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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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.

MEMORANDUM 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 her. [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 health 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 confronted 
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with the video recording of the attack, he soon confessed that 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 $245.00 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’ incarceration 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 

remorse, his confession, and acceptance of responsibility. Did 

the sentencing court fail to adequately consider all these 

mitigating factors when 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 sexually 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.
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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 of 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 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.[] § 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 pursuant 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. Paul, 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 Sentencing 
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Code; or (2) contrary 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 factors” 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 not 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 

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

3,4

 

3

In concluding 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]rgument[] 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 court 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 still 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 Page
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While Appellant’s issue concerning the court’s allegedly inadequate

consideration of the applicable mitigating factors does not raise a substantial 

question, Appellant’s claim that the trial court 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 reasons 

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 reviewed the Commonwealth’s 

sentencing memo. I’ve reviewed, in large part, the sections of the defense’s 

memorandum I think were pertinent. I’ve reviewed the presentence

investigation and I’m ready to proceed – and the letters in 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 weighed 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)).
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[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 means 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 omitted).

The trial court rejected Appellant’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 the sentencing hearing indicates that th[e 

trial court] complied with the law in all respects. First, th[e trial 

court] 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 hearing that set forth [Appellant’s] criminal history 

and biographical particulars, including his age and upbringing. 

Therefore, th[e trial court] was well aware of all information 

relevant to sentencing, including the Commonwealth’s 

recommendation that the 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 

sentence, which is evidenced by the fact that the [trial court] 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 court] failed to 

give adequate reasons for the sentence herein, which were 

outside the recommended sentencing guidelines ranges, the law 

provides that adequate reasons for deviating from the 

sentencing guidelines are given when the sentencing court 

demonstrates on the record that it considered a defendant’s

circumstances, prior criminal record, personal characteristics and 
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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 victim 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 sentence 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, mental, 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 

shows 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 set 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 reports 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 -- within a reasonable degree of psychological 

certainty [Appellant] does not currently meet the criteria set 

forth for the classification of sexually violent offender. That 
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being said, having watched the video, having reviewed the facts 

of the case, the action was 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 sentencing 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 noted supra, the trial court (1) reviewed Appellant’s 

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

submitted by Appellant, which 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 Appellant’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 guidelines was appropriate. 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 imposition of Appellant’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. 
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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 

defendant’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 affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/17