Com. v. Diggs, M.

• Court: Superior Court of Pennsylvania
• Decided: May 21, 2020
• Docket: 3478 EDA 2018
• Status: Unpublished

Opinion

J-S07040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MALIK DIGGS, : : Appellant : No. 3478 EDA 2018

Appeal from the Judgment of Sentence Entered September 2, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006905-2013

BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: Filed: May 21, 2020

Malik Diggs (Appellant) appeals nunc pro tunc from the judgment of

sentence of four to eight years of incarceration, followed by two years of

probation, imposed following his convictions for robbery, theft by unlawful

taking, receiving stolen property, and terroristic threats. We affirm.

The trial court provided the following background. On May 10, 2013,

Appellant entered the TD Bank in Center City, Philadelphia. When Appellant

was invited to the teller station, he slid a folded piece of paper to the teller,

on which he had written “this is a stickup, KEEP quiet, give me the $20’s

$50’s $100’s IN your drawer. Be quiet, and I won’t shoot, now.”

Commonwealth’s Exhibit 10. The bank teller complied, handing money and

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* Retired Senior Judge assigned to the Superior Court. J-S07040-20

a dye pack1 to Appellant. N.T., 6/25/2015, at 48. After Appellant left, the

teller closed her station. While attempting to inform her supervisor, she

vomited. The supervisor called the police. Id. at 51.

While on duty at [a retail store], and shortly after the incident[,] Police Officer Gallagher spotted [] Appellant walking down the street. He noted that Appellant had a red dye stain on his exposed undershirt, and a “sulfur-like burning smell” as he walked past the door. The officer called out to and simultaneously approached [] Appellant. When confronted, Appellant blurted out, “You got me. I just robbed the bank up the street.” Appellant was subsequently arrested, searched, and found with some of the red[-]dye[-]stained stolen money.

The bank teller was brought to the scene and positively identified [] Appellant as the robber. [] Appellant was arrested and transported to the police station for an interview. In the interview, [] Appellant waived his Miranda[2] rights and again voluntarily admitted to committing robbery.

Trial Court Opinion, 8/2/2019, at 2-3 (citations omitted).

As a result, Appellant was charged with the aforementioned crimes

and proceeded to a jury trial, where the stated facts were developed. At the

conclusion of the trial, the jury convicted Appellant of one count each of

robbery, as a felony of the second degree, theft by unlawful taking, receiving

stolen property, and terroristic threats. The jury was hung as to the charge

1A dye pack is a theft-prevention measure used by banks that is intended to explode when it leaves the bank, causing stolen money to be permanently marked with dye.

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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of robbery, as a felony of the first degree, and a mistrial was declared as to

that charge.

On September 2, 2015, the trial court sentenced Appellant to an

aggregate term of four to eight years of incarceration, followed by two years

of probation. On September 11, 2015, Appellant timely filed a post-

sentence motion. That motion was denied by operation of law on January

25, 2016. On February 24, 2016, Appellant timely filed a notice of appeal.

The trial court entered an order, directing Appellant to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b). No statement was filed. On January 10, 2017, the trial court

entered an order stating that Appellant’s failure to file a concise statement

constituted waiver of all issues on appeal. Trial Court Opinion, 1/10/2017,

at 2-3. On April 6, 2017, this Court dismissed Appellant’s appeal after his

counsel failed to file a brief. On May 8, 2017, Appellant’s counsel filed an

untimely motion to reconsider with this Court, which was denied. On April

12, 2018, Appellant filed pro se a petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking reinstatement of his

direct appeal rights. The PCRA court appointed different counsel, who filed

an amended PCRA petition. On November 20, 2018, the PCRA court granted

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Appellant’s petition, reinstating his right to file a direct appeal. This timely-

filed appeal followed.3

On appeal, Appellant challenges the discretionary aspects of his

sentence. Appellant’s Brief at 3. Specifically, Appellant alleges the trial

court abused its discretion by: 1) relying on factors already accounted for in

Appellant’s offense gravity score; 2) failing to state sufficient reasons on the

record for imposing a sentence outside the sentencing guidelines; and 3)

failing to consider his rehabilitative needs. Id. at 10-17.

We must first determine whether Appellant has invoked this Court’s

jurisdiction to review the merits of this claim.

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:

(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).

3Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

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Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019)

(quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super.

2014)).

Appellant timely filed his notice of appeal, timely filed a post-sentence

motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Appellant’s

first claim in his Pa.R.A.P. 2119(f) statement is that the trial court relied

improperly upon the nature of the offense, despite the offensive gravity

score already accounting for the same. Appellant’s Brief at 10. However,

Appellant did not present this argument in his post-sentence motion or

otherwise argue this point at sentencing. Because Appellant failed to

preserve properly the claim that the trial court erred by relying on a factor

already accounted for in his offense gravity score at sentencing or in his

post-sentence motion, Appellant has failed to invoke our jurisdiction as to

this discretionary-aspects-of-sentencing claim. See Commonwealth v.

Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (holding that this Court cannot

review a discretionary aspects of sentencing claim on appeal that is based

upon a legal argument that differs from that presented to the trial court).

Consequently, we cannot reach the merits of this claim. DiClaudio, 210

A.3d at 1075

Conversely, Appellant’s second claim, that the trial court failed to state

sufficient reasons for his sentence outside of the sentencing guidelines was

preserved in his post-sentence motion. Thus, we must consider whether it

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raises a substantial question. 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 Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.”

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

and quotation marks omitted). Such a claim raises a substantial question.

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 presented a substantial question for

review.”). Thus, we review the merits of Appellant’s claim.

In the instant case, the sentencing guidelines for robbery, as a felony

of the second degree, were 18 to 24 months in the standard range, and 24

to 30 months in the aggravated range. See 204 Pa. Code. § 303. Appellant

was sentenced at that count to 48 to 96 months of incarceration, which was

above the aggravated range of the guidelines. “In every case where the

court imposes a sentence ... outside the guidelines ... the court shall provide

a contemporaneous written statement of the reason or reasons for the

deviation from the guidelines.” 42 Pa.C.S. § 9721(b). “[T]his requirement

is satisfied when the judge states his reasons for the sentence on the record

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and in the defendant’s presence.” Commonwealth v. Antidormi, 84 A.3d

736, 760 (Pa. Super. 2014) (citations omitted).

In the argument section of his brief, Appellant abandons this claim.

Instead, he argues that the trial court’s statement of reasons was insufficient

because the trial court should have focused on the manner in which the

Appellant committed the robbery and his choice of target. Appellant’s Brief

at 14.4 Appellant implies that those considerations would have served as a

basis for a lesser sentence than he received. According to Appellant, his

demand note was “an assurance that he would not commit violence against

[the bank teller], and at worst” was “a conditional threat.” Id. Further, he

chose “a target that [wa]s insured; confronted an individual who [wa]s

trained for [a robbery],” “[r]ather than accost[ing] someone in a completely

vulnerable position – for example, coming upon an individual who is alone

on the streets at night.” Id. at 15.

Appellant’s argument is nothing more than a request for this Court to

reweigh the sentencing factors differently than the trial court. This we

cannot do. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (citation omitted) (“An abuse of discretion may not be found merely

4 Appellant titled this portion of the argument section of his brief “Improper Factors.” Appellant’s Brief at 13. Insofar as Appellant argues that the trial court relied on improper factors, as noted above, we cannot reach the merits of that claim because he failed to preserve it properly at sentencing or in a post-sentence motion.

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because an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.”).

Moreover, at sentencing, the trial court offered sufficient, valid reasons

for imposing the sentences it did. The trial court considered the victim’s

statement and her reaction to the situation, the location that the robbery

took place, which was described as “a location that, unlike many locations in

the city, does not have bulletproof protective glass,” and Appellant’s prior

conviction for robbery for attempting to rob a bank, a crime for which he

was on probation when he committed this offense. N.T., 9/2/2018, at 25-

27. Moreover, in imposing an aggravated-range sentence, the trial court

explained that it was

[b]ased upon the testimony of the complaining witness, the fact that there was direct contact with the complaining witness, there was no bulletproof or protective barrier, the physical effect on the complaining witness. Additionally, the fact that this defendant was on probation for an F1 robbery at the time of the incident.

Id. at 31.

Because the trial court provided reasons for its imposition of an

aggravated-range sentence on the record and in Appellant’s presence, the

trial court did not abuse its discretion when it sentenced Appellant above the

sentencing guidelines. Accordingly, we do not agree that the trial court

failed to state sufficient reasons for Appellant’s sentence on the record.

Regarding Appellant’s claim that the trial court failed to consider his

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rehabilitative needs, Appellant preserved the issue in his post-sentence

motion, but failed to include this claim in his Pa.R.A.P. 2119(f) statement.

Despite Appellant’s failure to include this claim in his statement, the

Commonwealth did not object to its absence. See Commonwealth v.

Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (“If an appellant fails to

comply with Pa.R.A.P. 2119(f) and the Commonwealth does not object, the

reviewing Court may overlook the omission if the presence or absence of a

substantial question can easily be determined from the appellant's brief.”).

Nevertheless, a claim that the sentencing court failed to consider a

defendant’s rehabilitative needs does not raise a substantial question.

Griffin, 65 A.3d at 936.

Even if Appellant had raised a substantial question, this claim is belied

by the record. Appellant claims “[t]he trial court improperly failed to

consider [Appellant’s] ample rehabilitative needs in fashioning its sentence,

relying instead solely on the severity of the offense and Appellant’s prior

robbery, omitting a crucial part of the sentencing considerations in

[subs]ection 9721(b).” Appellant’s Brief at 17. We consider this issue

mindful of the following.

When imposing [a] sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation.

Antidormi, 84 A.3d at 761.

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The trial court had the benefit of a pre-sentence investigation (PSI)

report, Appellant’s prior record score, sentencing guidelines, Appellant’s

allocution, and statements from Appellant’s counsel on his behalf.

Additionally, the trial court specifically referred to and considered Appellant’s

mental health. See N.T., 9/2/2015, at 5-13, 15-27, 30-31. “[W]here the

sentencing judge had the benefit of a [PSI] report, it will be presumed that

he or she was aware of the relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super.

2016). Thus, we conclude that, even if Appellant had raised a substantial

question for review, Appellant has failed to demonstrate 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” in imposing Appellant’s sentence. Commonwealth v. Johnson,

125 A.3d 822, 826 (Pa. Super. 2015) (quoting Commonwealth v. Disalvo,

70 A.3d 900, 903 (Pa. Super. 2013)).

For the foregoing reasons, Appellant’s issues warrant no relief. We

therefore affirm his judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/21/20

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