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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIO BRANNON :
:
Appellant : No. 1783 WDA 2018
Appeal from the Judgment of Sentence Entered November 26, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010168-2014
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 14, 2020
Appellant, Mario Brannon, appeals from the judgment of sentence
entered on November 26, 2018, in the Allegheny County Court of Common
Pleas. We affirm.
The record reflects that on August 25, 1991, Appellant broke into the
home of a twenty-one-year-old woman, threatened to kill her, and raped her
at knifepoint. N.T., Preliminary Hearing, 7/28/14, at 4-5. Appellant remained
a fugitive for more than two decades. However, in July of 2013, detectives
working on “cold cases” identified Appellant through DNA analysis. Trial Court
Opinion, 7/21/15, at 4; N.T., Pretrial Motion, 10/21/14, at 8. The DNA match
was possible because the DNA collected from the 1991 rape matched DNA
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samples obtained from other rapes that Appellant committed in the state of
Georgia in 1993 and 1994. Trial Court Opinion, 7/21/15, at 3-4.1
On September 3, 2014, the Commonwealth charged Appellant with rape
by forcible compulsion, burglary, terroristic threats, indecent assault, and
simple assault for an attack that occurred on August 25, 1991.2 Criminal
Information, 9/3/14. On October 30, 2014, Appellant proceeded to a nonjury
trial on stipulated facts, and the trial court found Appellant guilty on all counts.
N.T., Trial and Sentencing, 10/30/14, at 4. The trial court sentenced Appellant
to a period of incarceration of ten to twenty years for rape and a consecutive
term of ten to twenty years of incarceration for burglary. Id. at 18. The trial
court imposed no further penalty on the remaining counts. Accordingly,
Appellant’s aggregate sentence was twenty to forty years of incarceration.
On November 7, 2014, Appellant filed a timely post-sentence motion.
The trial court denied Appellant’s motion on November 12, 2014, and
Appellant filed a timely appeal. On July 12, 2016, a panel of this Court
concluded that the trial court failed to demonstrate its awareness of the
Sentencing Guidelines, vacated Appellant’s sentence, and remanded for
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1 Although the specifics of the sentences are unclear, in 2002, Appellant was
sentenced to a term of forty years of incarceration in Georgia. Trial Court
Opinion, 7/21/15, at 4.
2 18 Pa.C.S. §§ 3121(a)(1), 3502(c)(1), 2706(a)(1), 3126(a)(1), and
2701(a)(3), respectively.
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resentencing. Commonwealth v. Brannon, ___ A.3d ___, 2017 WDA 2014
(Pa. Super., filed July 12, 2016) (unpublished memorandum).
On November 26, 2018, the trial court resentenced Appellant via closed
circuit television because Appellant was incarcerated in Georgia. N.T.,
Resentencing, 11/26/18, at 1. The trial court again sentenced Appellant to a
term of ten to twenty years of incarceration for rape and a consecutive term
of ten to twenty years of incarceration for burglary. Id. at 17. The trial court
declined the Commonwealth’s request to run this sentence consecutively to
the Georgia sentence because the trial court’s original sentence ran
concurrently with the Georgia sentence.3 N.T., Resentencing, 11/26/18, at
15.
On December 6, 2018, Appellant filed a post-sentence motion in which
he asserted the trial court abused its discretion when it imposed excessive
sentences above the aggravated-range of the Sentencing Guidelines and failed
to adequately consider Appellant’s rehabilitative needs. Post-Sentence
Motion, 12/6/18. The trial court denied Appellant’s motion on December 11,
2018, and this timely appeal followed.
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
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3 See North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other
grounds, Alabama v. Smith, 490 U.S. 794 (1989), (establishing a rebuttable
presumption of vindictiveness when a sentencing court imposes a more severe
sentence when resentencing a defendant).
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complied on January 18, 2019. However, the sentencing judge, the Honorable
Donna Jo McDaniel, retired from the bench and did not draft a Pa.R.A.P.
1925(a) opinion. This matter was reassigned to the
Honorable Jeffrey Manning, who drafted an opinion stating that the sentencing
judge’s reasons for the sentence imposed were set forth at the November 26,
2018 hearing. Opinion, 4/22/19, at 3.
On appeal, Appellant raises the following issues for this Court’s
consideration:
I. Did the trial court abuse its discretion when imposing a
manifestly excessive aggregate sentence of 20 to 40 years in
prison on rape and burglary convictions when it failed to consider
[Appellant’s] mitigating circumstances, including his advancing
age, present incarceration, and successful rehabilitative efforts?
II. Did the trial court abuse its discretion when imposing
manifestly excessive sentences of 10 to 20 years in prison on each
of the rape and burglary convictions run consecutively when it
failed to consider [Appellant’s] rehabilitative needs following his
own sexual victimization at an early age?
Appellant’s Brief at 5.
Appellant’s issues challenge the discretionary aspects of his sentence.
We note that “[t]he right to appellate review of the discretionary aspects of a
sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
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As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test:
We conduct a four-part analysis to determine:
(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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, the first three requirements of the four-part test are met:
Appellant filed a timely appeal; Appellant preserved the issue of imposition of
an excessive sentence in his post-sentence motion; and Appellant included a
statement raising this issue in his brief pursuant to Rule 2119(f). Moury, 992
A.2d at 170. Therefore, we determine whether Appellant raised a substantial
question.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted
only when the appellate court determines that there is a substantial question
that the sentence is not appropriate under the Sentencing Code.
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Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). 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. Id.
In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the trial court
abused its discretion when it imposed sentences outside the aggravated range
of the Sentencing Guidelines and ordered the sentences to run consecutively.
Appellant avers that the trial court failed to consider relevant sentencing
factors, mitigating circumstances and rehabilitative needs, and instead
imposed manifestly excessive consecutive sentences. Appellant’s Brief at 19-
20. Although not specified in his Rule 2119(f) statement, Appellant also
asserts the trial court failed to provide its reasons for sentencing Appellant
outside of the Sentencing Guidelines.4 Appellant’s Brief at 23.
Appellant’s issues raise substantial questions for our review. See
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (finding a
substantial question where the appellant averred that the trial court failed to
consider certain sentencing factors in conjunction with an assertion that the
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4 The Commonwealth did not object to Appellant’s failure to include this issue
in his Rule 2119(f) statement. Accordingly, we decline to find waiver, and we
address the claim on its merits. See Commonwealth v. Anderson, 830
A.2d 1013, 1017 (Pa. Super. 2003) (“If an appellant fails to comply with
Pa.R.A.P. 2119(f) and the Commonwealth does not object, the reviewing
Court may overlook the omission if the presence or absence of a substantial
question can easily be determined from the appellant’s brief.”).
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sentence imposed was excessive); see also Commonwealth v. Rodda, 723
A.2d 212, 214 (Pa. Super. 1999) (“Where the appellant asserts that the trial
court failed to state sufficiently its reasons for imposing sentence outside the
sentencing guidelines, we will conclude that the appellant has stated a
substantial question for our review.”). Because Appellant’s issues are
interrelated, we address them concurrently.
At the outset, it is well settled that when the trial court has the benefit
of a presentence investigation (“PSI”) report, it is presumed that the court
was both aware of and appropriately weighed all relevant information
contained therein. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super.
2002). Where the trial court imposes a sentence outside the Sentencing
Guidelines, “the court shall provide a contemporaneous written statement of
the reason or reasons for the deviation from the guidelines. Failure to comply
shall be grounds for vacating the sentence and resentencing the defendant.”
Rodda, 723 A.2d at 214 (quoting 42 Pa.C.S. § 9721(b)). “We have
interpreted these provisions to require, at minimum, that when a court
deviates from the sentencing guidelines, it must indicate that it understands
the suggested sentencing range.” Id. (citation omitted). Therefore, when
deviating from the Sentencing Guidelines, the trial court must indicate its
understanding of the suggested ranges. Id. However, there is no
requirement that the trial court must state “magic words” in a verbatim
recitation of the Sentencing Guideline’s ranges to satisfy this requirement. Id.
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at 215. When imposing sentence, the trial court has rendered a proper
“contemporaneous statement” where “the record demonstrates with clarity
that the court considered the Sentencing Guidelines in a rational and
systematic way and made a dispassionate decision to depart from them.” Id.
at 216.
At Appellant’s resentencing, the trial court stated its understanding of
the Sentencing Guidelines and its understanding of the recommended
sentences for each crime. N.T., Resentencing, 11/26/18, at 3. The court
noted that at the time of Appellant’s crimes, the Sentencing Guidelines
recommended an aggravated-range sentence of seventy-eight to 106 months,
a standard-range sentence of fifty-four to ninety months, and a mitigated-
range minimum sentence of forty-three months of incarceration.5 Id. The
trial court then stated that for Appellant’s burglary conviction, the Sentencing
Guidelines recommended an aggravated-range sentence of twenty-nine to
thirty-six months, a standard-range sentence of twelve to twenty-nine
months, and a mitigated-range minimum sentence of twelve months of
incarceration. Id. Additionally, the trial court stated that it had reviewed and
considered the PSI report. Id. at 3-5.
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5 On August 25, 1991, when Appellant committed the crimes underlying this
appeal, the Revised Third Edition of the Pennsylvania Sentencing Guidelines
was applicable. Commonwealth v. Touw, 781 A.2d 1250, 1253 n.3 (Pa.
Super. 2001); 204 Pa.Code § 303.9, effective August 9, 1991. The Revised
Third Edition covered crimes committed on or after August 9, 1991, and before
August 12, 1994, the effective date of the Fourth Edition. Id.
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After the trial court discussed the applicable Sentencing Guidelines and
the PSI report, it permitted Appellant his right of allocution. N.T.,
Resentencing, 11/26/18, at 8-11. Thereafter, the trial court heard from the
victim. Id. at 12-13. The victim expressed her belief that Appellant “should
have to serve the sentence he deserves in the fullest capacity.” Id. at 13.
The trial court then reiterated its considerations, noted Appellant’s history of
violent offenses including additional rape convictions, and explained its
concerns that the circumstances of the instant offenses outweighed
Appellant’s attempts at rehabilitation during incarceration. Id. at 15-16. The
trial court then imposed the statutory maximum sentence of 120 to 240
months of incarceration on both counts and ordered them to run consecutively
to each other but concurrently with the sentence Appellant was serving in
Georgia. Id. at 17.
After review, we discern no abuse of discretion. The trial court stated
its consideration of the facts of the case, the Sentencing Guidelines, and
Appellant’s criminal history. N.T., Resentencing, 11/26/18, at 3-5, 15-16.
Moreover, the trial court was aware of the appropriate sentencing factors and
mitigating evidence via its consideration of the PSI report. Griffin, 804 A.2d
at 8; Rodda, 723 A.2d at 214-216. “[I]t would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to apply them to
the case at hand.” Griffin, 804 A.2d at 8. Thus, it is evident that the trial
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court considered the Sentencing Guidelines and made a dispassionate decision
to depart therefrom. Rodda, 723 A.2d at 215-216.
Finally, to the extent that Appellant is unhappy with the duration of his
incarceration due to the consecutive nature of the rape and burglary
sentences, the decision to order sentences to run concurrently or
consecutively is left to the discretion of the trial court. Commonwealth v.
Radecki, 180 A.3d 441, 470 (Pa. Super. 2018). It is well settled that an
appellant is not entitled to a “volume discount” for his crimes by having all of
his sentences run concurrently. Commonwealth v. Hoag, 665 A.2d 1212,
1214 (Pa. Super. 1995). “The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Moury, 992 A.2d at 171-172 (citation omitted). Herein, Appellant failed to
argue any “extreme circumstances.” Radecki, 180 A.3d at 470. We conclude
that the trial court acted within its discretion in imposing consecutive
sentences after reviewing the facts of the case, Appellant’s criminal history,
Appellant’s age and mitigating factors, and the PSI report.6
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6 In his brief, Appellant discusses this Court’s decisions in Commonwealth
v. McCauley, 199 A.3d 947 (Pa. Super. 2018), and Commonwealth v.
Bernal, 200 A.3d 995 (Pa. Super. 2018). Appellant’s Brief at 26-28, n.4. The
decisions in McCauley and Bernal involve the same trial court judge, the
Honorable Donna Jo McDaniel, and the issues in those cases focused on
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For the reasons set forth above, we conclude that no relief is due.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2020
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Judge McDaniel’s refusal to recuse based on assertions of bias when
sentencing sex offenders. McCauley, 199 A.3d at 954; Bernal, 200 A.3d at
1003. We note that Appellant did not move for Judge McDaniel’s recusal. We
are cognizant that Appellant cites these cases to illustrate bias and support
his assertion of an abuse of discretion. However, for the reasons set forth
above, we conclude there was no abuse of sentencing discretion under the
facts and circumstances in the instant case.
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