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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
MARIO BRANNON,                           :            No. 2017 WDA 2014
                                         :
                        Appellant        :


         Appeal from the Judgment of Sentence, October 30, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0010168-2014


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 12, 2016

      Mario Brannon appeals from the October 30, 2014 judgment of

sentence following his conviction of rape (forcible compulsion), burglary,

terroristic threats, indecent assault, and simple assault.1

      The trial court provided the following facts:

            [T]he attack which gave rise to the instant charges
            occurred on August 25, 1991. [The victim,] then
            21 years old, was a student at the University of
            Pittsburgh and was living in an off-campus
            apartment at 340 Atwood Street in Oakland. On the
            evening of August 25, a man entered her bedroom
            through an open window, held a knife to her throat
            and raped her. Because [the victim] never saw her
            attacker’s face, the police were unable to develop a
            suspect at that time.



1
  18 Pa.C.S.A. §§ 3121(a)(1), 3502(c)(1), 2706(a)(1), 3126(a)(1), and
2701(a)(3), respectively.
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                  Thereafter, on October 23, 1991, [appellant]
            was extradited to Georgia on a warrant for charges
            of rape and kidnapping and was eventually tried and
            convicted of those charges. He continued to be
            arrested in Georgia on additional charges:            on
            June 1, 1993 for rape and kidnapping; on
            February 8, 1994 for rape, criminal trespass, escape,
            giving false information to police and related
            charges; on August 23, 2001 for battery and criminal
            trespass; and on March 14, 2002 for failure to
            appear for prior rape and kidnapping charges. In
            2002, [appellant] was sentenced to a term of
            imprisonment of 40 years and has been incarcerated
            in Georgia since that time. The investigation was
            found that [appellant] had no employment or
            residence in the Commonwealth of Pennsylvania
            following his initial extradition to Georgia in 1991.

                  In July, 2013, Detective April Campbell was
            working on cold cases and submitted a DNA sample
            taken from [the victim’s] bedding for analysis. The
            analysis returned a match to [appellant.] The within
            charges were subsequently filed on September 9,
            2013 and [appellant] was extradited from Georgia.

Trial court opinion, 7/20/15 at 3-4.

      On October 30, 2014, the trial court convicted appellant of the

aforementioned crimes following a stipulated non-jury trial. The trial court

sentenced appellant immediately following trial to a term of 10-20 years’

imprisonment for the rape conviction and 10-20 years’ imprisonment for the

burglary conviction, to be served consecutively.        At the time of trial,

appellant was serving a 40-year prison sentence in Georgia, which is due to

expire on February 7, 2041. The trial court imposed its sentence to begin

immediately, so appellant is currently serving his Georgia and Pennsylvania

sentences concurrently. (See notes of testimony, 10/30/14 at 18.)


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     On November 7, 2014, appellant filed a post-sentence motion, which

the trial court denied on November 17, 2014. Appellant timely filed a notice

of appeal on December 11, 2014.     On December 17, 2014, the trial court

ordered appellant to produce a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).     Appellant complied with the trial

court’s order on April 24, 2015. The trial court filed an opinion on July 20,

2015, pursuant to Pa.R.A.P. 1925(a).

     Appellant raises the following issues for our review:

           1.    Were the consecutive 10-to-20 year sentences
                 of imprisonment imposed on Appellant on
                 October 30, 2014 for the crimes of forcible
                 rape and residential burglary manifestly
                 excessive,   and     therefore  substantively
                 unreasonable under 42 Pa.C.S. § 9781(c)(3),
                 with the appropriate remedy being vacation of
                 the sentences imposed and a remand for a
                 de novo re-sentencing hearing?

           2.    Were the consecutive 10-to-20 year sentences
                 of imprisonment imposed on Appellant on
                 October 30, 2014 for the crimes of forcible
                 rape and residential burglary imposed based
                 on the sentencing court’s undue focus on the
                 severity of the underlying criminal acts and
                 based       on    the    sentencing       court’s
                 misunderstanding of Georgia law on a point
                 that it believed was important to its sentencing
                 decision, thus making those sentences
                 procedurally unreasonable under 42 Pa.C.S.
                 § 9781(c)(3), with the appropriate remedy
                 being vacation of the sentences imposed and a
                 remand for a de novo re-sentencing hearing?

           3.    Should Appellant’s motion to dismiss owing to
                 a violation of the Pennsylvania statute of
                 limitations have bene [sic] granted?


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Appellant’s brief at 3.

      Under his first two issues, appellant requests that we review his

sentence imposed by the trial court.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court's
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court's jurisdiction by satisfying a four-part test:

                   [W]e conduct a four-part analysis to
                   determine: (1) whether appellant has
                   filed a timely notice of appeal, see


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                 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).

Moury, 992 A.2d at 170 (citation omitted).

     Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903.   Second, he properly preserved the issue in a motion to modify

sentence which was filed on November 7, 2014.         The sentencing court

denied appellant’s motion on November 17, 2014.

     Third, appellant included a Rule 2119(f) statement in his brief, in

which he avers that the two sentences that he received for rape and

burglary were outside the guidelines.        (See appellant’s brief at 11.)

Specifically, appellant notes that the minimum sentence imposed by the trial

court was in excess of the maximum sentence in the aggravated range of

the sentencing guidelines. (Id. at 13.) As the Commonwealth noted on the

record, the maximum sentence in the aggravated range of the sentencing

guidelines for rape is 106 months and the maximum sentence in the

aggravated range of the guidelines for burglary is 36 months.     (Notes of

testimony, 10/30/14 at 16.)      The trial court’s minimum sentence of


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120 months for each count is clearly in excess of the guidelines. Finally, in

light of appellant’s Rule 2119(f) statement, we find that appellant has

advanced a substantial question. See 42 Pa.C.S.A. § 9781(c)(3).

            “In every case where the court imposes a sentence
            outside the sentencing guidelines . . . the court shall
            provide a contemporaneous written statement of the
            reason or reasons for the deviation from the
            guidelines. Failure to comply shall be grounds for
            vacating the sentence and resentencing the
            defendant.” Commonwealth v. Rodda, 723 A.2d
            212, 215 (Pa.Super. 1999); 42 Pa.C.S. § 9721(b).

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

      When sentencing appellant, the trial court made the following notation

for the record:

            Okay.       Although the Court understands that
            rehabilitation is a part of sentencing and that the
            defendant’s rehabilitative needs should be taken into
            account, the Court also recognizes that sentencing is
            just not for the purpose of punishment.

            I agree with [the Commonwealth] on some basis
            that, I don’t know, they could parole you tomorrow
            for all I know. So all things considered what I am
            going to do at Count 1 I’m going to give you 10 to
            20 years effective today; and at Count 2 I’m going to
            give you 10 to 20 years consecutive to the sentence
            at Count 1, which means that you are going to have
            a total of 20 to 40 years. So you would not be
            eligible for your minimum under my sentence until
            2034.

Notes of testimony, 10/30/14 at 17-18.

      The trial court’s statement does not set forth a demonstration of

awareness of the sentencing guidelines.       While the Commonwealth did



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articulate the guideline sentencing ranges for both counts on the record, at

no point did the sentencing court even acknowledge the guidelines.       (See

notes of testimony, 10/30/14 at 16-18.) Additionally, the trial court did not

have the benefit of a pre-sentence report as none was prepared. As noted

above, failure to provide a contemporaneous written statement of reasons

for deviating from the guidelines requires us to vacate the lower court’s

judgment of sentence and remand the case for resentencing. See Rodda,

723 A.2d at 215; 42 Pa.C.S.A. § 9721(b).

      We need not address appellant’s second issue raised on appeal, as the

issue is now moot.

      For his third issue, appellant avers that the Pennsylvania Statute of

Limitations should have barred prosecution against him.      (See appellant’s

brief at 50; 42 Pa.C.S.A. § 5552(b)(1).)     Specifically, appellant avers that

because he was extradited to Georgia to face prosecution in 1991, the

Pennsylvania Statute of Limitations should not have tolled because his

absence    from   Pennsylvania   was   not   “taken   with   evasive   action.”

(Appellant’s brief at 53.)

      Appellant concedes that his,

            assertion contravenes a published decision of a
            three-judge panel of this Court -- specifically, the
            decision reached in Commonwealth v. Mascitti,
            534 A.2d 524, 526 (Pa.Super. 1987) (rejecting
            argument that 42 Pa.C.S. § 5554(1)’s statute-of-
            limitations tolling provision, said to apply to those
            who were “continuously absent from th[e]
            Commonwealth,” did not apply to a defendant who


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            had “left the Commonwealth legitimately to seek
            new employment and not to escape prosecution, and
            at no time [sought to] hide his identity or
            whereabouts”), rev’d on other grounds, 546 A.2d
            819 (Pa. 1988).

Appellant’s brief at 50-51.

      A three-judge panel of this court may not overrule a decision by

another three-judge panel unless our supreme court has called the previous

panel’s decision into question.   Commonwealth v. Pepe, 897 A.2d 463,

465 (Pa.Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert.

denied, 555 U.S. 881 (2008), citing Commonwealth v. Hull, 705 A.2d

911, 912 (Pa.Super. 1998); Commonwealth v. Prout, 814 A.2d 693,

695 n.2 (Pa.Super. 2002). Therefore, we affirm on this issue.

      Judgment    of   sentence   vacated.   Remanded    for    resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2016




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