J-S18019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                         OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

SPENCEL BROWN,

                          Appellant               No. 1674 EDA 2013


        Appeal from the Judgment of Sentence April 30, 2013
In the Court of Common Pleas of Philadelphia County Criminal Division
                  at No(s): CP-51-CR-0003785-2011


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.                         FILED OCTOBER 17, 2014

        Following a bench trial, the trial court found Spencel Brown

guilty of aggravated assault1, simple assault2, carrying a firearm

without a license3, carrying a firearm on public streets in Philadelphia4,

possession of an instrument of crime5 and reckless endangerment of

another person6. The court found Brown guilty of these charges based

on evidence that Brown shot at a man multiple times after chasing him

across a street in the Overbrook section of Philadelphia. On April 30,


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2702.
2
    18 Pa.C.S. § 2701.
3
    18 Pa.C.S. § 6106.
4
    18 Pa.C.S. § 6108.
5
    18 Pa.C.S. § 908.
6
    18 Pa.C.S. § 2705.
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2013, the court sentenced Brown to 5½-11 years imprisonment plus

two consecutive five year terms of probation.


      Brown filed timely post-sentence motions challenging the weight

of the evidence and a timely notice of appeal7. Both Brown and the

trial court complied with Pa.R.A.P. 1925.




7
  In a memorandum dated April 22, 2014, we remanded this case to
the trial court and directed it to determine whether Brown filed his
post-sentence motions on May 10, 2013 or on May 13, 2013. The
record was unclear as to which of these dates was correct, and we
needed to determine the correct date in order to ascertain whether
Brown’s appeal was timely.

      Our memorandum explained that “a written post-sentence
motion shall be filed no later than 10 days after imposition of
sentence.”     Pa.R.Crim.P. 720(A)(1) (emphasis added).       When the
defendant files a timely post-sentence motion, the 30-day appeal
period is tolled either until (1) the court decides the motion or (2) the
clerk of courts enters an order denying the motion by operation of law.
Pa.R.Crim.P. 720(A)(2)(a-b). An untimely post-sentence motion does
not toll the appeal period.

       The trial court imposed sentence on April 30, 2013. If Brown
filed his post-sentence motions on May 10, 2013, (1) they were timely
under Rule 720, (2) his appeal period did not begin running until May
13, 2013, when the trial court denied his motions, and (3) his appeal
on June 7, 2013 is timely. If Brown filed his post-sentence motions on
May 13, 2013, (1) they were untimely under Rule 720, (2) his appeal
period expired on May 30, 2013, and (3) his notice of appeal on June
7, 2013 was untimely.

      On June 10, 2014, the trial court determined that Brown filed his
post-sentence motions on May 10, 2013. Based on this finding of fact,
we conclude that Brown’s appeal on June 7, 2013 was timely and that
we have jurisdiction over his appeal.

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      Brown raises two issues in this appeal: (1) the verdict is against

the weight of the evidence; and (2) his sentence is excessive. Neither

issue has merit. We affirm.


      With regard to Brown’s first issue, a challenge to the weight of

the evidence, our standard of review is as follows:


            A verdict is not contrary to the weight of the
            evidence because of a conflict in testimony or
            because the reviewing court on the same facts
            might have arrived at a different conclusion
            than the fact[-]finder. Rather, a new trial is
            warranted only when the jury's verdict is so
            contrary to the evidence that it shocks one's
            sense of justice and the award of a new trial is
            imperative so that right may be given another
            opportunity to prevail. Where, as here, the
            judge who presided at trial ruled on the weight
            claim below, an appellate court's role is not to
            consider the underlying question of whether
            the verdict is against the weight of the
            evidence. Rather, appellate review is limited to
            whether the trial court palpably abused its
            discretion in ruling on the weight claim.

            One of the least assailable reasons for granting
            or denying a new trial is the lower court's
            determination that the verdict was or was not
            against the weight of the evidence and that
            new process was or was not dictated by the
            interests of justice. Thus, only where the facts
            and inferences disclose a palpable abuse of
            discretion will the denial of a motion for a new
            trial based on the weight of the evidence be
            upset on appeal.


Commonwealth v. Morales, 91 A.3d 80, 91-92 (Pa.2014) (citations

omitted).

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      The trial court acted within its discretion by denying Brown’s

post-sentence motions objecting to the weight of the evidence.       The

trial court opinion explains that Brown chased another male down the

street on a crowded street in the Overbrook section of Philadelphia on

March 12, 2011 and then fired a gun at him several times.           One

eyewitness observed Brown shooting the gun.           The eyewitness’s

description of the shooter matched the description of Brown observed

by two police officers walking down the street moments before the

shooting was reported. Brown fled the scene after shooting the gun.

Shell casings recovered at scene of the shooting came from a

dismantled weapon discovered in the residence where Brown was

arrested.   We incorporate by reference the trial court’s careful

presentation of the evidence and analysis in pages 2-7 of its opinion.


      Brown’s second issue on appeal, a claim that his sentence is

excessive, raises a discretionary challenge to his sentence. “Challenges

to the discretionary aspects of sentencing do not entitle a petitioner to

review as of right.”   Commonwealth v. Allen, 24 A.3d 1058, 1064

(Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).    An appellant must satisfy the following four-

part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence:




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           (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.

Allen, 24 A.3d at 1064.

     Brown filed a timely notice of appeal, preserved the issue at

sentencing8, and included a statement of reasons pursuant to Rule

2119(f) in his brief (albeit in the wrong location) 9. We must therefore

determine whether his issue raises a substantial question.




8
  We disagree with the Commonwealth’s argument that Brown failed to
raise the issue of excessiveness at sentencing. The record reflects
that Brown’s attorney argued that the sentence should be in the
“middle of the guidelines”, an implicit request that the Court refrain
from an aggravated sentence.          N.T., 4/30/13, p. 18.       The
Commonwealth responded by seeking an “aggravated sentence” above
the guidelines. Id., pp. 18-24. We find under these circumstances
that defense counsel adequately addressed the issue of excessiveness
at sentencing.
9
  Rule 2119(f) requires the appellant to include a separate section in
his brief, immediately preceding the argument section, which explains
concisely the reasons for granting appeal with regard to the
discretionary aspects of his sentence. Brown neglects to include a
separate Rule 2119(f) section in his brief and attempts instead to
discuss this subject in his argument. While we do not approve of this
methodology, we decline to find that the absence of a separate Rule
2119(f) statement constitutes a waiver of Brown’s objections to the
discretionary aspects of his sentence.      See Commonwealth v.
Reynolds, 835 A.2d 720, 733 (Pa.Super.2003) (where appellant failed
to provide separate Rule 2119(f) statement in his brief but instead
raised challenge to discretionary aspect of sentence in the first

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     “The determination of whether a particular issue raises a

substantial question is to be evaluated on a case-by-case basis.”

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011)

(quoting   Commonwealth          v.   Fiascki,   886   A.2d   261,   263

(Pa.Super.2005)).    A substantial question exists where a defendant

raises a plausible argument that the sentence violates a provision of

the sentencing code or is contrary to the fundamental norms of the

sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d

251, 255 (Pa.Super.2003)).



     Brown’s prior record score is two, and the offense gravity score

for aggravated assault is ten.    The standard sentencing range under

these circumstances is 54-60 months. The court sentenced Brown to

66 months, within the aggravated range of the guidelines, based on

his membership in a violent gang, his history of stops and arrests, and

his brazen conduct in shooting at another male on a crowded street.

Brown argues that the court ignored several factors, such as his desire

to go to college, his remorse over this incident, his history of

legitimate employment, and his desire to set a positive example for

younger relatives.    In essence, Brown argues the court failed to


paragraph of argument portion of his brief on this issue, “we shall
consider this first paragraph in the argument portion of Appellant's
brief on this issue as Appellant's Rule 2119(f) statement”).



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consider certain mitigating factors and, as a result, imposed an

excessive sentence. This claim does not present a substantial question

for review. See Commonwealth v. Coolbaugh, 770 A.2d 788, 793

(Pa.Super.2001) (“Appellant’s claim that the court did not consider his

personal life situation of having a drug problem does not raise a

substantial question”); Commonwealth v. Urrutia, 653 A.2d 706,

710 (Pa.Super.1995) (“an allegation that a sentencing court ‘failed to

consider’ or ‘did not adequately consider’ certain factors does not raise

a substantial question that the sentence was inappropriate”). Further,

his claim that the sentence is excessive does not raise a substantial

question, for he fails to explain how his sentence violated a provision

of the Sentencing Code or a fundamental norm of the sentencing

process. See Commonwealth v. Mouzon, 812 A.2d 617 (Pa.2002)

(only if the defendant sufficiently articulates the manner in which the

sentence violates a specific provision of the Sentencing Code or a

particular fundamental norm will a claim of excessiveness raise a

substantial question).

      Even if Brown raises a substantial question, it is meritless.

“Sentencing is a matter vested within the discretion of the trial court

and will not be disturbed absent a manifest abuse of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010)

(citing   Commonwealth         v.       Johnson,   967     A.2d    1001

(Pa.Super.2009)). “An abuse of discretion requires the trial court to

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have acted with manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous.”

Id. (citing Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)).

      “A sentencing court need not undertake a lengthy discourse for

its reasons for imposing a sentence or specifically reference the statute

in question, but the record as a whole must reflect the sentencing

court's consideration of the facts of the crime and character of the

offender.”   Crump, 995 A.2d at 1283 (citing Commonwealth v.

Malovich, 903 A.2d 1247 (Pa.Super.2006)). The sentencing hearing

transcript and the court’s opinion demonstrates that it reviewed all of

the relevant evidence, including the mitigating factors presented by

Brown, and determined after careful consideration that a sentence in

the aggravated range was necessary.

      Therefore, the court acted within its discretion by sentencing

Brown to 5½--11 years’ imprisonment.

      Judgment of sentence affirmed.

      Judge Shogan joins in the memorandum.

      Judge Platt concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2014




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