J. S31036/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRANDON MARCUS WISE, : No. 1735 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 18, 2016,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0000434-2016,
CP-02-CR-0011027-2015, CP-02-CR-0014410-2015,
CP-02-CR-0014411-2015, CP-02-CR-0015213-2015
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 14, 2017
Brandon Marcus Wise appeals the judgment of sentence in which the
trial court sentenced him to serve an aggregate sentence of 63 to
174 months’ imprisonment followed by six years’ probation for using an
access device to obtain or attempt to obtain property or services, receiving
stolen property, and fleeing or attempting to elude officers.1 After careful
review, we affirm.
Appellant’s convictions stem from five separate incidents. The charges
arose from appellant taking credit and/or debit cards from parked cars and
1
18 Pa.C.S.A. §§ 4106(a)(1), 3925(a), and 3733(a), respectively.
J. S31036/17
using the cards to make purchases as well as one time where he led the City
of Pittsburgh police on a high-speed automobile chase. The parties agree
that the underlying facts related to appellant’s convictions are not germane
to his appeal.
On February 25, 2016, appellant entered an open plea and pled guilty
to Counts 1-7 and 13-17 at CC20150011027 in return for the
Commonwealth dropping Counts 8-12. The trial court deferred sentencing
until after the completion of a pre-sentence investigation report (“PSI”).
On May 16, 2016, appellant along with his attorney appeared before
the trial court and pled guilty pursuant to a plea agreement to several
counts in the four remaining cases. The trial court accepted the guilty pleas
and proceeded to impose the sentences set forth above.
On June 1, 2016, appellant filed a post-sentence motion, asserted the
sentence imposed was excessive, and asked the trial court to reconsider it.
By order dated October 13, 2016, the trial court denied the motion.
Appellant raises the following issue for this court’s review:
Was the sentence imposed manifestly excessive,
unreasonable, and an abuse of discretion where the
court imposed an aggregate sentence of total
confinement of 63 to 174 months without giving due
consideration to [appellant’s] need to seek medical
treatment for his mental illness, his acceptance of
responsibility, and the fact that his crimes were acts
fueled by his drug addiction?
Appellant’s brief at 5 (capitalization omitted). Appellant challenges the
discretionary aspects of his sentence.
-2-
J. S31036/17
[T]he proper standard of review when
considering whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: 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,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e 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
-3-
J. S31036/17
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging the discretionary
aspects of his sentence. First, appellant timely filed his notice of appeal
pursuant to Pa.R.A.P. 902 and 903. Second, appellant raised the issue that
the trial court imposed a sentence that was excessive in his post-sentence
motion which essentially is the issue before this court.
Third, appellant included a Rule 2119(f) statement in his brief in which
he avers that the trial court abused its discretion when it imposed an
unreasonable sentence that did not give due consideration to appellant’s
need to seek medical treatment for his mental illness and drug addiction, his
acceptance of responsibility for his actions, and that with the appropriate
level of treatment, he could fulfill his potential and have a productive life.
Appellant also avers that the trial court did not set forth sufficient reasons to
justify its sentence and to explain why the sentences were consecutive.
This court must next determine whether appellant raised a substantial
question for this court’s review. We determine whether an appellant raises a
substantial question on a case-by-case basis. Commonwealth v. Swope,
123 A.3d 333 (Pa.Super. 2015). “A substantial question exists only when an
appellant advances a colorable argument that the sentencing judge’s actions
-4-
J. S31036/17
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Id. at 338 (citation omitted).
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Id. at 340 (citation omitted).
Appellant argues that the appeal presents a substantial question for
essentially two reasons. First, he argues that the sentence was excessive
because the trial court failed to consider his rehabilitative needs. Second, he
argues that the sentence was excessive due to the consecutive nature of the
sentences. This court has held that a challenge to the imposition of
consecutive sentences as unduly excessive, together with a claim that the
trial court failed to consider a defendant’s rehabilitative needs when
fashioning its sentence presents a substantial question. Commonwealth v.
Bonner, 135 A.3d 592 (Pa.Super. 2016). As appellant has presented a
substantial question, we will address this claim on the merits.
With respect to the trial court’s alleged failure to consider the
rehabilitative needs of appellant such as his alleged mental illness and drug
addiction, the trial court stated at sentencing that “it appears to me that you
-5-
J. S31036/17
do great in confinement, but you do horrible [sic] when you are free.”
(Notes of testimony, 5/18/16 at 16.) The trial court further explained, “You
can ask for a pass for yourself, and I’m not sure I would give it to you, but I
have to be concerned about all these other people as well. When you are
given your freedom[,] you raise havoc. Would you want you as your next
door neighbor?” (Id. at 19.) In its opinion, the trial court reiterated that
appellant was a substantial risk to the public and that appellant did not
present credible evidence of mental health issues sufficient to justify a lesser
sentence. (Trial court opinion, 1/19/17 at 6-7.)
Furthermore, the trial court considered the PSI. “Where a [PSI]
exist[s], we [] presume that the [trial court] was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating factors. A [PSI] constitutes the record
and speaks for itself.” Commonwealth v. Antidormi, 84 A.3d 736, 761
(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). Further, as the
bulk of the sentences were in the mitigated range, appellant did not suffer
prejudice from the imposition of the sentences.
Appellant also challenges the aggregate sentence as clearly
unreasonable, at least in part, because the trial court imposed consecutive
rather than concurrent sentences.
Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A. § 9721,
permits the sentencing court to use its discretion to impose a sentence
-6-
J. S31036/17
consecutively or concurrently to other sentences that the sentencing court is
imposing. “In imposing a sentence, the trial judge may determine whether,
given the facts of a particular case, a sentence should run consecutive to or
concurrent with another sentence being imposed.” Commonwealth v.
Perry, 883 A.2d 599, 603 (Pa.Super. 2005).
Here, the trial court imposed consecutive either standard or mitigated
range sentences for many of the charges for which appellant pled guilty.
Additionally, the trial court imposed no further penalty for some of the
charges for which appellant pled guilty. The trial court explained that it
imposed the sentences because there were five different informations filed
against appellant for serious theft-related charges. Appellant engaged in the
criminal behavior to get money to support his drug use. As some of the
sentences were in the mitigated range, it is difficult to see how the
sentences could be considered excessive even when applied consecutively.
As this court has held, a defendant is not entitled to a “volume discount” for
multiple crimes by having all sentences run concurrently. Commonwealth
v. Swope, 123 A.3d 333, 341 (Pa.Super. 2015).
The trial court carefully considered the relevant factors set forth in
Section 9721(b) of the Code, 42 Pa.C.S.A. § 9721(b), when it sentenced
appellant including his rehabilitative needs, the need to protect the public,
the gravity of the offenses, and the impact on the victims. The trial court
-7-
J. S31036/17
explained in detail the reasons for its decision. The trial court did not abuse
its discretion when it imposed consecutive sentences for appellant’s crimes.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
-8-