J-S17043-15

___________________________

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GORDON BROWN

Appellant No. 1895 WDA 2014

Appeal from the Judgment of Sentence June 18, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0008256-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 15, 2015

Appellant, Gordon Brown, appeals from the judgment of sentence 

entered in the Allegheny County Court of Common Pleas, following his bench 

trial convictions for recklessly endangering another person (REAP), 

obstruction of administration of law or other governmental function 

(“obstruction”), and disorderly conduct.1 We affirm. 

In its opinion, the trial court fully set forth the relevant facts of this 

case. Therefore, we have no reason to restate them. Procedurally, following 

a bench trial, Appellant was convicted of REAP, obstruction, and disorderly 

conduct. On June 18, 2014, the court sentenced Appellant to a term of 

____________________________________________

1

 18 Pa.C.S.A. §§ 2705, 5101, 5503(a)(4), respectively.
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twelve (12) to twenty-four (24) months’ imprisonment for the REAP 

conviction, and a consecutive term of six (6) to twelve (12) months’ 

imprisonment for the obstruction conviction. The court imposed no further 

penalty for disorderly conduct. Thus, Appellant received an aggregate 

sentence of eighteen (18) to thirty-six (36) months’ imprisonment. 

On June 26, 2014, Appellant filed a timely post-sentence motion. 

Appellant filed another post-sentence motion on June 27, 2014. While the 

motions were pending, and despite having counsel of record, Appellant pro 

se filed a PCRA petition and a notice of appeal on September 16, 2014.2 In 

light of Appellant’s pro se filings, the court appointed new counsel on 

September 23, 2014. On October 14, 2014, Appellant, through new 

counsel, filed a motion for permission to file amended post-sentence motions 

and to receive a thirty-day extension for decision on the motions. The court 

granted Appellant’s request. Appellant filed amended post-sentence motions 

on November 7, 2014, which the court denied on November 13, 2014. 

Appellant timely filed a notice of appeal on November 18, 2014. The court 

ordered Appellant to file a concise statement of errors complained of on 

appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.

____________________________________________

2

 A defendant may not take a direct appeal while his post-sentence motions 

are pending. Commonwealth v. Cooper, 611 Pa. 437, 27 A.3d 994 

(2011). Moreover, a defendant may not engage in hybrid representation by 

submitting pro se filings while still represented by counsel. 

Commonwealth v. Willis, 29 A.3d 393 (Pa.Super. 2011). Therefore, 

Appellant’s pro se PCRA petition and notice of appeal were legal nullities. 
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Appellant raises a single issue for our review:

DID THE TRIAL COURT ERR IN DENYING APPELLANT’S 

POST SENTENCING MOTIONS SINCE THE TRIAL COURT 

ERRED IN IMPOSING AN EXCESSIVE AGGREGATE 

SENTENCE (BY RUNNING THE TWO SENTENCES 

CONSECUTIVELY), AND IN IMPOSING AN EXCESSIVE 

SENTENCE FOR THE REAP CONVICTION, SINCE

APPELLANT HAD NO PRIOR CONVICTIONS SINCE 1991, HE 

HAD BEEN A BUSINESS OWNER AND WAS A 

CONTRIBUTING MEMBER OF AND TO THE MCKEESPORT, 

PA COMMUNITY, HE HAD BEEN COOPERATIVE IN THE JAIL 

PENDING SENTENCING, HE HAD TWO SONS AND WAS A 

POSITIVE AND HELPFUL FATHER TO ESPECIALLY HIS TENYEAR-OLD SON, APPELLANT WAS ONLY TRYING TO SAVE 

HIS MOTHER-IN-LAW’S CATS, AND APPELLANT FELT 

REMORSE FOR, AND NEVER INTENDED TO CAUSE, 

LIEUTENANT LOPRETTO’S HORRIFIC INJURIES?

(Appellant’s Brief at 3).

On appeal, Appellant argues his sentence for the REAP conviction is 

manifestly excessive in light of various mitigating factors, including the 

length of time since Appellant’s last offense in 1991; his business ownership 

and contributions to the community; his cooperation in jail pending 

sentencing; his fatherhood; his motivation for reentering the house in an 

attempt to save the cats; and his remorse for Lieutenant Lopretto’s injuries. 

Appellant suggests the court based its sentence solely on the seriousness of 

the crime. For the same reasons, Appellant also asserts the court imposed 

too severe a punishment when it made Appellant’s REAP and obstruction 

convictions run consecutively. Appellant concludes this Court should vacate 

the judgment of sentence and remand for resentencing. Appellant’s 

challenge is to the discretionary aspects of his sentence. See 
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Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010) 

(explaining challenge to imposition of consecutive sentences implicates 

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d 

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive 

challenges discretionary aspects of sentencing); Commonwealth v. CruzCenteno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 

A.2d 1195 (1996) (stating claim that sentencing court failed to consider or 

did not adequately consider certain factors challenges discretionary aspects 

of sentencing). 

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary 

sentencing issue:

[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 question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Objections to the discretionary aspects of a sentence are generally waived if 

they are not raised at the sentencing hearing or raised in a motion to modify 
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the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 

788 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

When appealing the discretionary aspects of a sentence, an appellant 

must also invoke the appellate court’s jurisdiction by including in his brief a 

separate concise statement demonstrating that there is a substantial 

question as to the appropriateness of the sentence under the Sentencing 

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); 

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth 

the reasons relied upon for allowance of appeal ‘furthers the purpose evident 

in the Sentencing Code as a whole of limiting any challenges to the trial 

court’s evaluation of the multitude of factors impinging on the sentencing 

decision to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when 

the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process.” Sierra, supra at 912-13 (quoting 
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Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), 

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a 

sentence is manifestly excessive might raise a substantial question if the 

appellant’s Rule 2119(f) statement sufficiently articulates the manner in 

which the sentence imposed violates a specific provision of the Sentencing 

Code or the norms underlying the sentencing process. Mouzon, supra at 

435, 812 A.2d at 627. Generally, “[a]n allegation that a sentencing court 

failed to consider or did not adequately consider certain factors does not 

raise a substantial question that the sentence was inappropriate.” CruzCenteno, supra at 545. A challenge to the trial court’s exercise of 

discretion in imposing sentences consecutively also generally fails to raise a 

substantial question. Commonwealth v. Pass, 914 A.2d 442, 446 

(Pa.Super. 2006).

Instantly, Appellant’s amended post-sentence motion and Rule 2119(f) 

statement properly preserved his claims that the court imposed an excessive 

sentence for the REAP conviction, without adequate consideration of certain 

factors, and abused its discretion when it made the REAP and obstruction 

sentences run consecutively.3 Nevertheless, neither of these claims presents 

a substantial question warranting review. See Pass, supra; Cruz-

____________________________________________

3 To the extent Appellant also appears to argue in his brief that the court 

failed to state adequate reasons on the record for the sentence imposed, this 

claim is waived because Appellant failed to raise it at sentencing or in a 

timely post-sentence motion. See Mann, supra. 
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Centeno, supra. Moreover, the court had the benefit of a PSI report at 

sentencing. Therefore, we can presume the court considered the relevant 

information and mitigating factors. See Commonwealth v. Tirado, 870 

A.2d 362, 365 (Pa.Super 2005) (stating where sentencing court had benefit 

of PSI, law presumes court was aware of and weighed relevant information 

regarding defendant’s character and mitigating factors). The court also 

imposed a standard range sentence for the REAP and obstruction 

convictions. See Cruz-Centeno, supra (explaining that, absent more, 

standard range sentence cannot be considered excessive or unreasonable 

where court had benefit of PSI). 

Additionally, at the sentencing hearing, the court reasoned as follows:

The [c]ourt received a memorandum in aid of mitigation at 

sentencing filed by [Appellant’s] counsel. I reviewed it.

* * *

In your case, [Appellant], you have had other 

opportunities throughout the course of your life to interact, 

unfortunately, within the criminal justice system, and it 

has failed in [the court’s] view to persuade you to 

rehabilitate your view, that you are going to do what you 

want to do when you damn well want to do it even in the 

face of being ordered by police to do something else. 

I know that you didn’t mean it that way. I believe you 

when you say that. I believe that you didn’t mean to hurt 

this officer, but you were going to do what you were going 

to do regardless of the orders that you got from the law 

enforcement officer in a very chaotic, dangerous situation 

just like you had done in the past with the fleeing and 

eluding and ignoring the demands of the officer and you 

are 40 some years old now. You are not a kid.
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You can tell me that it was motivated by your mother[-inlaw’s] desire to have the cat saved, I understand all that, 

but it was a very dangerous situation and a real harmful 

result occurred to that man individually and to the 

community of McKeesport generally. You have obstructed 

the officers and others in their attempt to handle a very 

dangerous public situation....

I am sorry to have to do this, [Appellant] but based on the 

[c]ourt’s view, your prior interaction with the law did not 

refocus your understanding that you are to abide by lawful 

commands of police particularly in a very dangerous 

setting for the community. You did just the opposite.

* * *

It is a very stern sentence, [Appellant], but the results of 

your knowing conduct, your decision to ignore lawful 

commands of the police, to actually interfere with their 

ability to try to handle the very dangerous public situation 

resulted in very severe harm to the individual victim and to 

the community, measurable harm to the community, and 

people have to know that when an officer gives them a 

lawful command that they have to follow it whether they 

like it or not.

(N.T. Sentencing Hearing, 6/18/14, at 33-34). Thus, the record indicates 

the court was aware of the relevant sentencing considerations and weighed 

them in a meaningful fashion. Based on the foregoing, we conclude 

Appellant’s sentences should remain undisturbed. Accordingly, we affirm the 

judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.
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Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2015
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defendant filed a timely Notice of Appeal. Defendant filed a Concise Statement of 

months. No additional penalty was imposed at the disorderly conduct conviction. The 

consecutive sentence of imprisonment of not less than six months nor more than twelve 

Relative to the conviction obstructing the administration of law, this Court imposed a 

than 2 years relative to the conviction for recklessly endangering another person. 

sentenced the defendant to a term of imprisonment of not less than one year nor more 

obstructing the administration of law and summary disorderly conduct. This Court 

defendant was convicted, after a non- jury trial, of recklessly endangering another person, 

denial of post-sentencing motions on November 13, 2014. On March 26, 2014 the 

Judgment of Sentence imposed on June 18, 2014 which became final upon this Court's 

This is a direct appeal wherein the defendant, Gordon Brown, appeals from the 

Mariani, J. 

OPINION 

Defendant. 

GORDON BROWN, 

vs. 

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) 

) CC No. 2013-08256 

) 

) 

) 

) 

) 

COMMONWEALTH OF PENNSYLVANIA 

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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNfY,'P: . CRIMINAL DIVISION .,;.\s, C;itn;, . ~ 

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Assistant Police Chief Green also arrived on the scene. He testified that he 

encountered the defendant standing on the front porch of the residence. According to 

Assistant Chief Green, the house was so engulfed in flames that it was a "very 

dangerous" situation. Assistant Chief Green asked the defendant to leave the area due to 

the volatility of the fire site. The defendant refused, telling Assistant Chief Green that 

his cat was inside the house. Assistant Chief Green was unable to convince the 

defendant to leave the area. Assistant Chief Green testified that he had to enter the porch 

area that led to the area where flames were engulfing the house. The front door of the 

residence was open and smoke was "pouring" out of the house. Assistant Chief Green 

The credible facts at trial established that on January 30, 2013, officers from the 

McKeesport Police Department as well as firefighters from the McKeesport Fire 

Department responded to a residence at 413 Long Run Road that was fully engulfed by 

fire. This residence was a house that was partitioned into apartments. Officer Daniel 

Krejdovsky testified that he initially responded to the fire scene. Upon arriving at the 

scene, he secured the residence to make sure nobody was inside. All of the residents 

were outside toward the rear of the residence. Officer Krejdovsky spoke with a number 

of people who resided in the residence, including the defendant. At some point, the 

defendant attempted to enter the side door of the residence. The defendant walked into 

the kitchen area Officer Krejdovsky told the defendant to get out of the house. The 

defendant continued to walk around the kitchen and firefighters had to maneuver around 

him to fight the fire. Officer Krejdovsky then physically removed the defendant from 

the residence. 

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3 

Lieutentant Lopretto then heard a female's voice from the rear of the house 

scream that her cat was still in the residence. When he got to the rear of the residence, he 

observed the defendant make a "dash" toward the residence. Lieutenant Lopretto ran 

toward the defendant to stop him from entering the residence. While running, Lieutenant 

Lopretto slipped on the wet deck of the residence and fell. As a result of the fall, 

Lieutenant Lopretto suffered brain swelling, a severe concussion, loss of speech, vision 

issues, neck pain, balance issues and a tom rotator cuff. The injuries have caused him to 

lose his job as a police officer and his quality of life has substantially diminished. 

Lieutenant Dennis Lopretto of the McKeesport Police Department testified that 

when he first arrived on the scene, the defendant was standing on the front porch of the 

residence attempting to fight the fire with a garden hose. The def end ant was standing on 

the porch and flames were coming outside the front door. Lieutenant Lopretto ordered 

the defendant to leave the porch. When the defendant refused, he physically removed 

him from the porch. The defendant "wrestled" with him in an effort to remain on the 

porch. Even after being removed from the porch, the defendant continued a few more 

times to enter the porch. Lieutenant Lopretto left the defendant with neighbors and 

instructed them not to permit him to enter the house. 

had to physically drag the defendant off the porch and away from the fire site. Assistant 

Chief Green then ordered the defendant to leave the area of the fire. The defendant 

initially appeared to comply with those orders. 

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4 

The imposition of consecutive rather than concurrent sentences lies within the 

sound discretion of the sentencing court. Commonwealth v. Lloyd, 878 A.2d 867, 873 

(Pa. Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing 

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). Title 42 Pa.C.S.A. § 

9721 affords the sentencing court discretion to impose its sentence concurrently or 

consecutively to other sentences being imposed at the same time or to sentences already 

imposed. _Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing 

Defendant claims that the imposition of consecutive sentences was inappropriate. 

A sentencing judge is given a great deal of discretion in the determination of a sentence, 

and that sentence will not be disturbed on appeal unless the sentencing court manifestly 

abused its discretion." Commonwealth v. Boyer, 856 A2d 149, 153 (Pa. Super. 2004), 

citing Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001) appeal denied, 568 · 

Pa. 695, 796 A.2d 979 (2002); 42 Pa.C.S.A. §9721. An abuse of discretion is not a mere 

error of judgment; it involves bias, partiality, prejudice, ill-will, or manifest 

unreasonableness. See Commonwealth v. Flores. 921 A.2d 517, 525 (Pa.Super. 2007), 

citing Commonwealth v. Busanet. 817 A.2d 1060, 1076 (Pa. 2002). 

The defendant testified at trial. He essentially testified that he did encounter 

police officers on the day of the fire but he did not repeatedly attempt to enter the 

residence and he did not engage in any skirmishes with them. He attempted to place 

blame for his conduct on a person in a "camouflage jacket." This Court did not find his 

testimony credible. 

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5 

In imposing sentence, the trial court is required to consider 

the particular circumstances of the offense and the character 

of the defendant. The trial court should refer to the 

defendant's prior criminal record, age, personal 

characteristics, and potential for rehabilitation. However, 

where the sentencing judge had the benefit of a presentence 

investigative report, it will be presumed that he or she was 

aware of the relevant information regarding the defendant's 

character and weighed those considerations along with 

mitigating statutory factors. 

Boyer, supra at 153, citing 42 PaC.S.A. §972l(b). Furthermore, 

the victim and on the community, and the rehabilitative needs of the defendant . . . . " 

protection of the public, the gravity of the offense, as it relates to the impact on the life of 

principle that the sentence imposed should call for confinement that is consistent with the 

that particular defendant. Section 9721(b) provides: "[t]he court shall follow the general 

a sentencing court must formulate a sentence individualized to that particular case and 

(1992). Discretion is limited, however, by 42 Pa.C.S.A. §9721(b), which provides that 

surrounding his crime." Boyer, supra, quoting Commonwealth v. Moore, 617 A.2d 8, 12 

permissible confinements which best suits a particular defendant and the circumstances 

Furthermore, the "[s]entencing court has broad discretion in choosing the range of 

(Pa.Super.2001), appeal denied 569 Pa. 680, 800 A.2d 931 (2002). 

1104, 1107 (Pa.Super.2003); see also Commonwealth v. L.N., 787 A.2d 1064, 1071 

v. Perry, 883 A.2d 599 (Pa. Super. 2005), quoting Commonwealth v. Wright, 832 A.2d 

run consecutive to or concurrent with another sentence being imposed." Commonwealth 

trial judge may determine whether, given the facts of a particular case, a sentence should 

Commonwealth v. Graham, 661 A.2d 1367, 1373 (1995)). "In imposing a sentence, the 

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6 

A sentencing judge can satisfy the requirement of placing reasons for a particular 

sentence on the record by indicating that he or she has been informed by the presentencing report; thus properly considering and weighing all relevant factors. Boyer. 

Moreover, "the sentencing court must state its reasons for the sentence on the record." 

Boyer, supra at 154, citing 42 Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the 

requirement that reasons for imposing sentence be placed on the record by indicating that he 

or she has been inf onned by the pre-sentencing report; thus properly considering and 

weighing all relevant factors. Boyer. supra, citing Burns, supra, citing Commonwealth v. 

Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996). In fashioning an appropriate sentence, 

courts must be mindful that the sentencing guidelines "have no binding effect, in that they 

do not predominate over individualized sentencing factors and that they include 

standardized recommendations, rather than mandates, for a particular sentence." 

Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d 957, 964 (2007). A sentencing 

court is, therefore, permitted to impose a sentence outside the recommended guidelines. 

If it does so, however, it "must provide a written statement setting forth the reasons for 

the deviation .... " Id., 926 A.2d at 963. 

Boyer. supra at 154, citing Commonwealth v. Burns, 765 A.2d 1144, 1150-1151 (Pa.Super. 

2000) ( citations omitted). 

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7 

*************** 

In your case, Mr. Brown, you have had other opportunities 

through the course of your life to interact, unfortunately, 

within the criminal justice system, and it has failed in my 

view to persuade you to rehabilitate your view, that you are 

going to do what you want to do when you damn well want 

to do it even in the face of being ordered by police to do 

something else. 

public deterrence. As this Court explained: 

Court considered the rehabilitative needs of the defendant, protection of the public and 

serious injuries from which he now suffers. The sentencing record indicates that the 

complied with those orders, Lieutenant Lopretto would not have sustained the very 

direct orders from police officers at a very dangerous public scene. Had the defendant 

This Court also noted that the defendant intentionally and defiantly disobeyed 

police and recklessly endangering another person. 

it commented on the defendant's prior criminal convictions for fleeing and eluding the 

information. The record indicates that the Court also reviewed the presentence report as 

The sentencing record demonstrates that the Court considered all relevant 

along with any mitigating factors). 

of relevant information regarding defendant's character and weighed those considerations 

sentencing court has benefit of pre-sentence investigation, law expects court was aware 

237 (1996). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (if 

supra, citing Bums. supra, citing Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 

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8 

Date: 

discretion. Accordingly, the judgment of sentence should be affirmed. 

consecutive sentence for obstructing the administration of law was not an abuse of 

recklessly endangering another person conviction was not improper. Imposing a 

sentence in this case. The aggravated-range substantive sentence relative to the 

The sentencing record contains a sufficient written justification for the Court's 

I am sorry to have to do this, Mr. Brown, but based on the 

Court's view, your prior interaction with the law did not 

refocus your understanding that you are to abide by the 

lawful commands of police, particularly in a very 

dangerous setting for the community. You did just the 

opposite. 

************** 

You can tell me that it was motivated by your mother, your 

stepmom' s desire to have the cat saved, I understand all 

that, but it was a very dangerous situation and a real 

harmful result occurred to that man individually and to the 

community of McKeesport generally. You have obstructed 

the officers and others in their attempt to handle a very 

dangerous public situation and disorderly conduct. Well 

that seems to flow from that. 

I know that you didn't mean it that way. I believe you 

when you say that. I believe that you didn't mean to hurt 

this officer, but you were going to do what you were going 

to do regardless of the orders that you got from the law 

enforcement officer in a very chaotic, dangerous situation 

just like you had done in the· past with the fleeing and 

eluding and ignoring the demands of the officer and you are 

40 some years old now. You are not a kid. 

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