J-S08008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON MIDDER
Appellant No. 743 WDA 2015
Appeal from the Judgment of Sentence entered April 10, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No: CP-07-CR-0000003-2014
BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 16, 2016
Appellant, Brandon Midder, appeals from the judgment of sentence the
Court of Common Pleas of Blair County entered April 10, 2015, challenging
the discretionary aspects of his sentence. We affirm.
The trial court summarized the pertinent factual and procedural
background as follows:
[O]n January 27, 2015, Appellant pled guilty to Count 3 and
Count 11 of the criminal information, [p]ossession of a [f]irearm
[p]rohibited, as felonies in the second degree. The allegations
levied against him in the criminal complaint were the he was
with a codefendant . . . in a night club when [codefendant]
murdered [W.S.], and that Appellant, a felon not to possess,
possessed a firearm both in the club where he was allegedly
aiding [codefendant], and in the trunk of his vehicle, which he
was operating with [codefendant] in the passenger seat in
another county later the same night when apprehended by
police. Appellant was sentenced on April 10, 2015 in the
aggravated range of sentencing, to 54 to 108 month[s’]
incarceration in an SCI, to be run consecutively, for a total of 9
to 18 years’ incarceration.
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Trial Court Opinion, 6/25/15, at 1-2.
Appellant timely filed a motion for reconsideration, which the trial
court denied on May 6, 2015. This appeal followed.
On appeal, Appellant challenges the discretionary aspects of his
sentence. Specifically, Appellant argues the sentencing court imposed an
excessive sentence, and therefore abused its discretion, by (i) imposing
consecutive sentences, (ii) not taking into account some factual
circumstances of the case, and (iii) giving too much weight to an old
conviction.1 Assuming Appellant properly preserved the sentencing claim for
our review,2 Appellant failed to raise a substantial question.3
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1
The question for our review reads as follows:
Whether the [s]entencing [c]ourt in imposing consecutive
sentences on [Appellant] totaling 9-18 years, abused its
discretion in imposing a sentence on [sic] manifestly excessive
on two counts of possession of firearm prohibited when neither
firearm was discharged and [Appellant]’s only prior criminal
conviction was 10 years prior when he was a 15 year old
juvenile, and there was only one criminal episode on the night in
question[.]
Appellant’s Brief at 11.
In the argument section of Appellant’s brief, the scope of his challenge
expands to include several other challenges to the discretionary aspects of
the sentence not mentioned in the question raised before us. We will not
address any of these additional grounds.
2
For the standard of review and discretionary aspects claim requirements,
see, e.g., Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.
Super. 2014) (en banc).
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Generally, a bald claim of excessiveness based on inadequate
consideration of mitigating factors or resulting from the imposition of
consecutive sentences fails to raise a substantial question. See, e.g.,
Commonwealth v Austin, 66 A.3d 798, 808 (Pa. Super. 2013);
Commonwealth v. Johnson, J., 961 A.2d 877, 880 (Pa. Super. 2008).
Here, it is no different. Appellant’s claim amounts to no more than a bald,
unsubstantiated allegation of abuse of discretion.
Additionally, the record belies Appellant’s allegation. The sentencing
court did in fact account for the underlying facts of the case and the
characteristics of Appellant. Indeed, the sentencing court noted that the
sentence imposed (aggravated range on both counts, running consecutively)
reflected the fact Appellant possessed the firearms in public despite being a
felon prohibited from doing so. The court also noted that it considered
Appellant’s attitude toward the offenses. Appellant stated to the arresting
officer that he knew he was not supposed to be in possession of the
firearms, yet he did it anyway because he would rather be caught by the
police on the street with a gun than be on the street without a gun. See
N.T. Sentencing, 4/10/15, at 13, 23. More specifically on the merits of the
_______________________
(Footnote Continued)
3
“A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” Commonwealth v. Johnson, G., 873 A.2d 704, 708 (Pa. Super.
2005).
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contentions, we note also that Appellant seems to suggest the sentencing
court should have rewarded him with a more lenient sentence because he
did not kill anyone or cause more harm at the scene of the murder. The
record shows the sentencing court did consider this circumstance, although
that did not result in a more lenient sentence. See N.T. Sentencing,
4/10/15, at 23. We are not in a position to reweigh this circumstance in a
more favorable manner to Appellant. See Commonwealth v. Macias, 968
A.2d 773, 778 (Pa. Super. 2009). Regarding Appellant’s claim the
sentencing court abused its discretion in considering Appellant’s old
conviction,4 it should be noted that Appellant agreed on the record that the
sentencing court could consider that conviction in fashioning its sentence
which the sentencing court in fact did in arriving at a prior record score. N.T.
Sentencing, 4/10/15, at 10. Appellant provides no explanation how the
court abused its discretion in considering his prior conviction given that
Appellant agreed the court could do so. We discern no abuse of discretion.
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4
At the sentencing hearing, the Commonwealth represented that, after
investigation, it discovered that Appellant had two prior robbery convictions
imposed in Virginia in 2005, and that Appellant’s prior record score was
therefore 4, not 1, as it had originally determined. N.T. Sentencing,
4/10/15, at 8-9. The Commonwealth, however, for purposes of that
sentencing hearing only, agreed to proceed with Appellant’s prior record
score of 1 in light of Appellant’s willingness to be sentenced on that day.
Id. At the same sentencing hearing, Appellant stated that the of the 2005
Virginia crimes, one was a robbery conviction and one was an adjudication
for robbery, and that his prior record of 1 (as originally determined by the
Commonwealth) was due to the conviction. Id. at 10.
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Lastly, Appellant argues the sentencing court erred when it held there
were two episodes of felon in possession, the first being possession at the
scene of the murder, the second, possession of a firearm found in his
vehicle. Appellant argues that was an error because there was only one
criminal episode, spanning several hours. Appellant fails to mention that he
pled guilty to two separate and distinct charges of felon in possession,
involving two separate episodes and two distinct weapons. See N.T. Plea,
1/27/15, at 5. Given these facts, we again discern no abuse of discretion on
the part of the sentencing court.
Despite how Appellant articulates his sentencing claim, the actual
matter raised by Appellant is his displeasure with the way the sentencing
court weighed the circumstances mentioned above. It is well-settled that
mere dissatisfaction with the sentencing court’s weighing of sentencing
considerations is not sufficient to raise a substantial question for our review.
See Commonwealth v Moury, 992 A.2d 162, 175 (Pa. Super. 2010).
Finally, Appellant fails to acknowledge that the sentencing court
specifically acknowledged that it had reviewed the presentence investigation
report, and that it is well-settled that “[w]here the sentencing court had the
benefit of a presentence investigation report . . ., we can assume the
sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Id. at 171 (quoting Commonwealth v.
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Devers, 546 A.2d 12, 18 (Pa. 1988) (internal quotation marks omitted)). In
light of the foregoing, we conclude the trial court did not abuse its discretion
in fashioning Appellant’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2016
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