Com. v. Moorefield, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RICKY BREEZE MOOREFIELD,
Appellant No. 709 WDA 2018
Appeal from the Judgment of Sentence Entered March 1, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013363-1996
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 6, 2019
Appellant, Ricky Breeze Moorefield, appeals from the judgment of
sentence of 40 years’ incarceration to life imprisonment (“40-life”), imposed
following resentencing for his 1999 conviction for first-degree murder, for
which he had originally been sentenced to life without the possibility of parole
(“LWOP”). Appellant challenges the discretionary aspects of his sentence.
After careful review, we affirm.
On September 27, 1996, police were called to the scene of
a shooting. They found the body of Jason Wingfield, who had been
shot three times in the head and face and once in the elbow.
During their investigation, the police interviewed several people
including Kevin Tuggles who ultimately told the police that he had
seen Appellant shoot the victim. Appellant[, who was 17 years
old at the time,] was … arrested and interviewed by detectives.
He gave both oral and audiotaped statements in which he
admitted shooting Wingfield. Both in his statement and in his
testimony at trial, Appellant recounted a confrontation he had with
Jeff Lowry a day or two before the shooting. As a result of this
confrontation and subsequent … conversations with Lowry and the
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victim, Appellant stated that he believed either Lowry or the victim
intended to kill him.
Commonwealth v. Moorefield, No. 301 WDA 2000, unpublished
memorandum at 1-2 (Pa. Super. filed July 17, 2001). Following a jury trial,
Appellant was convicted of first-degree murder and carrying a firearm without
a license. On January 19, 2000, the trial court sentenced Appellant to a
mandatory term of LWOP for first-degree murder. This Court affirmed his
judgment of sentence, and our Supreme Court denied further review.
Commonwealth v. Moorefield, 782 A.2d 1057 (Pa. Super. 2001)
(memorandum), appeal denied, 808 A.2d 570 (Pa. 2002). Appellant
subsequently filed several unsuccessful PCRA1 petitions, none of which “are
relevant to this appeal.” Appellant’s Brief at 15.
Appellant filed, pro se, his fourth PCRA petition on March 10, 2016,
“seeking a resentencing hearing in light of the United States Supreme
Court[’s] decisions in” Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 The PCRA court
appointed current counsel, who then filed an amended PCRA petition on
Appellant’s behalf. The Commonwealth conceded that Appellant was entitled
to resentencing, and the PCRA court granted the petition.
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1 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2 In Miller, the Supreme Court of the United States ruled that the Eighth
Amendment prohibits mandatory LWOP sentences for juvenile offenders. In
Montgomery, the Court held that Miller had announced a new substantive
constitutional rule that applied retroactively on state collateral review.
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A resentencing hearing was held on February 21, 2018. In addition to
Appellant’s testimony, the resentencing court heard testimony from his aunt,
Beatrice Simpson; his wife, Tahnee Moorefield; his daughter, Camaya
Moorefield; and a mitigation expert, Samuel K. Schachner, Ph.D. (“Dr.
Schachner”). The Commonwealth called one witness, Agent Michael Glen of
the Pennsylvania Department of Corrections. On March 1, 2018, the court
resentenced Appellant to 40-life for murder.3 Appellant filed a timely post-
sentence motion on March 12, 2018, which was denied on April 12, 2018. He
then filed a timely notice of appeal on May 11, 2018, and a timely, court-
ordered Pa.R.A.P. 1925(b) statement on June 5, 2018. The resentencing court
issued its Rule 1925(a) opinion on August 22, 2018.
Appellant now presents the following questions for our review: “Did the
Sentencing Court commit legal error and abuse its discretion when it
resentenced Appellant, a juvenile-lifer, to 40[-]life?” Appellant’s Brief at 4.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
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3 The court assessed no further penalty for Appellant’s conviction for carrying
a firearm without a license.
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appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, … 909 A.2d 303 ([Pa.] 2006) (internal citations
omitted). Objections to the discretionary aspects of a sentence
are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
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 process.” Sierra, supra at 912-13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court’s actions violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Appellant has satisfied these prerequisites to appellate review of his
discretionary-aspects-of-sentencing claim. He filed a timely notice of appeal
and a timely post-sentence motion raising the issue(s) now presented in his
brief. He also provided a Rule 2119(f) statement in his brief. Additionally,
Appellant presents a substantial question for our review. A “claim that the
sentence is manifestly excessive, inflicting too severe a punishment, …
present[s] a substantial question. Moreover, the sentencing court’s failure to
set forth adequate reasons for the sentence imposed also raises a substantial
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question.” Commonwealth. v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016)
(cleaned up). Accordingly, we may review the merits of Appellant’s claim.4
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation
omitted).
Appellant argues that the resentencing court “ran afoul of the mandates
of Miller in four particulars” when it resentenced him to 40-life. Appellant’s
Brief at 22. Recently, in Commonwealth. v. Machicote, 206 A.3d 1110 (Pa.
2019), the Pennsylvania Supreme Court held that “when a juvenile is exposed
to a potential sentence of [LWOP] the trial court must consider the Miller
factors,[5] on the record, prior to imposing a sentence.” Id. at 1120. A
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4In this regard, we reject the resentencing court’s contrary conclusion that
Appellant failed to present a substantial question for appellate review.
5 As our Supreme Court stated in Commonwealth v. Batts, 163 A.3d 410(Pa. 2017), compliance with Miller
requires consideration of the defendant’s age at the time of the
offense, as well as “its hallmark features,” including:
immaturity, impetuosity, and failure to appreciate risks and
consequences[;] ... the family and home environment that
surrounds him—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional[;] ... the
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sentencing court’s failure to do so renders the imposed sentence illegal, even
if the defendant is not ultimately sentenced to LWOP. Id.Here, the Commonwealth did not seek imposition of LWOP. Thus, the
resentencing court was not required to apply the Miller factors in crafting
Appellant’s new sentence. Nevertheless, the resentencing court considered
the Miller factors when it imposed Appellant’s new sentence of 40-life. See
N.T., 3/1/18, at 9 (“There are also, of course, guidelines provided through the
Miller case about things that we should look at when we are resentencing and
some of those perhaps work in your favor and some of them don’t.”); and
see id. at 9-16 (addressing individual Miller factors prior to imposing
sentence). Accordingly, out of an abundance of caution, we will consider
whether the resentencing court abused its discretion in applying the Miller
factors in fashioning Appellant’s sentence. However, it is clear that the
resentencing court did not violate Machicote, as Appellant was never
“exposed to a potential sentence of life without the possibility of parole[.]”
Machicote, 206 A.3d at 1120.
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circumstances of the homicide offense, including the extent
of his participation in the conduct and the way familial and
peer pressures may have affected him[;] ... that he might
have been charged and convicted of a lesser offense if not
for incompetencies associated with youth—for example, his
inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own
attorneys[;] ... [and] the possibility of rehabilitation ...
when the circumstances [(the youthfulness of the offender)]
most suggest it.
Id. at 431 (quoting Miller, 576 U.S. at 477-78).
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Appellant first argues that the resentencing court abused its discretion
by treating Appellant’s age at the time of his crime (17) as an aggravating
factor despite his expert witness’ opinion that Appellant was far more
immature than his chronological age:
Here, notwithstanding that [Appellant]’s expert, Dr. Schachner,
characterized him as a “pre-teen” at the time of the shooting due
to his “limited experience of a moral compass” and “many
impediments to higher level judgment and consideration of
decision making,” the [res]entencing [c]ourt thought it more
important to think of [Appellant] as a near adult. It emphasized
that [Appellant] was “not a 15-year-old boy . . . not a 14-year-old
boy … [but] a 17 year old, close to 18 when this [shooting]
occurred,” as if his chronological age of 17 was a strike against
him, or meaningful in any way in light of the expert analysis
provided.
Quite simply, the [res]entencing [c]ourt viewed [Appellant]’s age
too simplistically, considering him more as if he were an adult than
the immature child that he really was. In essence, therefore, the
… [c]ourt erred in treating [Appellant]’s chronological age as if it
were an aggravating circumstance, making him someone who’s
more worthy of a harsher sentence.
Appellant’s Brief at 25 (footnotes omitted).
The resentencing court rejected this claim for the following reasons:
With respect to [Appellant]’s claim that this court “minimized” his
age and aligned him more with an adult than as a “pre-teen” as
Dr. Schachner described him in his report, the court simply took
note of the undisputed fact that [Appellant] was eleven (11)
months[’] shy of committing the crime as an adult. [Appellant]
was born on August 22, 1979, and he committed the murder on
September 27, 1996, when he was 17 years [and] 1 month old.
The court further considered the facts that [Appellant] had
admitted to Dr. Schachner during his interview regarding the
circumstances of the crime (i.e.[,] planning the confrontation,
firing multiple shots, changing clothes and fleeing the scene), and
it found that his actions aligned more with the actions of an adult
than that of a 10, 11 or 12 year old. []Psychological Report,
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10/5/17, [at] 8[]; (Sentencing Transcript [(“ST”)], 3/21/18, [at]
55).
Moreover, at the resentencing hearing, Dr. Schachner qualified his
characterization of [Appellant] as a “pre-teen” when the
Commonwealth confronted him with the specific facts of the
murder. [Id.] Indeed, when the Commonwealth asked “how
admittedly luring someone out into an alley, shooting them three
times, changing their clothes afterwards … can be equated with
the actions of an 11 or 12 or ten-year-old?”, Dr. Schachner
replied, “[w]ith those specific examples, they may be less
related.” [Id.] He explained that his “pre -teen” description was
“[s]pecific to [Appellant’s] ability to demonstrate executive
functioning, cognitive ability, academic achievement and
recognizing right or wrong.” [Id.]
Resentencing Court Opinion (“RSCO”), 8/22/18, at 7.
We ascertain no abuse of discretion with regard to the resentencing
court’s consideration of Appellant’s age at the time of the murder. First, the
court was not required to accept Dr. Schachner’s opinion at face value.
Second, his opinion with regard to Appellant’s effective age in terms of his
maturity at the time of the murder was essentially impeached, at least in part.
Third, Appellant’s actual/chronological age is itself a relevant factor to consider
under Miller; indeed, the court was required to consider his chronological age.
See Batts, 163 A.3d at 431. Fourth, it would have been rational for the court
to consider Appellant’s actual age at the time of the crime as an aggravating
factor. Just as it is reasonable to believe that a pre-teen presents a greater
potential for rehabilitation, a corollary follows that a juvenile closer to the age
of maturity may present relatively less potential for rehabilitation.
Accordingly, we conclude that this aspect of Appellant’s sentencing claim is
meritless.
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Next, Appellant argues that the resentencing court abused its discretion
by not permitting him to “elicit the nature and circumstances of the underlying
crime from his perspective.” Appellant’s Brief at 26 (emphasis added).
Specifically, the court prevented defense counsel from eliciting Appellant’s
subjective views concerning the events that led up to the murder of Jason
Wingfield. See N.T., 2/21/18, 89-93. Appellant specifically complains that
he
was foreclosed from answering the question [of] why he continues
to maintain self-defense, and he was denied the opportunity to
rebut the assertion that this somehow shows a lack of capacity for
rehabilitation. [Appellant] appreciated that he didn’t get to
change the facts as the jury found them-which expressly rejected
his claim of self-defense-but he wanted at least the opportunity to
tell the [res]entencing [c]ourt why he acted the way he did, why
he believed self-defense was at issue (rightly or wrongly), and
why he still believes that to be the case.
But that did [not] happen here. Rather[,] what happened was
that the [res]entencing [c]ourt, which wasn’t the trier of fact, got
a narrow view of the underlying circumstances of this crime,
without any first-hand perspective from [Appellant], and it was
left with the Commonwealth’s singular viewpoint as to why
[Appellant] continued to maintain self-defense-i.e.[,] because
he’s “not rehabilitated” and he exhibits “a real lack of
accountability.” That singular perspective robbed [Appellant]’s
resentencing proceeding of perspective and a full picture that was
necessary to meting out a truly individualized sentence. In that
regard, the [res]entencing [c]ourt erred.
Appellant’s Brief at 31-32.
While the facts and circumstances of the underlying crime are certainly
relevant matters when resentencing pursuant to Miller, Appellant fails to cite
any authority for the proposition that Appellant’s subjective view of those facts
and circumstances are relevant or important factors. As such, we cannot
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conclude that the resentencing court abused its discretion by refusing to hear
from Appellant in that regard.
In any event, the resentencing court indicates that it “was well aware of
[Appellant’s] perspective on the matter by way of Dr. Schachner’s testimony
and his expert report, which contained incredibly detailed information from
[Appellant] as to his background and his position regarding the circumstances
of the crime.” RSCO at 8. We agree with the resentencing court that, to the
extent that Appellant’s subjective beliefs regarding the murder were relevant
to his resentencing, the court was aware of them. Moreover, Appellant fails
to specify in his brief how his omitted testimony would have added to or
corrected Dr. Schachner’s report and/or testimony.6 Accordingly, even if
Appellant’s subjective view of the facts and circumstances of this case were
relevant, we would ascertain no abuse of discretion in the resentencing court’s
decision to preclude Appellant’s testimony.
Next, Appellant contends that the court abused its discretion when it
asserted that there “does not seem to be any suggestion that [Appellant was]
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6 Appellant argues that “he wanted at least the opportunity to tell why he
acted the way he did, why he believed self-defense was at issue (rightly or
wrongly), and why he still believes that to be the case.” Appellant’s Brief at
31 (emphasis in original). However, Appellant does not detail those reasons
in his brief, nor how those specific reasons would have suggested that a lesser
sentence was appropriate. Appellant contends that in the absence of his
perspective, the court “was left with the Commonwealth’s singular viewpoint
as to why he continued to maintain self-defense,” that being that he was
ostensibly not rehabilitated and that he lacked accountability. Id. at 31-32.
Yet, Appellant provides no alternative in his brief but for the mere abstract
notion that he might have provided a different theory for the court to consider.
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unable to cooperate with [his] attorney or with the police.” N.T., 3/1/18, at
11. Appellant argues that this “assertion was belied by Dr. Schachner’s
report….” Appellant’s Brief at 32. Appellant points to statements in Dr.
Schachner’s report that Appellant was exceptionally immature for a 17 year
old at the time of the murder, and the doctor’s opinion that he was skeptical
that Appellant truly comprehended the proceedings or the consequences of
his inculpatory statements. Id. at 32-33.
The resentencing court responds:
With respect to the claim that this court [glossed] over
[Appellant]’s ability to cooperate with counsel or law enforcement
at the time of trial, the issue before this court was not whether
[he] deserved a new trial, but rather what sentence was
appropriate for his crime. [Appellant] took the stand on his own
behalf at trial and asserted his self-defense claim, which shows
that he was able to adequately participate in his defense and trial
strategy. In this court’s estimation, [Appellant]’s admissions
regarding his actions on the day of the murder indicate a degree
of criminal sophistication which substantially weakens [his]
suggestion that he was unable to adequately cooperate with
counsel or law enforcement. The court also notes that [Appellant]
was accompanied by his mother when he voluntar[il]y …
surrendered to police after the murder.
RSCO at 8-9.
We do not agree that the record supports that Appellant was able to
participate in a meaningful way in his own defense merely because he took
the stand to express his self-defense. Nevertheless, there is very little
indication in the record that Appellant’s immaturity undermined the fairness
of his trial or his participation therein in any significant way. Ultimately, the
facts that Appellant both waived his Miranda rights and confessed in the
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presence of his mother indicate that this particular Miller factor did not weigh
strongly in Appellant’s favor.
Finally, Appellant argues that the resentencing court took Dr.
Schachner’s findings out of context, and effectively treated what should have
been mitigating factors as aggravating factors. We disagree. As accurately
noted by the Commonwealth, the resentencing court “was not obligated to
accept every statement made by [A]ppellant’s expert. ‘Furthermore, when
expert opinion evidence is admitted, the factfinder is free to reject it, accept
it, or give it some weight between the two.’ Commonwealth v. Stephens,
74 A.3d 1034, 1041 (Pa. Super. 2013).” Commonwealth’s Brief at 20.
Appellant quibbles about specific statements made by the resentencing
court as they relate to Dr. Schachner’s findings, which incorrectly presumes
that the court was bound by those findings, although it was not. Moreover,
Appellant argues over minutiae, and in doing so misses the forest for the trees,
as we conclude that the resentencing court provided, overall, a detailed and
thoughtful analysis of the Miller factors as they related to Appellant’s
resentencing. See N.T., 3/1/18, at 8-16.
Moreover, 18 Pa.C.S. § 1102.1(a) provides, in pertinent part, as follows:
(a) First degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the first degree, first degree
murder of an unborn child or murder of a law enforcement officer
of the first 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 life imprisonment without parole, or a term of
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imprisonment, the minimum of which shall be at least 35
years to life.
18 Pa.C.S. § 1102.1(a).
Unfortunately, our legislature has failed to provide explicit guidance for
situations where, as here, a defendant was originally convicted prior to June
24, 2012. However, our Supreme Court has indicated that, despite this
legislative oversight, a “sentencing court should fashion the minimum term of
incarceration using, as guidance, Section 1102.1(a) of the Crimes Code.”
Batts, 163 A.3d at 460. Here, Appellant was sentenced to 40-life, only 5
years’ minimum incarceration more than the mandatory-minimum sentence
provided by Section 1102.1(a)(1). Additionally, as noted by the
Commonwealth,
[I]t is noted that with the changes that occurred to Pennsylvania’s
Sentencing Code after Miller, a sentence … for a first[-]degree
murder committed by a defendant such as [A]ppellant, would
have an Offense Gravity Score of 15. With an Offense Gravity
Score of 15, [and] if [A]ppellant’s prior record score was [zero],
the sentencing guidelines would provide a standard range
sentence of thirty-five years to life as a minimum sentence, plus
or minus five years for aggravating or mitigating factors. 204
Pa.Code [§§] 303.15 and 303.16(b).
Commonwealth’s Brief at 11. Thus, under the sentencing guidelines,
Appellant’s sentence falls on the boundary between the standard and
aggravated range.
Thus, we consider Appellant’s sentence as a small deviation upward
from the mandatory minimum sentence under Section 1102.1(a)(1), and a
top-of-the-standard-range or bottom-of-the-aggravated-range sentence
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under the sentencing guidelines. In light of this, it appears that the
resentencing court only afforded slightly more weight to aggravating factors
than it did to mitigating factors, and we ascertain no manifest
unreasonableness in such a determination. To the extent that Appellant is
merely complaining about the relative weight that the resentencing court
afforded to these various factors, such a claim does not present a substantial
question for our review. See Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa. Super. 2013) (holding that an “argument that the trial court failed to give
adequate weight to mitigating factors does not present a substantial question
appropriate for our review”).
For all the aforementioned reasons, we conclude that Appellant is not
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2019
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