J-S43022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

TROY MICHAEL MILLER 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 739 MDA 2023

Appeal from the Judgment of Sentence Entered April 3, 2023

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003639-2022

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: FEBRUARY 21, 2024

Appellant, Troy Michael Miller, appeals from the judgment of sentence 

entered in the Berks County Court of Common Pleas, following his open guilty 

plea to stalking.1 We affirm. 

The relevant facts and procedural history of this case are as follows. On 

February 8, 2023, Appellant entered an open guilty plea to stalking Tara 

Rissmiller (“Victim”). On April 3, 2023, the trial court conducted a sentencing 

hearing. Victim submitted a victim impact statement for the court’s 

consideration. In the statement, Victim relayed that she has been dealing 

with Appellant’s unwanted presence in her life for five years. Victim described 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §2709.1(a)(1). 
J-S43022-23

- 2 -

how she constantly feels the need to look over her shoulder and stay 

hypervigilant out of fear that Appellant will appear. Victim stated that she 

panics when she is in a place where she cannot easily leave because she is 

afraid that Appellant will appear. Victim explained that her hands start to 

shake, her heart beats fast, and she gets chest pains whenever she sees a 

white car because she is afraid that Appellant is inside. Victim expressed 

distress that her coworkers, friends and loved ones, including her daughter, 

are afraid for her safety due to Appellant’s actions. Victim further stated that 

Appellant has previously been convicted for violating protection from abuse 

(“PFA”) orders she had in place. Nevertheless, Appellant was not deterred 

from engaging in the same conduct because Appellant showed up at her 

workplace the day after he was released from prison. 

Appellant’s counsel informed the court that Appellant’s brother passed 

away approximately seven months prior to Appellant’s criminal behavior. 

Additionally, Appellant learned that his stage 4 prostate cancer was terminal. 

Appellant’s counsel argued that the mental stress and anguish from these 

circumstances led to the deterioration of Appellant’s mental health and 

contributed to his actions against Victim. Appellant’s counsel reported that 

Appellant has sought psychiatric help but the provider he initially consulted 

did not accept Appellant’s insurance. Appellant was seeking a provider that 

accepts his insurance to address his mental health concerns. Appellant also 

addressed the court and stated that he was sorry for his actions. Appellant 
J-S43022-23

- 3 -

further affirmed that he would seek psychiatric help for his mental health 

struggles. 

At the conclusion of the hearing, the court sentenced Appellant to 8 to 

23 months of incarceration followed by two years of probation. On April 12, 

2023, Appellant timely filed a post-sentence motion, which the court denied 

on April 18, 2023. Appellant timely filed a notice of appeal on May 17, 2023. 

On May 25, 2023, the court ordered Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal, and Appellant complied 

on June 14, 2023. 

Appellant raises the following issue for our review:

In sentencing [Appellant] to a sentence of total confinement 

of 8 to 23 months in Berks County Jail System, followed by 

two years’ probation, whether the trial court abused its 

sentencing discretion where requirements of 42 Pa.C.S.A. § 

9721(b) and 42 Pa.C.S.A. § 9725 were not met? 

(Appellant’s Brief at 7). 

Appellant argues that the court failed to consider mitigating factors such 

as the death of Appellant’s brother, Appellant’s stage 4 cancer diagnosis, and 

Appellant’s resulting mental health deterioration, prior to imposing his 

sentence. Appellant asserts that the court’s excessive sentence for his nonviolent offense demonstrates that the court did not truly consider whether the 

protection of the public or the gravity of the offense warranted such a harsh 

sentence. Appellant further contends that the court did not properly weigh

Appellant’s rehabilitative potential because Appellant took responsibility for 
J-S43022-23

- 4 -

his actions, expressed remorse for the hurt he caused, and took steps to 

address his mental health concerns. Appellant concludes that the court 

imposed a manifestly excessive sentence without properly considering 

mandatory sentencing criteria, such as Appellant’s character, personal history,

and rehabilitative needs, and this Court should vacate the judgment of 

sentence. We disagree. 

As presented, Appellant’s claim challenges the discretionary aspects of 

sentencing. See Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013), 

appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court 

focused solely on serious nature of crime without adequately considering 

protection of public or defendant’s rehabilitative needs concerns court’s 

sentencing discretion); Commonwealth 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) (explaining claim that court did not consider mitigating factors 

challenges discretionary aspects of sentencing).

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

appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d 

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 

L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of 

sentencing issue: 
J-S43022-23

- 5 -

[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) (quoting Commonwealth v. 

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke this Court’s jurisdiction by including in his brief a separate concise 

statement demonstrating 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.” Phillips, supra at 112 

(emphasis in original) (internal quotation marks omitted). 

“The determination of what constitutes a substantial question must be 

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

A.2d 1013, 1018 (Pa.Super. 2003). “A substantial question exists only when 

the appellant advances a colorable argument that the sentencing judge’s 
J-S43022-23

- 6 -

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.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015) 

(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 

2011)). 

“[A]n excessive sentence claim—in conjunction with an assertion that 

the court failed to consider mitigating factors—raises a substantial question.” 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal 

denied, 629 Pa. 636, 105 A.3d 736 (2014). See also Commonwealth v. 

Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court 

failed to consider factors set forth under Section 9721(b) and focused solely 

on seriousness of defendant’s offense raised substantial question). 

This Court reviews discretionary sentencing challenges based on the 

following standard:

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. An abuse of 

discretion is more than just an error in judgment and, on 

appeal, the trial court will not be found to have abused its 

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, bias or ill-will. 

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting 

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)). 

Pursuant to Section 9721(b), “the court shall follow the general principle 

that the sentence imposed should call for confinement that is consistent with 
J-S43022-23

- 7 -

the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Additionally, “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), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984, 162 L.Ed.2d 

902 (2005). “In particular, the court should refer to the defendant’s prior 

criminal record, his age, personal characteristics and his potential for 

rehabilitation.” Id. 

...Where the sentencing court had the benefit of a [presentence investigation (“PSI”) report], 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. Devers, 519 Pa. 88, 101-02, 546 A.2d 

12, 18 (1988). See also Commonwealth v. Tirado, 870 

A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court 

has benefit of PSI, law expects court was aware of relevant 

information regarding defendant’s character and weighed 

those considerations along with any mitigating factors). 

Further, where a sentence is within the standard range of 

the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code. See [CruzCenteno, supra] (stating combination of PSI and standard 

range sentence, absent more, cannot be considered 

excessive or unreasonable). 

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

Instantly, Appellant raised his sentencing issue in a timely postsentence motion, filed a timely notice of appeal, and included in his appellate 

brief a Rule 2119(f) statement. Further, Appellant’s assertion that the 
J-S43022-23

- 8 -

sentence was manifestly excessive in conjunction with his claim that the court 

failed to weigh his rehabilitative needs and/or consider mitigating factors 

arguably raises a substantial question. See Raven, supra; Trimble, supra. 

Thus, we proceed to address the merits of Appellant’s sentencing claims. 

Here, the court had the benefit of a PSI report, defense counsel’s 

arguments, and Appellant’s statements at sentencing. Under these 

circumstances, we can presume the court was fully aware of and considered 

mitigating factors such as the death of Appellant’s brother, Appellant’s cancer 

diagnosis, and his mental health struggles. See Tirado, supra. Additionally, 

the court imposed a sentence within the standard range. As such, we see no 

merit to Appellant’s claim that the sentence was excessive. See Moury, 

supra.

Additionally, the record makes clear the court considered the protection 

of the public, the gravity of the offense, and Appellant’s rehabilitative needs. 

In her victim impact statement, Victim indicated that Appellant has been an 

unwanted presence in her life for an extended period. Although Appellant did 

not physically harm Victim, her statement indicates that she suffered 

significant emotional distress due to Appellant’s actions. Notwithstanding 

Appellant’s expression of remorse at sentencing, Appellant had two prior 

convictions for indirect criminal contempt for PFA violations involving Victim,

and Victim noted that the convictions did not deter Appellant from continuing 

the same conduct. On this record, we see no reason to disrupt the court’s 
J-S43022-23

- 9 -

sentencing discretion. See McNabb, supra. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 02/21/2024