appellant has presented substantial questions

for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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

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Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

      Upon review, we find Appellant’s first issue, alleging the sentencing

court failed to “properly consider all mitigating factors” does not raise a

substantial question. Appellant’s Brief at 17-18. See Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

factors does not raise a substantial question for our review.”) (quoting

Commonwealth         v.   Downing,    990    A.2d   788,   794    (Pa.   Super.

2010));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.”).3,4



3 In concluding as such, we nonetheless remain cognizant of the inconsistent
categorization of an issue as one that does or does not raise a substantial
question.     Compare Disalvo and Zirkle with Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (“[A]rgument[] that
the sentencing court failed to consider the factors proffered in 42 Pa.C.S. §
9721 does present a substantial question[.]” (citation omitted);
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)
(Defendant’s claim “that the trial court failed to consider [his] rehabilitative
needs and the protection of society in fashioning [his] sentence” raised a
substantial question).
4 Even if Appellant raised a substantial question allowing this Court to
entertain Appellant’s claim, he would still not be entitled to relief. Here, the
sentencing court had the benefit of “sentencing memoranda” from Appellant
and the Commonwealth, as well as “various pre-sentence [investigation
reports (PSI)].” Trial Court Opinion, 3/23/2017, at 3. See also N.T.,
Footnote Continued Next Page

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      While Appellant’s issue concerning the court’s allegedly inadequate

consideration of the applicable mitigating factors does not raise a substantial

question, Appellant’s claim that the trial court erred by failing to set forth

sufficient reasons for sentencing him outside the guideline range does. See

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(“This [C]ourt has found that a claim the trial court failed to state its reasons

for deviating from the guidelines presents a substantial question for

review.”).

      With respect to this claim, Appellant argues the trial court’s statements

at sentencing and its written opinion “show[] that the court did not rationally

and systematically analyze the guidelines but instead passionately departed

from the guidelines by misplacing its focus on the egregiousness of the

offenses” without considering his “non-violent, law-abiding history and his

severe mental health characteristics.”             Appellant’s Brief at 30-31.

      It is well-settled that


(Footnote Continued)   _______________________



8/25/2016, at 4 (“For the record, I’ve reviewed the Commonwealth’s
sentencing memo. I’ve reviewed, in large part, the sections of the defense’s
memorandum I think were pertinent.          I’ve reviewed the presentence
investigation and I’m ready to proceed – and the letters in support of the
[Appellant]. I’m ready to proceed [with sentencing].”).         “Where the
sentencing court had the benefit of a [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. Griffin, 65 A.3d at 937 (quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)).



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     [w]hen a sentencing court makes the decision to deviate from
     the sentencing guidelines, it is especially important that the
     court consider all factors relevant to the determination of a
     proper sentence. This means that a sentencing court must give
     consideration not only to the nature of the crime, but also to the
     individual character and circumstances of the offender.

Commonwealth v. Eby, 784 A.2d 204, 207–08 (Pa. Super. 2001) (citation

and quotation marks omitted).

     The trial court rejected Appellant’s characterization of what the court

considered prior to imposing Appellant’s sentence.

            Here, [Appellant] should be denied relief because a review
     of the transcript of the sentencing hearing indicates that th[e
     trial court] complied with the law in all respects. First, th[e trial
     court] considered the recommended sentencing guidelines
     ranges. Th[e trial court] also reviewed both parties’ sentencing
     memoranda and various pre-sentence reports prior to the
     sentencing hearing that set forth [Appellant’s] criminal history
     and biographical particulars, including his age and upbringing.
     Therefore, th[e trial court] was well aware of all information
     relevant to sentencing, including the Commonwealth’s
     recommendation that the circumstances herein required the
     imposition of a lengthy sentence.

           The [trial court] also took into account the mitigating
     evidence presented by [Appellant] and weighed that against the
     facts and circumstances of the instant crime in deciding upon a
     sentence, which is evidenced by the fact that the [trial court] did
     not impose consecutive sentences of incarceration on all of the
     crimes [Appellant] was convicted of committing, which the
     Commonwealth sought during the sentencing hearing.

           With regard to the complaint that th[e trial court] failed to
     give adequate reasons for the sentence herein, which were
     outside the recommended sentencing guidelines ranges, the law
     provides that adequate reasons for deviating from the
     sentencing guidelines are given when the sentencing court
     demonstrates on the record that it considered a defendant’s
     circumstances, prior criminal record, personal characteristics and



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      rehabilitative potential and where the record indicates that the
      court had the benefit of a [PSI].

             Here, th[e trial court] complied with the law because it did
      set forth its reasons for the sentence after considering all of the
      reports and evidence presented to it, which indicated that the
      facts of the case, which were horrific because defendant stalked
      the victim and then ambushed her as she was beginning her
      work day. Clearly, while the remarks were terse, under the
      circumstances it is suggested that they were sufficient to satisfy
      the dictates of the law. With regard to [Appellant’s] claim that
      the sentence imposed was disproportionate to the crimes he was
      convicted of committing, the facts show that [Appellant] stalked
      the victim and followed her into a school, beat the victim with a
      hammer, choked her, and then raped her causing her enormous
      physical, mental, and emotional pain.          Given these facts,
      [Appellant’s] claim that the sentences were disproportionate to
      the crimes committed is ris[i]ble. Consequently, th[e trial court]
      suggests that this claim lacks merit because it is the view of th[e
      trial court] that only a severe sentence would suffice to satisfy
      the factors of retribution, rehabilitation, and the safety of the
      public.

            Finally, the [trial c]ourt did take into account [Appellant’s]
      rehabilitative needs during the sentencing hearing. The record
      shows that th[e trial court] directed that [Appellant] be housed
      at a state correctional facility that could provide mental health
      and drug treatment.

Trial Court Opinion, 3/23/17, at 3-5 (citations omitted).

      Our review of the record confirms the foregoing. Specifically, the trial

court set forth the following prior to imposing Appellant’s sentence.

      This is a horrific crime, terrifying crime. And I can appreciate the
      anguish of [Appellant’s] family. I reviewed all the medical -- all
      the mental health reports that are available. Doctor O’Brien
      indicates that [Appellant] was never diagnosed with a psychiatric
      illness, but, I think, certainly given his upbringing, he had
      certain mental health problems. The predator assessment board
      says he does not -- within a reasonable degree of psychological
      certainty [Appellant] does not currently meet the criteria set
      forth for the classification of sexually violent offender. That

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     being said, having watched the video, having reviewed the facts
     of the case, the action was extremely deliberate. And the [trial
     c]ourt cannot allow this [Appellant] to go -- not only unpunished,
     but to go with anything less than a strong sentence, given the
     crime -- horrid crime that was committed in this matter.

                                     ***

     I'm putting in the sentencing that I recommend that [he] be
     sentenced -- sent to a state institution with mental health
     facilities, and possible facilities for -- since he did have a drug
     problem, dual diagnostic -- which conduct dual diagnostic
     evaluations. But it should be -- state prison has capable mental
     health facilities.

N.T., 8/25/2016, at 61-62, 65-66.5

     Additionally, as noted supra, the trial court (1) reviewed Appellant’s

PSI prior to sentencing, as well as a lengthy sentencing memorandum

submitted by Appellant, which detailed the various mitigating factors he

sought to present; and (2) heard from several individuals who made

statements on behalf of Appellant at sentencing. The trial court considered

this ample evidence offered by Appellant and was aware of Appellant’s

mitigating factors and the applicable sentencing guidelines prior to the

imposition of Appellant’s sentencing.      Nonetheless, for the reasons cited

supra, the trial court concluded that the imposition of a sentence above the

recommended guidelines was appropriate.            See Commonwealth v.

Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (An “appellate court must

5 The Commonwealth also set forth the guideline ranges on the record prior
to the imposition of Appellant’s sentence. N.T., 8/25/2016, at 35-36. Thus,
it is evident that the trial court was aware that the sentence imposed
exceeded the recommended guideline ranges.


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give great weight to the sentencing court’s discretion, as he or she 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.”).

      In light of the foregoing, we find Appellant has presented no issue on

appeal which would convince us to disturb his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 12/29/17




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