J-S32003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID BRISBON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3053 EDA 2023

Appeal from the Judgment of Sentence Entered July 8, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0004020-2021

BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.

MEMORANDUM BY LAZARUS, P.J.: FILED SEPTEMBER 25, 2024

David Brisbon appeals, nunc pro tunc,

1

from the judgment of sentence, 

entered in the Court of Common Pleas of Philadelphia County, following his 

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1 We note that Brisbon’s trial counsel failed to file a timely notice of appeal. 

However, Brisbon filed a timely petition pursuant to the Post Conviction Relief 

Act (PCRA), see 42 Pa.C.S.A. §§ 9541-56, which ultimately resulted in the 

reinstatement of his direct appeal rights, nunc pro tunc. Brisbon filed his nunc 

pro tunc notice of appeal on November 22, 2023, the same day that his rights 

were reinstated.

Additionally, we observe that Brisbon, in his nunc pro tunc notice of appeal, 

purports to appeal from the PCRA order reinstating his appellate rights. 

However, his nunc pro tunc appeal properly lies from the judgment of sentence 

dated July 8, 2022. See Pa.R.A.P. 902 (“Failure of an appellant to take any 

step other than the timely filing of a notice of appeal does not affect the 

validity of the appeal[.]”); see also Commonwealth v. Jones, 227 A.3d 402 

(Pa. Super. 2020) (Table) (noting that “this Court regularly amends captions 

to reflect the properly-appealed-from orders when parties designate incorrect 

orders in their notices of appeal” and amending caption where appellant filed 

nunc pro tunc appeal from PCRA order reinstating appellate rights rather than 

judgment of sentence); Pa.R.A.P. 126(b) (non-precedential decisions of this 

(Footnote Continued Next Page)
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convictions of one count each of aggravated assault,2 possession of instrument 

of crime (PIC),3 criminal mischief,4 simple assault,5 and recklessly 

endangering another person.6 After careful review, we affirm.

On April 10, 2021, at approximately 4:00 p.m., Brisbon arrived at 12th

Street and West Olney Avenue in Philadelphia, where he saw his aunt, Rhonda 

Gibson, sitting in the driver’s seat of her vehicle. Brisbon, armed with a brick, 

threw the brick at the front windshield of Gibson’s vehicle twice. Gibson exited 

her vehicle to escape, but Brisbon pushed her to the ground and repeatedly 

punched her in the head with closed fists.

As a result of the attack, Gibson suffered a split lip, multiple cuts on her 

head, and a lost tooth. Gibson received multiple stitches to her lip and four 

staples to her head wounds. The injuries to Gibson’s mouth also required 

cosmetic surgery to repair. Additionally, the brick shattered her vehicle’s front 

windshield.

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Court filed after May 1, 2019, may be cited for persuasive value). We have 

corrected the caption accordingly.

2 18 Pa.C.S.A. § 2702(a)(1).

3 Id. at § 907(a).

4 Id. at § 3304(a)(5).

5 Id. at § 2701(a).

6 Id. at § 2705.
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On April 10, 2021, Brisbon was arrested and charged with the abovementioned crimes. On May 2, 2022, Brisbon entered into an open guilty plea, 

after which the trial court deferred sentencing and ordered the preparation of 

a pre-sentence investigation report (PSI) and a mental health evaluation. 

On July 8, 2022, the trial court conducted a sentencing hearing, at which 

the Commonwealth recommended a sentence of 111⁄2 to 23 months’

incarceration, and the defense requested house arrest. The trial court, after 

listening to testimony and considering the PSI and mental health evaluation, 

disagreed with the parties’ requested sentences and sentenced Brisbon to 2 

to 4 years’ incarceration for his aggravated assault conviction and a 

consecutive 2 years of probation for his PIC conviction. The trial court 

imposed no further penalty on the remaining convictions. On July 18, 2022, 

Brisbon filed a timely post-sentence motion for reconsideration of sentence, 

which the trial court denied on October 2, 2022. Brisbon failed to file a timely 

notice of appeal.

As indicated supra, after the court reinstated his appellate rights nunc 

pro tunc, Brisbon filed a nunc pro tunc notice of appeal and a court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 

Brisbon now raises the following claim for our review: “The sentence received 

by [Brisbon] was so extreme as to be an abuse of discretion and warrants a 

re-sentencing hearing.” Brief for Appellant, at 6.

In his sole claim on appeal, Brisbon argues that the trial court abused 

its discretion in sentencing him to 2 to 4 years’ incarceration followed by 2
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years of probation. See Brief for Appellant, at 8-14. Brisbon’s claim 

challenges the discretionary aspects of his sentence, from which there is no 

automatic right to appeal. See Commonwealth v. Austin, 66 A.3d 798, 

807-08 (Pa. Super. 2013). Rather, 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. Yanoff, 690 A.2d 

260, 267 (Pa. Super. 1997). 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, 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation 

marks and some citations omitted).

Here, Brisbon has filed a timely notice of appeal, a post-sentence 

motion, and properly included a Rule 2119(f) statement in his brief. 

Additionally, we conclude that Brisbon has raised a substantial question for 

our review.7 See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. 

Super. 2015) (excessive sentence claim combined with claim court failed to 

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7 Brisbon argues, in his Rule 2119(f) statement, that the trial court failed to 

consider: he was under the influence of drugs at the time of the offense; he 

had no prior violent history; he has two children that he provides for; and the 

testimony of his character witness, Domenique Oliphant. See Brief for 

Appellant, at 11-13.
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consider mitigating factors raises substantial question); see also 

Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011) (finding 

substantial question where appellant argued trial court focused on seriousness 

of offense and did not consider rehabilitative needs). Accordingly, we review 

the discretionary aspects of Brisbon’s sentence.

We adhere to the following standard of review:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias, or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Carr, 262 A.3d 561, 568 (Pa. Super. 2021) (citation 

omitted).

A sentencing judge has broad discretion in determining a reasonable 

penalty, and appellate courts afford the sentencing court great deference, as 

it is the sentencing court that is in the best position to “view the defendant’s 

character, displays of remorse, defiance[,] or indifference, and the overall 

effect and nature of the crime.” Commonwealth v. Walls, 926 A.2d 957, 

961 (Pa. 2007) (citation omitted). When imposing a sentence, the sentencing 

court must consider “the protection of the public, the gravity of the offense as 

it relates to the impact on the life of the victim and on the community, and 

the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[A] court 

is required to consider the particular circumstances of the offense and the 
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character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. 

Super. 2002). In particular, the sentencing court should refer to the 

defendant’s prior criminal record, his age, personal characteristics, and his 

potential for rehabilitation. Id. Further, “where the trial 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.” Commonwealth v. Ventura, 975 

A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted).

At the sentencing hearing, the trial court placed the following reasons 

on the record:

You sit before me today and you are apologizing in court for what 

happened . . . not for what you did. On May 2nd, the case was 

ready to proceed to trial, and you entered into this [guilty] plea. 

. . . We are here today for sentencing . . . on a plea to the facts 

in which you pled and agreed.

I have heard testimony today to those [facts] and the injuries 

suffered. You were thoroughly advised at the plea. 

In your allocution, you indicate, “I want to apologize to my aunt 

for what happened. Tensions were high.”

[Tha]t’s not an apology for what you did. This is a woman in her 

mid-50s who was injured, who was beaten—she is tiny—by a man 

who is over 6 feet. The PSI indicates that you are 266 pounds. 

She is, at best, a fraction of your size . . . and almost twice your 

age. . . . She and I are about the same size. I’m 107 pounds.

And the facts read into the record indicate that you threw a brick, 

two times, into her windshield, and I see the picture where the 

windshield is completely smashed out, and it[’]s into the driver’s 

side window, and she gets out of that car, and then she is pushed 

to the ground by you[.]
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I understand the Commonwealth’s recommendation, as well as 

[the] defense[’s request] for house arrest. I do not feel that this 

is sufficient. In fashioning the defendant’s sentence . . . I have 

taken into account the need to protect the public, the gravity of 

this offense as it relates to the impact on the life of the victim. 

She is a 55-year-old woman[.] [S]he is tiny [and] frail. I certainly 

take into consideration her size in comparison to that of the 

defendant, a 6’1” 266-pound male. I also take into consideration 

[that this is] a crime of domestic violence.

Though you have no prior record score, I still take into 

consideration your rehabilitative need[s], because this level of 

anger doesn’t come out of the blue. I am considering the 

sentencing guidelines. The standard range in this sentence can 

be anywhere from a minimum of three years . . . to 54 months, 

plus or minus an additional 12 months, which is up to [five-]and[-

one]-half years, or as low as 2 years.

I have reviewed the [PSI and] the mental health report, which 

indicate[] there are no mental health issues. I considered the 

testimony of the . . . victim, . . . the testimony of your friend, [] 

Oliphant, who has known you for 17 years, and the arguments of 

counsel.

With all that into consideration, the gravity of the offense weighs 

heavily. I’m sentencing you to 2 to 4 years[’] incarceration on the 

aggravated assault. It is still a guideline sentence. I’m sentencing 

you to 2 years[’] consecutive reporting probation on the [PIC]. 

N.T. Sentencing Hearing, 7/8/22, at 22-25.

Upon review of the foregoing, we discern no abuse of discretion where 

the trial court had the benefit of a PSI and properly weighed all the sentencing 

factors set forth in section 9721. See Ventura, supra; see also 

Commonwealth v. Gonzalez-Dejesus, 994 A.2d 595, 599 (Pa. Super. 

2010) (this Court will not disturb consecutive sentences unless aggregate 

sentence is “grossly disparate” to defendant’s conduct); Commonwealth v. 

Radecki, 180 A.3d 441, 470 (Pa. Super. 2018) (sentencing courts afforded 
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broad discretion in imposing sentences concurrently or consecutively). 

Accordingly, we afford Brisbon no relief.

Judgment of sentence affirmed. 

Date: 9/25/2024