J-S01037-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   Appellee             :
                                        :
          v.                            :
                                        :
SHAKOUR BROWN,                          :
                                        :
                   Appellant            :    No. 2631 EDA 2018

      Appeal from the Judgment of Sentence Entered January 30, 2018
           in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012829-2015

BEFORE:        BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 12, 2020

      Shakour Brown (Appellant) appeals nunc pro tunc from the January

30, 2018 judgment of sentence entered after the trial court granted

Appellant’s petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546, and restored his right to file a direct appeal. We

affirm.

      We provide the following background. On October 11, 2017, Appellant

entered an open guilty plea to robbery, robbery of a motor vehicle, receiving

stolen property, unlawful restraint, and fleeing.1 That same day, Appellant



1 The following summary of facts was offered by the Commonwealth at
Appellant’s guilty plea hearing:

      [O]n August 28[], 2015[,] at approximately 12:48 [a.m.],
      Officer[s] Ngo[] and Mortarel were on patrol in the area of 1400
      South 17th Street [in Philadelphia], the officers observed a black
(Footnote Continued Next Page)

*Retired Senior Judge assigned to the Superior Court.
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was sentenced to five years of probation for unlawful restraint. Sentencing

was deferred on the remaining counts to allow for a pre-sentence

investigation report and mental health assessment. On January 30, 2018,

the trial court sentenced Appellant to concurrent terms of two to seven years

of incarceration for receiving stolen property and fleeing.    Consecutive to

those terms of incarceration, the trial court sentenced Appellant to

concurrent terms of 6 to 20 years for robbery and robbery of a motor

vehicle.
(Footnote Continued)   _______________________

      Ford Mustang disregard a stop sign in the intersection of 17th
      and Reed [streets]. The officers activated their lights and sirens
      and pulled the vehicle over at 17th and Dickinson [streets]. As
      soon as they exited their patrol vehicle, the Mustang took off at
      a high rate of speed. The offending vehicle then traveled
      westbound on Dickinson [street], which is an eastbound street.
      The officers pursued the Mustang eastbound on Mifflin [street]
      where the Mustang rear-ended a white Nissan Altima[]. The
      fleeing vehicle then made a right onto Mifflin [street] off of 1900
      South Camac Street where it struck an unattended parked
      vehicle. The officers gave chase and pursued the fleeing male
      on foot as he ran south on 1900 Camac [street] with the
      following flash information given to police radio: Black male,
      dreadlocks, white T-shirt.

             The offender, later identified as [Appellant], then ran to
      the corner of Camac and McKean [streets] and pulled the
      operator of a gray Nissan Maxima out of the driver’s seat of the
      vehicle and sped off, which was occupied with two females in the
      rear of the vehicle. This vehicle was later found at 9th and
      Ritner [streets], however, the offender was not apprehended at
      that time.

N.T., 10/11/2017, at 10-11. Among the items recovered from the Mustang
were identification cards bearing Appellant’s name. Additionally, “[l]ineups
were shown and two positive identifications were made of [Appellant].” Id.
at 11-12.

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        On February 8, 2018, Appellant filed a post-sentence motion.        That

motion was denied by operation of law on June 11, 2018. On September 6,

2018, Appellant filed a PCRA petition to reinstate his appellate rights nunc

pro tunc. The trial court granted Appellant’s petition, and this timely-filed

appeal followed.2

        On appeal, Appellant argues that the aggregate sentence imposed was

“manifestly excessive in that the lower court failed to give adequate weight

to [Appellant’s] family life, the fact that he is [a] father to a young daughter,

and the other mitigating evidence presented on his behalf at the sentencing

hearing[.]” Appellant’s Brief at 3.

        Appellant challenges the discretionary aspects of his sentence.3 Thus,

we consider this issue mindful of the following.

        Sentencing is a matter vested in the sound discretion of the
        sentencing judge, and a sentence will not be disturbed on appeal
        absent a manifest abuse of discretion. In this context, an abuse
        of discretion is not shown merely by an error in judgment.
        Rather, the appellant must establish, by reference to the record,
        that the sentencing court ignored or misapplied the law,
        exercised its judgment for reasons of partiality, prejudice, bias
        or ill will, or arrived at a manifestly unreasonable decision.

                                      ***

              When imposing [a] sentence, a court is required to
        consider the particular circumstances of the offense and the


2   Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
3 Because Appellant entered an open guilty plea, he is not precluded from
appealing the discretionary aspects of his sentence. See Commonwealth
v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).

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     character of the defendant. In considering these factors, the
     court should refer to the defendant’s prior criminal record, age,
     personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

           (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, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Appellant has satisfied the first three requirements: he timely filed a

notice of appeal nunc pro tunc, preserved the issue in a post-sentence

motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore,

we now consider whether Appellant has raised a substantial question for our

review.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

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

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

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

sentencing process.”     Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

      In his Pa.R.A.P. 2119(f) statement, Appellant contends that a

substantial question exists because the trial court failed “to give adequate

weight to [Appellant’s] family life, the fact that he is [a] father to a young

daughter, and the other mitigating evidence such as his acceptance of

responsibility.”   Appellant’s Brief at 8.   Such a claim does not present a

substantial question for our review.    Commonwealth v. Zirkle, 107 A.3d

127, 133 (Pa. Super. 2014) (“[W]e have held that a claim that a court did

not weigh the factors as an appellant wishes does not raise a substantial

question.”).

      Even if Appellant had raised a substantial question, his argument on

appeal is nothing more than a request for this Court to reweigh the

sentencing factors differently than the trial court. See Appellant’s Brief at 9-

10.   This we cannot do.     See Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010) (citation omitted) (“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,




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prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.”).

      Moreover,     the     trial    court   had      the     benefit   of   a   pre-sentence

investigation (PSI)       report, Appellant’s          prior    record score, sentencing

guidelines, Appellant’s allocution, and statements from Appellant’s mother

and counsel on his behalf. See N.T., 1/30/2018, at 4-9, 14-17. “[W]here

the sentencing judge had the benefit of a [PSI] report, it will be presumed

that he or she was aware of the relevant information regarding the

defendant’s     character     and      weighed        those    considerations     along   with

mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028,

1038 (Pa. Super. 2016).             Thus, we conclude that, even if Appellant had

raised a substantial question for review, Appellant has failed to demonstrate

that “the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly    unreasonable          decision”    in    imposing     Appellant’s    sentence.

Commonwealth          v.     Johnson,           125    A.3d     822,    826      (Pa.   Super.

2015) (quoting Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.

2013)).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/20




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