J-S30019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MILASHIA L. POWELL : : Appellant : No. 2968 EDA 2022
Appeal from the Judgment of Sentence Entered September 8, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006065-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 25, 2023
Milashia L. Powell appeals from the judgment of sentence, entered in
the Court of Common Pleas of Philadelphia County, following her convictions,
in a non-jury trial, of voluntary manslaughter,1 possessing an instrument of
crime (PIC),2 and tampering with evidence.3 Upon review, we affirm.
On July 11, 2019, Powell entered the apartment of her on-again-off-
again partner, Jeremy Gunn. Powell and Gunn began their relationship in
2013 and, in 2016, they had a child together. Powell gained entry to the
apartment, located at 950 East Woodlawn Street in Philadelphia, via a window.
Gunn was not home at the time, but returned home a short time later with
the couple’s young son. Upon Gunn’s return, an argument ensued regarding ____________________________________________
1 18 Pa.C.S.A. § 2503.
2 18 Pa.C.S.A. § 907.
3 18 Pa.C.S.A. § 4910. J-S30019-23
why Powell was present in the apartment. The argument turned physical,
and, eventually, Powell grabbed a knife from a table outside of Gunn’s
bedroom. Powell stabbed Gunn twice, once in the chest and once in the face.
Gunn ran out of the apartment and told Powell to call 911. Powell did not call
911 but, instead, followed Gunn out of the apartment before returning to the
apartment for their son.
After a neighbor called 911, police responded to the scene and found
Gunn face down on the sidewalk. Gunn was unresponsive and appeared to
be going in and out of consciousness. The responding officers placed Gunn in
their patrol car and drove him to Albert Einstein Medical Center. Gunn was
pronounced dead later that day.
When police arrived at the scene, Powell was no longer in the apartment,
but she was quickly located down the street with the couple’s son. Police
observed blood on Powell’s chest, arms, hands, and feet. Police took the child
from Powell, placed Powell in handcuffs, and put her in their patrol vehicle.
At the crime scene, police followed a blood trail from the sidewalk where
Gunn was found to Gunn’s second floor apartment. Police discovered the
home in disarray and with traces of blood throughout it. In addition, police
found the knife used to stab Gunn in an alleyway across the street from the
apartment.
Initially, Powell told police that she was not injured, that Gunn had not
been physical with her, that another woman had stabbed Gunn, and that she
had not been involved in the stabbing. However, at trial, Powell testified that,
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in fact, Gunn had been physical with her, that no other woman had been
involved in the incident, and that she had been the one who stabbed Gunn.
Following a three-day trial, the Honorable Diana L. Anhalt found Powell
guilty of the above-stated offenses. The trial court ordered a pre-sentence
investigation report (PSI) and mental health evaluation prior to sentencing.
On September 8, 2022, the court sentenced Powell to four to ten years’
imprisonment for voluntary manslaughter, and a concurrent term of one to
two years’ imprisonment for PIC. No further penalty was imposed for the
tampering charge. Powell was also ordered to pay restitution in the form of
funeral costs.
On September 19, 2022,4 Powell filed a post-sentence motion arguing,
inter alia, that her sentence for the manslaughter conviction was excessive
and unreasonable and that the trial court failed to consider mitigating factors
and impose an individualized sentence. The trial court denied the motion on
September 21, 2022. Powell filed a timely notice of appeal and court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Powell raises the following issue for our review:
Did not the sentencing court violate the requirements of 42 Pa.C.S.[A.] § 9721(b) of the Sentencing Code[,] which states that ____________________________________________
4 The 10th day to file a timely post-sentence motion was September 18, 2022,
a Sunday, and accordingly, Powell had until September 19, 2022, to file a timely post-sentence motion. See 1 Pa.C.S.A. § 1908 (“[w]henever the last day of any such time period shall fall on a Saturday or Sunday . . . such day shall be omitted from the computation.”); Pa.R.Cim.P. 720(A)(1) (requiring “written post-sentence motion shall be filed no later than 10 days after imposition of sentence”).
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the sentence imposed should call for confinement that is consistent with 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, as the lower court seemed to exclusively focus on [Powell’s] criminal conduct rather than her rehabilitative needs, mitigating circumstances[,] or mental health status?
Appellant’s Brief, at 4.
Powell’s claim represents a challenge to the discretionary aspects of her
sentence. Such a claim is not appealable as of right; rather, a defendant’s
appeal is considered a petition for permission to appeal. Commonwealth v.
Williams, 562 A.2d 1385, 1386-87 (Pa. Super. 1989) (en banc). Before this
Court can address such a discretionary challenge, an appellant must invoke
this Court’s jurisdiction by: (1) filing a timely notice of appeal; (2) properly
preserving the issue at sentencing or in a motion to reconsider and modify
sentence; (3) including in his brief a concise statement of reasons relied upon
for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa.
Super. 2015). See also Pa.R.A.P. 902, 903; Pa.R.Crim.P. 720. The existence
of a substantial question must be determined on a case-by-case basis.
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995).
Here, Powell filed a post-sentence motion for reconsideration of
sentence, followed by a timely notice of appeal. Additionally, Powell has
included in her brief a statement of reasons for allowance of appeal from
discretionary aspects of sentence, pursuant to Rule 2119(f). See Appellant’s
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Brief, at 11-14. Therefore, we must now determine whether Powell has raised
a substantial question for review.
In her Rule 2119(f) statement, Powell asserts that the “lower court’s
aggregate sentence of 4–10 years[’] incarceration violates many norms of the
Sentencing Code, and is unreasonable.” Id. at 11. More specifically, Powell
states that the trial court’s sentence fails to consider Powell’s “rehabilitative
needs and is disproportionate to the circumstances when adjudged as a
whole.” Id. at 13.
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J-S30019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MILASHIA L. POWELL : : Appellant : No. 2968 EDA 2022
Appeal from the Judgment of Sentence Entered September 8, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006065-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 25, 2023
Milashia L. Powell appeals from the judgment of sentence, entered in
the Court of Common Pleas of Philadelphia County, following her convictions,
in a non-jury trial, of voluntary manslaughter,1 possessing an instrument of
crime (PIC),2 and tampering with evidence.3 Upon review, we affirm.
On July 11, 2019, Powell entered the apartment of her on-again-off-
again partner, Jeremy Gunn. Powell and Gunn began their relationship in
2013 and, in 2016, they had a child together. Powell gained entry to the
apartment, located at 950 East Woodlawn Street in Philadelphia, via a window.
Gunn was not home at the time, but returned home a short time later with
the couple’s young son. Upon Gunn’s return, an argument ensued regarding ____________________________________________
1 18 Pa.C.S.A. § 2503.
2 18 Pa.C.S.A. § 907.
3 18 Pa.C.S.A. § 4910. J-S30019-23
why Powell was present in the apartment. The argument turned physical,
and, eventually, Powell grabbed a knife from a table outside of Gunn’s
bedroom. Powell stabbed Gunn twice, once in the chest and once in the face.
Gunn ran out of the apartment and told Powell to call 911. Powell did not call
911 but, instead, followed Gunn out of the apartment before returning to the
apartment for their son.
After a neighbor called 911, police responded to the scene and found
Gunn face down on the sidewalk. Gunn was unresponsive and appeared to
be going in and out of consciousness. The responding officers placed Gunn in
their patrol car and drove him to Albert Einstein Medical Center. Gunn was
pronounced dead later that day.
When police arrived at the scene, Powell was no longer in the apartment,
but she was quickly located down the street with the couple’s son. Police
observed blood on Powell’s chest, arms, hands, and feet. Police took the child
from Powell, placed Powell in handcuffs, and put her in their patrol vehicle.
At the crime scene, police followed a blood trail from the sidewalk where
Gunn was found to Gunn’s second floor apartment. Police discovered the
home in disarray and with traces of blood throughout it. In addition, police
found the knife used to stab Gunn in an alleyway across the street from the
apartment.
Initially, Powell told police that she was not injured, that Gunn had not
been physical with her, that another woman had stabbed Gunn, and that she
had not been involved in the stabbing. However, at trial, Powell testified that,
-2- J-S30019-23
in fact, Gunn had been physical with her, that no other woman had been
involved in the incident, and that she had been the one who stabbed Gunn.
Following a three-day trial, the Honorable Diana L. Anhalt found Powell
guilty of the above-stated offenses. The trial court ordered a pre-sentence
investigation report (PSI) and mental health evaluation prior to sentencing.
On September 8, 2022, the court sentenced Powell to four to ten years’
imprisonment for voluntary manslaughter, and a concurrent term of one to
two years’ imprisonment for PIC. No further penalty was imposed for the
tampering charge. Powell was also ordered to pay restitution in the form of
funeral costs.
On September 19, 2022,4 Powell filed a post-sentence motion arguing,
inter alia, that her sentence for the manslaughter conviction was excessive
and unreasonable and that the trial court failed to consider mitigating factors
and impose an individualized sentence. The trial court denied the motion on
September 21, 2022. Powell filed a timely notice of appeal and court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Powell raises the following issue for our review:
Did not the sentencing court violate the requirements of 42 Pa.C.S.[A.] § 9721(b) of the Sentencing Code[,] which states that ____________________________________________
4 The 10th day to file a timely post-sentence motion was September 18, 2022,
a Sunday, and accordingly, Powell had until September 19, 2022, to file a timely post-sentence motion. See 1 Pa.C.S.A. § 1908 (“[w]henever the last day of any such time period shall fall on a Saturday or Sunday . . . such day shall be omitted from the computation.”); Pa.R.Cim.P. 720(A)(1) (requiring “written post-sentence motion shall be filed no later than 10 days after imposition of sentence”).
-3- J-S30019-23
the sentence imposed should call for confinement that is consistent with 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, as the lower court seemed to exclusively focus on [Powell’s] criminal conduct rather than her rehabilitative needs, mitigating circumstances[,] or mental health status?
Appellant’s Brief, at 4.
Powell’s claim represents a challenge to the discretionary aspects of her
sentence. Such a claim is not appealable as of right; rather, a defendant’s
appeal is considered a petition for permission to appeal. Commonwealth v.
Williams, 562 A.2d 1385, 1386-87 (Pa. Super. 1989) (en banc). Before this
Court can address such a discretionary challenge, an appellant must invoke
this Court’s jurisdiction by: (1) filing a timely notice of appeal; (2) properly
preserving the issue at sentencing or in a motion to reconsider and modify
sentence; (3) including in his brief a concise statement of reasons relied upon
for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa.
Super. 2015). See also Pa.R.A.P. 902, 903; Pa.R.Crim.P. 720. The existence
of a substantial question must be determined on a case-by-case basis.
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995).
Here, Powell filed a post-sentence motion for reconsideration of
sentence, followed by a timely notice of appeal. Additionally, Powell has
included in her brief a statement of reasons for allowance of appeal from
discretionary aspects of sentence, pursuant to Rule 2119(f). See Appellant’s
-4- J-S30019-23
Brief, at 11-14. Therefore, we must now determine whether Powell has raised
a substantial question for review.
In her Rule 2119(f) statement, Powell asserts that the “lower court’s
aggregate sentence of 4–10 years[’] incarceration violates many norms of the
Sentencing Code, and is unreasonable.” Id. at 11. More specifically, Powell
states that the trial court’s sentence fails to consider Powell’s “rehabilitative
needs and is disproportionate to the circumstances when adjudged as a
whole.” Id. at 13.
This Court has held that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.5 Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014), citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.
Super. 2005). Accordingly, we will consider the merits of Powell’s claim.
Our standard of review of the discretionary aspects of a sentence is as
follows:
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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, 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.
____________________________________________
5 We note that this Court has held that asingular claim that the trial court failed to consider mitigating circumstances does not raise a substantial question for review. See Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013).
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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Pursuant to the Pennsylvania Sentencing Code, an appellate court must
vacate a sentence if the trial court erroneously applied the Sentencing
Guidelines, if the circumstances of the case would cause the application of the
guidelines to be clearly unreasonable, or if the court sentenced outside the
guidelines in an unreasonable manner. See 42 Pa.C.S.A. § 9781(c). In
reviewing the record on appeal from a discretionary aspect of sentence claim,
we consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Id. at § 9781(d).
Instantly, Powell was sentenced to 48 to 120 months’ imprisonment for
manslaughter. Given the applicable offense gravity score and Powell’s prior
record score, a standard-range sentence is a minimum of 36 months to 54
months, plus or minus 12 months for an aggravated or mitigated sentence,
respectively. See 204 Pa. Code § 303.16. Thus, Powell’s sentence was within
the standard-range of the Sentencing Guidelines. See 204 Pa. Code §
303.9(e).
At the sentencing hearing, Judge Anhalt had access to a PSI, mental
health report, and mitigation report. When a sentencing court has the benefit
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of a PSI, we “presume that the court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with any mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839,
842 (Pa. Super. 2014). See also Commonwealth v. Moury, 992 A.2d 162,
171 (Pa. Super. 2010). Here, a review of the sentencing transcript reveals
that the trial court heard argument concerning Powell’s mitigating
circumstances, history of mental illness, lack of a prior record, and history of
domestic violence with the victim, Gunn. See N.T. Sentencing Hearing,
9/8/22, at 15-20. Moreover, before issuing her sentence, Judge Anhalt stated
the following additional considerations: the relationship between Powell and
Gunn, including Powell’s reasonable fear at the time of the incident, Powell’s
history of mental health issues, and Powell’s need for mental health treatment.
Id. at 38-39. However, the trial court also considered the significant impact
and trauma that the stabbing had on the couple’s son, who was present when
Powell fatally wounded Gunn. Further, the court considered that Powell would
remain a danger without mental health treatment, that such treatment could
not be done within the community, that Powell did not accept responsibility,
and that Powell did not show remorse for her actions. Id. at 39.
In light of the foregoing, we cannot conclude that the sentence is clearly
unreasonable or that the sentencing court failed to consider Powell’s
mitigating circumstances. Accordingly, we find no abuse of discretion. See
Shugars, 895 A.2d at 1275.
Judgment of sentence affirmed.
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Date: October 25, 2023
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