J-S08008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

BRANDON MIDDER

                         Appellant                  No. 743 WDA 2015


       Appeal from the Judgment of Sentence entered April 10, 2015
               In the Court of Common Pleas of Blair County
            Criminal Division at No: CP-07-CR-0000003-2014


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 16, 2016

     Appellant, Brandon Midder, appeals from the judgment of sentence the

Court of Common Pleas of Blair County entered April 10, 2015, challenging

the discretionary aspects of his sentence. We affirm.

     The trial court summarized the pertinent factual and procedural

background as follows:

     [O]n January 27, 2015, Appellant pled guilty to Count 3 and
     Count 11 of the criminal information, [p]ossession of a [f]irearm
     [p]rohibited, as felonies in the second degree. The allegations
     levied against him in the criminal complaint were the he was
     with a codefendant . . . in a night club when [codefendant]
     murdered [W.S.], and that Appellant, a felon not to possess,
     possessed a firearm both in the club where he was allegedly
     aiding [codefendant], and in the trunk of his vehicle, which he
     was operating with [codefendant] in the passenger seat in
     another county later the same night when apprehended by
     police.   Appellant was sentenced on April 10, 2015 in the
     aggravated range of sentencing, to 54 to 108 month[s’]
     incarceration in an SCI, to be run consecutively, for a total of 9
     to 18 years’ incarceration.
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Trial Court Opinion, 6/25/15, at 1-2.

        Appellant timely filed a motion for reconsideration, which the trial

court denied on May 6, 2015. This appeal followed.

        On appeal, Appellant challenges the discretionary aspects of his

sentence.     Specifically, Appellant argues the sentencing court imposed an

excessive sentence, and therefore abused its discretion, by (i) imposing

consecutive     sentences,      (ii)   not     taking   into   account   some   factual

circumstances of the case, and (iii) giving too much weight to an old

conviction.1 Assuming Appellant properly preserved the sentencing claim for

our review,2 Appellant failed to raise a substantial question.3

____________________________________________


1
    The question for our review reads as follows:

        Whether the [s]entencing [c]ourt in imposing consecutive
        sentences on [Appellant] totaling 9-18 years, abused its
        discretion in imposing a sentence on [sic] manifestly excessive
        on two counts of possession of firearm prohibited when neither
        firearm was discharged and [Appellant]’s only prior criminal
        conviction was 10 years prior when he was a 15 year old
        juvenile, and there was only one criminal episode on the night in
        question[.]

Appellant’s Brief at 11.

      In the argument section of Appellant’s brief, the scope of his challenge
expands to include several other challenges to the discretionary aspects of
the sentence not mentioned in the question raised before us. We will not
address any of these additional grounds.
2
 For the standard of review and discretionary aspects claim requirements,
see, e.g., Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.
Super. 2014) (en banc).



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      Generally, a bald claim of excessiveness based on inadequate

consideration of mitigating factors or resulting from the imposition of

consecutive sentences fails to raise a substantial question.                See, e.g.,

Commonwealth            v   Austin, 66      A.3d    798,   808   (Pa.   Super.   2013);

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

Here, it is no different. Appellant’s claim amounts to no more than a bald,

unsubstantiated allegation of abuse of discretion.

      Additionally, the record belies Appellant’s allegation.           The sentencing

court did in fact account for the underlying facts of the case and the

characteristics of Appellant.        Indeed, the sentencing court noted that the

sentence imposed (aggravated range on both counts, running consecutively)

reflected the fact Appellant possessed the firearms in public despite being a

felon prohibited from doing so. The court also noted that it considered

Appellant’s attitude toward the offenses. Appellant stated to the arresting

officer that he knew he was not supposed to be in possession of the

firearms, yet he did it anyway because he would rather be caught by the

police on the street with a gun than be on the street without a gun.               See

N.T. Sentencing, 4/10/15, at 13, 23.             More specifically on the merits of the

                       _______________________
(Footnote Continued)
3
  “A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, G., 873 A.2d 704, 708 (Pa. Super.
2005).



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contentions, we note also that Appellant seems to suggest the sentencing

court should have rewarded him with a more lenient sentence because he

did not kill anyone or cause more harm at the scene of the murder.          The

record shows the sentencing court did consider this circumstance, although

that did not result in a more lenient sentence. See N.T. Sentencing,

4/10/15, at 23. We are not in a position to reweigh this circumstance in a

more favorable manner to Appellant. See Commonwealth v. Macias, 968

A.2d 773, 778 (Pa. Super. 2009).          Regarding   Appellant’s   claim   the

sentencing court abused its discretion in considering Appellant’s old

conviction,4 it should be noted that Appellant agreed on the record that the

sentencing court could consider that conviction in fashioning its sentence

which the sentencing court in fact did in arriving at a prior record score. N.T.

Sentencing, 4/10/15, at 10.           Appellant provides no explanation how the

court abused its discretion in considering his prior conviction given that

Appellant agreed the court could do so. We discern no abuse of discretion.

____________________________________________


4
  At the sentencing hearing, the Commonwealth represented that, after
investigation, it discovered that Appellant had two prior robbery convictions
imposed in Virginia in 2005, and that Appellant’s prior record score was
therefore 4, not 1, as it had originally determined.        N.T. Sentencing,
4/10/15, at 8-9. The Commonwealth, however, for purposes of that
sentencing hearing only, agreed to proceed with Appellant’s prior record
score of 1 in light of Appellant’s willingness to be sentenced on that day.
Id. At the same sentencing hearing, Appellant stated that the of the 2005
Virginia crimes, one was a robbery conviction and one was an adjudication
for robbery, and that his prior record of 1 (as originally determined by the
Commonwealth) was due to the conviction. Id. at 10.



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      Lastly, Appellant argues the sentencing court erred when it held there

were two episodes of felon in possession, the first being possession at the

scene of the murder, the second, possession of a firearm found in his

vehicle.   Appellant argues that was an error because there was only one

criminal episode, spanning several hours. Appellant fails to mention that he

pled guilty to two separate and distinct charges of felon in possession,

involving two separate episodes and two distinct weapons. See N.T. Plea,

1/27/15, at 5. Given these facts, we again discern no abuse of discretion on

the part of the sentencing court.

      Despite how Appellant articulates his sentencing claim, the actual

matter raised by Appellant is his displeasure with the way the sentencing

court weighed the circumstances mentioned above.             It is well-settled that

mere dissatisfaction with the sentencing court’s weighing of sentencing

considerations is not sufficient to raise a substantial question for our review.

See Commonwealth v Moury, 992 A.2d 162, 175 (Pa. Super. 2010).

      Finally, Appellant fails to acknowledge that the sentencing court

specifically acknowledged that it had reviewed the presentence investigation

report, and that it is well-settled that “[w]here the sentencing court had the

benefit of a presentence investigation report . . ., 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.” Id. at 171 (quoting Commonwealth v.


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Devers, 546 A.2d 12, 18 (Pa. 1988) (internal quotation marks omitted)). In

light of the foregoing, we conclude the trial court did not abuse its discretion

in fashioning Appellant’s sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




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