J-S13002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    GENE BROWN                                 :
                                               :
                       Appellant               :      No. 751 WDA 2016

           Appeal from the Judgment of Sentence February 22, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0002887-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 11, 2018

        Appellant, Gene Brown, appeals from the judgment of sentence entered

in the Allegheny County Court of Common Pleas, following his bench trial

conviction for robbery.1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

        Appellant raises two issues for our review:

           SHOULD APPELLANT…HAVE BEEN ACQUITTED ON THE
           CRIME   OF   ARMED    ROBBERY   DUE    TO   THE
           COMMONWEALTH’S FAILURE TO PRESENT EVIDENCE
           PROVING, BEYOND A REASONABLE DOUBT, THAT HE WAS
           THE PERSON WHO ROBBED THE VICTIM…?

           EVEN IF THE COMMONWEALTH’S EVIDENCE                      WAS
           SUFFICIENT FOR A CONVICTION, SHOULD                      NOT

____________________________________________


1   18 Pa.C.S.A. § 3701.
J-S13002-18


         APPELLANT’S POST-SENTENCE [MOTION] SEEKING A NEW
         TRIAL HAVE BEEN GRANTED?

(Appellant’s Brief at 3).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable David R.

Cashman, we conclude Appellant’s issues merit no relief.          The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed May 16, 2017, at 6-11) (finding:

(1) Commonwealth’s evidence was sufficient to identify Appellant as Victim’s

assailant, despite inaccuracies; Appellant ignores fact that Victim identified

Appellant at photo array, at preliminary hearing, and at trial; Appellant’s own

statements to his sister on recorded prison phone call supported Victim’s

identification testimony; Appellant actually identified himself as perpetrator,

in phone conversation with his sister, when he said this Victim lived behind

Sunoco station; Appellant testified at trial that he knew Victim lived behind

Sunoco station through information acquired at preliminary hearing when he

reviewed discovery material, which he said included Victim’s address;

however, criminal complaint and affidavit of probable cause did not list

Victim’s address, and preliminary hearing took place after Appellant’s phone

call with his sister; (2) court as fact-finder evaluated credibility of Victim and

Appellant, who both testified at trial; Victim was unequivocal in her

identification of Appellant at photo array, at preliminary hearing, and at trial;

discrepancies between Victim’s initial physical description of assailant and

                                      -2-
J-S13002-18


Appellant’s actual height, age, and weight did not mean Victim misidentified

Appellant; during phone conversation with his sister, Appellant did not deny

robbing Victim, and Appellant provided his sister with information about Victim

that he could not have learned at preliminary hearing, because preliminary

hearing took place two months after phone call; verdict was not against weight

of evidence). Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2018




                                     -3-
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                                     IN THE FIFTH JUDICIAL DISTRICT OF THE COMM NWEALTH OF
                                                          PENNSYLVANIA
                                                      COUNTY OF ALLEGHENY


                             COMMONWEALTH OF PENNSYLVANJA           CRIMINAL DIVISION
                                                                    CC No. 201 02887
                                                                    Superior Co   No. 751WDA2016

                                               vs.

                             GENE BROWN
                                                                    OPINION

                                                                                      DR. CASHMAN
                                                                    308 Courth      use
                                                                    436 Grant        reet
                                                                    Pittsburgh,      A 15219
                                                                    (412) 350-3     05


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           IN THE FIFTH JUDICIAL DISTRICT OF THE COMM NWEALTH OF
                                 PENNSYLVANIA
                            COUNTY OF ALLEGHENY
                               CRIMINAL DIVISION



      COMMONWEALTH OF PENNSYLVANIA) CC No. 20150                  87
              vs.                                ) Superior Cour No. 751WDA2016
      GENE BROWN                                 )

                                        OPINION


            On February 17, 2016, following a non-jury trial, t e appellant, Gene

      Brown, (hereinafter referred to as "Brown"), was found      ilty of the charge of

      robbery, graded as a felony in the first degree. A present nee report was

      ordered and in light of the fact that a presentence report ad been prepared

      for Judge Williams as a result of Brown's conviction of a   ther robbery

      charge, this Court scheduled sentencing for February 22, 2016. Following a

      sentencing hearing, Brown was sentenced to a period of i carceration of not

      less than three and one-half nor more than seven years c nsecutive to any

      sentence he was now serving, which was to be followed b a period of

      probation of seven years, during which he was to underg random drug

      screening. Brown filed timely post-sentence motions on      arch 3, 2016, which

      motions, following a hearing, were denied on April 26, 20 6.

            Brown filed a timely appeal to the Superior Court nd was directed,

      pursuant to Pennsylvania Rule of Appellate Procedure 1 25(b), to file a

      concise statement of matters complained of on appeal. I that statement,

      Brown has raised seven claims of error. Initially Brown     aintains that the


                                             2
..
     evidence was insufficient to support the conviction for ro bery since the

     Commonwealth did not prove beyond a reasonable doubt the identity of the

     individual who committed this crime. Brown next maint

     grading of the charge of robbery should have been a felo    in the second

     degree since the Commonwealth did not establish that h threatened the

     victim with or put her in fear of serious bodily injury. Br wn also maintains

     that his conviction for the crime of robbery was against t e weight of the

     evidence. Brown also maintains that the Court erred in entencing him when

     the guidelines incorporated the deadly weapons enhance ent. Brown also

     suggests that this Court abused its discretion when it im osed what he

     believes to be a manifestly excessive sentence in view of   e totality of the

     circumstances. Brown further maintains that this Court abused its

     discretion when it imposed the sentence consecutive to a y sentence that he

     was now serving. Finally, Brown maintains that this Co rt abused its

     discretion when it denied his request to modify his sente ce which was filed

     in his post-sentence motions.

           On December 27, 2014, at approximately 11:45 p. ., the victim,

     Taneisha Helms, (hereinafter referred to as "Helms"), wa returning to her

     residence located at 2337 Reed Street in the City of Pitts urgh after making

     purchases of some snacks and cigarettes at a Sunoco ser ce station. In

     addition to the bag containing her purchases, she also ha a cell phone. As

     she was walking in an alleyway from the Sunoco station o her residence,



                                            3
'   '

        someone ran up behind her and told her to "Shut the "F" p or he would blow

        her head off." This individual demanded her money and er phone then

        pushed her into a corner of the alley while he was holdin a shotgun that was

        pointed at her head. Helms gave him the ten dollars tha she had and her

        phone. He then ordered her to take off her clothing and s she dropped each

        article of clothing, the assailant would grab those items a d put them in a bin

        at the other end of the alleyway. He did this with her sh es, socks, pants and

        her underwear, each time separately taking those items      the end of the

        alley.

                 Helms had an opportunity to view her assailant in ight of the

        numerous times that he picked up her clothing from her nd she described

        him as being all dressed in black with a black hoodie, a b ck Carhartt jacket,

        black jeans and black shoes. When her assailant was pla ing the last item of

        her clothing at the other end of the alley, someone opene their window,

        looked down and saw her attacker, at which point he told Helms to get out of

        there and she ran from him and never looked back.

                 Helms ran to her mother's residence which was tw doors down from

        hers and had her mother make a call to the police since s e no longer had a

        phone. The police arrived and she advised them of what ad transpired and

        also told them about the fact that she had been forced to trip and that her

        attacker placed her items of clothing at the other end oft e alley. The police

        went to the alley and then recovered her clothing. When he was interviewed



                                                4
.   "'




         by the police, she described her attacker as being a black male, somewhere

         between the ages of eighteen and twenty-two, approxim ely five foot six to

         five foot seven and one hundred fifty pounds with a thin uild. She told them

         that she did not know this person and that she was able o recognize him

         because although he had a hoodie, it was covering his he d and not his face.

         She was shown a photo array and immediately picked ou Brown as the

         individual who robbed her. After she identified him fro     the photo array,

         Helms remembered that she had babysat for him until h was approximately

         two years old and that she knew Brown's mother.

               Brown was arrested on January 12, 2015, and he ad a telephone

         conversation with his sister on January 16, 2015. In tha phone

         conversation, Brown asked his sister to contact Delisha     oodson and try to

         talk to her. His sister then asked him is that the woman that he made strip

         and he said no, that woman lives behind the Sunoco stat" n. His sister then

         advised him that the one that he made strip is the one th tis on the news.

         She asked him ifhe knew that to which he provided nor sponse. His sister

         then told him that the woman he made strip is the one t     t she should talk

         to.

               Brown elected to testify and when he was asked b his counsel how he

         knew that the woman was caused to be stripped lived be ind the Sunoco

         station, Brown stated that before this phone call to his si ter, he went to a

         preliminary hearing and received the paperwork which p ovided him with



                                                5
the address for the victim and incident report with respe t to what had

happened. With this information he became aware ofw        re she lived and

what her address was. On cross-examination, Brown sta ed that he got the

information from watching news coverage while he was· the jail.

      Brown has maintained that the evidence was insu cient to support

the verdict against him since the Commonwealth did not stablish beyond a

reasonable doubt the identity of Helms' attacker. He fur er maintains that

the verdict was against the weight of the evidence. In C    monwealth v.

Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000), th Supreme Court set

forth the standards to be employed when confronted wit the claims that the

evidence was insufficient to support the verdict and the v rdict was against

the weight of the evidence and the significance of those p rticular claims

             Appellant's remaining claim of error is that he Superior Court
      misstated the standard of review for a weight of th evidence claim.
      The standard of review refers to how the reviewin court examines the
      question presented. Morrison, 646 A.2d at 570. Ap ellant asserts that
      the Superior Court improperly interjected sufficie y of the evidence
      principles into its analysis and thus adjudicated t trial court's
      exercise of discretion by an incorrect measure.

             In order to address this claim we find it nee ssary to delineate
      the distinctions between a claim challenging the s ffi.ciency of the
      evidence and a claim that challenges the weight of he evidence. The
      distinction between these two challenges is critical A claim
      challenging the sufficiency of the evidence, if grant d, would preclude
      retrial under the double jeopardy provisions of the ifth Amendment to
      the United States Constitution, and Article I Sect" n 10 of the
      Pennsylvania Constitution, Tibbs v. Florida 457 .S. 31 102 S.Ct.
      2211. 72 L.Ed.2d 652 (1982); Commonwealth v. Vo el 501 Pa. 314 461
      A.2d 604 (1983), whereas a claim challenging the eight of the
      evidence if granted would permit a second trial Id



                                       6
...

             A claim challenging the sufficiency of the e dence is a question
      of law. Evidence will be deemed sufficient to supp the verdict when
      it establishes each material element of the crime c arged and the
      commission thereof by the accused, beyond a reaso able doubt.
      Commonwealth v. Karkaria 533 Pa. 412 625 A.2d 1167 1993 . Where
      the evidence offered to support the verdict is in co tradiction to the
      physical facts, in contravention to human experie e and the laws of
      nature, then the evidence is insufficient as a matt oflaw.
      Commonwealth v. Santana 460 Pa. 482 333 A.2d 76 1975 . When
      reviewing a sufficiency claim the court is required o view the evidence
      in the light most favorable to the verdict winner gi ing the prosecution
      the benefit of all reasonable inferences to be draw from the evidence.
      Commonwealth v. Chambers 528 Pa. 558 599 A.2 630 1991 .

             A motion for new trial on the grounds that t e verdict is
      contrary to the weight of the evidence, concedes th t there is sufficient
      evidence to sustain the verdict. Commonwealth v.         iteman 336
      Pa.Super. 120, 485 A.2d 459 (1984). Thus, the tria court is under no
      obligation to view the evidence in the light most fa orable to the
      verdict winner. Tibbs 457 U.S. at 38 n. 11 102 S. t. 221I.FN3 An
      allegation that the verdict is against the weight of he evidence is
      addressed to the discretion of the trial court. Com onwealth v. Brown
      538 Pa. 410, 648 A.2d 1177 (1994). A new trial sho d not be granted
      because of a mere conflict in the testimony or beca se the judge on the
      same facts would have arrived at a different concl ion. Thompson,
      supra. A trial judge must do more than reassess th credibility of the
      witnesses and allege that he would not have assen ed to the verdict if
      he were a juror. Trial judges, in reviewing a claim hat the verdict is
      against the weight of the evidence do not sit as the thirteenth juror.
      Rather, the role of the trial judge is to determine t at
      "notwithstanding all the facts, certain facts are so !early of greater
      weight that to ignore them or to give them equal w ight with all the
      facts is to deny justice." Id.

            FN3. In Tibbs, the United States Supreme urt found the
            following explanation of the critical distincti n between a weight
            and sufficiency review noteworthy:

            When a motion for new trial is made on the           ound that the
            verdict is contrary to the weight of the evide      ce, the issues are
            far different .... The [trial] court need not vie    the evidence in
            the light most favorable to the verdict; it ma       weigh the
            evidence and in so doing evaluate for itself t      e credibility of the
            witnesses. If the court concludes that, despit       the abstract


                                        7
'   .

                     sufficiency of the evidence to sustain the ve ict, the evidence
                     preponderates sufficiently heavily against t e verdict that a
                     serious miscarriage of justice may have occ ed, it may set
                     aside the verdict, grant a new trial, and sub it the issues for
                     determination by another jury.

              Tibbs 457 U.S. at 38 n. 11, 102 S.Ct. 2211 quoting     nited States v.
              Lincoln, 630 F.2d 1313 (Cir.8th 1980).


        With respect to the claim that the evidence was insuffici   t to support the

        verdict against him because the Commonwealth failed to stablish the

        identity of the individual who robbed him, Brown points ut the conflict in

        the information given to the police and Brown's physical escription. When

        Helms was initially interviewed by the police, she told th m that her

        assailant was anywhere between five six and five seven, ne hundred and

        fifty pounds, with a thin build and was approximately ei     teen to twenty-two

        years old. Brown was eighteen at the time, six feet one a d two hundred and

        twenty pounds. Brown believes that this testimony was       ore than sufficient

        to discredit Helms' identification of him as her assailant. This contention

        ignores the fact that Helms identified him from a photo a ray, identified him

        at the preliminary hearing that was ultimately held on      arch 2, 2015, and

        also identified him at the time of trial While there was    me dispute as to

        the description given by Helms as to the person that rob    d her, her

        identification of Brown was supported by Brown's own st tements in a phone

        conversation that he had with his sister. When he sister sked him if Delisha

        Woodson was the individual he made strip, he said no, th t individual lived




                                               8
right behind the Sunoco station. Brown maintained tha

make this statement based upon the information that he ad acquired at the

preliminary hearing when he was given the discovery ma erial in his case

and was given the victim's address. It should be noted t     t a review of the

criminal complaint and the affidavit of probable cause do s not disclose the

victim's address and Brown's preliminary hearing occurr d almost two

months after he was arrested since it had been continued several times. If he

would have obtained the information in the discovery ma rials as to the

victim's address when he got that material at his prelimi ary hearing, then

he would have obtained that information almost two mo hs after he had the

conversation with his sister, which was four days after h was arrested. In

viewing in the light most favorable to the Commonwealt and all reasonable

inferences drawn therefrom, it is clear that the Common ealth established

the identity of Helms' attacker and that Brown was prop rly convicted of that

charge.

      An Appellate Court's standard of review when pre nted with the

claim that the verdict was against the weight of the evid ce is distinct from

the standard of review applied by the Trial Court

             Appellate review of a weight claim is a revie of the exercise of
      discretion, not of the underlying question of whether the verdict is against
      the weight of the evidence. Brown, 648 A.2d at 1189. ecause the trial
      judge has had the opportunity to hear and see the evi ence presented, an
      appellate court will give the gravest consideration to the findings and
      reasons advanced by the trial judge when reviewing trial court's
      determination that the verdict is against the weight o the evidence.
      Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 5 (1976). One of the
      least assailable reasons for "'322 granting or denying new trial is the


                                        9
..

           lower court's conviction that the verdict was or was ot against the weight
           of the evidence and that a new trial should be grante in the interest of
           justice. Brown, supra.

           Com. v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 7 3 (2000).



           The term. 'discretion' imports the exercise of judgme t, wisdom and skill
           so as to reach a dispassionate conclusion, within the amework of the
           law, and is not exercised for the purpose of giving ef ct to the will of the
           judge. Discretion must be exercised on the foundati of reason, as
           opposed to prejudice, personal motivations, caprice arbitrary actions.
           Discretion is abused when the course pursued repres nts not merely an
           error of judgment, but where the judgment is manife tly unreasonable or
           where the law is not applied or where the record sho s that the action is a
           result of partiality, prejudice, bias or ill will.

           Com. v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 ( 000)


     In using these standards, it is clear that this Court actin as the fact-finder

     in the non-jury trial, had a full opportunity to review the estimony in this

     matter and observe the witnesses that were called to test fy, specifically the

     victim and the appellant, who elected to testify. Helms w s unequivocal in

     her identification of Brown at the time that she was pres nted with a photo

     array, at the preliminary hearing and at the time of trial. Although there

     was a discrepancy in what she initially reported to the po ice and Brown's

     physical size, that description did not mean.that she was     accurate in

     identifying him as the person that robbed her. Brown on he other hand

     never denied robbing her to his sister during their phone onversation and, in

     fact, provided his sister with information that he had to k ow prior to his

     preliminary hearing since he had not been given the disc ery material until

     almost two months after he was arrested, In taking thes


                                            10
.


    consideration, it is clear that the verdict was appropriate and not against the

    weight of the evidence.

          Brown next maintains that be was improperly con icted of the crime of

    robbery graded as a felony in the first degree as opposed o robbery, a felony

    in the second degree. The crime of robbery is set forth at 18 Pa.C.S.A. §3701

    as follows:

          §3701. Robbery

           (a) Offense defined.--
           (1) A person is guilty of robbery if, in the course of c    itting a theft, he:
           (i) inflicts serious bodily injury upon another;
           (ii) threatens another with or intentionally puts him i
           serious bodily injury;
           (iii) commits or threatens immediately to commit an felony of the first or
           second degree;
           (iv) inflicts bodily injury upon another or threatens other with or
           intentionally puts him in fear of immediate bodily inj ry;
           (v) physically takes or removes property from the pe son of another by
           force however slight; or
           (vi) takes or removes the money of a financial institu on without the
           permission of the financial institution by making a d mand of an
           employee of the financial institution orally or in writi g with the intent to
           deprive the financial institution thereof.
           (2) An act shall be deemed "in the course of committi g a theft" if it
           occurs in an attempt to commit theft or in flight after e attempt or
           commission.
           (3) For purposes of this subsection, a "financial insti tion" means a bank,
           trust company, savings trust, credit union or similar.i stituti.on.
           (b) Grading.--
           (1) Except as provided under paragraph (2), robbery der subsection
           (a)(l)(iv) and (vi) is a felony of the second degree; ro ery under
           subsection (a)(l)(v) is a felony of the third degree; ot erwise, it is a felony
           of the first degree.
           (2) If the object of a robbery under paragraph (1) is a ontrolled substance
           or designer drug as those terms are defined in sectio 2 of the act of April
           14, 1972 (P.L. 233, No. 64),1 known as The Controlled Substance, Drug,
           Device and Cosmetic Act, robbery is a felony of the fi st degree.

    Brown maintains that based upon the evidence presente at the time of trial,

    he should have been convicted of the crime of robbery as i entified under


                                              11
       ..
' t,




            §3701(e)(l)(iv), which means that at the time of the com ission of the

            robbery, the victim was threatened or intentionally put · fear of immediate

            bodily injury as opposed to the crime of robbery under §3 Ol(a)(2), where the

            victim is threatened with or intentionally put in fear of ·

            bodily injury. The undisputed testimony in this case is t at Brown came up

            from behind Helms with a shotgun and pointed it at her ead and told her to

            be quiet or he would blow her head off. This threat can o y be considered a

            threat to inflict serious bodily injury or death. Brown co tinued these

            threats when he continually pointed the shotgun at Hel s' head during the

            course of this robbery and when he was forcing her to dis obe. Nothing about

            this threat which would suggest that the injury that was hreatened was

            anything but serious bodily injury. It is clear that when e threatened to

            blow her head off that he was placing her in fear of serio s bodily injury or

            death.

                     Brown next maintains that this Court erred when t used the deadly

            weapons enhancement in determining the guidelines for rown's sentence.

            In this regard while Brown maintains that the applicab ·

            weapon enhancement had to be proven beyond a reasona le doubt in light of

            the decisions in Alleyne v. United States, 133 S.Ct. 21 1 (2013) and

            Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848 2000). This

            contention has been rejected in Pennsylvania in Commo wealth v.

            Buterbaugh, 91 A.3d 1247, 1270 (Pa. Super. 2014), w en the Court noted



                                                    12
•



    that the deadly weapon enhancement did not prescribe a tandard range

    beyond the statutory maximum and, accordingly, the fac rs to consider the

    deadly weapon enhancement only had to be proved by th preponderance of

    the evidence. It should be noted that even using the sent ncing guidelines

    where the deadly weapon enhancement has been invoke                  Brown's sentence

    of three and one-half to seven years was near the bottom nd of the standard

    range.'

           Brown's final three claims of error all deal with se tencing in that he

    maintains that his sentence was manifestly excessive in iew of the totality of

    the circumstances; that this Court abused its discretion hen it ordered that

    his sentence be served consecutive to any sentence he wa now serving; and,

    that this Court abused its discretion when it denied the            odification of his

    sentence. In Commonwealth v. Mouzon, 828 A.2d 11                    , 1128-1129 (Pa.

    Super. 2003), the Court examined the claim of whether r not a sentence

    was excessive and set forth the factors that were to be co sidered in making

    that determination.

                  Sentencing is a matter vested in the soun            discretion of the
           sentencing judge, and a sentence will not be distu           ed on appeal
           absent a manifest abuse of discretion. Commonuie            lth v. Johnson, 446
           Pa.Super. 192, 666 A.2d 690 (1995). "To constitute          an abuse of
           discretion, the sentence imposed must either exce             the statutory
           limits or be manifestly excessive." Commonwealth             . Gaddis, 432
           Pa.Super. 523, 639 A.2d 462, 469 (1994) (citations           mitted). In this
           context, an abuse of discretion is not shown merel           by an error in
           judgment. Commonwealth u. Kocher, 529 Pa. 303,              02 A.2d 1308

    1 The Sentencing Guidelines using the deadly weapon enhancement how a mitigated range
    sentence of twenty-eight months, a standard range sentence of forty o fifty-four months, and
    an aggravated range of sixty-six months.


                                                 13
••
           (1992). Rather, the appellant must establish, by re erence to the
           record, that the sentencing court ignored or misap lied the law,
           exercised its judgment for reasons of partiality, pr iudice, bias or ill
           will, or arrived at a manifestly unreasonable decis · n. Commonwealth
           v. Rodda, 723 A.2d 212 (Pa.Super.1999).

                  In determining whether a sentence is manifi stly excessive, the
           appellate court must give great weight to the sent cing court's
           discretion, as he or she is in the best position to m asure factors such
           as the nature of the crime, the defendant's charact r, and the
           defendant's display of remorse, defiance, or indiffe ence.
           Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Sup r.1997). Where an
           excessiveness claim is based on a court's sentencin outside the
           guideline ranges, we look, at a minimum, for an in ication on the
           record that the sentencing court understood the su gested sentencing
           range. 42 Pa.C.S.A. § 9721(b); Rodda, 723 A.2d at 14. When the court
           so indicates, it may deviate from the guidelines, if ecessary, to fashion
           a sentence which takes into account the protection fthe public, the
           rehabilitative needs of the defendant, and the grav ty of the particular
           offenses as it relates to the impact on the life of th victim and the
           community, so long as the court also states ofreco "the factual basis
           and specific reasons which compelled him to devia from the guideline
           range." Commonwealth v. Cunningham, 805 A.2d 66, 575
           (Pa.Super.2002) (quoting Commonwealth v. Burkh Ider, 719 A.2d 346,
           350 (Pa.Super.1998)).

                   In evaluating a claim of this type, an appell te court must
           remember that the sentencing guidelines are mere y advisory, and the
           sentencing court may sentence a defendant outsid of the guidelines so
           long as it places its reasons for the deviation on th record.
           Cunningham, 805 A.2d at 575. "Our Supreme Cou t has indicated that
           if the sentencing court proffers reasons indicating at its decision to
           depart from the guidelines is not unreasonable, we must affirm a
           sentence that falls outside those guidelines .... " Co monwealth v.
           Davis, 737 A.2d 792, 798 (Pa.Super.1999) (citing C mmonwealth v.
           Smith, 543 Pa. 566, 673 A.2d 893 (1996)).



           In reviewing Brown's sentence, it is clear that ther is nothing

     manifestly excessive about his sentence. His sentence w     near the bottom

     end of the standard range and was three and one-half to even years to be


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                 followed by a period of probation of seven years. This Co rt had the benefit

                 of those guidelines and a presentence report which show d a continuing

                 escalation of Brown's violent criminal behavior. His first contact with the

                 criminal justice system occurred when he was eleven ye sold when his

                 mother filed a petition for dependency stating that her s    was out of control,

                 aggressive and defiant and would leave their residence fi a week without

                 permission. Approximately one year later on December 2, 2008, a petition

                 was filed charging him with failure to comply with a law      sentence for his

                 failure to pay fines and costs relative to an adjudication

                 Another petition for dependency was filed on February 3, 2009 when it was

                 alleged that he would not follow the rules at his home, in luding curfew and

                 school attendance and he was being verbally abusive to       s mother. On

                 January 19, 2011, another petition was filed charging fa' ure to comply as a

                 result of his purchase of alcoholic beverages by a minor, isorderly conduct

                 and harassment. During the summer of 2012, he was se t to Orlando,

                 Florida to reside with a relative and while there, he was barged as a juvenile

                 with sexually assaulting an eleven-year-old boy. On Dec mber 13, 2012, his

                 mother once again filed a petition for dependency and a      tition for

                 protection of abuse since he continued to be violent and as threatening

                 everyone in his house and was using drugs. His mother tated in this

                 petition that he had pictured himself on Facebook holdin a gun and

                 displaying various gang signs. His mother's petition for rotection from



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                 abuse was granted and the defendant was adjudicated de endent and placed

                 with his grandparents. In 2013 he was suspended from s hool for five days

                 for bringing marijuana to school. While he was at the W rd home, he was

                 charged and adjudicated of the charges of simple assault, terroristic threats

                 and recklessly endangering another person.

                       As an adult, he was convicted of the charge of poss ssion with intent to

                 deliver a controlled substance in January of 2015. In No ember of 2015, he

                 was found guilty following a bench trial before the Honor ble Joseph

                 Williams of the crime of robbery, serious bodily injury, a    criminal

                 conspiracy. On January 5, 2016, he pied guilty to receivi g stolen property,

                 although he had also been charged with burglary and the by unlawful

                 taking, which charges were withdrawn in exchange for · plea to the charge

                 of receiving stolen property. In reviewing his continually ggressive and

                 violent behavior, his failure to avail himself of the rehabi itation

                 opportunities offered to him in the Juvenile Court syste     and his threat to

                 kill his victim, it is clear that the sentence that was impo ed upon him was

                 not manifestly excessive but appropriate for the protectio of the public, his

                 rehabilitative needs and for protection of society in gener 1.

                        This Court decided to run his sentence consecutive to the sentence

                 imposed upon him by Judge Williams for the other robbe           in which he was

                 involved which followed almost the same pattern as the r bbery in this case

                 with the exception that he did not require his victim to st ip. The



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                 presentence report in this matter clearly showed an indi dual who was

                 violent, who was armed with deadly weapons and made t reats to use those

                 deadly weapons if his desires were not met. In weighing ll of the factors to

                 be considered, it was clear that his sentence should be co secutive rather

                 than concurrent which would have provided him with a v lume discount for

                 the commission of his crimes.

                       Brown filed a post-sentence motion seeking to mod fy his sentence in

                 which he alleged that in light of Brown's young age, that e should be

                 afforded an opportunity to reestablish his life since he ha lost his

                 educational opportunity and his ability to play football.   one of these

                 contentions impact the configuration of his sentence beca se Brown was

                 willing to use a deadly weapon and threatened people wi      the use of that

                 deadly weapon by stating that he would blow the victim's head off if she did

                 not do what he said. Compounding his violent nature wa the fact that he

                 sought to demean and to degrade his victim by forcing be to strip off her

                 clothes to ensure his getaway from this robbery. There      s no basis that this

                 Court saw that would necessitate the changing either the length of Brown's

                 sentence or the fact that it should be served consecutive t his other sentence

                 for robbery.




                 DATED:      , May 16, 2017




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