J-S27010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER MILLER :
:
Appellant : No. 963 EDA 2016
Appeal from the Judgment of Sentence November 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013822-2013
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2017
Appellant, Christopher Miller, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
open guilty plea of third degree murder and endangering the welfare of a
child.1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case as follows:
The decedent in this case was…Appellant’s 7-week-old
son…[(“Victim”)]. The cause of death was complications of
craniocerebral trauma. The manner of death was
homicide. …
____________________________________________
1
18 Pa.C.S.A. §§ 2502(c) and 4304(a)(1), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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On October 8, 2011, at approximately 10:30 a.m.,
[Victim’s] mother, April O’Conn[e]r, went to the home
that…Appellant shared with his family at 2008 South 17th
Street in Philadelphia. Appellant had been caring for
[Victim] since the day prior. Shortly after Ms. O’Conn[e]r
arrived, [Victim] became unresponsive. [Victim] was
taken to St. Agnes hospital then transferred to the
Children’s Hospital of Philadelphia (CHOP) because of the
severity of his injuries.
Dr. Philip Scribano spoke to…Appellant during the course of
[Victim’s] treatment. Appellant indicated that there were
other people in the home, but that he was the only person
who had physical contact and was providing any kind of
care to [Victim]. Dr. Scribano indicated that [Victim’s]
injuries were consistent with “inflicted injury.”
[Victim] was pronounced [dead] almost one-year-and-a-
half later on March 6, 2013. From the time of his
admission to CHOP until his death, [Victim] was “[I]n a
persistent vegetative state and was noted to be profoundly
unconscious; although, he did withdraw to painful stimuli.”
Dr. Ian Hood, a qualified expert in the field of forensic
pathology, stated, “[T]hat in his 30 years, he had never
seen an injury like this. After the imposition of the injury,
[Victim] required a tracheotomy. He never breathed
spontaneously.” [Victim’s] injuries included a branched
comminuted skull fracture, a lacerated liver with a loss of
blood, three broken right ribs, one broken left rib, bilateral
retinal hemorrhaging, and a partial cutting of the junction
of the spinal cord.
Dr. Hood described this as a severe deceleration and
impact event. In order to fracture several ribs, the ribcage
must be stabilized by wrapping one’s hands around them
and then pushing in an inch or more until the ribs snap.
[Dr. Hood] also determined that the injury to the spinal
cord would have been inflicted ten to twenty minutes
before [Victim] was taken to the hospital. [Dr. Hood] was
unable to determine whether the other injuries were
inflicted in a single episode or over the course of one hour
or more.
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Dr. Lucy Rorke, a qualified expert in the field of pediatric
neuropathology, analyzed [Victim’s] brain and what
remained of the brainstem and spinal cord. [Dr. Rorke’s]
description upon microscopic analysis was organized
subdural hematoma, a total description of the cerebrum,
severe brainstem and cerebellar necrosis or death, total
description of the cervical spinal cord, bilateral destruction
of retinal nerve fiber, and optic nerve degeneration.
* * *
On March 9, 2015, Appellant entered into an open guilty
plea, before the Honorable Rose Marie DeFino-Nastasi, to
Third Degree Murder, 18 Pa.C.S.[A.] § 2502(c), as a felony
of the first degree; and Endangering the Welfare of a Child
(EWOC), 18 Pa.C.S.[A.] § 4304, as a felony of the third
degree.
On November 13, 2015, Appellant was sentenced to fifteen
(15) to thirty (30) years for the third degree murder
conviction; and a consecutive seven (7) years’ probation
for the EWOC conviction.
On November 18, 2015, Appellant filed a motion for
reconsideration of sentence, which [the court] denied
without a hearing on January 11, 2016.
Counsel, Ronald Greenblatt, Esq., failed to file a timely
notice of appeal. [Counsel] subsequently filed a petition
pursuant to the Post Conviction Relief Act (PCRA),
requesting that Appellant’s appellate rights be reinstated
nunc pro tunc. The court granted the petition on February
22, 2016.
On March 9, 2016, Attorney Greenblatt filed a timely notice
of appeal [nunc pro tunc] and a motion to withdraw as
counsel. The court granted the motion. David Rudenstein,
Esq. was appointed by the Court Appointments Unit.
On May 31, 2016, Appellant filed a Rule 1925(b)
Statement of [Errors] Complained of on Appeal, pursuant
to an Order of the court, claiming that the sentence
imposed was unduly harsh and manifestly excessive.
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(Trial Court Opinion, filed June 28, 2016, at 1-3) (internal citation to record
omitted).2
Appellant raises one issue for our review:
WAS THE SENTENCING COURT’S SENTENCE A VIOLATION
OF DISCRETION WHERE THE COURT SENTENCED
[APPELLANT] TO 15 TO 30 YEARS OF INCARCERATION
WHERE [APPELLANT] HAD ZERO (0) PRIOR RECORD
SCORE AND HAD DEMONSTRATED REMORSE?
(Appellant’s Brief at 3).
Appellant argues the court focused primarily on the seriousness of the
crime when it sentenced Appellant. Appellant asserts the court failed to
consider certain mitigating factors when it sentenced Appellant. Appellant
specifically contends the court ignored Appellant’s troubled upbringing and
mental health issues. Appellant concludes the court’s failure to consider
these mitigating factors makes his sentence excessive, unreasonable, and
inconsistent with the norms of the Pennsylvania Sentencing Code, and we
should vacate and remand for resentencing. As presented, Appellant
challenges the discretionary aspects of his sentence.3 See Commonwealth
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2
Appellant’s Rule 1925(b) statement was technically untimely.
Nevertheless, the trial court had adequate opportunity and chose to prepare
an opinion addressing the issue(s) raised on appeal. See Commonwealth
v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en banc). Thus, our review is
unimpeded.
3
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
(Footnote Continued Next Page)
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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) (stating claim that sentencing
court failed to consider or did not adequately consider certain factors
implicates discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspects of sentencing issue:
[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). Objections to the discretionary
aspects of sentence are generally waived if they are not raised at the
_______________________
(Footnote Continued)
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.
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sentencing hearing or raised in a motion to modify the sentence imposed at
that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is 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.” Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),
cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 913. A claim that a sentence is
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manifestly excessive might raise a substantial question if the appellant’s
Rule 2119(f) statement sufficiently articulates the manner in which the
sentence imposed violates a specific provision of the Sentencing Code or the
norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d
at 627. Nevertheless, as a general rule, “[a]n allegation that a sentencing
court ‘failed to consider’ or ‘did not adequately consider’ certain factors does
not raise a substantial question that the sentence was inappropriate.” Cruz-
Centeno, supra at 545 (quoting Commonwealth v. Urrutia, 653 A.2d
706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873
(1995)). Moreover, where the sentencing court had the benefit of a PSI, the
law presumes the court was aware of and weighed relevant information
regarding a defendant’s character along with mitigating statutory factors.
Tirado, supra at 366 n.6.
Instantly, Appellant properly preserved his discretionary aspects of
sentencing claim in his post-sentence motion and Rule 2119(f) statement.
Appellant’s assertion that the court improperly ignored certain mitigating
factors, however, does not raise a substantial question under the facts of
this case. See Cruz-Centeno, supra. Moreover, the court had the benefit
of a PSI report. (See N.T. Sentencing Hearing, 11/13/15, at 49-50).
Therefore, we can presume the court considered the relevant information
and mitigating factors. See Tirado, supra. Finally, the record belies
Appellant’s contentions. The court remarked at sentencing:
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All right. The Court reviewed the pre-sentence and the
mental health, the sentencing memorandum from both
parties, listened very carefully, read the letters. There was
a letter given to the Court by [Appellant’s] mother, so I
have that, as well as his girlfriend, his father, a neighbor.
The Court reviewed all of that.
This is an extremely, extremely, extremely difficult case. I
think there is a lot of denial going on in this case. The
court knows a little bit about mental illness. Because one
is schizophrenic doesn’t necessarily mean they are violent
at all. So there is some mental illness but there is also a
level of violence that is frightening.
The incident when [Appellant] was about 16 really
forecasts violent behavior and it really gives the Court a lot
of information about what happened on that night.
Who burns a baby in the face? Who? It is unfathomable
and then once it happens, how do you not realize we got
the biggest, as a family, we have a huge problem here?
We have somebody who needs to be watched constantly,
somebody that cannot be around children, cannot be
around children and left alone and he wasn’t alone. That is
what is so frightening.
It is not like he completely decompensated, as
schizophrenics can do, and just was psychotic because if
he were psychotic, the mother would have noticed, his
girlfriend would have noticed. He would be very noticeable
because he would stand out is the problem. He wasn’t
standing out. He wasn’t acting psychotically. With his
family all around him, they would have intervened
absolutely.
So it really takes away weight from the fact that he didn’t
take his medicine. He was in a psychotic state from
schizophrenia. He was hearing voices telling him to hurt
this baby. From all appearances, that really wasn’t the
case and [Appellant] doesn’t even describe it as being the
case. [Appellant] described it as I lost my temper. I got
mad. I shook the baby and threw the baby to the floor.
It’s scary. It’s frightening. It’s horrendous behavior. I
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don’t find that there is mental illness that calls for
mitigation in this particular case based on what I have
heard here today…. …
(See N.T. Sentencing Hearing at 49-52). The record shows the court
adequately considered Appellant’s mental health issues. Thus, Appellant’s
challenge to the discretionary aspects of his sentence merits no relief.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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Com. v. Miller, C.
Combined Opinion