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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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.
J-S73034-18


     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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J-S73034-18


        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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J-S73034-18



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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J-S73034-18




      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




____________________________________________


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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