J-S66016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AUMBREY LANEL BROWN

Appellant No. 2021 WDA 2014

Appeal from the Judgment of Sentence November 17, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0010361-2005

BEFORE: OLSON, STABILE, and STRASSBURGER,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2016

Appellant Aumbrey Lanel Brown appeals from the November 17, 2014 

judgment of sentence entered in the Court of Common Pleas of Allegheny 

County (“trial court”), following revocation of his probation. Upon review, 

we affirm. 

The facts and procedural history underlying this case are undisputed.1 

On January 9, 2007, the trial court sentenced Appellant at three separate 

dockets numbers. Specifically, at docket number 2005-10361,2 Appellant 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Unless another source is cited, the facts are taken from pages 2 and 3 of 

the trial court’s July 7, 2015 Pa.R.A.P. 1925(a) opinion. 

2 Appellant pled guilty at 2005-10361 to one count of delivery of cocaine 

related to his sale of 25.03 grams of cocaine to an undercover officer on May 

4, 2005.
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was sentenced to two to five years’ incarceration with a recommendation for 

boot camp followed by three years’ probation. At docket number 2005-

15297,3 Appellant received a concurrent sentence of two to nine months in 

prison; at docket number 2005-09459,4 he received a concurrent sentence 

of six to twelve months’ imprisonment. Appellant finished serving his state 

sentence on January 18, 2013, and began his probationary term of three 

years. 

On February 24, 2013, at docket number 2013-3267, Appellant was 

charged with carrying a firearm without a license, person not to possess a 

firearm and receiving stolen property. On May 15, 2014, Appellant pled 

guilty to all charges and was sentenced to 111⁄2 to 23 months’ imprisonment 

at 2013-3267. 

Because Appellant was on probation when he committed the crimes at 

2013-3267, a probation violation hearing was held on November 17, 2014. 

Following the hearing, the trial court revoked Appellant’s probation and 

sentenced him to 2 to 4 years’ imprisonment at 2005-10361. Appellant 

____________________________________________

3 At 2005-15297, Appellant pled guilty to one count of fleeing or eluding a 

police officer following a high-speed chase on August 4, 2005, which ended 

with Appellant striking a parked car and fleeing on foot before being 

apprehended.

4 At 2005-09459, Appellant pled guilty to possession with intent to deliver 

cocaine and possession of a small amount of marijuana. On March 26, 

2005, Appellant was stopped for a traffic violation and found in possession of 

6.898 grams of cocaine, 30 grams of marijuana, $2,405.00 in cash and two 

cell phones.
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timely filed a post-sentence motion, challenging the discretionary aspects of 

his new sentence. On December 8, 2014, the trial court denied the motion. 

Appellant timely appealed to this Court. At the trial court’s direction, 

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal, challenging only the discretionary aspects of his sentence. In 

response, the trial court issued a Rule 1925(a) opinion, rejecting Appellant’s 

assertion of error. 

On appeal, Appellant raises only a single issue for our review, namely:

In revoking [Appellant’s] probation and re-sentencing him to a 

sentence of total confinement of 2-4 years[’] state incarceration, 

whether the trial court abused its discretion when it failed to 

consider relevant and required sentencing criteria, including the 

protection of the public, the gravity of [Appellant’s] conduct, and 

the character, personal history, and rehabilitative needs of 

[Appellant], thereby violating 42 Pa.C.S.A. § 9721(b)[.]

Appellant’s Brief at 4. In essence, Appellant argues that the trial court 

abused its discretion in failing to consider mitigating evidence pertaining to 

his character, personal history, and rehabilitative needs in fashioning 

Appellant’s sentence. Specifically, Appellant contends that the trial court 

failed to take into consideration Appellant’s age, remorse, acceptance of 

responsibility for the crimes, ties to Pittsburgh, employment status, 

educational history, familial obligations, and treatment plans for mental

health and substance abuse. Id. at 14-15. 

When reviewing a challenge to the trial court’s discretion, our standard 

of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 
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absent a manifest abuse of discretion. An abuse of discretion is 

more than just an error in judgment and, on appeal, the trial 

court will not be found to have abused its discretion unless the 

record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) 

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002)), appeal denied, 64 A.3d 630 (Pa. 2013).

It is well-settled that “[t]he right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 

1220 (Pa. Super. 2011). Rather, where an appellant challenges the 

discretionary aspects of a sentence, an appellant’s appeal should be 

considered as a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in 

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

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 question that the 

sentence appealed from is not appropriate under the 

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

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-by-
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case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. 

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, Appellant has satisfied the first three requirements of the fourpart Moury test. Appellant filed a timely appeal to this Court, preserved the 

issue on appeal through his post-sentence motions, and included a Pa.R.A.P. 

2119(f) statement in his brief.5 We, therefore, must determine only if 

Appellant’s sentencing issue raises a substantial question.

We have found that a substantial question exists “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.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This 

Court does not accept bald assertions of sentencing errors. See 

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). 

When we examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists, “[o]ur 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.” 

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5 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary 

aspects of a sentence in a criminal matter shall set forth in his brief a 

concise statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) 

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)). 

A Rule 2119(f) statement is inadequate when it “contains incantations of 

statutory provisions and pronouncements of conclusions of law[.]” 

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation 

omitted).

Nonetheless, [t]his Court has held on numerous occasions that a claim 

of inadequate consideration of mitigating factors does not raise a substantial 

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900 (Pa. 

Super. 2013) (citations omitted); see also Commonwealth v. Berry, 785 

A.2d 994 (Pa. Super. 2001) (explaining allegation that sentencing court 

failed to consider certain mitigating factor generally does not raise a 

substantial question); see also Commonwealth v. Cruz-Centeno, 668 

A.2d 536, 545 (Pa. Super. 1995) (“[a]n allegation that a sentencing [judge] 

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

raise a substantial question that the sentence was inappropriate,”), appeal 

denied, 676 A.2d 1195 (Pa. 1996); see also Commonwealth v. Bershad, 

693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of substantial 

question where appellant argued the trial court failed to adequately consider 

mitigating factors and to impose an individualized sentence).

Here, as revealed by Appellant’s Rule 2119(f) statement, he argues 

only that the trial court failed to consider certain mitigating evidence in 

support of Appellant’s character, personal history, and rehabilitative needs, 
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when it fashioned the sentence. Appellant’s Brief at 12, 15. Thus, given the 

nature of his Rule 2119(f) statement, we cannot conclude he has raised a 

substantial question. See Disalvo, supra; Berry, supra; Cruz-Centeno, 

supra; Bershad, supra. We, therefore, deny Appellant’s petition for 

allowance of appeal. 

Even if Appellant had a raised a substantial question, he still would not 

have obtained relief because the trial court here had the benefit of a 

presentence investigation (“PSI”) report. “Where the sentencing [judge] 

had the benefit of a [PSI], we can assume the sentencing [judge] was aware 

of relevant information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors.” Moury, 992 

A.2d at 171; see also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. 

Super. 2005) (“Since the sentencing court had and considered a [PSI], this 

fact alone was adequate to support the sentence, and due to the court’s 

explicit reliance on that report, we are required to presume that the court 

properly weighed the mitigating factors present in the case.”).

Here, at sentencing the trial court explicitly stated:

In the present case[, Appellant’s] educational and employment 

background and his family circumstances were considered along 

with [his] repeated history of drug and gun related offenses. 

Since the imposition of the original sentence on cases that 

involved possession with intent to deliver, [Appellant] 

demonstrated a repeated willingness to commit crimes involving 

the “dangerous combination” of guns and drugs. In imposing 

the sentence of two to four years [sic] it was noted:

The problem I’ve got is I understand when you are in 

jail and you can’t get high and you can’t get drugs 

and they [get you] medicated, everyone is 

wonderful. Then [you] get out on the street, [you] 
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don’t take [the] medication and the next thing you 

know you’re selling drugs and you got a gun again. 

This has happened over and over again.

Trial Court’s Rule 1925(a) Opinion, 7/7/15, at 4 (record citation omitted). 

Accordingly, Appellant’s argument that the trial court failed to consider 

mitigating evidence would fail. See Moury, supra; Fowler, supra. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2016