Com. v. Miller, T.

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2024
• Docket: 739 MDA 2023
• Status: Unpublished

Opinion

J-S43022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TROY MICHAEL MILLER : : Appellant : No. 739 MDA 2023

Appeal from the Judgment of Sentence Entered April 3, 2023 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003639-2022

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: FEBRUARY 21, 2024

Appellant, Troy Michael Miller, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following his open guilty

plea to stalking.1 We affirm.

The relevant facts and procedural history of this case are as follows. On

February 8, 2023, Appellant entered an open guilty plea to stalking Tara

Rissmiller (“Victim”). On April 3, 2023, the trial court conducted a sentencing

hearing. Victim submitted a victim impact statement for the court’s

consideration. In the statement, Victim relayed that she has been dealing

with Appellant’s unwanted presence in her life for five years. Victim described

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §2709.1(a)(1). J-S43022-23

how she constantly feels the need to look over her shoulder and stay

hypervigilant out of fear that Appellant will appear. Victim stated that she

panics when she is in a place where she cannot easily leave because she is

afraid that Appellant will appear. Victim explained that her hands start to

shake, her heart beats fast, and she gets chest pains whenever she sees a

white car because she is afraid that Appellant is inside. Victim expressed

distress that her coworkers, friends and loved ones, including her daughter,

are afraid for her safety due to Appellant’s actions. Victim further stated that

Appellant has previously been convicted for violating protection from abuse

(“PFA”) orders she had in place. Nevertheless, Appellant was not deterred

from engaging in the same conduct because Appellant showed up at her

workplace the day after he was released from prison.

Appellant’s counsel informed the court that Appellant’s brother passed

away approximately seven months prior to Appellant’s criminal behavior.

Additionally, Appellant learned that his stage 4 prostate cancer was terminal.

Appellant’s counsel argued that the mental stress and anguish from these

circumstances led to the deterioration of Appellant’s mental health and

contributed to his actions against Victim. Appellant’s counsel reported that

Appellant has sought psychiatric help but the provider he initially consulted

did not accept Appellant’s insurance. Appellant was seeking a provider that

accepts his insurance to address his mental health concerns. Appellant also

addressed the court and stated that he was sorry for his actions. Appellant

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further affirmed that he would seek psychiatric help for his mental health

struggles.

At the conclusion of the hearing, the court sentenced Appellant to 8 to

23 months of incarceration followed by two years of probation. On April 12,

2023, Appellant timely filed a post-sentence motion, which the court denied

on April 18, 2023. Appellant timely filed a notice of appeal on May 17, 2023.

On May 25, 2023, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and Appellant complied

on June 14, 2023.

Appellant raises the following issue for our review:

In sentencing [Appellant] to a sentence of total confinement of 8 to 23 months in Berks County Jail System, followed by two years’ probation, whether the trial court abused its sentencing discretion where requirements of 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9725 were not met?

(Appellant’s Brief at 7).

Appellant argues that the court failed to consider mitigating factors such

as the death of Appellant’s brother, Appellant’s stage 4 cancer diagnosis, and

Appellant’s resulting mental health deterioration, prior to imposing his

sentence. Appellant asserts that the court’s excessive sentence for his non-

violent offense demonstrates that the court did not truly consider whether the

protection of the public or the gravity of the offense warranted such a harsh

sentence. Appellant further contends that the court did not properly weigh

Appellant’s rehabilitative potential because Appellant took responsibility for

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his actions, expressed remorse for the hurt he caused, and took steps to

address his mental health concerns. Appellant concludes that the court

imposed a manifestly excessive sentence without properly considering

mandatory sentencing criteria, such as Appellant’s character, personal history,

and rehabilitative needs, and this Court should vacate the judgment of

sentence. We disagree.

As presented, Appellant’s claim challenges the discretionary aspects of

sentencing. See Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),

appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court

focused solely on serious nature of crime without adequately considering

protection of public or defendant’s rehabilitative needs concerns court’s

sentencing discretion); Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.

2002) (stating claim that sentence is manifestly excessive challenges

discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,

668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (explaining claim that court did not consider mitigating factors

challenges discretionary aspects of sentencing).

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

appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174

L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of

sentencing issue:

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[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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).

When appealing the discretionary aspects of a sentence, an appellant

must invoke this Court’s jurisdiction by including in his brief a separate concise

statement demonstrating a substantial question as to the appropriateness of

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an

appellant separately set forth the reasons relied upon for allowance of appeal

furthers the purpose evident in the Sentencing Code as a whole of limiting any

challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.” Phillips, supra at 112

(emphasis in original) (internal quotation marks omitted).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). “A substantial question exists only when

the appellant advances a colorable argument that the sentencing judge’s

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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. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)

(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.

2011)).

“[A]n excessive sentence claim—in conjunction with an assertion that

the court failed to consider mitigating factors—raises a substantial question.”

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal

denied, 629 Pa. 636, 105 A.3d 736 (2014). See also Commonwealth v.

Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court

failed to consider factors set forth under Section 9721(b) and focused solely

on seriousness of defendant’s offense raised substantial question).

This Court reviews discretionary sentencing challenges based on the

following standard:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal 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, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

Pursuant to Section 9721(b), “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with

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the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Additionally, “a court is

required to consider the particular circumstances of the offense and the

character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984, 162 L.Ed.2d

902 (2005). “In particular, the court should refer to the defendant’s prior

criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id.

…Where the sentencing court had the benefit of a [pre- sentence investigation (“PSI”) report], 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. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court has benefit of PSI, law expects court was aware of relevant information regarding defendant’s character and weighed those considerations along with any mitigating factors). Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. See [Cruz- Centeno, supra] (stating combination of PSI and standard range sentence, absent more, cannot be considered excessive or unreasonable).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

Instantly, Appellant raised his sentencing issue in a timely post-

sentence motion, filed a timely notice of appeal, and included in his appellate

brief a Rule 2119(f) statement. Further, Appellant’s assertion that the

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sentence was manifestly excessive in conjunction with his claim that the court

failed to weigh his rehabilitative needs and/or consider mitigating factors

arguably raises a substantial question. See Raven, supra; Trimble, supra.

Thus, we proceed to address the merits of Appellant’s sentencing claims.

Here, the court had the benefit of a PSI report, defense counsel’s

arguments, and Appellant’s statements at sentencing. Under these

circumstances, we can presume the court was fully aware of and considered

mitigating factors such as the death of Appellant’s brother, Appellant’s cancer

diagnosis, and his mental health struggles. See Tirado, supra. Additionally,

the court imposed a sentence within the standard range. As such, we see no

merit to Appellant’s claim that the sentence was excessive. See Moury,

supra.

Additionally, the record makes clear the court considered the protection

of the public, the gravity of the offense, and Appellant’s rehabilitative needs.

In her victim impact statement, Victim indicated that Appellant has been an

unwanted presence in her life for an extended period. Although Appellant did

not physically harm Victim, her statement indicates that she suffered

significant emotional distress due to Appellant’s actions. Notwithstanding

Appellant’s expression of remorse at sentencing, Appellant had two prior

convictions for indirect criminal contempt for PFA violations involving Victim,

and Victim noted that the convictions did not deter Appellant from continuing

the same conduct. On this record, we see no reason to disrupt the court’s

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sentencing discretion. See McNabb, supra. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 02/21/2024

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