Com. v. Miller, No. 835 EDA 2008.

• Decision Date: 28 January 2009
• Docket Number: No. 835 EDA 2008.
• Citation: 965 A.2d 276,2009 PA Super 14
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Mark William MILLER, Appellant.
• Court: Pennsylvania Superior Court

965 A.2d 276

2009 PA Super 14

COMMONWEALTH of Pennsylvania, Appellee v. Mark William MILLER, Appellant.

No. 835 EDA 2008.

Superior Court of Pennsylvania.

Submitted November 18, 2008.

Filed January 28, 2009.

William K. Sayer, Public Defender, Stroudsburg, for appellant.

Elmer D. Christine, Jr., Asst. Dist. Atty., Stroudsburg, for Com., appellee.

BEFORE: STEVENS, KLEIN, and CLELAND, JJ.

OPINION BY STEVENS, J.

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Monroe County on November 26, 2007, following Appellant's plea of guilty to the charge of murder of the third degree.¹ Herein, Appellant contends that the trial court abused its discretion when, in imposing sentence, it considered a charge that was nolle prossed as part of the plea agreement. We affirm the judgment of sentence.

¶ 2 On October 2, 2007, Appellant pled guilty to criminal homicide, murder of the third degree, in the October 31, 2001 killing of Helen Theresa Biank. "Specifically, [Appellant] admitted to shooting [Ms. Biank] in the back of her head with a Remington XP 100 firearm. In return for his plea, the Commonwealth agreed to nolle pros the remaining charges (Aggravated Assault, Arson, Tamper with/Fabricate Physical Evidence)." Trial Court Opinion filed 2/21/08 at 1. Thereafter, on November 26, 2007, Appellant was sentenced to a fifteen (15) to forty (40) year term of imprisonment.² Appellant filed a Motion for Modification of Sentence, which was denied by the court on February 20, 2008. The present appeal followed.³

¶ 3 Herein, Appellant contends that the trial court abused its discretion when, at the time of sentencing, it considered an arson charge that was nolle prossed as part of his plea agreement. With regard to this claim, it is well-settled that appeals of a discretionary aspect of a sentence are not reviewable as a matter of right. Commonwealth v. McNear, 852 A.2d 401, 407 (Pa.Super.2004). In order to invoke this Court's jurisdiction, an appellant must set forth in his brief a separate and concise statement of reasons relied upon in support of his appeal. Pa.R.A.P. 2119(f)⁴; see Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super.2003). Therein, the appellant "must demonstrate that a substantial question exists that the trial judge's actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process." Commonwealth v. Rickabaugh, 706 A.2d 826, 847 (Pa.Super.1997) (quotations and citations omitted).

¶ 4 In the present case, Appellant has included in his brief a statement of reasons relied upon for allowance of appeal in which he references this Court's assertion that, "A manifest abuse of discretion exists when a sentence is enhanced due to charges that have been nolle prossed as part of a plea agreement, because notions of fundamental fairness are violated." Brief of Appellant at 10, quoting Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.Super.2005). In that Appellant's statement presents a substantial question for review, we will address the merits thereof. See Id.

¶ 5 In reviewing a sentencing claim, we are mindful that:

We must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. An appellate court will not disturb the lower court's judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super.2000) (citation and internal quotations omitted).

¶ 6 In fashioning a sentence, "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of offense as it relates to the impact on life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b). "[A] court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super.2002) (citation omitted).

¶ 7 Herein, at the time of sentencing, Appellant's counsel supplemented the presentence investigation report ("PSI") with three (3) letters received on behalf of Appellant. N.T. 11/26/07 at 9.⁵ Counsel proceeded to present Appellant's father, mother, and brother as witnesses. Appellant then offered comments on his own behalf.

¶ 8 Commonwealth counsel presented to the court a letter from one (1) of Ms. Biank's friends, which the court read and attached to the PSI. Counsel then presented the testimony of Ms. Biank's sister and mother, and two (2) of Ms. Biank's longtime friends.

¶ 9 Prior to imposing sentence, the distinguished trial judge Margherita Patti Worthington extensively explained:

Okay. I've read the PSI thoroughly several times. I've read all of the letters that all of you have written and attached and letters from some who were not here that have been attached.

In any case like this, the tragedy, as you all know goes far beyond the deceased. And I've heard some things today that I didn't know about, and I don't know the background of it. But I heard that Ms. Biank's mother, Ms. Myers, hasn't seen her grandchildren in six years.[⁶] I don't know why that is. But that's, if you had a relationship with them before, quite a tragedy for everyone involved that is an extension of all of this.

I heard for the first time that, Mr. Miller, you were at the wake and that in front of these children and family put flowers on the grave.[⁷] I have to tell you it sent a bit of a chill up my spine hearing that, so I did not know that.

At the same time, I heard from your family who described you as a caring, loving son and grandson who was helping your family throughout the years. Again, your actions have harmed this family and your own family, people who are good people and working people and care about you. So this tragedy extends throughout the deceased's family and friends and your own family and friends.

And the word I kept hearing over and over again was mother, the deceased's mother. The deceased was a mother. Children who have no mother, a mother who has no daughter, you know, sisters who have no sister, nieces who have no aunt, a mother who's not going to see her son, your mother.

You know, as I read this for the first time, it was replete with the word accident. And [your counsel] has explained what you meant by that, and you yourself have explained now what you meant by it which was fooling around, you know, messing around with a weapon of destruction.

You know, I see the pictures attached here and the description of the wound, how that could have happened, the close range. It does not jive to me with fooling around with a gun. Perhaps you have been smoking crack. I don't know.

With respect to the PSI, this is murder of the third degree. So in the mitigated range, it's 60 months. And I realize that you're asking me to find mitigating circumstances in this case in that Mr. Miller has taken full responsibility. I do not find that as a mitigating circumstance.

Everybody who enters a plea of guilty takes the responsibility by entering the plea for one reason or for another. And in most cases, the reason is perhaps their exposure if convicted of all crimes at trial might be greater than what it would be in a plea, and, you know, the Commonwealth's evidence, et cetera, and we all know that.

So I don't find that to be mitigation because the PSI is also replete, again, with Mr. Miller saying this was an accident and, in addition, you know, I think I'm going to withdraw my plea. In other words, you know, maybe I don't think I should-you know, it's one thing to say I'm not articulate and this was an accident and here's what I meant by this was an accident. But that's not the way this PSI reads, and we all know that. I've read it thoroughly.

I'm also considering the fact that Ms. Biank was killed, was deceased, and then this fire comes through, that there was an answering machine tape taken out of the machine, that there was all this other stuff that was, you know, obviously to cover what happened.

And to me then we wait four years. And the way this has come to the Court's attention and the way, Mr. Miller, you come to the court's attention is not through the goodness of your heart in taking responsibility. It's because of police...