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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                         :
BRANDON MARCUS WISE,                     :         No. 1735 WDA 2016
                                         :
                          Appellant      :


             Appeal from the Judgment of Sentence, May 18, 2016,
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos. CP-02-CR-0000434-2016,
              CP-02-CR-0011027-2015, CP-02-CR-0014410-2015,
              CP-02-CR-0014411-2015, CP-02-CR-0015213-2015


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 14, 2017

        Brandon Marcus Wise appeals the judgment of sentence in which the

trial court sentenced him to serve an aggregate sentence of 63 to

174 months’ imprisonment followed by six years’ probation for using an

access device to obtain or attempt to obtain property or services, receiving

stolen property, and fleeing or attempting to elude officers.1   After careful

review, we affirm.

        Appellant’s convictions stem from five separate incidents. The charges

arose from appellant taking credit and/or debit cards from parked cars and




1
    18 Pa.C.S.A. §§ 4106(a)(1), 3925(a), and 3733(a), respectively.
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using the cards to make purchases as well as one time where he led the City

of Pittsburgh police on a high-speed automobile chase.           The parties agree

that the underlying facts related to appellant’s convictions are not germane

to his appeal.

      On February 25, 2016, appellant entered an open plea and pled guilty

to   Counts    1-7   and   13-17   at    CC20150011027      in    return   for   the

Commonwealth dropping Counts 8-12.            The trial court deferred sentencing

until after the completion of a pre-sentence investigation report (“PSI”).

      On May 16, 2016, appellant along with his attorney appeared before

the trial court and pled guilty pursuant to a plea agreement to several

counts in the four remaining cases. The trial court accepted the guilty pleas

and proceeded to impose the sentences set forth above.

      On June 1, 2016, appellant filed a post-sentence motion, asserted the

sentence imposed was excessive, and asked the trial court to reconsider it.

By order dated October 13, 2016, the trial court denied the motion.

      Appellant raises the following issue for this court’s review:

              Was the sentence imposed manifestly excessive,
              unreasonable, and an abuse of discretion where the
              court imposed an aggregate sentence of total
              confinement of 63 to 174 months without giving due
              consideration to [appellant’s] need to seek medical
              treatment for his mental illness, his acceptance of
              responsibility, and the fact that his crimes were acts
              fueled by his drug addiction?

Appellant’s brief at 5 (capitalization omitted).       Appellant challenges the

discretionary aspects of his sentence.


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                  [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
                  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


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                  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 the discretionary

aspects of his sentence.    First, appellant timely filed his notice of appeal

pursuant to Pa.R.A.P. 902 and 903. Second, appellant raised the issue that

the trial court imposed a sentence that was excessive in his post-sentence

motion which essentially is the issue before this court.

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

he avers that the trial court abused its discretion when it imposed an

unreasonable sentence that did not give due consideration to appellant’s

need to seek medical treatment for his mental illness and drug addiction, his

acceptance of responsibility for his actions, and that with the appropriate

level of treatment, he could fulfill his potential and have a productive life.

Appellant also avers that the trial court did not set forth sufficient reasons to

justify its sentence and to explain why the sentences were consecutive.

      This court must next determine whether appellant raised a substantial

question for this court’s review. We determine whether an appellant raises a

substantial question on a case-by-case basis. Commonwealth v. Swope,

123 A.3d 333 (Pa.Super. 2015). “A substantial question exists only when an

appellant advances a colorable argument that the sentencing judge’s actions


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were either:    (1) inconsistent with a specific provision of the Sentencing

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

sentencing process.” Id. at 338 (citation omitted).

             In determining whether a substantial question exists,
             this Court does not examine the merits of whether
             the sentence is actually excessive. Rather, we look
             to whether the appellant has forwarded a plausible
             argument that the sentence, when it is within the
             guideline   ranges,     is   clearly  unreasonable.
             Concomitantly,      the     substantial     question
             determination does not require the court to decide
             the merits of whether the sentence is clearly
             unreasonable.

Id. at 340 (citation omitted).

      Appellant argues that the appeal presents a substantial question for

essentially two reasons.   First, he argues that the sentence was excessive

because the trial court failed to consider his rehabilitative needs. Second, he

argues that the sentence was excessive due to the consecutive nature of the

sentences.     This court has held that a challenge to the imposition of

consecutive sentences as unduly excessive, together with a claim that the

trial court failed to consider a defendant’s rehabilitative needs when

fashioning its sentence presents a substantial question. Commonwealth v.

Bonner, 135 A.3d 592 (Pa.Super. 2016).         As appellant has presented a

substantial question, we will address this claim on the merits.

      With respect to the trial court’s alleged failure to consider the

rehabilitative needs of appellant such as his alleged mental illness and drug

addiction, the trial court stated at sentencing that “it appears to me that you


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do great in confinement, but you do horrible [sic] when you are free.”

(Notes of testimony, 5/18/16 at 16.) The trial court further explained, “You

can ask for a pass for yourself, and I’m not sure I would give it to you, but I

have to be concerned about all these other people as well. When you are

given your freedom[,] you raise havoc. Would you want you as your next

door neighbor?” (Id. at 19.) In its opinion, the trial court reiterated that

appellant was a substantial risk to the public and that appellant did not

present credible evidence of mental health issues sufficient to justify a lesser

sentence. (Trial court opinion, 1/19/17 at 6-7.)

      Furthermore, the trial court considered the PSI.             “Where a [PSI]

exist[s], we [] presume that the [trial court] was aware of relevant

information    regarding    the   defendant’s    character   and   weighed    those

considerations along with mitigating factors. A [PSI] constitutes the record

and speaks for itself.”    Commonwealth v. Antidormi, 84 A.3d 736, 761

(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). Further, as the

bulk of the sentences were in the mitigated range, appellant did not suffer

prejudice from the imposition of the sentences.

      Appellant   also     challenges   the     aggregate    sentence   as   clearly

unreasonable, at least in part, because the trial court imposed consecutive

rather than concurrent sentences.

      Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A. § 9721,

permits the sentencing court to use its discretion to impose a sentence



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consecutively or concurrently to other sentences that the sentencing court is

imposing. “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, 603 (Pa.Super. 2005).

      Here, the trial court imposed consecutive either standard or mitigated

range sentences for many of the charges for which appellant pled guilty.

Additionally, the trial court imposed no further penalty for some of the

charges for which appellant pled guilty.    The trial court explained that it

imposed the sentences because there were five different informations filed

against appellant for serious theft-related charges. Appellant engaged in the

criminal behavior to get money to support his drug use.      As some of the

sentences were in the mitigated range, it is difficult to see how the

sentences could be considered excessive even when applied consecutively.

As this court has held, a defendant is not entitled to a “volume discount” for

multiple crimes by having all sentences run concurrently. Commonwealth

v. Swope, 123 A.3d 333, 341 (Pa.Super. 2015).

      The trial court carefully considered the relevant factors set forth in

Section 9721(b) of the Code, 42 Pa.C.S.A. § 9721(b), when it sentenced

appellant including his rehabilitative needs, the need to protect the public,

the gravity of the offenses, and the impact on the victims. The trial court




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explained in detail the reasons for its decision. The trial court did not abuse

its discretion when it imposed consecutive sentences for appellant’s crimes.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/14/2017




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