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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

- 2 -

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.
J. S31036/17

- 3 -

[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 
J. S31036/17

- 4 -

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 
J. S31036/17

- 5 -

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 
J. S31036/17

- 6 -

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 
J. S31036/17

- 7 -

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 
J. S31036/17

- 8 -

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