J-S59028-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
MATTHEW CHRISTIAN MILISITS,               :
                                          :
                  Appellant               :   No. 352 WDA 2015

           Appeal from the Judgment of Sentence December 8, 2014,
                Court of Common Pleas, Westmoreland County,
               Criminal Division at No. CP-65-CR-0004743-2012

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 29, 2015

      Matthew Christian Milisits (“Milisits”) appeals from the judgment of

sentence entered following his conviction of third-degree murder, 18

Pa.C.S.A. § 2502(c). Following our review, we affirm.

      The trial court summarized the relevant facts underlying this appeal as

follows:

             The Defendant, [Milisits], [] was charged by criminal
             information filed at 4743 C 2012 in the Court of
             Common       Pleas    of    Westmoreland      County,
             Pennsylvania with one (1) count of [c]riminal
             [h]omicide (18 Pa.C.S. §2501(a)), one count of
             [a]ggravated [a]ssault (18 Pa.C.S. §2702(a)(1)),
             one count of [s]imple [a]ssault (18 Pa.C.S.
             §2701(a)(1)), one count of [e]ndangering the
             [w]elfare of [c]hildren (18 Pa.C.S. § 4304(a)(1)),
             and one count of [r]ecklessly [e]ndangering
             [a]nother [p]erson (18 Pa.C.S. § 2705), wherein he
             was alleged to have caused the death of his minor
             child, Sophia Ludwiczak, who was eight weeks old at
             the time of her death. Milisits entered a general plea



*Former Justice specially assigned to the Superior Court.
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           of guilty to one (1) count of [m]urder of the [t]hird
           [d]egree (18 Pa.C.S. § 2502(c)) before this court on
           September 5, 2014. The remaining counts were
           dismissed by the Commonwealth in exchange for
           Milisits’ plea of guilty.

           On December 8, 2014, Milisits was sentenced by this
           court to the maximum sentence of [twenty] to
           [forty] years in state prison. Post-[s]entence motions
           were denied by Order of Court on January 20, 2015.

     This timely appeal followed, in which Milisits presents only one issue

for our review: “Whether the trial court erred by denying [Milisits’] post-

sentence motion for reconsideration of sentence, for reasons that the

sentence of twenty [] to forty [] years of incarceration at the department of

corrections, which the trial court imposed upon [Milisits], was manifestly

excessive and constituted too severe of a punishment?” Milisits’ Brief at 6.

This issue is a challenge to the discretionary aspects of Milisits’ sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011) (citation omitted).

           An appellant challenging the discretionary aspects of
           his sentence must invoke this Court’s jurisdiction by
           satisfying a four-part test: (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.




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            § 9781(b). Commonwealth v. Evans, 901 A.2d
            528, 533 (Pa. Super. 2006).

Id. “A substantial question exists where the statement sets forth a plausible

argument that the sentence violates a particular provision of the Sentencing

Code or is contrary to the fundamental norms underlying the sentencing

scheme.” Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003).

      The record reveals that Milisits timely filed his appeal and that he

preserved this issue by raising it in a post-sentence motion. He has included

a concise statement of reasons for allowance of appeal pursuant to Pa.R.A.P.

2119(f) in his brief, in which he alleges that the trial court “failed to

adequately take into account the nature and circumstances of the offense,

the history and characteristics of [Milisits], and his rehabilitative needs as

required by 42 Pa.C.S.A. [§] 9721(b).”     Milisits’ Brief at 10. This raises a

substantial question so as to invoke our review.     See Commonwealth v.

Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (citing Commonwealth v.

Riggs, 63 A.3d 780, 786 (Pa. Super. 2012)). As we consider this claim, we

are mindful that when reviewing a challenge to the discretionary aspects of

sentencing, this Court evaluates the trial court’s decision under an abuse of

discretion standard. Id. at 1274.

      Despite claiming that his challenge was based on the trial court’s

failure to consider the factors set forth in 42 Pa.C.S.A. § 9721(b) in his Rule

2119(f) statement, Milisits shifts the focus of his claim in the argument




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section of his brief. Milisits argues that his sentence, which is beyond the

standard range of the sentencing guidelines, is “manifestly excessive” and

“too severe of a punishment” in light of the fact that he had no prior record

and that he accepted responsibility for his actions and expressed remorse for

killing his daughter. Milisits’ Brief at 14-15. He further points to testimony

from multiple characters witnesses who testified at the sentencing hearing,

as well as multiple letters and a petition signed by hundreds of members of

Milisits’ community, attesting to Milisits’ good character.   Id. at 15.   The

sum and substance of Milisits’ argument is that his sentence is excessive in

light of these extenuating factors.   Yet, the record reveals that trial court

considered all of these factors when sentencing Milisits.     At the time of

sentencing, it stated,

                   First of all, I reviewed the letters that were
            submitted by the defense, the packet … . I heard
            time after time in the letters and also from the
            witnesses today what a great father he is or was to
            his six[-]year[-]old son Ashton who was six years old
            at the time. Well, Sophia deserved to have a loving
            father and if this man did not want to be a loving
            father[,] then Sophia had the love of her mother and
            I believe other relatives and friends that would have
            filled that spot. Every child doesn’t have a father
            present in their life. Sophia could have grown up,
            deserved a chance to grow up, and now not only
            Sophia has lost her life[,] but Ashton doesn’t have
            his father. Ashton is also suffering and he’s an
            innocent person in this case.

                  I had asked the mother whether she had filed
            for support or had a paternity test because I had
            seen that was an issue, Mr. Milisits, that you had



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            stated that you weren’t sure that you were the
            father. I’m not judging you for that. … That’s not
            entering my decision today, I was just curious about
            that.

                   Nevertheless, you asked the mother if you
            could have that child alone, you chose to keep the
            child alone that day, and as [the Commonwealth]
            brought up[,] you weren’t a [seventeen][-]year[-]old
            child, you were thirty years old. Your attorney just
            argues that you were used to a six[-]year[-]old[,]
            not an infant. Well, your six[-]year[-]old was an
            infant and again, you’re thirty, you’re not
            [seventeen] or [eighteen].

                    You had contact with a child for six years and it
            sounded like you had contact with other children,
            other relatives, other children in the neighborhood,
            and you had no problem texting the baby’s mother
            all morning, so if Sophia was unusually fussy or you
            couldn’t stop her from crying I don’t know why you
            didn’t just call her mother or text her mother and
            say I can’t get her to stop crying, I need help, I need
            help. That’s all. What is that baby going to do to
            you? Nothing. She is two months old. She is in her
            little seat crying, and if you can’t take that[,] I don’t
            know what you can take, sir.

                  I have considered all of these things. I have
            considered the guidelines, and the maximum penalty
            in Pennsylvania is [twenty] to [forty] years for
            murder of the third degree. That is appropriate. The
            maximum penalty is appropriate in this case,
            therefore I sentence you … to [twenty] to [forty]
            years in state prison and that is the maximum … that
            I can impose.

N.T., 12/8/14, at 56-60. We further note that there was a pre-sentencing

investigative report, which the trial court also considered. Id. at 4.




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      The law imposes the following requirements regarding the fashioning

of sentences:

            When imposing a sentence, a court is required to
            consider the particular circumstances of the offense
            and the character of the defendant. In particular,
            the court should refer to the defendant’s prior
            criminal record, his age, personal characteristics and
            his potential for rehabilitation. Where the sentencing
            court had the benefit of a presentence investigation
            report (‘PSI’), we can assume the sentencing court
            was aware of relevant information regarding the
            defendant’s     character      and   weighed     those
            considerations along with mitigating statutory
            factors.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (internal

citations omitted).   The record here clearly establishes that the trial court

considered everything it was required to consider when it sentenced Milisits.

Beyond bald allegations that his sentence was too severe in consideration of

certain factors, Milisits presents no argument as to how the trial court erred

in imposing his sentence.      Accordingly, we find no merit to his claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2015




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