J-S07036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JACQUEZ DAVON BROWN

                            Appellant                No. 832 MDA 2014


           Appeal from the Judgment of Sentence January 27, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007081-2011


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 24, 2015

        Jacquez Davon Brown appeals from the judgment of sentence imposed

on January 27, 2014, in the Court of Common Pleas of York County,

following his conviction by a jury of first-degree murder.1   Because Brown

was a minor at the time of the crime, he was not subject to the mandatory

life sentence imposed upon adults.2 He received a sentence of 50 years to

life imprisonment.       In this timely appeal, Brown claims the verdict was

insufficient as a matter of law, in that the Commonwealth failed to disprove

his claim of self-defense beyond a reasonable doubt.     He also argues the

trial court abused its discretion in imposing a minimum sentence fifteen

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1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 1102.1.
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years greater than the 35-year statutory mandatory minimum.           After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

      The factual and procedural histories of this matter are well known to

the parties.     Therefore, we simply incorporate the trial court’s able

recitation, found at pages 2-9 of the August 26, 2014, Pa.R.A.P. 1925(a)

opinion. However, we note the following salient facts.

      Two eyewitnesses to the crime testified they saw a fight between

Brown and the victim. The victim apparently believed Brown had taken his

cell phone.    At one point during the fight, the victim had Brown on the

ground in a headlock.    However, both eyewitnesses testified the first shot

fired by Brown at the victim occurred as the victim knelt and Brown stood

nearby. Brown fired several other shots as he walked away from the fallen

victim.

      The victim was struck three times and the medical examiner could not

determine the order the wounds were suffered. The fatal wound entered the

victim’s lower back, fractured the 10th thoracic vertebra, lacerated his aorta

and esophagus, and transected the carotid artery before exiting his neck.

This shot was fired from a distance of between one and three feet from the

victim. The other two wounds were non-fatal; one went through the victim’s

hand before lodging in his arm, the other went into the victim’s buttocks.

Another bullet struck a nearby car.   Brown was apprehended shortly after

the attack as he left the roof of a house that was several blocks away from

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the crime scene. The victim’s cell phone was found on the roof. The gun

was found approximately two months later, under a desk in an apartment of

the building at which Brown was apprehended. The gun was a 9 mm, Sturm

and Ruger, semi-automatic handgun with a laser sight attached.         Brown

gave a statement to the police, admitting having shot the victim, but

claiming he did so in self-defense, as he attempted to escape the headlock.

The certified record demonstrates the victim was approximately four years

older than Brown, and was taller and approximately 50 pounds heavier than

Brown. Brown was approximately four months from his 16th birthday at the

time of the crime.

      Our scope and standard of review to a challenge to the sufficiency of

the evidence is well settled:

      “Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary.” Commonwealth v. Murray, 83 A.3d 137,
      151 (Pa. 2013). We review the evidence in the light most
      favorable to the verdict winner to determine whether there is
      sufficient evidence to allow the jury to find every element of a
      crime beyond a reasonable doubt. Commonwealth v. Cahill,
      95 A.3d 298, 300 (Pa. Super. 2014).

         In applying the above test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence. Any doubts regarding a
         defendant's guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial

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          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the finder of fact
          while passing upon the credibility of witnesses and the
          weight of the evidence produced, is free to believe all, part
          or none of the evidence.

       Id. (citation omitted).

Commonwealth v. Tejada, 107 A.3d 788, 792-93 (Pa. Super. 2015).

       Here, Brown argues the Commonwealth failed to disprove beyond a

reasonable doubt his claim of self-defense. The application of self-defense is

governed by 18 Pa.C.S. § 505,3 which states, in relevant part:

       [t]he use of deadly force is not justifiable under this section
       unless the actor believes that such force is necessary to protect
       himself against death [or] serious bodily injury.

18 Pa.C.S. § 505(b)(2).

       Additionally, the use of deadly force is not justifiable if:

       The actor knows that he can avoid the necessity of using such
       force with complete safety by retreating.

18 Pa.C.S. § 505(b)(2)(ii).

       The    evidence,     viewed     in      the   light   most   favorable   to   the

Commonwealth, as verdict winner, shows that Brown was not in a headlock

at the time he fired any shot at the victim. Two independent eyewitnesses

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3
  On August 29, 2011, shortly after this crime took place, the current version
of the self-defense statute became effective. We have quoted the law
applicable at the time of the crime.



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testified that Brown was essentially standing over the kneeling victim when

the first shot was fired and subsequent shots were fired as the victim lay on

the ground. Therefore, Brown was no longer under the threat of death or

serious bodily injury when he fired the gun. As Brown was standing at the

time and his victim was kneeling, he could have retreated safely, rather than

pulling the trigger. Therefore, Brown was not entitled to an acquittal based

upon his claim of self-defense. Accordingly, this claim for relief must fail.

      Next, Brown challenges the discretionary aspect of his sentence,

arguing the trial court abused its discretion in imposing a 50-year minimum

term of incarceration. Specifically, Brown claims, “the trial court abused its

discretion in sentencing him to a half-century of imprisonment, without

proper consideration of several mitigating factors in support of a lower

sentence.” Appellant’s Brief, at 17. This statement mirrors Brown’s claim in

his required Pa.R.A.P. 2119(f) statement. Specifically, Brown claims the trial

court failed to consider his statement of remorse, his limited criminal history

with successful completion of a prior probationary sentence, and the fact his

actions, in both the simple assault and the instant murder, were in response

to action taken by the victims.

      Regarding a challenge to the discretionary aspects of a sentence:

      This Court does not review such issues as a matter of right. “An
      appellant must satisfy a four-part test to invoke this Court's
      jurisdiction when challenging the discretionary aspects of a
      sentence.” Commonwealth v. Buterbaugh, 91 A.3d 1247,



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       1265 (Pa. Super. 2104). The appellant must satisfy all of the
       following:

          (1) the appellant preserved the issue either by raising it at
          the time of sentencing or in a post[-]sentence motion; (2)
          the appellant filed a timely notice of appeal; (3) the
          appellant set forth a concise statement of reasons relied
          upon for the allowance of his appeal pursuant to Pa.R.A.P.
          2119(f); and (4) the appellant raises a substantial
          question for our review.

       Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).

Tejada, supra, 107 A.3d at 797-98.

       Furthermore, with respect to the claim of failure to consider mitigating

circumstances,

       “[T]his Court has held on numerous occasions that a claim of
       inadequate consideration of mitigating factors does not raise a
       substantial question for our review.” Commonwealth v.
       Downing, 990 A.2d 788, 794 (Pa. Super. 2010)(citation
       omitted). Accordingly, we conclude Appellant's argument that
       the trial court failed to give adequate weight to mitigating factors
       does not present a substantial question appropriate for our
       review. See Id.; see also Commonwealth v. Kraft, 737 A.2d
       755, 757 (Pa. Super. 1999), appeal denied, 560 Pa. 742, 747
       A.2d 366 (1999)(determining appellant's claim that sentence of
       incarceration for DUS violation was excessive because
       sentencing court failed to adequately consider certain mitigating
       factors did not raise substantial question).

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013).4

____________________________________________


4
  We are cognizant of a recent opinon, Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014), that stated the failure to consider mitigating
circumstances does present a substantial question.            Raven cited
Commonwealth v. Felmlee, 828 A.2d 1105 (Pa. Super. 2005) for that
proposition. Felmlee addressed an aggravated range imposed sentence
(Footnote Continued Next Page)


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      However, recognizing that we are reviewing a sentence imposed

pursuant to 18 Pa.C.S. § 1102.1, sentencing of a minor for murder, we will

address Brown’s argument.

      In response to Miller v. Alabama, 132 S.Ct. 2455 (2012),5 the

Commonwealth of Pennsylvania has enacted special sentencing provisions

applying to persons under the age of 18 who committed first-degree murder.

In relevant part, the statute provides:

      § 1102.1. Sentence of persons under the age of 18 for
      murder, murder of an unborn child and murder of a law
      enforcement officer

          (a) First degree murder.--A person who has been
          convicted after June 24, 2012, of a murder of the first
          degree, first degree murder of an unborn child or murder
          of a law enforcement officer of the first degree and who
          was under the age of 18 at the time of the commission of
          the offense shall be sentenced as follows:

             (1) A person who at the time of the commission of
             the offense was 15 years of age or older shall be
             sentenced to a term of life imprisonment without
             parole, or a term of imprisonment, the minimum of
             which shall be at least 35 years to life.

18 Pa.C.S. § 1102.1(a)(1) (emphasis in original).


                       _______________________
(Footnote Continued)

without consideration of mitigating circumstances, which did not occur here.
We do not believe Felmlee stands for the general proposition that failure to
consider mitigating circumstances presents a substantial question.
5
  In 2012, in Miller, the United States Supreme Court determined that
mandatory life imprisonment for juveniles convicted of murder offended the
8th Amendment prohibition against cruel and unusual punishment.



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       Because Brown was 15 years-old at the time of the commission of the

crime, he      was subject to        a 35-year        mandatory    minimum term of

incarceration.      Prior to sentencing, a pre-sentence investigation was

generated by the York County Probation Department.                 This report detailed

Brown’s prior juvenile record as well as various social, educational and

financial factors, including those issues Brown has raised herein. The report

also included victim impact statements from five members of the victim’s

family.     The report noted Brown had successfully completed a prior

probationary period for a simple assault (shooting a person in the face with a

BB gun), but had been written up several times for various infractions,

including    fighting    and    causing        a   disturbance,   during   his   pre-trial

incarceration.6     Ultimately, the report recommended the court impose a

sentence of 50 years to life incarceration.

       In issuing Brown’s sentence, the trial court stated it reviewed the pre-

sentence investigation, specifically noting the above mentioned prior assault

adjudication at the age of 13, as well as the assaultive behavior during his
____________________________________________


6
   In his Appellant’s Brief, Brown refers to information regarding his criminal
history that was developed in the decertification hearing. This hearing was
not held before the sentencing judge. It is unclear from the certified record
if the sentencing judge was aware of the testimony from the decertification
hearing or considered any of the psychological reports from that hearing.
We have reviewed the entire record and note that the decertification hearing
also contained significant information that might be considered detrimental
to Brown’s current argument.        Because it is unclear if the trial court
considered any of this information, we will not consider any of it in our
analysis.



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pre-trial detention. We note that “because the trial court had the benefit of

a presentence report, we presume that the court was aware of relevant

information   regarding   the   defendant's   character   and   weighed    those

considerations along with any mitigating factors.”        Commonwealth v.

Seagraves, 103 A.3d 839, 847 (Pa. Super. 2014).

     The trial court also heard and considered both the written victim

impacts statements and testimony of relatives of the victim presented at the

sentencing hearing. The trial court stated:

     Let me simply say this, when the Court has some discretion as to
     what to impose as far as a sentence after a life is lost, there’s a
     tendency by those who have lost that life to believe that no
     sentence that we impose is sufficient to compensate for that life.
     We think that’s a simplistic – too simplistic a way to approach
     the Court’s duty. To equate a person’s life with a certain
     number of years tends to diminish the value of that life, and
     accordingly, obviously there’s no sentence that we could impose
     that would satisfy those who have lost the memory and
     experiences of the victim in this particular case.

     That having been said, our focus really has to turn to the
     Defendant in this particular matter, and as we previously
     indicated, it is clear to us that the Defendant has to be
     segregated from society for a significant period of time.
     Obviously attempts at rehabilitation under the juvenile system
     failed. The Defendant obviously quickly escalated his criminal
     behavior by committing this offense two years after he was
     placed on formal probation for the simple assault. Accordingly,
     our sentencing objective has to change from one of rehabilitation
     to simply incapacitation for a substantial period of time. We
     would note that a lesser sentence would depreciate the
     seriousness of the crime of which the defendant stands
     convicted.

N.T. Sentencing, 1/27/2014, at 10-11.




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      Contrary to Brown’s assertion, the record supports the trial court’s

belief regarding the failure of the juvenile system to rehabilitate Brown. The

commission of a first-degree murder so quickly after his first criminal

episode does not bespeak a successful rehabilitative process. While Brown

asserted both the simple assault and the murder were the product of self-

defense, the adjudication and conviction, especially regarding the instant

crime, indicate otherwise.     The trial court demonstrably considered the

elements presented and did not improperly ignore mitigating factors in

imposing a sentence greater than the statutory mandatory minimum.

Accordingly, Brown is not entitled to relief on this issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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