Com. v. McMillan, M. ( 2019 )

J-S73034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL MCMILLAN :
:
Appellant : No. 735 WDA 2018
Appeal from the Judgment of Sentence October 26, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006930-2007
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 13, 2019
Appellant, Michael McMillan, appeals from the judgment of sentence
entered on October 26, 2017 in the Criminal Division of the Court of Common
Pleas of Allegheny County.1 We affirm.
The trial court offered the following summary of the facts introduced at
trial:
Rachel Larue testified that she was present in her residence on
April 17, 2007. At that time, she became aware that [Appellant]
was also in her residence on an upstairs floor playing video games
with her son, Will Smoot, and another person identified as [James
Maurice Jones aka “Reese”]. Upon learning that [Appellant] was
in the house, [Larue] went upstairs and advised [Appellant] he
had to leave. [Larue explained that Appellant was no longer
permitted in her home due to a prior incident in which he
brandished a firearm inside the residence. Larue therefore]
escorted [Appellant] partly out of her house and she then went
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1Appellant’s judgment of sentence was made final when his post-sentence
motions were denied by operation of law in an order entered on March 9,
2018.
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into her bedroom. Shortly after she entered her bedroom, she
heard four or five gunshots and the sounds of scuffling. She was
also able to smell what she termed “gun smoke.” As she quickly
moved toward the upstairs room she observed [Appellant] running
down her stairway, jumping between landings, carrying what
appeared to be a gray [nine-millimeter] handgun. [Larue]
observed [her son] lying on the ground suffering from an apparent
gunshot. She ran from the house and began to chase [Appellant].
She was not able to catch him.
Jessica Stewart Logan, [Smoot’s girlfriend], testified. She
testified that she was in the residence at the time of the shooting.
She testified that just prior to the shooting, she heard what
sounded like a bunch of chairs being moved around upstairs. She
then heard what she believed to be five or six gun shots coming
from the direction of [Smoot’s] room. She then observed
[Appellant] run down the stairs with a gun in his hand. She[,
along with Larue,] ran to the attic room and tended to [Smoot],
who was bleeding from his nose and mouth. She observed Reese
in the corner of the room apparently suffering from a gunshot
wound. [Logan] then called 911. [Smoot] was pronounced dead
at the scene, a victim of homicide. He suffered a gunshot wound
to his head. Reese also suffered gunshot wounds.
Krystal Hall also testified that just after the shooting, she observed
[Appellant] running down McClure Street “like he was scared.”
She observed him enter a residence on McClure Street. She then
entered her residence. She remained in her residence with her
friend, Belinda. A short time later, [Appellant] came to her
residence and asked if he could stay there for a short time. He
had a cigarette there. He was wearing different clothes than he
was wearing when she observed him running. According to [Hall,
Appellant] appeared very nervous. She asked him why he was
nervous and he responded that he had tried to “come up off of
some niggas.” Upon questioning from defense counsel, [Hall]
testified that the phrase was street slang for trying to rob
somebody. [Appellant] then told [Hall] that he shot [Smoot] in
the head and shot Reese in the arm. [Appellant] then locked
[Hall] out of her house for some time while police helicopters were
hovering over the residence.
Officer Jeffrey Snyder of the Homestead [Police Department]
testified in this case that he was the first officer to respond to the
scene of the shooting. [In the room where the shooting occurred,
he observed a] substantial amount of money, approximately
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$1,400[.00,] scattered all over the room. Shell casings were
about the floor [and t]he furniture in the room was scattered.
Allegheny County Detectives also responded to the scene. After
being advised that [Appellant] had entered a residence on McClure
Street just after the shooting, the detectives searched that
residence. There they found boots with blood stains, blue jeans,
cell phones and a hair brush. Forensic DNA testing was performed
on some of this evidence and [Smoot’s] DNA was found on the
boots and pants belonging to [Appellant].
[Appellant] testified in his own defense. He testified that on the
date in question, he was at [Smoot’s] house playing computer
games with [Smoot] and Reese. He testified that he had been a
customer of [Smoot’s] and had purchased crack cocaine from
[Smoot] in the past. [Appellant] testified that on April 17, 2007,
after being at [Smoot’s] residence for approximately [three]
hours, he began to have a conversation with Reese about
“Alexandra,” Reese’s girlfriend. According to [Appellant], in the
past, there had been an incident in which Reese and [Appellant]
exchanged words over [Appellant’s] attempted contact with
Alexandra while she and Reese were dating. Sometime after the
telephone conversation, [Appellant] testified he met Reese on the
streets. According to [Appellant], at the time of the meeting
neither [Appellant] nor Reese apparently recalled the prior
conversation about Alexandra. They became social
acquaintances. [Appellant testified that, o]n the date of the
shooting, [he] and Reese met on the street. Reese advised
[Appellant] that he was going to [Smoot’s] house to buy some
“weed.” The two men went to [Smoot’s] house together.
[Appellant] then testified that he went to [Smoot’s] residence
where he smoked marijuana with Reese. [Appellant] and Reese
then went up to [Smoot’s] room in the attic where they hung out
and played computer games. At some point, [Larue] came home
and, after determining that [Appellant] was in the residence, she
asked him to leave. He testified that he started to walk down the
stairs to leave but that he realized he forgot his cell phone. He
then went back upstairs. While upstairs, [Smoot] addressed
[Appellant] about concerns that [Appellant] disrespected
[Smoot’s] mother. According to [Appellant], Reese then began to
ask [Appellant] about Alexandra. [Appellant] testified that he told
Reese that he got Alexandra pregnant. [Appellant] testified that
as he began to walk away he heard a chair move and then he was
punched in the back of the head by Reese. When he fell, a gun
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he had in his sweatshirt fell out [] and slid across the floor.
[Appellant] testified [that] Reese moved toward the gun.
[Appellant] then recalled that Reese was the person he had the
discussion with earlier about Alexandra. According to [Appellant],
Reese grabbed the gun. [Smoot] told Reese to “chill.” Reese then
cocked the gun and pointed it at [Appellant]. [Appellant] testified
that he attempted to grab Reese’s arm to move the gun from
being pointed at him. According to [Appellant], the gun
accidentally discharged and delivered the fatal shot to [Smoot].
[Appellant] claimed that gun powder filled his eyes and his eyes
were burning but he was able to grab his gun. Reese then took
off running toward the entertainment center. [Appellant] believed
Reese was trying to retrieve a gun. [Appellant] then fired his gun
at Reese, hitting him in his left lower back. Reese shot his gun
but missed [Appellant]. [Appellant] shot again, this time grazing
Reese across the chest and arm. [Appellant] was able to grab
Reese’s gun. He checked on [Smoot] and fled the scene with both
guns. He admitted that he fled the scene, hid the guns, [and]
went to a residence to change his clothes. He also admitted that
he made telephone calls to person in an effort to help him flee.
Trial Court Opinion, 5/16/18, at 3-6 (footnotes in original omitted).
On April 29, 2008, a jury found Appellant guilty of one count each of
second-degree murder, robbery, aggravated assault, and possession of a
firearm by a minor. Thereafter, on July 16, 2008, the trial court sentenced
Appellant to life without parole for the second-degree murder conviction, ten
to 20 years each for the robbery and aggravated assault convictions (to be
served consecutive to the life sentence but concurrent to each other), and two
and one-half to five years for minor in possession of a firearm (to be served
consecutive to the sentences for robbery and aggravated assault).
Appellant filed a direct appeal from the judgment of sentence. This
Court affirmed Appellant’s judgment of sentence on May 5, 2010.
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Commonwealth v. McMillan, 4 A.3d 183 (Pa. Super. 2010) (unpublished
memorandum). Appellant did not seek further review.
On February 14, 2011, Appellant filed a timely pro se petition under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA
court appointed counsel who twice amended Appellant’s petition. Eventually,
however, the court dismissed the petition without a hearing on August 8,
2011. This Court affirmed the dismissal of Appellant’s petition on November
26, 2013 and our Supreme Court denied Appellant’s petition for allowance of
appeal on May 8, 2014. Commonwealth v. McMillan, 91 A.3d 1296 (Pa.
Super. 2013) (unpublished memorandum), appeal denied, 91 A.3d 162 (Pa.
2014).
Appellant, acting pro se, filed a second PCRA petition on or around
September 29, 2014. Counsel was appointed and filed an amended petition.
On March 3, 2015, the PCRA court dismissed the petition as untimely. A
panel of this Court affirmed the dismissal order on August 5, 2015.
Commonwealth v. McMillan, 131 A.3d 84 (Pa. Super. 2015) (unpublished
memorandum).
On February 24, 2016, our Supreme Court granted Appellant’s petition
for allowance of appeal, vacated the order of this Court, and remanded this
matter pursuant to Montgomery v. Louisiana, 136 S.Ct. 718 (2016)
(declaring Miller v. Alabama, 568 U.S. 460 (2012) to apply retroactively).
Commonwealth v. McMillan, 132 A.3d 981 (Pa. 2016) (per curiam).
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Upon remand, the trial court scheduled resentencing. On October 26,
2017, the court imposed a new sentence of 30 years to life imprisonment for
Appellant’s second-degree murder conviction. A consecutive sentence of ten
to 20 years’ imprisonment was imposed for the robbery conviction.2 An
additional consecutive sentence of two and one-half to five years was imposed
for Appellant’s firearm conviction. In total, Appellant’s newly imposed
aggregate sentence is now 42½ years to life in prison. Post-sentence motions
were denied by operation of law on March 9, 2018.
Appellant raises the following claims in his brief:
I. The trial court erred in determining that [it] was obligated
to impose a sentence that included a term of life
imprisonment, rather than imposing a minimum and
maximum sentence for a term of years.
II. The trial court erred in denying counsel’s request for funding
to prepare a sentencing mitigation report in advance of this
juvenile life without parole resentencing.
III. The trial court impermissibly thwarted [Appellant’s] right of
allocution by interrupting throughout and directing that
counsel should have directed [Appellant’s] statements to
the [c]ourt.
IV. The trial court failed to consider and to verbalize [its]
analysis of the relevant factors prior to imposing a life
sentence.
Appellant’s Brief at 6.
Appellant’s first claim asserts that, with respect to his conviction for
second-degree murder, the trial court erred in imposing a sentence of 30 years
____________________________________________
2 No further penalty was imposed for Appellant’s aggravated assault
conviction.
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to life in prison, rather than a fixed term of years as a maximum sentence.
Appellant claims that such a sentence is unlawful and in violation of the
constitutional prohibition against cruel and unusual punishments. See
Appellant’s Brief at 18-19. Appellant reasons that the imposition of a sentence
involving life on parole is a severe punishment that subjects juvenile homicide
defendants to a constant threat of lifetime confinement, subject to the
discretion of the parole board. See id. Appellant also maintains that the
imposition of life sentences, even with the possibility of parole, may constitute
de facto life sentences in contravention of the holding in Miller. Id.A claim challenging a sentencing court's legal authority to impose a
particular sentence implicates the legality of a sentence. Commonwealth v.
Batts, 163 A.3d 410, 434 (Pa. 2017). Issues concerning the legality of a
sentence raise questions of law over which our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Diamond, 945 A.2d
252, 256 (Pa. Super. 2008), appeal denied, 955 A.2d 356 (Pa. 2008).
It is now well settled in Pennsylvania courts that juvenile defendants
convicted of second-degree murder before 2012 (and for whom sentences of
life without parole are inappropriate) are subject to mandatory maximum
sentences of life imprisonment accompanied by a minimum term of years to
be determined by the trial court. See Commonwealth v. Olds, 192 A.3d
1188, 1195 (Pa. Super. 2018) (“juveniles convicted of second-degree murder
prior to June 25, 2012 … must be sentenced to a maximum period of life
imprisonment; however, they are eligible for parole after a term-of-years
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specified by the trial court”); Commonwealth v. Machicote, 172 A.3d 595,
602 (Pa. Super. 2017) (trial court had authority to impose sentence of 30
years to life imprisonment upon juvenile defendant convicted of
second-degree murder before 2012), appeal granted, 186 A.3d 370 (Pa.
2018). In view of this binding case law, Appellant is not entitled to relief on
his first claim.
Appellant’s second claim asserts that the trial court abused its discretion
in denying Appellant’s request for funds to retain a mitigation expert to assist
counsel in gathering information for use in mitigating Appellant’s sentence. In
support of this claim, Appellant explains that there is no dispute that he is
indigent, that the use of mitigation experts is common in similar cases
throughout the Commonwealth, and counsel had no obligation to divulge the
mitigation evidence that an expert would explore. This claim merits no relief.
It is well-established that indigent defendants have a right to
access the same resources as non-indigent defendants in criminal
proceedings. Commonwealth v. Curnutte, 871 A.2d 839, 842
(Pa. Super.2005). The state has an “affirmative duty to furnish
indigent defendants the same protections accorded those
financially able to obtain them.” Commonwealth v. Sweeney,
533 A.2d 473, 480 (Pa. Super. 1987). Procedural due process
guarantees that a defendant has the right to present competent
evidence in his defense, and the state must ensure that an
indigent defendant has fair opportunity to present his defense.
Ake v. Oklahoma, 470 U.S. 68 (1985).
However, “[t]he provision of public funds to hire experts to assist
in the defense against criminal charges is a decision vested in the
sound discretion of the court and a denial thereof will not be
reversed absent an abuse of that discretion.” Commonwealth
v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008) (citations
omitted).
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Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016), appeal
denied, 145 A.3d 724 (Pa. 2016).
As the trial court found, Appellant in this case did not identify the
conditions or circumstances a mitigation expert would review, the records
such an expert would consider, or the type of mitigation evidence an expert
would develop. Generally speaking, expert testimony is admissible in
Pennsylvania only when the expert’s skill, experience, knowledge, and training
will aid the factfinder in assessing a fact at issue. See Commonwealth v.
Batts, 163 A.3d 410, 455-456 (Pa. 2017). In the absence of information
concerning the nature and scope of a proposed expert’s testimony, we
perceive no abuse of the trial court’s discretion in denying Appellant’s request.
Appellant’s third claim asserts that the trial court improperly interfered
with Appellant’s right of allocution by interrupting Appellant and suggesting
that counsel assist in directing Appellant’s statements to the court through the
use of questions posed to Appellant. This claim fails.
Under Pa.R.Crim.P. 704(C)(1), “[a]t the time of sentencing, the judge
shall afford the defendant the opportunity to make a statement in his or her
behalf and shall afford counsel for both parties the opportunity to present
information and argument relative to sentencing.” Pa.R.Crim.P. 704(C)(1).
The failure to offer a criminal defendant the right to address the court requires
reversal. See Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 1989).
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However, “in order to preserve a claim of error pertaining to the right of
allocution, the defendant must raise the claim before the trial court at the time
of sentencing or in a post-sentence motion, or suffer waiver of the claim on
appeal.” Commonwealth v. Hardy, 99 A.3d 577, 579 (Pa. Super. 2014),
citing Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super. 2006) (en
banc).
Our review of the record indicates that Appellant did not raise the
allocution error he asserts before the trial court or in a post-sentence motion.
He has, thus, waived the issue.
Moreover, even if he had not waived the issue, we would conclude
Appellant's challenge is without merit. At his resentencing hearing, Appellant
had the opportunity to address the court and spoke at length on his own
behalf. During his presentation to the court, however, Appellant strayed onto
topics that had little, if anything, to do with mitigation of his sentence. For
example, Appellant made several statements that appeared to challenge the
jury’s conclusion that Appellant killed Smoot during the course of a robbery.
When this occurred, the trial court interjected to redirect Appellant’s
presentation toward the issue of mitigation. Ultimately, the court
acknowledged Appellant’s declaration of acceptance of responsibility for his
offenses. In view of the record, we are unable to conclude that the trial court
improperly interfered with, or denied, Appellant’s right of allocution. Thus, no
relief is due.
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In his final claim, Appellant challenges the discretionary aspects of his
sentence, claiming that the trial court failed to articulate on the record the
reasons for the sentence it imposed.
With regard to the discretionary aspects of sentencing, there is no
automatic right to appeal and before this Court may reach the
merits of a challenge to the discretionary aspects of a sentence,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether Appellant preserved his issue;
(3) whether Appellant's brief includes a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code.... [I]f the appeal satisfies
each of these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, he sought reconsideration of his sentence in a post-sentence
motion, and he has included a Rule 2119(f) statement in his brief to this Court.
We now consider whether he has raised a substantial question for our review.
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
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process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).
In his 2119(f) statement, Appellant contends that the court “imposed
the life sentence with possibility of parole yet failed to articulate any reasons
for electing this harsh sentence on the record, and without considering the
specific circumstances and needs of [Appellant].” Appellant's Brief at 9.
Because this claim asserts that the trial court’s actions were inconsistent with
the Sentencing Code, it raises a substantial question. See 42 Pa.C.S.A.
§ 9721(b) (“In every case in which the court imposes a sentence for a felony
or a misdemeanor, the court shall make as a part of the record, and disclose
in open court at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.”).
Having concluded that Appellant raises a substantial question, we
proceed to the merits of his discretionary sentencing challenge. We review
such claims under the following standard.
If this Court grants appeal and reviews the sentence, the standard
of review is well-settled: sentencing is vested in the discretion of
the trial court, and will not be disturbed absent a manifest abuse
of that discretion. An abuse of discretion involves a sentence
which was manifestly unreasonable, or which resulted from
partiality, prejudice, bias or ill will. It is more than just an error in
judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252–1253 (Pa. Super. 2006)
(citations omitted).
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Our review of the sentencing transcript reveals that the trial court did
not abuse its discretion. Where, as here, the sentencing court had the benefit
of a pre-sentence investigation report, it is presumed to have considered all
relevant information. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa.
Super. 2004). Further, our Supreme Court has directed that the trial courts
consider the sentencing requirements codified at 18 Pa.C.S.A. § 1102.1 in
fashioning a sentencing scheme for a juvenile homicide offender post-Miller.
Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013). Subsection 1102.1
provides, in relevant part, as follows.
(c) Second degree murder.—A person who has been convicted
after June 24, 2012, of a murder of the second degree, second
degree murder of an unborn child or murder of a law enforcement
officer of the second degree and who was under the age of 18 at
the time of the commission of the offense shall be sentenced as
follows:
(1) A person who at the time of the commission of the offense was
15 years of age or older shall be sentenced to a term of
imprisonment the minimum of which shall be at least 30 years to
life.
18 Pa.C.S. § 1102.1(c).
The trial court, in fixing Appellant's sentence of 30 years to life,
considered subsection 1102.1(c)(1), Appellant’s rehabilitative needs, the
protection of the public, and the impact of Appellant’s crimes on the victim
and the community. The court also considered Appellant’s age at the time of
the offense and the degree to which he accepted responsibility for the killing.
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Based on the totality of the circumstances, and because Appellant's sentence
complies with subsection 1102.1(c)(1) and the precedents of our Supreme
Court, we find no grounds on which to award relief to Appellant.3
Application for relief denied. Judgment of sentence affirmed.
Bender, P.J.E., joins.
Gantman, P.J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2019
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3 On December 3, 2018, Appellant filed a pro se application for relief seeking
a stay of this appeal. By order entered on December 14, 2018, this Court
forwarded Appellant’s application to counsel pursuant to Commonwealth v.
Jette, 23 A.3d 1032 (Pa. 2011). Counsel has not responded. Accordingly,
we deny Appellant’s application for relief.
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