Com. v. Clary, T. ( 2020 )


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  • J-A24027-19
    
    2020 PA Super 1
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    TERRELL LAMAR CLARY                        :
    :
    Appellant               :   No. 3105 EDA 2018
    Appeal from the Judgment of Sentence Entered May 31, 2018
    In the Court of Common Pleas of Montgomery County Criminal Division
    at No(s): CP-46-CR-0008066-1999
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    TERRELL LAMAR CLARY                        :
    :
    Appellant               :   No. 3107 EDA 2018
    Appeal from the Judgment of Sentence Entered May 31, 2018
    In the Court of Common Pleas of Montgomery County Criminal Division
    at No(s): CP-46-CR-0001873-2000
    BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*
    OPINION BY DUBOW, J.:                                    Filed: January 2, 2020
    Appellant, Terrell Lamar Clary, appeals from the May 31, 2018 Judgment
    of Sentence of 48 years’ to life imprisonment imposed upon resentencing after
    the grant of post-conviction relief based on Miller v. Alabama, 
    567 U.S. 460
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A24027-19
    (2012), and Montgomery v. Louisiana, ___U.S.___, 
    136 S.Ct. 718
     (2016).1
    Appellant challenges certain evidentiary rulings made at his resentencing
    hearing, as well as the discretionary aspects and legality of his sentence. After
    careful review, we affirm.
    Facts and Procedural History
    A detailed recitation of the procedural and factual history is unnecessary
    to our disposition. Briefly, in 1999, when Appellant was 16 years old, he shot
    Juan Watson in the chest. The next day, he shot and killed William Six.
    Appellant was charged, inter alia, with the murder of Mr. Six and attempted
    murder of Mr. Watson.
    On August 17, 2000, a jury found Appellant guilty of First-Degree
    Murder and related charges in the death of Mr. Six (Docket No. 8066-99) and
    guilty of Attempted Murder and related charges in the shooting of Mr. Watson
    (Docket No. 1873-00).2 On November 6, 2000, the court sentenced Appellant,
    in relevant part, to a statutorily mandated sentence of life without parole
    ____________________________________________
    1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
    courts to impose an automatic LWOP upon a homicide defendant for a murder
    committed while the defendant was under eighteen years old. Miller, 
    567 U.S. at 479
    . In Montgomery, the U.S. Supreme Court held that its decision
    in Miller, 
    supra,
     applies retroactively. Montgomery, 136 S.Ct. at 732.
    2 The matters were consolidated for trial. Appellant filed an appeal for each
    docket and filed an Application for Consolidation, asserting that the issues on
    both appeals are identical. This Court granted the Application and consolidated
    the matters on appeal.
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    (“LWOP”) for the first-degree murder conviction.3 This Court affirmed the
    Judgment of Sentence. Commonwealth v. Clary, 
    820 A.2d 702
     (Pa. Super.
    2003) (unpublished memorandum).
    On March 22, 2016, Appellant filed a Petition pursuant to the Post
    Conviction Relief Act (“PCRA”) asserting that his LWOP sentence was
    unconstitutional under Miller and Montgomery. The PCRA court granted
    relief, vacated Appellant’s sentence, and scheduled the case for resentencing.
    A three-day resentencing hearing commenced on May 7, 2018. The
    Commonwealth sought a LWOP sentence. The Commonwealth presented
    testimony from, inter alia, Detective Dillon, with whom Appellant had
    interacted when he was 16 years old. The Commonwealth also presented
    testimony from an expert in gang affiliation in rebuttal.
    On May 9, 2018, after providing a thorough review of the applicable
    sentencing factors, the court determined that Appellant was not permanently
    incorrigible and declined to impose a LWOP sentence. The court resentenced
    Appellant to a term of 42 years to life imprisonment for his First-Degree
    Murder conviction, a consecutive sentence of 6 to 12 years of imprisonment
    for his Attempted Murder conviction; and a consecutive sentence of 7 years
    of probation for a gun violation charge. Thus, the court sentenced him to an
    ____________________________________________
    3 The court also imposed a consecutive sentence of 6 to 12 years of
    imprisonment for his Attempted Murder conviction; and a consecutive
    sentence of 7 years of probation for a gun violation charge.
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    J-A24027-19
    aggregate term of 48 years’ to life imprisonment, followed by 7 years’
    probation.
    Appellant filed a Post-Sentence Motion, which the trial court denied.
    This timely appeal followed. Both Appellant and the trial court complied
    with Pa.R.A.P. 1925.
    Issues Raised
    Appellant raises the following four issues on appeal, which we have
    reordered for ease of disposition:
    1. Did the sentencing court abuse its discretion in allowing the
    Commonwealth to present expert testimony regarding gang affiliation
    and activity where no expert report or other notice was provided to the
    defense and [Appellant’s] gang activity was one of the critical factors
    that shaped the court’s decision?
    2. Did the sentencing court abuse its discretion in denying defense counsel
    the right to cross-examine a Commonwealth witness on issues of
    [Appellant’s] interactions with police where “the ability to navigate the
    system” is one of the enumerated factors that must be considered in
    Miller and the sentencing court erroneously found that [Appellant] was
    able to navigate the system?
    3. Did the sentencing court abuse its discretion in imposing a manifestly
    excessive and unreasonable sentence where the court failed to follow
    the mandates of Miller, Montgomery, and Batts?
    4. Is the sentence imposed an illegal sentence as it is a de facto life
    sentence when the court found that [Appellant] was not permanently
    incorrigible?
    Appellant’s Br. at 3.
    Issue 1: Rebuttal Testimony
    Appellant’s first issue challenges an evidentiary ruling. The admissibility
    of evidence lies “within the sound discretion of the trial court, and a reviewing
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    court will not reverse the trial court’s decision absent a clear abuse of
    discretion.” Commonwealth v. Young, 
    989 A.2d 920
    , 924 (Pa. Super. 2010)
    (citations omitted). See, e.g., Commonwealth v. Feflie, 
    581 A.2d 636
    , 643
    (Pa. Super. 1990) (noting that the admission of rebuttal testimony is within
    the discretion of the trial court). “An abuse of discretion is not merely an error
    of judgment, but is rather the overriding or misapplication of the law, or the
    exercise of judgment that is manifestly unreasonable, or the result of bias,
    prejudice, ill-will or partiality, as shown by the evidence of record.”
    Commonwealth v. Nypaver, 
    69 A.3d 708
    , 716 (Pa. Super. 2013) (citations
    omitted).
    Appellant asserts that the trial court abused its discretion in permitting
    the Commonwealth to present as a rebuttal witness a gang expert, Lieutenant
    Eric Echevarria, when the Commonwealth failed to disclose this witness to
    Appellant in violation of Pa.R.Crim.P. 573. Appellant’s Br. at 60.
    Pa.R.Crim.P. 573(B)(1) outlines           the   Commonwealth’s   mandatory
    obligation to disclose certain evidence to a defendant, including exculpatory
    evidence, inculpatory statements, and tangible evidence. See Pa.R.Crim.P.
    573(B)(1). However, our rules contain no “provision which requires the
    Commonwealth to disclose rebuttal witnesses[.]” Feflie, supra at 643.4
    Further, we have opined that it is impossible for the Commonwealth “to
    ____________________________________________
    4Feflie discusses Pa.R.Crim.P. 305, the identical predecessor to Rule 573.
    Commonwealth v. Burke, 
    781 A.2d 1136
    , 1139 n.4 (Pa. 2001).
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    provide the defense with a complete list of every possible witness who might
    be called in rebuttal, since plans for such rebuttal obviously cannot be finalized
    until the defense is presented.” Commonwealth v. Oliver, 
    379 A.2d 309
    ,
    313 (Pa. Super. 1977). See also Commonwealth v. Novasak, 
    606 A.2d 477
    , 487 (Pa. Super. 1992) (quoting Commonwealth v. Thiel, 
    470 A.2d 145
    , 148 (Pa. Super. 1983) (“[W]e cannot expect the Commonwealth to
    anticipate the materiality of all possible rebuttal evidence[.]”)).
    In this case, Appellant presented testimony from John Hepburn, Ph.D.,
    an expert in sociology, corrections, and “security threat group management,”
    including organized gang members. Dr. Hepburn interpreted evidence
    relevant to whether Appellant continued to act as a gang member in prison.
    N.T.     Resentencing,   5/9/18,   at    20-21.   On   cross-examination,     the
    Commonwealth questioned Dr. Hepburn on Appellant’s classification as “H-5,”
    and asked him to interpret symbols on a letter from a gang member as well
    as a list of names and addresses on a yellow piece of paper. 
    Id. at 56, 75, 84-86
    . Dr. Hepburn testified that the H-5 classification typically means mid-
    level, but did not know the exact classification relative to Appellant’s alleged
    gang. 
    Id. at 56
    . Dr. Hepburn could not interpret the symbols on the letter and
    did not know if the list of names was a roster of gang members. 
    Id. at 75, 84-86
    .
    In rebuttal, the Commonwealth called Lieutenant Detective Echevarria
    as an expert witness to testify regarding gang activity, including gang
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    language. Appellant’s counsel objected, arguing that the Commonwealth
    should have informed him of the rebuttal expert. The court overruled the
    objection and permitted Detective Echevarria to testify. He testified in detail
    about the H-5 classification, interpreted the symbols on the letter that the
    Commonwealth had shown to Dr. Hepburn, opined as to Appellant’s status in
    the gang based on those symbols, and identified the yellow paper as a list of
    gang members and their hierarchy. 
    Id. at 116-19, 121-22
    .
    Following our review, we conclude that the sentencing court did not
    abuse its discretion in permitting the rebuttal testimony of Detective
    Echevarria. Appellant has presented no authority to support his claim that the
    Commonwealth was required to disclose the names of its rebuttal witnesses.
    As the resentencing court concluded, the Commonwealth could not have
    known whether it needed to produce a rebuttal witness until after Appellant’s
    defense experts completed their testimony. Trial Ct. Op. at 35. See Feflie,
    supra at 643 (concluding the Commonwealth was not required to disclose
    witnesses rebutting prison procedure and alibi evidence testimony); Oliver,
    
    supra at 313
     (concluding the Commonwealth complied with the rules of
    discovery where it disclosed all its witnesses, except some called only on
    rebuttal). Accordingly, this claim is meritless.
    Issues 2-4: Sentencing
    Before we address Appellant’s specific issues, each of which references
    Miller and its progeny, we provide the following background.
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    Miller’s Applicability and Appellate Review
    In Miller, the U.S. Supreme Court held that it was unconstitutional to
    impose mandatory LWOP sentences for defendants who committed their
    crimes while under the age of 18. Miller, 
    567 U.S. at 465
    . The Court
    nonetheless opined that a LWOP sentence is still a viable sentence for “the
    rare juvenile offender whose crime reflects irreparable corruption,” and a
    judge or jury must consider individualized characteristics and circumstances,
    including an offender’s youth and attendant characteristics, before imposing
    this harshest possible penalty. 
    Id. at 479-80, 483, 489
    . In Montgomery, the
    U.S. Supreme Court held that its decision in Miller, 
    supra,
     applies
    retroactively. Montgomery, 136 S.Ct. at 732. The Court “expressly left it to
    the States to determine how the holding in Miller was to be implemented in
    state court proceedings.” Commonwealth v. Batts, 
    163 A.3d 410
    , 432 (Pa.
    2017) (“Batts II”) (citation omitted).
    In Batts II, our Supreme Court concluded “that to effectuate the
    mandate of Miller and Montgomery,” it would provide a procedural
    safeguard to ensure that LWOP sentences “are meted out only to ‘the rarest
    of juvenile offenders’ whose crimes reflect ‘permanent incorrigibility’” by
    recognizing a presumption against the imposition of a LWOP sentence for a
    juvenile offender. Batts II, 163 A.3d at 415-16. Therefore, if the
    Commonwealth seeks a LWOP sentence for a juvenile offender, it must prove
    beyond a reasonable doubt that the offender “exhibits such irretrievable
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    depravity that rehabilitation is impossible.” Id. at 455 (quoting Montgomery,
    supra at 733) (emphasis omitted). If the Commonwealth satisfies its burden
    of proof, the sentencing court has discretion to impose a LWOP sentence upon
    the juvenile offender. Batts II, supra at 460.
    When the Commonwealth requests a sentence of LWOP, the sentencing
    court must consider the Miller and Section 1102.1(d) factors5 on the record,
    before imposing a sentence. Commonwealth v. Machicote, 
    206 A.3d 1110
    ,
    1120 (Pa. 2019); Batts II, supra at 459-60. If the court imposes the
    requested LWOP sentence, it “must find that the juvenile offender is
    permanently incorrigible and that rehabilitation would be impossible.” Batts
    II, supra at 459.
    However, if, as here, the court sentences “a juvenile offender to a life
    with the possibility of parole, traditional sentencing considerations apply[,]”
    and the court considers the factors set forth in 42 Pa.C.S. § 9721(b). Id. at
    ____________________________________________
    5Miller requires examination of the following factors related to youth and its
    attendant characteristics (“Miller factors”):
    “[A]t minimum it should consider a juvenile’s age at the time of
    the offense, his diminished culpability and capacity for change, the
    circumstances of the crime, the extent of his participation in the
    crime, his family, home and neighborhood environment, his
    emotional maturity and development, the extent that familial
    and/or peer pressure may have affected him, his past exposure to
    violence, his drug and alcohol history, his ability to deal with the
    police, his capacity to assist his attorney, his mental health
    history, and his potential for rehabilitation.
    Batts II, supra at 421 n.5 (citations omitted).
    -9-
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    460 (citation omitted, emphasis added). Section 9721(b) provides that the
    court shall fashion a sentence “that is consistent with 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 § 9721(b).
    Thus, where, as here, the sentencing court rules in a defendant’s favor
    by declining the Commonwealth’s request to sentence the appellant to LWOP,
    on appeal, we need not review whether the court properly considered the
    Miller factors. Rather, we review the appellant’s sentence as we would any
    other sentence imposed pursuant to Section 9712(b). See Batts II, supra at
    460.
    Issue 2: Scope of Cross-Examination
    Appellant contends that the sentencing court abused its discretion by
    precluding his counsel from questioning Detective Dillon about interactions
    with Appellant when he was 16 years old, a line of questioning relevant to one
    of the Miller factors, i.e., Appellant’s ability to deal with police. Appellant’s
    Br. at 54.
    In addressing the Commonwealth’s request to impose a LWOP sentence,
    the sentencing court correctly considered evidence regarding the Miller
    factors. The sentencing court, however, determined that Appellant was not
    permanently incorrigible and declined the Commonwealth’s request to impose
    a LWOP sentence. The sentencing court instead sentenced Appellant based on
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    the factors set forth in 42 Pa.C.S. § 9721(b). It is those factors we must use
    to evaluate Appellant’s sentence.
    Appellant’s claim that the sentencing court erred in not permitting
    Appellant’s counsel to question Detective Dillon about one of the Miller factors
    is moot because the sentencing court ruled in Appellant’s favor and did not
    impose a LWOP sentence. Thus, the sentencing court’s failure to consider
    evidence regarding one of the Miller factors did not harm Appellant’s position
    that the sentencing court should not impose a LWOP sentence. Additionally,
    we conclude that the sentencing court did not abuse its discretion in limiting
    the scope of Appellant’s cross-examination of Detective Dillon because our
    review of the record supports the court’s conclusion that the precluded
    questioning would have been irrelevant or cumulative of facts already
    established in the record. See Trial Ct. Op., dated 12/12/18, at 25-26.
    Issue 3: Excessive Sentence
    Appellant challenges the discretionary aspects of his sentence, arguing
    that the court improperly analyzed certain mitigating sentencing factors to
    impose a manifestly excessive and unreasonable sentence. Appellant’s Br. at
    64.
    Challenges   to   the   discretionary    aspects of sentencing   are   not
    automatically reviewable as a matter of right. Commonwealth v. Hunter,
    
    768 A.2d 1136
    , 1144 (Pa. Super. 2001). Prior to reaching the merits of a
    discretionary sentencing issue, we must determine: (1) whether appellant has
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    filed a timely notice of appeal; (2) whether the issue was properly preserved
    at sentencing or in a motion to reconsider and modify sentence; (3) whether
    appellant’s brief sufficiently addresses the challenge in a statement included
    pursuant to 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. Commonwealth v. Evans, 
    901 A.2d 528
    , 533 (Pa. Super. 2006).
    To properly preserve an issue challenging the discretionary aspects of
    sentencing, a defendant must object and request a remedy at sentencing, or
    raise the challenge in a post-sentence motion. Commonwealth v. McAfee,
    
    849 A.2d 270
    , 275 (Pa. Super. 2004). The Pennsylvania Rules of Criminal
    Procedure specifically caution defendants that, when filing post-sentence
    motions, “[a]ll requests for relief from the trial court shall be stated with
    specificity     and    particularity[.]”       Pa.R.Crim.P.    720(B)(1)(a).    See
    Commonwealth v. Tejada, 
    107 A.3d 788
    , 798-99 (Pa. Super. 2015) (noting
    that the trial court must be given the opportunity to reconsider its sentence
    either     at   sentencing   or   in   a     post-sentence    motion).   See,   e.g.,
    Commonwealth v. Mann, 
    820 A.2d 788
    , 793-94 (Pa. Super. 2003)
    (concluding that the defendant waived his discretionary aspects of sentencing
    claim regarding the sentencing court’s failure to state the reasons for his
    sentence on the record where the defendant’s post-sentence motion only
    argued that his sentence was unduly severe and that the trial court abused its
    discretion under the sentencing code).
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    Appellant contends that the court erred in concluding that: (1) Appellant
    did not have a diminished capacity to deal with police; (2) Appellant did not
    have diminished culpability; and (3) Appellant was never sexually abused.
    Appellant’s Br. at 66-75. He also contends that the court misinterpreted Dr.
    Hepburn’s testimony regarding lifetime gang affiliation. 
    Id.
     Additionally,
    Appellant argues that the court abused its discretion in resentencing him by
    failing to consult Section 1102.16 as an “essential starting point.” 
    Id.
     at 50-
    51.
    Appellant properly preserved only his challenge to the court’s
    consideration of the evidence regarding his ability to deal with police when he
    raised it in his Post-Sentence Motion.7 Because Appellant filed a timely Notice
    of Appeal and included a Statement of Reasons Relied Upon for Allowance of
    Appeal pursuant to Pa.R.A.P. 2119(f), we next address whether Appellant has
    raised a substantial question for our review.
    ____________________________________________
    6 Our Supreme Court noted that section 1102.1 will “help frame the exercise
    of judgment by the court in imposing a sentence and may provide
    an essential starting point. . . that must be respected and considered” when
    determining the appropriate minimum sentence for a juvenile convicted of
    first-degree murder prior to the Miller decision.” Commonwealth v. Batts,
    
    163 A.3d 410
    , 458 (Pa. 2017) (citation and internal quotations omitted).
    7Appellant did not raise his remaining arguments at sentencing or in his Post-
    Trial Motion. Accordingly, they are waived. See Commonwealth v.
    Cartrette, 
    83 A.3d 1030
    , 1042-43 (Pa. Super. 2013) (en banc) (concluding
    substantial question waived for failing to raise it at sentencing or in post-
    sentence motion).
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    Whether    a   substantial     question   has   been   raised   regarding   a
    discretionary     sentence      is      determined      on     a      case-by-case
    basis. Commonwealth v. Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010). “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.” 
    Id.
     (citation and
    internal quotation marks omitted).
    Specifically, this Court has held that
    the Rule 2119(f) statement must specify where the sentence falls
    in relation to the sentencing guidelines and what particular
    provision of the Code is violated (e.g., the sentence is outside the
    guidelines and the court did not offer any reasons either on the
    record or in writing, or double-counted factors already
    considered). Similarly, the Rule 2119(f) statement must specify
    what fundamental norm the sentence violates and the manner in
    which it violates that norm (e.g., the sentence is unreasonable or
    the result of prejudice because it is 500 percent greater than the
    extreme end of the aggravated range).
    Commonwealth v. Goggins, 
    748 A.2d 721
    , 727 (Pa. Super. 2000).
    This Court has consistently held that an allegation that a sentencing
    court “did not adequately consider certain factors does not raise a substantial
    question that the sentence was inappropriate.” Commonwealth v. Cruz-
    Centeno, 
    668 A.2d 536
    , 545 (Pa. Super. 1995) (citation and internal
    quotation marks omitted). See also Commonwealth v. Rhoades, 
    8 A.3d 912
    , 918-19 (Pa. Super. 2010) (stating “an allegation that the sentencing
    court failed to consider mitigating factors generally does not raise a substantial
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    question for our review”); Commonwealth v. Williams, 
    562 A.2d 1385
    ,
    1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that the
    sentencing court did not adequately consider various factors is, in effect, a
    request that this court substitute its judgment for that of the lower court in
    fashioning a defendant's sentence).
    In the instant case, Appellant fails to reference the sentencing guidelines
    at all, the particular provision of the Code violated, or the “fundamental norm
    the sentence violates and the manner in which it violates that norm.”
    Appellant, rather, avers only that the lower court’s analysis of a potential
    mitigating factor renders his sentence excessive and unreasonable. Thus,
    Appellant has failed to raise a substantial question. See Rhoades, 
    supra at 918-19
    ; Williams, supra at 1388. Accordingly, we decline to review
    Appellant’s discretionary aspects of sentencing challenge.
    Issue 4: De Facto LWOP
    In his final issue, Appellant raises a challenge to the legality of his
    sentence. He asserts that, even though the court did not impose a LWOP
    sentence, the trial court imposed an impermissible de facto life sentence in
    violation of Miller.8 Appellant’s Br. at 76.
    A claim challenging a sentencing court’s legal authority to impose a
    particular sentence presents a question regarding the legality of the sentence.
    ____________________________________________
    8 We note that Appellant argues only that the court improperly imposed a de
    facto life sentence. He does not argue that the court abused its discretion in
    imposing consecutive sentences.
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    Commonwealth v. Henandez, ___ A.3d ___, 
    2019 WL 3940215
    , at *4 (Pa.
    Super. filed Aug. 21, 2019). “The determination as to whether a trial court
    imposed an illegal sentence is a question of law; an appellate court’s standard
    of review in cases dealing with questions of law is plenary.” 
    Id.
     (citation
    omitted).
    A trial court may not impose a term-of-years sentence on a juvenile
    convicted of homicide that equates to a de facto LWOP sentence unless it
    finds, beyond a reasonable doubt, that the juvenile is incapable of
    rehabilitation. Miller, 56 U.S. at 479; Commonwealth v. Foust, 
    180 A.3d 416
    , 433 (Pa. Super. 2018). However, “defendants convicted of multiple
    offenses are not entitled to a ‘volume discount’ on their aggregate sentence.”
    Foust, supra at 434 (citations omitted). Thus, “we must consider the
    individual sentences, not the aggregate, to determine if the trial court imposed
    a term-of-years sentence which constitutes a de facto LWOP sentence.” Id. at
    438.
    This    court   has   distinguished    between     individual   term-of-years
    sentences which constitute de facto LWOP sentences and those that do not.
    Foust, supra at 438. In Foust, this Court concluded that a 150–
    year sentence is a de facto LWOP sentence and a 30 years’ to life sentence
    does not constitute a de facto LWOP sentence. Id.
    For    sentences   that   fall   between   the   clearly   constitutional   and
    unconstitutional parameters, we have concluded that a sentence is not a de
    facto LWOP sentence where there is “some meaningful opportunity to obtain
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    release based on demonstrated maturity and rehabilitation.” Commonwealth
    v. Bebout, 
    186 A.3d 462
    , 467 (Pa. Super. 2018) (citation omitted). Thus, “it
    must at least be plausible that one could survive to the minimum release date
    with some consequential likelihood that a non-trivial amount of time at liberty
    awaits.” Id. at 468 (emphasis omitted). If there is no meaningful opportunity
    for parole, the sentence constitutes a de facto LWOP sentence. Id. We,
    therefore consider the age the appellant would be eligible for parole to
    determine whether the new sentence is the functional equivalent of LWOP. Id.
    In Commonwealth v. Anderson, ___ A.3d ___, 
    2019 WL 6335390
    , at
    *7-8 (Pa. Super. filed Nov. 27, 2019), a post-Miller case, the appellant
    received a sentence of 50 years’ to life imprisonment upon resentencing. 
    2019 WL 6335390
    , at *2. Because Anderson was 17 years old at the time he began
    serving his sentence, he would, thus, be eligible for parole at age 67. Id. at
    *6. We, therefore, concluded that his sentence was not the functional
    equivalent of LWOP. Id. at *7. See also Bebout, supra at 468 (concluding
    the appellant’s 45 years’ to life sentence in which he would be eligible for
    parole at the age of 60 was not de facto LWOP); Commonwealth v. Lekka,
    
    210 A.3d 343
    , 357-58 (Pa. Super. 2019) (concluding that because the
    appellant’s term of 45 years’ to life imprisonment rendered him eligible for
    parole at the age of 62, it was not a de facto LWOP sentence); Foust, supra
    at 438, 441 (concluding that the appellant’s two consecutive 30 year to life
    sentences were not a de facto LWOP sentence and noting that even
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    considering Appellant’s aggregate sentence, he had a chance of being released
    into society in his 70s).
    In the instant case, the resentencing court imposed a term of 42 years’
    to life imprisonment for Appellant’s first-degree murder conviction, a
    consecutive term of 6 to 12 years of imprisonment for his Attempted Murder
    conviction; and a consecutive term of 7 years of probation for a gun violation
    charge.
    None of the sentences standing alone are de facto life sentences.
    Because Appellant was 16 years old at the time he began serving his sentence,
    he will be eligible for parole for his first-degree murder conviction when he is
    58 years old. Since Appellant will have a “meaningful opportunity to obtain
    release,” we conclude that Appellant’s sentence cannot be considered a de
    facto LWOP sentence. Thus, Appellant’s claim that his sentence is illegal is
    without merit.
    Because there is no merit to Appellant’s claims, we affirm the judgment
    of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/2/2020
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