J

- A29031

- 17

*Retired Senior Judge assigned to the Superior Court. NON
- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

BRANDON MENLEY ,

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PE NNSYLVANIA

No. 340 EDA 2017
Appeal from the Judgment of Sentence August 25, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP

- 51

- CR

- 0014148

- 2014

BEFORE: LAZARUS, PLATT , and STRASSBURGER,* JJ.

MEMORAND UM BY STRASSBURGER, J.: FILED DECEMBER 29 , 2017
Brandon Menley (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to, rape, robbery, aggravated assault, burglary,
possessing instruments of a crime, unlawful restraint, and false

imprisonment. We affirm.

The charges herein stemmed from an incident that occurred on October 4, 2014, during which [Appellant] entered an art school and approached X.R. the victim herein, and subdued her by striking her in the head several times with a hammer and strangling he r. [Appellant] then forced the victim to engage in sexual intercourse after which he robbed the victim of $650.00 in cash before leaving the school. The victim suffered a serious head injury requiring that her wound be stapled shut as well as mental heal th therapy.

The incident was captured on a video surveillance system and police soon apprehended [Appellant] , who, at first, denied responsibility for the attack. However, upon being confrontedJ

- A29031

- 17

- 2

-

with the video recording of the attack, he soon confessed th at he assaulted the victim but indicated that he had no memory of having raped her. During their investigation, police also recovered a hammer and sales receipts from two stores from a storage locker [Appellant rented [] on October 6, 2014, along with $24 5.00 from [Appellant’s] person.
Trial Court Opinion, 3/23/2017, at 2.
On March 15, 2016, Appellant entered an open guilty plea to the
aforementioned crimes. On August 25, 2016, the trial court imposed an
aggregate sentence of 30 to 60 years’ incarcerat ion followed by 15 years’

probation. 1 Appellant timely filed a motion to modify sentence, which was

denied by operation of law. Appellant thereafter filed a timely notice of

appeal. 2

Appellant raises the following issues for this Court’s consideration.

[1 .] At sentencing, a 30 year

- old [Appellant] presented the [trial] court with mitigating evidence including his mental illness and brain injury, his history of homelessness and substance abuse, his lack of violent history, his repeated expressions of
re morse, his confession, and acceptance of responsibility. Did the sentencing court fail to adequately consider all these mitigating factors w h en it sentenced him to an aggregate sentence of 30 [to] 60 years of incarceration?

[ 2 .] Did the sentencing court fail to provide sufficient reasons for sentencing a mentally ill, first

- time offender, with no history of violence to a 30 [to] 60 year sentence that was outside the guidelines?

1 An assessment performed subsequent to Appellant’s guilty plea revealed that Appellant was not a sex ually violent predator (“SVP”) pursuant to 42 Pa.C.S. § 9799.24.

2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.J

- A29031

- 17

- 3

-

Appellant’s Brief at 3 ( trial court answers omitted).
Appellant’s questions challenge the discretionary aspects of his
sentence. Accordingly, we bear in mind the following.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects o f his [or her] sentence must invoke this Court’s jurisdiction by satisfying a four

- part test:

We 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 pro perly 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 no t appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).
Here, Appellant filed a timely post

- sentence motion and a notice of

appeal, and included a statement p ursuant to Rule 2119(f) in his brief. We
now turn to consider whether Appellant has presented substantial questions

for our review.

The determination of what constitutes a substantial question must be

evaluated on a case

- by

- case basis. Commonwealth v. Pa ul , 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the SentencingJ

- A29031

- 17

- 4

-

Code; or (2) contra ry to the fundamental norms which underlie the
sentencing process.” Griffin , 65 A.3d at 935 (citation and quotation marks

omitted).
Upon review, we find Appellant’s first issue, alleging the sentencing

court failed to “properly consider all mitigating fa ctors” does not raise a

substantial question. Appellant’s Brief at 17

- 18. See Commonwealth v.

Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his Court has held on
numerous occasions that a claim of inadequate consideration of mitigating

factors does no t raise a substantial question for our review.”) (quoting

Commonwealth v. Downing , 990 A.2d 788, 794 (Pa. Super.

2010)) ; Commonwealth v. Zirkle , 107 A.3d 127, 133 (Pa. Super. 2014)
(“[W]e have held that a claim that a court did not weigh the factors as an

a ppellant wishes does not raise a substantial question.”)

. 3 , 4

3 In conclud ing as such, we nonetheless remain cognizant of the inconsistent categorization of an issue as one that does or does not raise a substantial question. Compare Disalvo and Zirkle with Commonwealth v. Buterbaugh , 91 A.3d 1247, 1266 (Pa. Super. 2014) (“[A]rg ument [] that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial question[.]” (citation omitted); Commonwealth v. Downing , 990 A.2d 788, 793 (Pa. Super. 2010) (Defendant’s claim “that the trial cour t failed to consider [his] rehabilitative needs and the protection of society in fashioning [his] sentence” raised a substantial question).

4 Even if Appellant raised a substantial question allowing this Court to entertain Appellant’s claim, he would stil l not be entitled to relief. Here, the sentencing court had the benefit of “sentencing memoranda” from Appellant and the Commonwealth, as well as “various pre

- sentence [investigation reports (PSI)].” Trial Court Opinion, 3/23/2017, at 3. See also N.T., Footnote Continued Next PageJ

- A29031

- 17

- 5

-

While Appellant’s issue concerning the court’s allegedly in adequate
consideration of the applicable mitigating factors does not raise a substantial
question, Appellant’s claim that the trial cour t erred by failing to set forth
sufficient reasons for sentencing him outside the guideline range does. See

Commonwealth v. Garcia

- Rivera , 983 A.2d 777, 780 (Pa. Super. 2009)
(“This [C]ourt has found that a claim the trial court failed to state its reason s
for deviating from the guidelines presents a substantial question for
review.”).
With respect to this claim, Appellant argues the trial court’ s statements

at sentencing and its written opinion “ show[] that the court did not rationally

and systematically analyze the guidelines but instead passionately departed
from the guidelines by misplacing its focus on the egregiousness of the

offenses ” without considering his “non

- violent, law

- abiding history and his
severe mental health characteristics.” Appellant’ s Brief at 30

- 31.

It is well

- settled that

(Footnote Continued)

_______________________ 8/25/2016, at 4 ( “ For the record, I’ ve reviewe d the Commonwealth’ s sentencing memo. I’ ve reviewed, in large part, the sections of t he defense’ s memorandum I think were pertinent. I’ ve reviewed the presentence investigation and I’ m ready to proceed

– and t he letters i n support of the [Appellant]. I’ m ready to proceed [with sentencing].”). “Where the sentencing court had the benefit of a [PSI], we can assume the sentencing court ‘was aware of relevant information regarding the defendant’s character and weig hed those considerations along with mitigating statutory factors.’” Commonwealth v. Griffin , 65 A.3d at 937 (quoting Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988)).J

- A29031

- 17

- 6

-

[w]hen a sentencing court makes the decision to deviate from the sentencing guidelines , it is especially important that the court consider all factors relevant to the determination of a proper sentence. This mean s that a sentencing court must give consideration not only to the nature of the crime, but also to the individual character and circumstances of the offender.

Commonwealth v. Eby , 784 A.2d 204, 207

– 08 (Pa. Super. 2001) (citation

and quotation marks omitt ed)

.
The trial court rejected Appell ant’s characterization of what the court
considered prior to imposing Appellant’s sentence.

Here, [Appellant] should be denied relief because a review of the transcript of th e sentencing hearing indicates that th[e tria l c ourt ] complied with the law in all respects. First , th [e trial
c ourt ] considered the recommended sentencing guidelines ranges. Th [e trial court] also reviewed both parties’ sentencing memoranda and various pre

- sentence reports prior to the sentencing h earing that set forth [Appellant’s] criminal history and biographical particulars, including his age and upbringing. Therefore, th[e trial c ourt ] was well aware of all information relevant to sentencing, including the Commonwealth’ s recommendation that th e circumstances herein required the imposition of a lengthy sentence.

The [trial court] also took into account the mitigating evidence presented by [Appellant] and weighed that against the facts and circumstances of the instant crime in deciding upon a
s entence, which is evidenced by the fact that the [trial c ourt ] did not impose consecutive sentences of incarceration on all of the crimes [Appellant] was convicted of committing, which the Commonwealth sought during the sentencing hearing.

With regard to the complaint that th[e trial c ourt ] failed to give adequate reasons for the sentence herein, which were outside the recommended sentencing guidelines rang es, the law provides that adequate reasons for deviating from the sentencin g guidelines are given whe n the sentencing court demonstrates on the record that it considered a defendant’s circumstances, prior criminal record, personal characteristics andJ

- A29031

- 17

- 7

-

rehabilitative potential and where the record indicates that the court had the benefit of a [PSI ].

Here, th[e trial court] complied with the law because it did set forth its reasons for the sentence after considering all of the reports and evidence presented to it, which indicated that the facts of the case, which were horrific because defendant stalked the v ictim and then ambushed her as she was beginning her work day. Clearly, while the remarks were terse, under the circumstances it is suggested that they were sufficient to satisfy the dictates of the law

. With regard to [Appellant’s] claim that the sentenc e imposed was disproportionate to the crimes he was convicted of committing, the facts show that [Appellant] stalked the victim and followed her into a school, beat the victim with a hammer, choked her, and then raped her causing her enormous physical, men tal, and emotional pain. Given these facts, [Appellant’s] claim that the sentences were disproportionate to the crimes committed is ris[i] ble. Consequently, th[e trial court] suggests that this claim lacks merit because it is the view of th [e trial court] that only a severe sentence would suffice to satisfy the factors of retribution, rehabilitation, and the safety of the public.

Finally, the [trial c] ourt did take into account [Appellant’s] rehabilitative needs during the sentencing hearing. The record
s hows that th[e trial court] directed that [Appellant] be housed at a state correctional facility that could provide mental health and drug treatment

. Trial Court Opinion, 3/23/17, at 3

- 5 (citations omitted).
Our review of the record confirms the foregoing

. Specifically, the trial

court s et forth the following prior to imposing Appellant’s sentence.
This is a horrific crime, terrifying crime. And I can appreciate the anguish of [Appellant’s] family. I reviewed all the medical

-- all the mental health rep orts that are available. Doctor O’ Brien indicates that [Appellant] was never diagnosed with a psychiatric illness, but, I think, certainly given his upbringing, he had certain mental health problems. The predator assessment board says he does not

-- withi n a reasonable degree of psychologica l certainty [Appellant] does not currently meet the criteria set forth for the classification of sexually violent offender. ThatJ

- A29031

- 17

- 8

-

being said, having watched the video, having reviewed the facts of the case, the action w as extremely deliberate. And the [trial c] ourt cannot allow this [Appellant] to go

-- not only unpunished, but to go with anything less than a strong sentence, given the crime

-- horrid crime that was committed in this matter.

* * *
I'm putting in the s entencing that I recommend that [he] be sentenced

-- sent to a state institution with mental health facilities, and possible facilities for

-- since he did have a drug problem, dual diagnostic

-- which conduct dual diagnostic evaluations. But it should be

-- state prison has capable mental health facilities.

N.T., 8/25/2016, at 61

- 62, 65

- 66

. 5

Additionally, as note d supra , the trial court (1) reviewed Appellant’s

PSI prior to sentencing, as well as a lengthy sentencing memorandum

submitted by Appellant , whi ch detailed the various mitigating factors he
sought to present ; and (2) heard from several individuals who made
statements on behalf of Appellant at sentencing. The trial court considered

this ample evidence offered by Appellant and was aware of Appellan t’s
mitigating factors and the applicable sentencing guidelines prior to the
imposition of Appellant’s sentencing. Nonetheless, for the reasons cited

supra , the trial court concluded that the imposition of a sentence above the

recommended guideline s was a pprop riate

. See Commonwealth v.
Mouzon, 828 A.2d 1126, 1128 ( Pa. Super. 2003) ( An “ appellate court must

5 The Commonwealth also set forth the guideline ranges on the record prior to the imp osition of A ppellant’s sentence. N.T., 8/25/2016, at 35

- 36. Thus, it is evident that the trial court was aware that the sentence imposed exceeded the recommended guideline ranges.J

- A29031

- 17

- 9

-

give great weight to the sentencing court’ s discretion, as he or she is in the
best position to measure factors such as the nature of the crime, the

de fendant ’ s character, and the defendant ’ s display of remorse, defiance, or

indifference .”).
In light of the foregoing, we find Appellant has presented no issue on
appeal which would convince us to disturb his judgment of sentence.
Judgment of sentence aff irmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12 /29/17