J-S27010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    CHRISTOPHER MILLER                         :
                                               :
                      Appellant                :       No. 963 EDA 2016


           Appeal from the Judgment of Sentence November 13, 2015
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013822-2013


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 09, 2017

        Appellant, Christopher Miller, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

open guilty plea of third degree murder and endangering the welfare of a

child.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case as follows:

           The decedent in this case was…Appellant’s 7-week-old
           son…[(“Victim”)]. The cause of death was complications of
           craniocerebral trauma.    The manner of death was
           homicide. …


____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c) and 4304(a)(1), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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       On October 8, 2011, at approximately 10:30 a.m.,
       [Victim’s] mother, April O’Conn[e]r, went to the home
       that…Appellant shared with his family at 2008 South 17th
       Street in Philadelphia.    Appellant had been caring for
       [Victim] since the day prior. Shortly after Ms. O’Conn[e]r
       arrived, [Victim] became unresponsive.       [Victim] was
       taken to St. Agnes hospital then transferred to the
       Children’s Hospital of Philadelphia (CHOP) because of the
       severity of his injuries.

       Dr. Philip Scribano spoke to…Appellant during the course of
       [Victim’s] treatment. Appellant indicated that there were
       other people in the home, but that he was the only person
       who had physical contact and was providing any kind of
       care to [Victim]. Dr. Scribano indicated that [Victim’s]
       injuries were consistent with “inflicted injury.”

       [Victim] was pronounced [dead] almost one-year-and-a-
       half later on March 6, 2013.       From the time of his
       admission to CHOP until his death, [Victim] was “[I]n a
       persistent vegetative state and was noted to be profoundly
       unconscious; although, he did withdraw to painful stimuli.”

       Dr. Ian Hood, a qualified expert in the field of forensic
       pathology, stated, “[T]hat in his 30 years, he had never
       seen an injury like this. After the imposition of the injury,
       [Victim] required a tracheotomy.       He never breathed
       spontaneously.” [Victim’s] injuries included a branched
       comminuted skull fracture, a lacerated liver with a loss of
       blood, three broken right ribs, one broken left rib, bilateral
       retinal hemorrhaging, and a partial cutting of the junction
       of the spinal cord.

       Dr. Hood described this as a severe deceleration and
       impact event. In order to fracture several ribs, the ribcage
       must be stabilized by wrapping one’s hands around them
       and then pushing in an inch or more until the ribs snap.
       [Dr. Hood] also determined that the injury to the spinal
       cord would have been inflicted ten to twenty minutes
       before [Victim] was taken to the hospital. [Dr. Hood] was
       unable to determine whether the other injuries were
       inflicted in a single episode or over the course of one hour
       or more.


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       Dr. Lucy Rorke, a qualified expert in the field of pediatric
       neuropathology, analyzed [Victim’s] brain and what
       remained of the brainstem and spinal cord. [Dr. Rorke’s]
       description upon microscopic analysis was organized
       subdural hematoma, a total description of the cerebrum,
       severe brainstem and cerebellar necrosis or death, total
       description of the cervical spinal cord, bilateral destruction
       of retinal nerve fiber, and optic nerve degeneration.

                                 *     *   *

       On March 9, 2015, Appellant entered into an open guilty
       plea, before the Honorable Rose Marie DeFino-Nastasi, to
       Third Degree Murder, 18 Pa.C.S.[A.] § 2502(c), as a felony
       of the first degree; and Endangering the Welfare of a Child
       (EWOC), 18 Pa.C.S.[A.] § 4304, as a felony of the third
       degree.

       On November 13, 2015, Appellant was sentenced to fifteen
       (15) to thirty (30) years for the third degree murder
       conviction; and a consecutive seven (7) years’ probation
       for the EWOC conviction.

       On November 18, 2015, Appellant filed a motion for
       reconsideration of sentence, which [the court] denied
       without a hearing on January 11, 2016.

       Counsel, Ronald Greenblatt, Esq., failed to file a timely
       notice of appeal. [Counsel] subsequently filed a petition
       pursuant to the Post Conviction Relief Act (PCRA),
       requesting that Appellant’s appellate rights be reinstated
       nunc pro tunc. The court granted the petition on February
       22, 2016.

       On March 9, 2016, Attorney Greenblatt filed a timely notice
       of appeal [nunc pro tunc] and a motion to withdraw as
       counsel. The court granted the motion. David Rudenstein,
       Esq. was appointed by the Court Appointments Unit.

       On May 31, 2016, Appellant filed a Rule 1925(b)
       Statement of [Errors] Complained of on Appeal, pursuant
       to an Order of the court, claiming that the sentence
       imposed was unduly harsh and manifestly excessive.


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(Trial Court Opinion, filed June 28, 2016, at 1-3) (internal citation to record

omitted).2

       Appellant raises one issue for our review:

          WAS THE SENTENCING COURT’S SENTENCE A VIOLATION
          OF DISCRETION WHERE THE COURT SENTENCED
          [APPELLANT] TO 15 TO 30 YEARS OF INCARCERATION
          WHERE [APPELLANT] HAD ZERO (0) PRIOR RECORD
          SCORE AND HAD DEMONSTRATED REMORSE?

(Appellant’s Brief at 3).

       Appellant argues the court focused primarily on the seriousness of the

crime when it sentenced Appellant.             Appellant asserts the court failed to

consider certain mitigating factors when it sentenced Appellant. Appellant

specifically contends the court ignored Appellant’s troubled upbringing and

mental health issues.        Appellant concludes the court’s failure to consider

these mitigating factors makes his sentence excessive, unreasonable, and

inconsistent with the norms of the Pennsylvania Sentencing Code, and we

should vacate and remand for resentencing.                 As presented, Appellant

challenges the discretionary aspects of his sentence.3 See Commonwealth

____________________________________________


2
   Appellant’s Rule 1925(b) statement was technically untimely.
Nevertheless, the trial court had adequate opportunity and chose to prepare
an opinion addressing the issue(s) raised on appeal. See Commonwealth
v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en banc). Thus, our review is
unimpeded.
3
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
(Footnote Continued Next Page)


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v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly   excessive       challenges     discretionary   aspects   of   sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing

court failed to consider or did not adequately consider certain factors

implicates discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.              Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspects of sentencing issue:

          [W]e 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary

aspects of sentence are generally waived if they are not raised at the
                       _______________________
(Footnote Continued)

have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”      Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.



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sentencing hearing or raised in a motion to modify the sentence imposed at

that hearing.    Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,

112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). 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.”    Sierra, supra at 913.    A claim that a sentence is


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manifestly excessive might raise a substantial question if the appellant’s

Rule 2119(f) statement sufficiently articulates the manner in which the

sentence imposed violates a specific provision of the Sentencing Code or the

norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d

at 627. Nevertheless, as a general rule, “[a]n allegation that a sentencing

court ‘failed to consider’ or ‘did not adequately consider’ certain factors does

not raise a substantial question that the sentence was inappropriate.” Cruz-

Centeno, supra at 545 (quoting Commonwealth v. Urrutia, 653 A.2d

706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873

(1995)). Moreover, where the sentencing court had the benefit of a PSI, the

law presumes the court was aware of and weighed relevant information

regarding a defendant’s character along with mitigating statutory factors.

Tirado, supra at 366 n.6.

      Instantly, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion and Rule 2119(f) statement.

Appellant’s assertion that the court improperly ignored certain mitigating

factors, however, does not raise a substantial question under the facts of

this case. See Cruz-Centeno, supra. Moreover, the court had the benefit

of a PSI report.     (See N.T. Sentencing Hearing, 11/13/15, at 49-50).

Therefore, we can presume the court considered the relevant information

and mitigating factors.     See Tirado, supra.      Finally, the record belies

Appellant’s contentions. The court remarked at sentencing:


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       All right. The Court reviewed the pre-sentence and the
       mental health, the sentencing memorandum from both
       parties, listened very carefully, read the letters. There was
       a letter given to the Court by [Appellant’s] mother, so I
       have that, as well as his girlfriend, his father, a neighbor.
       The Court reviewed all of that.

       This is an extremely, extremely, extremely difficult case. I
       think there is a lot of denial going on in this case. The
       court knows a little bit about mental illness. Because one
       is schizophrenic doesn’t necessarily mean they are violent
       at all. So there is some mental illness but there is also a
       level of violence that is frightening.

       The incident when [Appellant] was about 16 really
       forecasts violent behavior and it really gives the Court a lot
       of information about what happened on that night.

       Who burns a baby in the face? Who? It is unfathomable
       and then once it happens, how do you not realize we got
       the biggest, as a family, we have a huge problem here?
       We have somebody who needs to be watched constantly,
       somebody that cannot be around children, cannot be
       around children and left alone and he wasn’t alone. That is
       what is so frightening.

       It is not like he completely decompensated, as
       schizophrenics can do, and just was psychotic because if
       he were psychotic, the mother would have noticed, his
       girlfriend would have noticed. He would be very noticeable
       because he would stand out is the problem. He wasn’t
       standing out. He wasn’t acting psychotically. With his
       family all around him, they would have intervened
       absolutely.

       So it really takes away weight from the fact that he didn’t
       take his medicine. He was in a psychotic state from
       schizophrenia. He was hearing voices telling him to hurt
       this baby. From all appearances, that really wasn’t the
       case and [Appellant] doesn’t even describe it as being the
       case. [Appellant] described it as I lost my temper. I got
       mad. I shook the baby and threw the baby to the floor.

       It’s scary.   It’s frightening.   It’s horrendous behavior.   I

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        don’t find that there is mental illness that calls for
        mitigation in this particular case based on what I have
        heard here today…. …

(See N.T. Sentencing Hearing at 49-52).      The record shows the court

adequately considered Appellant’s mental health issues.   Thus, Appellant’s

challenge to the discretionary aspects of his sentence merits no relief.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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