J-S52012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

ROBERT WAYNE BROWN, :

:

Appellant : No. 2047 MDA 2016

Appeal from the Judgment of Sentence November 16, 2016

in the Court of Common Pleas of Cumberland County,

Criminal Division, No(s): CP-21-CR-0000029-2011; 

CP-21-CR-0003516-2010

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 23, 2017

Robert Wayne Brown (“Brown”) appeals from the judgment of 

sentence imposed following his conviction of 41 counts of various sexual 

offenses committed against his four minor step-grandchildren over the 

course of several years. We affirm. 

In its Opinion, the trial court set forth the relevant factual and 

procedural history, which we adopt for the purpose of this appeal. See Trial 

Court Opinion, 2/13/17, at 1-4 (unnumbered).

On appeal, Brown raises the following issue for our review: “Did the 

sentencing court abuse its discretion by failing to justify on the record the 

imposition of aggravated range and consecutive sentences?”1 Brief for 

Appellant at 6 (capitalization omitted).

 

1 The trial court sentenced Brown to an aggregate term of 40 to 120 years in 

prison. 
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Brown challenges the discretionary aspects of his sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 

170 (Pa. Super. 2010). 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, [see] 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, [see] 42 

Pa.C.S.A. § 9781(b). 

Moury, 992 A.2d at 170 (citation omitted).

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. Tuladziecki, 522 A.2d 17, 18 

(Pa. 1987); 42 Pa.C.S.A. § 9781(b); see also Commonwealth v. Yanoff,

690 A.2d 260, 267 (Pa. Super. 1997). 

In the instant case, Brown filed a timely Notice of Appeal, and included 

in his appellate brief a separate Rule 2119(f) Statement. However, our 

review of the record reflects that Brown failed to preserve his claim either at 

resentencing or in a timely post-sentence motion. See Commonwealth v. 

Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the 

discretionary aspects of sentence are generally waived if they are not raised 
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- 3 -

at the sentencing hearing or in a motion to modify the sentence imposed at 

that hearing). Thus, we are unable to address his issue on appeal.2 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2017

 

2 Even if Brown had preserved his issue for our review, we would have found 

that it lacked merit, given that the trial court, at the time of resentencing, 

had the benefit of a pre-sentence investigation report (“PSI”). See

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) 

(holding that, where a sentencing 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.”). Moreover, “[t]he sentencing judge can satisfy 

the requirement that reasons for imposing sentence be placed on the record 

by indicating that he or she has been informed by the [PSI]; thus properly 

considering and weighing all relevant factors.” Id. (citation omitted); see

also N.T., 11/15/16, at 3. 
/1-:JAt docket 3516-2010 the charges are: 2 counts-Involuntary Deviate Sexual Intercourse (F1 ). 

2 counts-Involuntary Deviate Sexual Intercourse with a Child (F1 ). 2 counts-Unlawful Contact with 

Minor (F1 ). 2 counts- Sexual Assault (F2), 2 counts-Indecent Assault (M1 ). 2 counts-Corruption of 

Minors (M1 ), and 2 counts Indecent Assault (M2). At docket 0029-2011 the charges are: 2 countsRape of a Child (F1 ); 2 counts-Involuntary Deviate Sexual Intercourse (F1 ). 2 counts-Involuntary 

Deviate Sexual Intercourse with a Child (F1 ), 2 counts-Aggravated Indecent Assault of a Child (F1 ). 

2 counts-Unlawful Contact with a Minor (F1 ). 1 count-Criminal Solicitation to IDSI with a Child (F1 ). 

2 counts-Criminal Solicitation to Incest (F2), 2 counts- Aggravated Indecent Assault (F2), 2 countsAggravated Indecent Assault (F2), 2 counts-Aggravated Indecent Assault (F2), 2 counts-Indecent 

Assault (M 1), 2 counts-Indecent Assault (M2), 2 counts-Corruption of Minors (M1 ), and 2 countsIndecent Assault (M2). 

2 Multiple extensions on appeal were granted to new counsel to allow full knowledge of the record. 

Correctional Institute. Defendant, through newly assigned counsel, filed an appeal on 

July 31, 2014, which was ultimately decided by the Superior Court in December 2015.2 

sentenced to an aggregate sentence of forty to one-hundred-twenty years in a State 

Sexually Violent Predator (SVP) and sentenced in April 2013. Defendant was 

sexual offenses committed upon his four minor step-grandchildren over the course of 

several years.1 Defendant was convicted on all counts in August 2012, found to be a 

Defendant was charged in December 2012 with forty-one counts of various 

PLACEY, C.P.J. - 13 February 2017 

PROCEDURAL HISTORY 

ROBERT WAYNE BROWN 

CP-21-CR-3516-2010 

CP-21-CR-0029-2011 

IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a) 

~~orfenhh <I"'""" * -·,~Ilia 

(ountp of ltumbtrlanb 

IN THE COURT OF COMMON PLEAS 

OF THE NINTH JUDICIAL DISTRICT 

v. 

COMMONWEAL TH 

Circulated 08/10/2017 11:55 AM
,4- 2 

3 The verdict slips for each count where age was a factor in sentencing were specifically presented 

to the jury for them to make findings of fact that would be applicable at sentencing. The trial court's 

use of the verdict slip for findings of fact at sentencing did not prospectively cure the improper 

sentence. As cited by the Superior Court, the case of Commonwealth v. Wolfe 106 A.3rd. 800, 806 

(2016) makes it clear that the "proof at sentence" provision contained in 42 Pa.C.S. §9718 is not 

separable from the section's other provision in the entire statute is facially void. 

4 Order of Court 15 November 2016. 

5 Order of Court 4 April 2013 page 24. It is noted now the aggregate sentence intended should have 

40 to 120 years, which reflects one ten year mandatory minimum sentence with 

a full maximum term for each victim." 

2. The April. 4, 2013 Sentence specifically provided. the "aggregate sentence is for 

sentences.4 

Order of April 4, 2013 to reflect the sentences imposed were not mandatory 

1. At the November 2016 re-sentencing, the trial court amended the Sentencing 

FACTS FROM SENTENCINGS 

guidelines. This Opinion is in support of the sentences imposed. 

on the record for imposing a sentence above the aggregated range of the sentencing 

alleged the trial court abused its discretion at sentencing by failing to state any reasons 

of appeal in August 2016. Defendant was re-sentenced on November 15, 2016. 

Thereafter, counsel filed an appeal of the new sentence on December 14, 2016, which 

appealed the matter to the Supreme Court of Pennsylvania, which denied the allowance 

The remand from the Superior Court was stayed while the Commonwealth 

mandatory minimum sentences must be submitted to the jury" and must be found 

beyond a reasonable doubt. Id. at 2162. 

3 

v United States,_ U.S._, 133 S.Ct. 2151 (2013), held that "facts that increase the 

issue on appeal, specifically that the United States Supreme Court's decision in Alleyne 

Our Superior Court's independent review of the trial record found a clearly meritorious 

CP-21-CR-3516-2010 

CP-21-CR-0029-2011 
,4-3 

been 40-160 years. 

6 Note of testimony April 4, 2012 (sic], SVP at sentencing proceedings, at page 32 Line 17 thru page 

33 Line 10. 

provided indicated a prior record score of zero (0), but the trial court's review of 

9. It was noted at the April 2013 sentencing that the guidelines and report 

Involuntary Sexual Intercourse with a Child. 

8. At docket CR-3516-2010, the counts that had mandatory sentences associated 

With them are Count 1, Involuntary Deviate Sexual Intercourse and Count 2, 

lhtercourse: Count 3, Involuntary Deviate Sexual Intercourse with a Child; 

I 

I 

Count 4, Aggravated Indecent Assault of a Child; and Count 9, Aggravated 

1hdecent Assault. 

! 

with them are Count 1, Rape of a Child; Count 2, Involuntary Deviate Sexual 

7. At docket CR-0029-2011, the counts that had mandatory sentences associated 

indicating that they had lied on the witness stand at the preliminary hearing and 

again at trial." 

6. Defendant, at sentencing, cast aspersions on the victims and their families 

5. At sentencing the impact on the victims was presented in the victim impact 

statements both orally and in writing. 

Court 23 September 2014 (President Judge Kevin A. Hess). 

seriousness of the individual sentences. 

I . 

4. The sentencing amendment was done pursuant to established County 

I 

I 

precedent, see Commonwealth v. Hippensteel, CR-2715-2013, Order of 

the full extent of the harm caused by the Defendant, thereby depreciating the 

3. In each sentence it was specifically stated that any lesser sentence would 

minimize the damage done to one or more of the victims and would not reflect 

CP-21-CR-3516-2010 

CP-21-CR-0029-2011 
6 It is noted that the prior record score could be higher; however, because the presentence investigation 

did not note the equivalent grade of the charge in Pennsylvania by default, a point would be given for 

the felony charge and a point for the sum of the two misdemeanor charges. 

9 205 Pa.Icade Section 303.16. 

I 

j 

7 Id at page 12 Line 14 through 19 

(Pa. 198~). 

I We emphatically reject, therefore, interpretations of our law in this area 

wHich call for separate, written opinions embodying exegetical thought. Where 

pre-sentence reports exist, we shall continue to presume that the sentencing 

judge was aware of relevant information regarding the defendant's character and 

weighed those considerations along with mitigating statutory factors. A presentence report constitutes the record and speaks for itself. In order to dispel 

the rehabilitative needs of the defendant." Commonwealth v. Devers, 546 A.2d 12, 13 

choices are consistent with the protection of the public, the gravity of the offense, and 

sentencing alternatives· and the range of permissible confinements, provided the 

Statement of Law: Courts have "broad discretion to choose a penalty from 

12. The gross aggregate sentence for all the charges to which Defendant was 

fbund guilty by the jury is 309 years to 618 years. 

I ... 

DISCUSSION 

statutory limit (SL), for each of these six (6) counts, which is two-hundred and 

forty (240) months.9 

fourteen (14) and the standard range sentencing matrix for an OGS of 14 is the 

Involuntary Deviate Sexual Intercourse with a Child (4 counts total) is a 

10. At a minimum, these historical crimes would reflect a prior record· score of two 

(~) for purposes of guidelines.8 

I 

11. The offense gravity score (OGS) for Rape of a Child (2 counts total) and 

the report and sentencing guidelines indicated that there are applicable 

historically old convictions for burglary, theft and embezzlement." 

CP-21-CR-3516-2010 

CP-21-CR-0029-2011 
A- s 

9721. 

vacating the sentence or resentence and resentencing the defendant." 42 Pa.C.S. § 

from the guidelines to the commission .... Failure to comply shall be grounds for 

provide a contemporaneous written statement of the reason or reasons for the deviation 

' 

guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall 

Id. 

I 

"In: every case where the court imposes a sentence or resentence outside the 

(1) the sentencing court purported to sentence within the sentencing guidelines 

but applied the guidelines erroneously; 

(2) the sentencing court sentenced within the sentencing guidelines but the case 

involves circumstances where the application of the guidelines would be 

clearly unreasonable; or 

(3) the sentencing court sentenced outside the sentencing guidelines and the 

sentence is unreasonable. 

Pa.C.S. § 9781(c). 

sets forth the requirements of review for whether a sentence is "unreasonable." 42 

Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). The Sentencing Code 

which defendants are to be sentenced. 42-Pa.C.S. § 9701 et seq. The guidelines must 

be considered and a court must explain its reasons for departure from them. 

Through the Sentencing Code, the General Assembly has enacted a process by 

Id. 546 A.2d at 18. 

any lingering doubt as to our intention of engaging in an effort of legal 

purification, we state clearly that sentencers are under no compulsion to employ 

checklists or any extended or systematic definitions of their punishment 

procedure. Having been fully informed by the pre-sentence report, the 

sentencing court's discretion should not be disturbed. This is particularly true, we 

repeat, in those circumstances where it can be demonstrated that the judge had 

any degree of awareness of the sentencing considerations, and there we will 

presume also that the weighing process took place in a meaningful fashion. 

CP-21-CR-3516-2010 

CP-21-CR-0029-2011 
11- 6 

10 Defendant's terminal medical condition, which makes this sentence, indeed any sentence, a life 

sentence, Is not grounds for the modification of the statutorily mandated and correct sentence. When 

Defendant's medical condition actually reaches a terminal state he may then apply for a temporary 

deferral of the service of this sentence as provided for by statute 42 Pa.C.S. §9777. Motion to Modify 

Sentence, Order of Court 14 June 2013. 

11 It is again noted that the correct maximum calculation should have been 160 years, not the stated 

120 years. 

for each victim was at an OGS of 14 that would allow the standard guideline range to go 

minimize the damage done to one or more of the victims that would not reflect the full 

extent of the harm caused by the Defendant.11 This is a top count sentence, where the 

Defendant was sentenced consecutively at the top count for each victim to 1 O to 40 

years, with the other 37 counts imposed concurrently to that top count. The top count 

victim to be run consecutively, which recognized that any lesser sentence would 

sentence, calls for one ten year minimum sentence with a full maximum term for each 

The initial sentence, with the mandatory language removed by the amended 

not in step with established Cumberland County precedent. 

totality of the circumstances vision of the trial court, the imposition of a completely 

applicable higher sentence would be punitive upon this type of procedural remand and 

maximum possible sentence of 309 years to 618 years would seem draconian. In the 

160 years, which is within the standard guideline range. Everywhere but Texas, a 

sentence of 240 months to 480 months for each victim or an aggregate total of 80 to 

standard guideline range for the six OGS 14 counts, and which would now result in a 

requested by the Commonwealth no longer restricts the court to a lower end of the 

sentence is and always was within the sentencing guidelines. In Defendant's myopic 

perspective this is a death sentence.10 In view of Alleyne, the mandatory sentence 

Application of Law to Facts: Perspective is necessary to comprehend that this 

CP-21-CR-3516-2010 

CP-21-CR-0029-2011 
Distribution List: 

Charles J. Volkert, Jr. 

Chief Deputy District Attorney 

Linda S. Hollinger 

First-Assistant Public Defender 

I 

I 

sentences are lawful and reasonable. 

within th~ standard guideline ranges and no justification statement is required. The 

I 

beyond t~e mandatory prior sentence, as the sentences, then and now, were clearly 

' 

not call for the trial court to act in reprisal; indeed, it is proper not to go above and 

Unshackled from the mandatory sentence statute, this case upon remand does 

innocence and trust from these four child victims. 

sentences. There is no need to go into a critical analysis of how Defendant took the 

• .. 

victims and the harm to which Defendant continued to enact upon them directly in the 

the deficiency of the prior convictions. Further, the trial court noted the impact on the 

' . 

guidelines as demonstrated by the trial court's correction of the pre-sentence report for 

justification for the aggregate sentence that would apply to any consideration that the 

i . sentencewas outside of the guidelines. Specifically, the trial court had reviewed the 

the sentencing guidelines, the concise language of both sentences contained 

To the extent that the trial court needs to explain its reasons for departure from 

the trial court is necessary as there is no departure from the guidelines. 

up to 240 months, for which 120 months is clearly within and no further explanation from 

'CP-21-CR-3516-2010 

CP-21-CR-0029-2011