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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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