Com. v. Milligan, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK MILLIGAN :
:
Appellant : No. 1186 WDA 2022
Appeal from the Judgment of Sentence Entered February 3, 2022
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0008776-2019
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: August 31, 2023
Appellant, Malik Milligan, appeals from the judgment of sentence
imposed on February 3, 2022 in the Court of Common Pleas of Allegheny
County following entry of a negotiated open guilty plea to charges of robbery,
burglary, and aggravated assault.1 Appellant contends the trial court abused
its discretion by imposing a sentence of six to twelve years in prison. Following
review, we affirm.
On June 25, 2019, Appellant was arrested along with his co-defendants,
Tavon Moon and Lavarr Peters, all of whom were charged with a number of
offenses relating to events that occurred early that morning. At a guilty plea
hearing for Moon and Appellant conducted on October 18, 2021, both men
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1 18 Pa.C.S.A. §§ 3701(a)(1)(i), 3502(a)(1)(i), and 2702(a)(1), respectively.
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stipulated to facts set forth in the affidavit of probable cause dated June 25,
2019, and further stipulated that they conspired with each other and Peters
on that day to commit burglary, robbery, and assault on their victim, Valerie
Townsend.
The trial court summarized the underlying facts contained in the affidavit
of probable cause as follows:
In the early morning hours of June 25, 2019, Officers of the
Wilkinsburg Borough Police Department responded to a call to
1514 Collins Road for a robbery, possibly a home invasion robbery.
Upon arrival to the residence, Officers found the rear door of the
residence was obviously kicked in. At that time, the caller, Valerie
Townsend, yelled out a second-floor window to Officers. Ms.
Townsend was bleeding from her head and face and was
hyperventilating. Despite her injuries, Ms. Townsend relayed to
Officers that “Tavon” and some others had assaulted and robbed
her.
She reported that she was in her bedroom, in her bed, when she
heard a bang at the door and knew someone had kicked it in. She
was then confronted by 4 or 5 persons that were not wearing
masks, and she was unsure as to whether any of them were
armed. She was able to positively identify one of the actors as
Tavon Moon (her former foster child).
She was forced to remove her clothing and sit in a chair and
spread her legs. She stated that she feared being raped with an
object one of the actors was possessing but stated that she had
not. She gave the actors $400.00 in cash and watched them break
a glass jar that contained “a lot” of loose change and currency.
She was then taken upstairs and forced into the bathroom where
one of the actors then proceeded to beat her with a metal cooking-
type pan. She stated that the actor who had assaulted her in the
bathroom was NOT Tavon Moon.
The actors then proceeded to take Ms. Townsend’s credit cards,
house and car keys and fled the home in the 2007 Toyota
[Corolla]. Ms. Townsend was advised by the group that if she
resisted or called the police, they would kill her.
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Trial Court Opinion, 2/27/23, at 2 (unnumbered).
The trial court explained that Ms. Townsend was evaluated at the scene
by emergency personnel and was transported to UPMC Presbyterian’s trauma
unit. Meanwhile, a search of her home revealed that the residence was
ransacked, a television and a gaming system were missing from the living
room, and a glass container was shattered with pieces of glass and U.S. coins
on the floor. Also, a dented stainless-steel pan and blood were found in the
upstairs bathroom. Id. at 2-3 (unnumbered).
An alert about the stolen vehicle and its occupants led to the
apprehension of Appellant, Moon, and Peters, along with a juvenile female
who was found not to have been involved in the events at issue. “After being
searched and various items belonging to the victim being found on the actors,
they were taken into custody.” Id. at 3 (unnumbered). Appellant, Moon, and
Peters were Mirandized and Moon and Peters admitted to various aspects of
their involvement in the assault and robbery of Ms. Townsend. Id.
On October 18, 2021, Appellant entered a negotiated open guilty plea
to robbery—serious bodily injury; burglary—overnight accommodations,
persons present, bodily injury crime; and aggravated assault—serious bodily
injury. Ten additional charges were withdrawn. Sentencing was deferred
pending preparation of a pre-sentence investigation report (“PSI”).
At the sentencing hearing conducted on February 3, 2022, the trial court
noted that it had reviewed the PSI. Id. at 3 (unnumbered); see also Notes
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of Testimony (“N.T.”), Sentencing, 2/3/22, at 2. The court further noted that
Appellant was 19 years old at the time the crimes were committed and had a
prior record score of 0, but did have a history of juvenile court proceedings
dating back to when he was 13. Trial Court Opinion, 2/27/23, at 3. A victim
impact letter from Ms. Townsend was read into the record in which she
recounted the traumatic impact of the events of June 25, 2019, leading her
to, inter alia, secure the services of a therapist, develop a fear and distrust of
people, and no longer feel safe in her own home. N.T., Sentencing, 2/3/22,
at 8-12.
At the hearing, Appellant apologized for the disgrace his actions brought
upon his family and his community. Id. at 13. Through counsel, he also
presented several certificates obtained during his incarceration,2 including his
high school diploma, and certificates of completion of several programs,
including the Hope Pre-Release Program, Thinking for a Change, and
Employment Skills 101 Group. Id. at 3-5.
Having considered the PSI, the victim impact statement, the hearing
testimony, and “having considered everything,” id. at 14, 16, the court
imposed a sentence of six to twelve years in prison for robbery, no additional
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2 Appellant’s requests for bond had been denied and he remained incarcerated
from the time of his arrest until the time of sentencing. At sentencing, he was
given credit for 955 days served.
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penalty for burglary, and eight years of probation for aggravated assault,
consecutive to his sentence for robbery.3
Appellant filed a timely post-sentence motion. In accordance with
Pa.R.Crim.P. 720(B)(3)(a), the trial court is to decide a post-sentence motion
within 120 days (i.e., June 14, 2022, in this case). Otherwise, the motion is
deemed denied by operation of law and the clerk is to enter an order on behalf
of the court, stating that the motion is deemed denied. See Pa.R.Crim.P.
720(B)(3)(c). No order was issued within 120 days disposing of the post-
sentence motion, nor was an order entered reflecting that the motion was
deemed denied.
On September 15, 2022, the trial court issued an order denying
Appellant’s post-sentence motion and acknowledging that a breakdown in the
judicial process had occurred. Trial Court Order, 9/15/22, at 1. The court
instructed Appellant that he had 30 days from the date of the order to pursue
an appeal. Appellant timely filed his notice of appeal on October 6, 2022.4
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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3 The sentence imposed for robbery (six to twelve years, i.e., 72 months to
144 months) was within the guidelines as submitted to the trial court by the
District Attorney’s Office. The guidelines called for a standard range sentence
of 48 to 66 months in prison and an aggravated range sentence of 78 to 240
months. Trial Court Opinion, 2/27/23 at 4 (unnumbered).
4 A breakdown of the court occurs when the clerk fails to enter an order
deeming the post-sentence motion denied and notifying the defendant. See,
e.g., Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). When
(Footnote Continued Next Page)
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Appellant presents one issue for our consideration:
Did the Sentencing Court abuse its discretion in sentencing
[Appellant] to 6 to 12 years of incarceration?
Appellant’s Brief at 3.
Appellant challenges the discretionary aspects of his sentence.5 As this
Court has explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
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a trial court denies a post-sentence motion after the 120-day period and the
appellant then files an appeal within 30 days of the date of that decision, this
Court has found that the notice of appeal is timely. See Commonwealth v.
Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995). Therefore, we find
Appellant filed a timely notice of appeal in this case and we shall consider the
issue raised.
5 Because it was an open plea, Appellant is not precluded from challenging the
discretionary aspects of sentencing. See Commonwealth v. Brown, 982
A.2d 1017, 1019 (Pa. Super. 2009), appeal denied, 990 A.2d 723 (Pa. 2010).
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citations omitted)). Here, Appellant filed a timely appeal, preserved the issue
in his post-sentence motion, and included a Rule 2119(f) statement in his brief
filed with this Court. Therefore, we must determine whether he has raised a
substantial question.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Griffin, 65 A.3d at 935 (internal quotations and citations omitted).
Appellant offers the following in support of his assertion that he has
presented a substantial question:
[Appellant] contends that the Sentencing Court erred when it
failed to impose a sentence that was consistent with the
Sentencing Code. Specifically, [Appellant] avers that the
Sentencing Court failed to consider and reference the statutory
factors in 42 Pa.C.S. § 9721(b), and instead fashioned a sentence
that only reflected the seriousness of the crime, which is contrary
to the fundamental norms that underlie the sentencing process.
See [Commonwealth v. Ruffo, 520 A.2d 43, 48 (Pa. Super.
1987)].
Appellant’s Brief at 12.6
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6 In Ruffo, this Court held that a sentencing court “may not . . . base its
sentence upon the seriousness of the crime alone.” Ruffo, 520 A.2d 48.
However, as a panel of this Court recently appreciated,
Ruffo was decided by this Court over one year before the
Pennsylvania Supreme Court decided [Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)] (stating that where a PSI
exists there is a presumption that the sentencing judge was aware
of relevant information regarding defendant’s character and
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This Court has recognized that an assertion that the trial court focused
solely on the seriousness of the offense raises a substantial question. See,
e.g., Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020),
appeal denied, 253 A.3d 213 (Pa. 2021) (“averment that the court sentenced
based solely on the seriousness of the offense and failed to consider all
relevant factors raises a substantial question[.]”) (citation omitted).
Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (same).
Therefore, we shall consider the merits of Appellant’s claims.
As this Court reiterated in Derrickson:
Our standard of review 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.
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weighed those considerations along with mitigating statutory
factors and in circumstances where it can be demonstrated that
the trial judge had any degree of awareness of the sentencing
considerations, the presumption exists that the trial court
conducted weighing process meaningfully).
Commonwealth v. McCarthy, No. 839 WDA 2020, unpublished
memorandum at *6 (Pa. Super. filed April 30, 2021). See Pa.R.A.P. 126(b)
(non-precedential decisions of the Superior Court filed after May 1, 2019, may
be cited for their persuasive value).
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Derrickson, 242 A.3d at 680 (quoting Commonwealth v. Blount, 207 A.3d
925, 934-35 (Pa. Super. 2019) (additional citation omitted)). “[Our] review
of the discretionary aspects of a sentence is governed by 42 Pa.C.S.A.
§§ 9871(c) and (d).” Id. (quoting Commonwealth v. Dodge, 77 A.3d 1263,
1274 (Pa. Super. 2013)).
Appellant does not contend that the trial court misapplied the sentencing
guidelines or imposed an unreasonable sentence outside the guidelines. See
42 Pa.C.S.A. § 9871(c)(1) and (3). Rather, relevant to this case is Subsection
9871(c)(2), which requires that an appellate court vacate a sentence and
remand to the trial court with instructions if “the sentencing court sentenced
within the sentencing guidelines but the case involves circumstances where
the application of the guidelines would be clearly unreasonable.” Here, while
acknowledging that his sentence was within the guidelines, Appellant contends
the sentence was “disproportionate to the crime without full consideration of
the statutory factors listed in 42 Pa.C.S. § 9721(a).”7 Appellant’s Brief at 16.
With respect to our review, Subsection 9781(d) requires that in
reviewing the record, we consider:
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7 Section 9721(b) requires, inter alia, that a sentence imposed under Section
9721(a) calling for total confinement must take into consideration the
sentencing guidelines and be consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the victim and the
community, and the rehabilitative needs of the defendant, and requires the
court to make as a part of the record, and disclose in open court at sentencing,
a statement of the reasons for the sentence imposed.
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(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.
42 Pa.C.S.A. § 9781(d).
Here, the record provides information regarding the nature and
circumstances of the offenses, as well as Appellant’s history and
characteristics. Further, as reflected above, the trial court not only had the
opportunity to observe Appellant, but also had the benefit of a PSI. “Where
pre-sentence reports exist, we shall continue to presume that the sentencing
judge was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). Concerning the
PSI, this Court has recognized that when the sentencing court has the benefit
of the PSI, it is
under no compulsion to employ checklists or any extended or
systematic definitions of their punishment procedure. Having
been fully informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed. This is particularly true,
we repeat, in those circumstances where it can be demonstrated
that the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the weighing
process took place in a meaningful fashion.
Id. at 936 (quoting Devers, 546 A.2d at 18).
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In his brief, Appellant repeatedly asserts that the trial court focused
solely on the seriousness of the crime. See, e.g., Appellant’s Brief at 14 (“the
Sentencing Court imposed its sentence on [Appellant] due solely to the nature
of the crime”); id. at 15-16 (“statements made by the Sentencing Court
clearly illuminate its sole reason behind the imposition of [the] sentence: the
nature of the crime”); id. at 16 (“the Sentencing Court’s statements confirm
the single-minded focus on the seriousness of the crime”); id. at 19 (“the
sentence imposed was based only on the seriousness of the crime”).
Despite Appellant’s insistence to the contrary, the trial court properly
considered the requisite factors. As noted, the trial court considered the PSI,
creating the legal presumption that the court was aware of relevant
information regarding Appellant’s character and mitigating factors. The court
also referenced its consideration of the testimony presented at the sentencing
hearing, see Trial Court Opinion, 2/27/23, at 3-4 (unnumbered), during which
Appellant’s counsel took the opportunity to recount aspects of Appellant’s
background as well as his achievements and exemplary behavior during his
pre-trial imprisonment, and underscored Appellant’s acceptance of
responsibility for his conduct. N.T., Sentencing, 2/3/22, at 3-7. Moreover, in
addressing the court, Appellant took advantage of the opportunity to make a
case for being released from prison and serving the balance of his sentence
entirely on probation. Id. at 13, 18-22. Appellant’s contention that the court
“failed to consider substantial mitigating evidence presented by defense
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counsel about [Appellant’s] personal characteristics and rehabilitative needs,”
Appellant’s Brief at 18, is refuted by the record and the court’s specific
reference to considering the PSI along with “everything presented at the
sentencing hearing.” Trial Court Opinion, 2/27/23, at 4 (unnumbered).
During the sentencing hearing, the court spoke to accountability, noting
that accountability precedes moving on and changing, and expressed the hope
that Appellant would do just that, stating:
[O]bviously, you’ve shown that you can, because you’ve used
your time constructively and looked towards yourself of how you
can—instead of sitting there just absorbing oxygen and not doing
anything, you looked at ways of how you can improve your life,
and that shows a lot about you; it really does. So I’m hoping that
that’s something that you do.
N.T., 2/3/22, at 16. The court further acknowledged:
There’s feeling bad for something after it's occurred, but it doesn’t
negate the fact that you still have to be held accountable for what
was done. I completely understand that, which is why I’m not
sentencing at each count, I’m not sentencing consecutive to each
count, and I’m not sentencing you in the aggravated range. This
is why I am sentencing where I am.
Id. at 20.
As the trial judge explained, “In sentencing [Appellant], I considered the
presentence report, the victim impact statement, the exhibits submitted by
[Appellant], the factors for sentencing 42 Pa.C.S. § 9871(d), and everything
presented at the sentencing hearing and sentenced [Appellant] accordingly.”
Trial Court Opinion, 2/27/23, at 4 (unnumbered).
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We find no abuse of discretion in the trial court’s imposition of a sentence
of six to twelve years for robbery followed by eight years of probation.
Therefore, we shall not disturb that sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2023
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