Background

• Defendant Danir Malloy (age 25) was convicted by a jury of robbery, theft by unlawful taking (merged), possession of an instrument of a crime (PIC), and terroristic threats for a November 11, 2015 incident in Philadelphia in which the victim struggled over a silver handgun (later shown to be a toy), lost $15, and identified Malloy at the scene. Police recovered $20 from Malloy and the toy gun from a companion’s bag.
• At sentencing the court initially imposed 10–20 years on the robbery count under § 9714’s mandatory minimum, plus 1–2 years consecutive on the PIC count (aggregate 11–22 years); after a reconsideration hearing the court concluded § 9714 did not apply but reimposed an identical aggregate sentence without the mandatory-minimum basis.
• Malloy filed post-sentence motions challenging the sentence as excessive and asserting the court failed to consider his rehabilitative needs and improperly “double counted” factors already in the Guidelines; those motions were denied and Malloy appealed.
• The trial court had and relied on a PSI and mental-health report and placed on the record Malloy’s extensive juvenile and adult violent criminal history, substance abuse, troubled childhood, lack of remorse, and the victim impact; it also recommended treatment, GED, and vocational programming.
• The Superior Court reviewed only Malloy’s preserved discretionary-sentencing claims and upheld the sentence, finding the court considered the § 9721(b) factors, did not double-count guideline factors, and did not abuse its discretion.

Issues

Key Cases Cited

• Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (standard: sentencing reviewed for abuse of discretion)
• Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (abuse-of-discretion standard and record support required)
• Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006) (PSI reliance supports presumption court considered mitigating factors)
• Commonwealth v. Grohowski, 980 A.2d 113 (Pa. Super. 2009) (late Rule 1925(b) statement by counsel treated as ineffectiveness; remand for nunc pro tunc filing)
• Commonwealth v. Burton, 972 A.2d 428 (Pa. Super. 2009) (en banc) (same principle on late 1925(b) statements)
• Commonwealth v. Myers, 86 A.3d 286 (Pa. Super. 2014) (same obligation to remand for late 1925(b))
• Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) (failure to timely file 1925(b) results in waiver)
• Commonwealth v. Lopata, 754 A.2d 685 (Pa. Super. 2000) (issues not raised below are waived on appeal)
• Commonwealth v. Ryan, 909 A.2d 839 (Pa. Super. 2006) (new theory of error not preserved is waived)
• Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011) (four-part test for discretionary-aspects review)
• Commonwealth v. Paul, 925 A.2d 825 (Pa. Super. 2007) (what constitutes a substantial question)
• Commonwealth v. Swope, 123 A.3d 333 (Pa. Super. 2015) (substantial question requires showing inconsistency with Sentencing Code or norms)
• Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (Rule 2119(f) must articulate how sentence violates Sentencing Code or norms)
• Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (challenge that consecutive sentence is excessive and court failed to consider rehabilitation raises substantial question)
• Commonwealth v. Scassera, 965 A.2d 247 (Pa. Super. 2009) (claim court failed to consider guidelines before exceeding them raises substantial question)
• Commonwealth v. Ahmad, 961 A.2d 884 (Pa. Super. 2008) (failure to consider individualized circumstances raises substantial question)
• Commonwealth v. Simpson, 829 A.2d 334 (Pa. Super. 2003) (reliance on factors already in Guidelines is impermissible and raises substantial question)
• Commonwealth v. Colon, 102 A.3d 1033 (Pa. Super. 2014) (record as whole must reflect consideration of crime and offender under § 9721)