J-S52012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT WAYNE BROWN, :
:
Appellant : No. 2047 MDA 2016
Appeal from the Judgment of Sentence November 16, 2016
in the Court of Common Pleas of Cumberland County,
Criminal Division, No(s): CP-21-CR-0000029-2011;
CP-21-CR-0003516-2010
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 23, 2017
Robert Wayne Brown (“Brown”) appeals from the judgment of
sentence imposed following his conviction of 41 counts of various sexual
offenses committed against his four minor step-grandchildren over the
course of several years. We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 2/13/17, at 1-4 (unnumbered).
On appeal, Brown raises the following issue for our review: “Did the
sentencing court abuse its discretion by failing to justify on the record the
imposition of aggravated range and consecutive sentences?”1 Brief for
Appellant at 6 (capitalization omitted).
1
The trial court sentenced Brown to an aggregate term of 40 to 120 years in
prison.
J-S52012-17
Brown challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] 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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
When an appellant challenges the discretionary aspects of his
sentence, we must consider his brief on this issue as a petition for
permission to appeal. Commonwealth v. Tuladziecki, 522 A.2d 17, 18
(Pa. 1987); 42 Pa.C.S.A. § 9781(b); see also Commonwealth v. Yanoff,
690 A.2d 260, 267 (Pa. Super. 1997).
In the instant case, Brown filed a timely Notice of Appeal, and included
in his appellate brief a separate Rule 2119(f) Statement. However, our
review of the record reflects that Brown failed to preserve his claim either at
resentencing or in a timely post-sentence motion. See Commonwealth v.
Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the
discretionary aspects of sentence are generally waived if they are not raised
-2-
J-S52012-17
at the sentencing hearing or in a motion to modify the sentence imposed at
that hearing). Thus, we are unable to address his issue on appeal.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2017
2
Even if Brown had preserved his issue for our review, we would have found
that it lacked merit, given that the trial court, at the time of resentencing,
had the benefit of a pre-sentence investigation report (“PSI”). See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(holding that, where a sentencing court is informed by a PSI, “it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”). Moreover, “[t]he sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on the record
by indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.” Id. (citation omitted); see
also N.T., 11/15/16, at 3.
-3-
Circulated 08/10/2017 11:55 AM
COMMONWEAL TH
v.
Com. v. Brown, R.
Combined Opinion