J. S17010/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

BRIAN CHRISTOPHER POPE, JR., :

:

Appellant : No. 589 WDA 2014

Appeal from the Judgment of Sentence March 21, 2014

In the Court of Common Pleas of Bedford County 

Criminal Division No(s).: CP-05-CR-0000101-2013

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

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 24, 2015

Appellant, Brian Christopher Pope, Jr., appeals from the judgment of 

sentence entered in the Bedford County Court of Common Pleas following a 

jury trial and his convictions for, inter alia, robbery,1conspiracy,2receiving 

stolen property,3 persons not to possess firearms,4theft,5terroristic 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3701(a)(1)(ii).

2 18 Pa.C.S. § 903(c).

3 18 Pa.C.S. § 3925(a).

4 18 Pa.C.S. § 6105(a)(1).

5 18 Pa.C.S. § 3921(a).
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threats,6and recklessly endangering another person.7 He challenges the 

discretionary aspects of his aggregate sentence of nineteen to forty-one 

years’ imprisonment. We affirm.

We adopt the facts and procedural history set forth in the trial court’s 

decision. See Trial Ct. Op., 8/25/14, at 1-4. Appellant filed, and the court 

denied, a timely post-sentence motion. Appellant timely appealed and also 

filed and served a Pa.R.A.P. 1925(b) statement that same day. Two days 

later, the court, in an apparent oversight, ordered Appellant to comply with 

Pa.R.A.P. 1925(b). 

Appellant raises the following issue:

Given the lower court’s cited justifications, did it commit 

an abuse of discretion in imposing consecutive, 

aggravated-range terms of imprisonment when sentencing 

[Appellant], thereby imposing an aggregate sentence too 

harsh relative to the underlying criminal conduct, and 

neglecting or failing to take adequate consideration of his 

rehabilitative needs?

Appellant’s Brief at 6. For his sole issue, Appellant contends the trial court 

failed to consider his character, placed undue emphasis on the seriousness 

of the offenses, and did not satisfy the sentencing factors. We hold 

Appellant is due no relief.

 This Court has stated that

 

6 18 Pa.C.S. § 2706(a)(1).

7 18 Pa.C.S. § 2705.
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[c]hallenges to the discretionary aspects of 

sentencing do not entitle an appellant to appellate 

review as of right. 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).

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 the sentence 

imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some 

citations and punctuation omitted).

[T]he Rule 2119(f) statement must specify where the 

sentence falls in relation to the sentencing guidelines and 

what particular provision of the Code is violated (e.g., the 

sentence is outside the guidelines and the court did not 

offer any reasons either on the record or in writing, or 

double-counted factors already considered). Similarly, the 

Rule 2119(f) statement must specify what fundamental 

norm the sentence violates and the manner in which it 

violates that norm . . . . 

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en 

banc). “Our inquiry must focus on the reasons for which the appeal is 

sought, in contrast to the facts underlying the appeal, which are necessary 

only to decide the appeal on the merits.” Id. 
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We are aware that generally, a challenge to the trial court’s discretion 

to impose its sentences concurrently or consecutively ordinarily does not 

raise a substantial question. Commonwealth v. Mastromarino, 2 A.3d 

581, 586-87 (Pa. Super. 2010).

In fact, this Court has recognized 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. That is in our view, the key to 

resolving the preliminary substantial question inquiry is 

whether the decision to sentence consecutively raises the 

aggregate sentence to, what appears upon its face to be, 

an excessive level in light of the criminal conduct at issue 

in the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.) (some 

punctuation and citations omitted), appeal denied, 77 A.3d 1258 (Pa. 2013).

Instantly, Appellant timely appealed, preserved his issue in his postsentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief. 

See Evans, 901 A.2d at 533. Appellant’s Rule 2119(f) statement 

substantially complies with Goggins. However, we point out that, generally, 

a challenge to the consecutive nature of a sentence does not raise a 

substantial question. See Commonwealth v. Dodge, 77 A.3d 1263, 1270 

(Pa. Super. 2013) (“To make it clear, a defendant may raise a substantial 

question where he receives consecutive sentences within the guideline 

ranges if the case involves circumstances where the application of the 

guidelines would be clearly unreasonable, resulting in an excessive 
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sentence; however, a bald claim of excessiveness due to the consecutive 

nature of a sentence will not raise a substantial question.” (citation 

omitted)); Mastromarino, supra. Here, Appellant has raised a substantial 

question to the extent he asserts that his aggregate sentence was contrary 

to the fundamental norms underlying the sentencing process. See 

Goggins, supra. Moreover, Appellant argues that while his sentences were 

within the guidelines, the consecutive nature of the sentences renders the 

aggregate term manifestly excessive. Appellant’s Brief at 11-12. 

Accordingly, we examine the merits.

Assuming that Appellant has presented a substantial question, after 

careful review of the record, the parties’ briefs, and the opinion of the 

Honorable Travis W. Livengood, we affirm on the basis of the trial court’s 

opinion. See Trial Ct. Op. at 6-10 (holding Appellant’s prior record, 

including armed robbery conviction four years ago, violating supervision 

twice, using firearm to rob during drug deal, and car chase on highway 

involving police, justified sentence). We therefore affirm the judgment of 

sentence. See Evans, 901 A.2d at 533-34.

Judgment of sentence affirmed.

Judge Shogan joins the memorandum. 

President Judge Gantman concurs in the result. 

Judgment Entered.
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Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2015
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. ,.-. ",.,.;,,--- -,,"~" ... -,. "'IN'" 'C'O" 0' 'C'OMM'ON PLEAS 'OP'BE"D''r.'O''RD';F''OU'· NTY ·PENNSYL'u 7I.NIA "".' ,', ."".,;"._.< ... :.' 'C',' " ,THE.URT" F ' ,.' , .' p." .. \.oJ"', . -' . w:n; " 

COMMONWEALTH OF PENNSYLVANIA, 

V. : . 

BRiAN C. POPE, , 

DEFENDANT 

P A.R~A.P.1925 OPINION 

, I. SUMMARY OF CASE 

No: 101 FOR 2013 

CRIMINAL DIVISION i,' 

Defendant was charged 1N-ith Robbery and numerous other offenses 

from an incident that occurred'on February 17, 2013. We held a jury trial 

. on January 27,2014 and the jury convicted Defendant of nearly every 

offense in the criminal information.! On March 21, 2014, we sentenced ;,--

Defendant to an aggregate sentence of 19· years to 41 years in a State Prison. 

!" - . . . ~ 

Defendant filed post-sentence Ipotions wruch we denied without a hearing, 

and Defendant now brings the instant appeal. 

II. ISSUES 

II(A). SUFFICIENCY OF THE EVIDENCE ,,,,, .~ '~:: 

1, Defendant was acquitted of two counts of Recklessly Endangering 

Another Person (counts 9 and 12). The COll1111onwealth withdrew count 7 

prior to the jury receiving the case for dellberation. 

1 

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.~, ".- ,..- .. - .' '1 

-'-',:" - '" 

',." ' suffiCient evidence. The standard for a chaHengetothe sufficiency of the 

. ~~ ,. "';' ..... v·.· ... -,"-' 

evideiTce'isWenSet1:n~d: ' •. I ,." " ,'I<""~ ~ "'- '" 

i ~I ., • [whether] viewing all the evidence at trial, as well as all 

:xeasonable inferences to b~ d~':l~~!h~refr()m, in the light m,ost 

; favorable to the Commonwealth, the jury could have foupd 

. that each element of the offense was proven beyond a .,' ~ , 

reasonable doubt. Both direct and circumstantial evidence can 

,;':be considered equally when assessing the sufficiency of , 

" evidence." 

Comtrzonwealth v. Woodruff, 668 A.2d 1158, 1159-60 (Pa.super. 1995). ~. { , ' .' 1 >- ~ 

,,-Defendant was convicted of Robbery, c=riminal Conspiracy, Receiving 

Stole,: Property, Unlawful Possession of Firearms, Theft by Unl~wful 

;~--

Taking,' Terroristic Threats and Recklessly Endangering Another Person. At ~-f" :' . . . 

l' ; . [' ~ 

the tr:,~al,Pefendant' s co-conspira~or, AShI~y Nail, testified that ~he and ," 

-'\':' 

t, 

Defe~danfarranged to buy marijua!1C1 from Jeremy Lantz, TylerJ3eckett, . ' 

--I-, _ 

and Mark Scott on February 17, 2013.· Nail testified that she andDefen~ant 

did n?t take money because they agreed to take the marijuana from the . 

dealers. Defendant and Nail met the drug dealers at a pre-arranged I, ' I, 

\1 " l! 

location. Nail testified that, after Defendant was handed the ma'rijuana,· 

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·'. r ....... '." and Scott; and told them he was taking the rimrijuana> Jeremy Lantz ~" 

"" ' " 

'" .... . their vehicle. Defendant then drove 'away with Nail and Lantz in the' , 

'. \ 

" " i 'vehicle,wifh Beckett and Scott chasi~g behind in another vehicle. Nail 

. testified that Defendant threw the firearm oufthewindow during this IT~ , ' ! . 

chase. Defendant's vehicle was even~allY'stopped by Pennsylvania State 

Troopers after they were contacted bYBeckett.· 1.:1

'., . 

Mark Scott testified that, after the exchange of the marijuana, 

Defendant went to the tnink of his c~,pulled out a handgun and ordered 

Becketfand Scott to exit Defendant's 'vehicle. Scotffestified that Defendant 

f ~.; .\ : 

.' pointed the firearm at all three of thelp(Scott, Lantz,Beckett) duri~g the' ~t ~ .' 

'. . ,: in'ddent.. Tyler Beckett's testimonyw~s:'very similar to' Scott's.' Beckett also 

, ) testified that he thought Defendant was goingito shoot and kill him when 

Defendant pointed the gun at him: 

::~ 

Pennsylvania State Trooper JeffiHetzel testified that he interviewed 

",:.' .. Jeremy bantz, who informed him. of th~location where Defendant had';,,' 

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;:.,:: .. ~:.': ,"'; . >thrownthe.l:tandgunJronlthe:vehide,during:.-thechase. 'Trooper HetzeL·c; .. ;' " 

"0' " . 

traveled,to:the area identified by Lantz, 'and Trooper Hetzel located al1d . 

DefendantJater admitted to the State Police that the firearm found was the , .' '.-, 

one he us~'d during the incident.. Trooper Griswold also testified tha~: '~' . 

. Defendant· admitted to grabbing a firearrhand telling Beckett he wasn't, . ',. 'r - ...• 

paying forl.the marijuana and to .. throwing the firearm from the vehicle.' . 

during the'chase. Defendant stipulated at trial that he was disqualif1ed. ;. 1< 

from pos~essing a firearm due to a prior Robbery conviction. 

Accepting the above recited testimony as true, and affording al~~ 

. favorable inferences tothe Commonwealth, we find that the jury had more 'x .~ 

than a sufhci(2nt basis to support its verdicts. Three eye witnesses tes~fied -' 

that Defendant conspired to steal marijuarifr 'with another person and\:that . 

he did so a:Lgunpoirtt, endangering three.'other.individuals.2 We therefore 

see no merit to Defendant's argument. 

, i..:;-

------i,~--

2 We do note; however, that the jury acquitted Defendant of one count" of 

. Terroristic ~fhreats and one count 'ofRecklessly Endangering Another 

Person, specifically regarding Jeremy Lantz as the alleged victim. .1' 

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L ;, 

I'·, 

~. ~ '1 , 

, 'O! I., '_. L.'_' ._. _-h.-',.,,' " '. •• '. L' _, ,_. • ". '>. '-~ - I,.' , II('B) WEIG' 'HT OF·THE 'E-V'ID' U'N'C' E;' '.;""" '.~ "".' , ..... " .. ,' '. -.' , . • . . . . . -t.. \. ·D •.. ' " ,j.' 'J < , ••• '., I~,_." "":. ,:, .~, ' 

. 'Defendant also argues that the jury' s v.erdicts are against the weight 

',~;,~' ~:0fthe'eyicience~ The'corl'siderations for a chctHengt~'t(~rfrre"~weight;of,the ... 

evidence is as follows: i .' 

"'~ ·,1(Anewtrial should not be granted because of am ere 'confliCtin 

the testimony or because the judge on the same facts would 

" ,have arrived at a different conclusiorr;·Ratheri ~th~ role of the , 

, trial judge is to determine that Unotwithstanding all the facts, 

certain facts are so clearly of 'greater Iweight that to ignore them 

or to give them equal weight with all the facts is to deny 

'. justice.'" It has often been stated that',a new trial should be 

. awarded when the jury's verdict is so contrary to the evidence 

.' as to shock one's sense of justice angthe award ofa new trial is •. 

imperative so that right may be given another opportunity to 

c prevail.'" 

I"" .", .. , Commonwealth v. Clay, 64 A.3d 1049, 105S:(Pa;2013}(dtationsomitted). ' 

, , 

:::r:'.-~·:.~··' ... 

... " 

. ·'·Defendant's argument is without merit: ,Three ~eyewitrress~S" 

. ' " ,. ' implicated -Defendant in the incident and D.efendant:even admitted to,' .' 

,I. committing several offenses.3 Admittedly,tdis.crepancies did exist between 

the witnesses, which was not unexpected given that all of primary 

. 3 Specifically, the Trooper testified that Def~ridantadmitted to using the ,,' . 

firearm and telling the drug dealers that he,was taking the marijuana. 

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,,_-"L •. --.t.' _,l.:,. 

... ,.... - __ _~ I 

. -.,-' 

wi tnesseswere ::partitipa ting.in a illegal~ drug~de'al.4·How.ever, : whatever: 

discrepancies appeared,wer.e minor:ir{seope;and,certainly do not rise to a:. '; 

II (C). SENTENCE ii:, , .' 

Defendant argues that we abuse-d'our·discretiun inimpo'sing, ~~ -.,.- ~ , , . ,_ i·· i' 

. --,. -.,.-

. ,sentence. Specifically, Defendant 'argues.that~we-.erredjnimposing an" 

aggravated range sentence under the sentencing guidelines. Given 

, : Defendanf s argument, we first note that we imposed an aggravated 'range;;'" 

. ,sentence only upon counts! and 2, beingthe Robbery and. Conspiracy to ,I:' 

Commit Robbery charges.s , Since Defendant's statement of matters' 

.,' complained ofoltappealcomplainonly ofthe.'aggraVated range sentence, ,;.[,' 

w:e will focus·our.attention to these two·.caunts., 

~ -;--;;.:- .' 1 '. 

1,·-." _. 

". .. , ' .. " 

4 Indeed, one witness, Jeremy Lapt~, relp-sed to t~stify at all, and wa? he~d -'" 

in contempt of court and sentenced to one year of incarceration. .'. 

S Our sentences liln the remaining offenses were within the standard range ,,', 

for the Deadly vVeapon Used sentencing guideline matrix. On counts 4, 13 \', 

and 14, we did ribt impose any sentence,due'to their merger with the< ,'1 " 

greater offenses.:'" ~, . 

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_.,' ,.:: .~ i: .:::··:~!v.:'.~:orderedtheBedford County Probation .Office tq>complete'aPre·:'sentence", 

I : - ' -to the sentencing hearing, we reviewed the Pre-tSentence Investigation:? . -

, . ,";. i_GiventhatJ3efendant had used a firearmin.the!dffeHSeS}weappliedthe· 

. [:"',. .:Deadly Weapon Used sentencing guideline matrix'!, On ,count 1" W~" .,i,.", 

~. ~ ;" t' . _, ,_ ,..:imposeda s.entence of 8 and 1/2 years to 20 years cincarcer·ation. Oncount . 

. ' ': ~ ~ . " ) ( . i. ,; _ "'. _ '. 

, : , 2jwe imposed a sentence oiS and 1/2 years to ~.l years incarceratioTI/- ,'" 

.,consecutiveto countl. 

Aswe'stated on the record at the sentencing hearing, we found an 

- 'I'~;,:I ,.aggravatedxange sentence tobeappropriate.pdmarilygiveh~bur:"concerns 

;', F.', \i~'··, iJorthe protection of the public due to Defendanes.:repeatedviolent~",;, 

,behaviorinsimilar offenses. Specifically, Defendant was convicted'of, - , 

6We have included the Pre-Sentence Investigatic;minthe record to be 

, transmitted for appellate review. . , 

, "'" - .. -' 

7 On count I, the guideline range was 78-90 months with the aggravated/ 

mitigated range of 12 months. On count 2, the gUideline range was 66 .. 78 

.J", .' months-with the aggravated / mitigated range, ofGr2m'onths. 'Defendant:did" 

not object to application of these ranges.' ' :,: ' 

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y ,,' ~,', 

",' .' .. -: ~ 

- \':-' 

,',' -'- -,' 

,'--,\' '-, 

, , ~ , , "hearing, we did not sentence-in the~aggtava:ted ~range' simply because " 

I ,: ~" were much more specific to Defendanfs priorcrimina1cQnduct; First, 

.. ' Defendant' sconviction: for Armed "Robbery':was relatively recent in time to 

theOinstant case, which was indicative to us of a high probabiHty' for. 

,...... ·.recidivism. ,Second, [)e£endanbhad violated his supervision on the prior 

, Armed Robbery case !two separatetimesi' serving incarceration: On' both. 

occasions-highly suggestive that Defendant would riot perform well on 

parole or probation. h1 addition, while Defendant engaged in highly 

~ danger.ous'activity thcit pJ'acedthfe'Erlndtviduals at,risk, Defendantalso' 

.' " I. J IT '-. 

• " ,l • : ~ ( , .," ,- -,' 

~ 1 ,_ ' 

;:;'/" 

8 Such a practice coulc~ihereversible error by increasing a sentence for a 

. reason that is alreadyfJtikeninto:accourttby.:Defendant's:priorrecord s core 

and the corresponding guidelines. '" " 

8 

. " 

> 

" . 

( f:~ 
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~:;:.). . • [, c,:: ,'. ~exacerbated~tlte danger •. to, theptiblk by::engaging in acatchas(?,a:ftef taking .. , ;.< . 

" ",a, person irttohisvehicle·atgunpoint,9 .. ', . i·- ~ '-'''i' • -', .' },! •• ", -, .'. "~-,, .j. : - ;;'.-:":"', " 

i, -. Defenclanfs'priorrecord score adequately reflects his criminal record.1o:, ! 

.! "'. 'Spedfi()a:U~-Deferidant's prior record score -does not takednto acc<Duht,i'· I.>. ' .. " 

'::-:\" ,misdemeanor drug possession in2008,;nor does it reHectthe:total effect a£.: ' , , 

i:.'.~; :his"conviction of Possession ·withthe Intent to Delive~,a,eontroned ' .; 

·:Substancein'2010.11 Finally; while'we,did'impose an ~ggravatedsentence '. 

on the two offenses which we believe. most endangered public safety, we 

. 9 While it became apparent during the trial that Jeremy Lantz may have 

been a willing participant in the robbery and being seized by Defendant, 

~\ . 

i', ,:.·the otherpatticipants in the incidenLwere'obviously tihawarebf!C1ny>stich" 

agreement between Defendant and Lantz. Therefore, any conspiracy 

.betweetrDefendant and Lantz is of little moment to u(s,\,vhere·Defertdant's-'· 

actions nonetheless set in motion an inherently dangerous car chase 

involving a firearm that endangered the public at large.:' . 

10 We calculated Defendant's prior record score as a 5, to which Defendant 

did not object. 

.11 To step through the calculation, Defendant's Armed){bbbery counts as a 

- .' 4 prior record score, and his Possession with the Intent to Deliver a 

:':.'. Controlled Substance as a 2 prior record score, for a combined total'of 6. 

i' !;.,\ .' :Even;withoutDefendant' s misdemeanor drug possessfon conviction"a; : 

.,.~: ,·.~priorrgcordscore oE5 does. not fullY'account forthe seiiousness·of:··'.· r' •..• ,. 

Defendant's prior criminal history.' , " 

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;; ; ,';"{~"",, """ ,,', \.did,.:;--tgi,L)efe1i.dant' S benefit~im:pose £iV;~;df the COlthts£ortturtent:!¥, toone, ' 

,,' ;"~'another}2',Based upon or review:qftheiPre:..:Sentenc~IriVestigationandour 

, ",,', ','Defendant's rehabilitative needs,webelieve"theaggravated sentenc,es 

'J', ,ii,,'" ,"": : "imposed were reasonable underthe'circulns&nces;~ 

IlL ORDEROE0oumT ... , 

,AND : NOW, this 20th:.daybfAugust/2014, theProthonotaty /Clerk of 

Courts:ofBedford County is:.hereby ordered:to~ transmit,therecordin~the 

. above-'captioned matter to the Proth0notaryof the Superior Court of ' , 

Pennsylvania in accordance with Pa.R.A;P.1931(c) . 

Counsel: 

. , .... '.,.'; 

,LIVENGOOD, J. 

For the Commonwealth: Williain Higgins, Jr., District Attorney , 

For the Defendant: Anthony Zanoni, Esquire ' 

12 Since sentences were only'imposedon :eight cbunts due to: merger, we. ' 

. ',' therefore imposed concurre:cttj standardr.ange sentences on over.~6:0%.· of the, 

counts. 

10