Com. v. Walker, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMONT WALKER :
:
Appellant : No. 1025 WDA 2018
Appeal from the Judgment of Sentence Entered February 9, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006204-2007
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 18, 2020
Raymont Walker appeals from the February 9, 2018 order dismissing
his after-discovered evidence claim and resentencing him pursuant to
Commonwealth v. Miller, 567 U.S. 460 (2012), and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). We affirm.
The trial court summarized the relevant facts as follows:
. . . . Kendall Dorsey testified that on December 23, 2006, while
sitting on the front porch with his friend Kevin Harrison, he saw
[c]o-defendant Terrill Hicks shooting at him and at Harrison.
Dorsey saw Appellant standing with Hicks. Dorsey scurried into
the house and avoided injury, but Harrison was shot and killed
shortly thereafter.
Dorsey testified that a few days earlier he was at his friend
John McDonald’s house. He heard a knock on the door. Another
friend, Michael Harris, answered the door. Immediately, Terrill
Hicks attempted to pull Harris out of the house. The attempt was
unsuccessful as Harris was able to close the door. Dorsey testified
that he went upstairs, looked out a window and observed
Appellant and Hicks in the street holding pistols.
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Dorsey testified that he encountered Hicks the following
day, the day before the shooting. Hicks said that he had been
robbed, and that he thought that Dorsey, Harris and Harrison did
it. Dorsey said he did not rob Hicks.
The next day, the day of the murder, Dorsey testified that
Hicks and [Appellant] drove up to Dorsey and Harrison while they
were walking a dog. Hicks and [Appellant] exited the car, and
[Appellant] said, “Where is Mike [Harris] at?” Dorsey observed
that both Hicks and [Appellant] had weapons. Dorsey and
Harrison lied, denying that they knew Harris’[s] location, and
eventually Hicks and [Appellant] got back in their car, a white
Impala, and left.
Dorsey testified that he and Harrison immediately returned
to Harrison’s house, where Harris was. Dorsey noticed the white
Impala circling the house, the same car in which he had just seen
Hicks and [Appellant]. He safely entered the residence but
eventually went outside to the front porch with Harrison to smoke
a cigarette. Dorsey told Harris not to join them on the porch
because Hicks and [Appellant] were looking for him. Hicks and
Appellant approached the house. Hicks fired approximately ten
shots, killing Kevin Harrison.
John McDonald testified similarly to the incident at his
house. McDonald said that he encountered Hicks at a gas station
the day before Hicks came to his house. McDonald said Hicks was
upset because he had been robbed. Hicks did not know who had
robbed him.
McDonald said that, on the following day, Hicks attempted
to forcibly remove Harris from McDonald’s home when Harris
answered the door. The day after, Hicks and [Appellant] came to
his house again. By that point, Hicks had become convinced that
Harris, Harrison and a third individual nicknamed “Dee” had
robbed him. Hicks told McDonald that he was looking for the
people that he thought had robbed him, and if Hicks found them,
either they would get hurt or someone would die. [Appellant]
added that what the robbers had done “wasn’t cool” and that he
“was going to ride with [Hicks,]” his best friend. McDonald, an
army sergeant with eight years of military experience, recognized
the gun Hicks was carrying as a “Glock 45.”
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Michael Harris testified that he was inside the house on the
couch in the front living room when the shots were fired. He heard
the shots hit the house, so he moved to the floor and exited
toward the rear of the house. He also reiterated that Hicks had
attempted to pull him out of the residence of McDonald the day
before the shooting.
John Betarie, a Homestead police officer, testified that he
recovered six shell casings at the scene of the shooting where
Dorsey said Hicks was standing and three additional projectiles
from the kitchen floor. These shell casings were sent to the crime
lab [for] analysis. Dr. Robert Levine, a forensics expert to the
crime lab, testified that the [.]45 caliber casings found at the
scene were all from the same weapon.
Dr. Abdulrezak Shakir, a forensic pathologist with the
Allegheny County Medical Examiner’s Officer, conducted the
autopsy of Kevin Harrison. Dr. Shakir stated that Harrison was
shot three times. He concluded that Harrison died as a result of
a gunshot wound to the head, and ruled the manner of death as
homicide.
Trial Court Opinion, 1/3/11, at 3-5.
Appellant was fifteen years old at the time of the shooting. He was
arrested, charged, and tried jointly with Hicks as an adult for the murder of
Harrison. At the 2010 trial, neither of them testified on his own behalf. At
the conclusion of trial, the jury convicted Appellant of first-degree homicide,
criminal conspiracy, criminal attempt – homicide, aggravated assault, and
possession of a firearm by a minor. On August 2, 2010, Appellant was
sentenced to life without the possibility of parole (“LWOP”) for first-degree
murder, a consecutive prison term of ten to twenty years for criminal attempt,
and a consecutive thirty to sixty months for aggravated assault. The court
imposed no further penalty for the remaining convictions. Appellant filed a
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direct appeal and we affirmed his judgment of sentence on April 30, 2012.
See Commonwealth v. Walker, 48 A.3d 490 (Pa.Super. 2012) (unpublished
memorandum).
On July 30, 2012, Appellant filed his first PCRA petition. In the timely
petition, he raised a multitude of issues, including an argument that he was
entitled to resentencing pursuant to Miller. The PCRA court held a hearing
on May 31, 2013, and denied the petition on November 25, 2013. On appeal,
we affirmed that denial. See Commonwealth v. Walker, 125 A.3d 460(Pa.Super. 2015) (unpublished memorandum). Appellant filed a petition for
allowance of appeal in our Supreme Court, which was held in abeyance
pending the United States Supreme Court’s decision in Montgomery.
While Appellant’s PCRA petition was pending in the Supreme Court,
Hicks, who was also a juvenile when the murder occurred, was resentenced
pursuant to Miller. At his resentencing hearing, on October 23, 2015, Hicks
admitted to firing the shots that killed the victim and said that Appellant was
not with him that night. On December 15, 2015, Appellant filed a second
PCRA petition, seeking a new trial on the basis of after-discovered evidence
due to Hicks’s confession at his resentencing hearing.
Following the United States Supreme Court’s ruling in Montgomery,
our Supreme Court vacated this Court’s order affirming Appellant’s judgment
of sentence, and remanded the case for further proceedings consistent with
Montgomery. See Commonwealth v. Walker, 132 A.3d 980 (Pa. 2016).
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We vacated Appellant’s judgment of sentence and remanded to the trial court
for resentencing. See Commonwealth v. Walker, 145 A.3d 782 (Pa.Super.
2016) (unpublished memorandum).
Upon motion by the Commonwealth, Appellant’s two PCRA petitions
were consolidated into one evidentiary hearing, which was held on February
9, 2018. At the hearing, Hicks reiterated the testimony from his own
resentencing hearing, that he was the shooter and Appellant was not involved
in the murder. The court found Hicks’s testimony to be incredible and denied
Appellant’s after-discovered evidence claim. The trial court also conducted a
resentencing hearing, imposing a new aggregate sentence of thirty years to
life in prison.
Appellant filed a timely post-sentence motion challenging the
discretionary aspects of his sentence and the denial of his request for a new
trial on the grounds of after-discovered evidence. The trial court denied the
post-sentence motion and a timely notice of appeal followed. Both Appellant
and the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
I. Did the trial court err when it denied [Appellant’s PCRA
petition] for a new trial on the ground of newly-discovered
evidence where (1) the testimony provided by Terrill Hicks
could not have been obtained prior to the conclusion of trial
through the exercise of reasonable diligence as Hicks was
[Appellant’s] co-defendant and Hicks invoked his Fifth
Amendment right to remain silent at trial; (2) [Hicks’]
testimony was not merely corroborative or cumulative of
other evidence presented at the trial and would not have
been used solely to impeach the credibility of a witness; and
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(3) [Hicks’] testimony would result in a different verdict if a
new trial were granted in [Appellant’s] case?
II. Did the trial court abuse its discretion when it resentenced
[Appellant] to serve an aggregate sentence of [thirty] years
to life where such a sentence is manifestly unjust,
unreasonable and excessive when considered in light of
[Appellant’s] personal history and characteristics and the
many mitigating factors presented on [Appellant’s] behalf?
Appellant’s brief at 6.
First, Appellant attacks the trial court’s denial of his after-discovered
evidence claim1 regarding a newly-discovered witness. Our standard of review
examines “whether the PCRA court’s determination is supported by the
evidence of record and free of legal error. We grant great deference to the
PCRA court’s findings, and we will not disturb those findings unless they are
unsupported by the certified record.” Commonwealth v. Holt, 175 A.3d
1014, 1017 (Pa.Super. 2017) (citation omitted). Additionally, we “may affirm
a PCRA court’s decision on any grounds if the record supports it.”
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012).
In order to succeed on a claim of after-discovered evidence, Appellant
must show, by a preponderance of evidence, that the witness’s testimony:
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1Although facially untimely, the trial court accepted this claim as a supplement
to Appellant’s first, timely filed and still pending PCRA petition. Thus, this
additional claim was timely. Had the court not done that, Appellant would
have met the newly discovered facts exception to the PCRA’s time bar, since
he established that he raised this claim within sixty days of discovery and
could not have obtained the evidence sooner with the exercise of reasonable
diligence. See 42 Pa.C.S. § 9543(a)(2)(vi).
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(1) has been discovered after the trial and could not have obtained
at or prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely for impeaching credibility
of a witness; and (4) is of such nature and character that a
different verdict will likely result if a new trial is granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). When deciding
the fourth prong, the court considers “the integrity of the alleged after-
discovered evidence, the motive of those offering the evidence, and the overall
strength of the evidence supporting the conviction.” Commonwealth v.
Padillas, 997 A.2d 356, 365 (Pa.Super. 2010). Importantly, accomplice
testimony is viewed with suspicion where the accomplice has already been
convicted so that he “has nothing to lose.” Commonwealth v. Washington,
927 A.2d 586, 597 (Pa. 2007).
The court held an evidentiary hearing on this issue. At the hearing,
Hicks testified that he committed the homicide with Derrick Price, not
Appellant. N.T. Resentencing Hearing, 2/9/18, at 54. He explained that he
was closer with Appellant’s brother, and did not know Appellant well, but that
they were “cool.” Id. at 55. However, when tested on cross-examination, he
did admit to spending the majority of the day of the murder with Appellant.
Id. at 64. He maintained that there was “no elaborate plan” to murder
anyone, and his intent when he fired ten shots at these people was to “scare
them.” Id. at 56, 66. The fact that the victim died as a result was “an
accident.” Id. at 66.
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Notably, although Hicks was housed in the same facility as Appellant
since 2010, he testified that he waited six years to tell Appellant that he knew
Appellant was innocent, until after his own resentencing hearing concluded.
Id. at 50-51. On January 15, 2016, Hicks gave Appellant an affidavit
indicating Appellant’s innocence. However, when Hicks received a second
resentencing hearing, he retracted the affidavit. Id. at 54-55, 62. Once Hicks
was resentenced for the second time, he again came forward, agreeing to
testify for Appellant because he was “more mature” now. Id. at 63. Finally,
Hicks admitted that he lied during both of his pre-trial interviews with police.
Id. at 69.
At the conclusion of Hicks’s testimony, the court explained all of the
inconsistencies in Hicks’s testimony that, when viewed in light of the
Commonwealth’s evidence presented at trial, led it to conclude that Hicks’s
testimony would not change the outcome if Appellant were granted a new
trial:
. . . . unfortunately[,] Mr. Hicks’[s] testimony has over the course
of time lacked credibility, and up until today he seems to
demonstrate inconsistencies that make it not credible. To say that
it was an accident, to stand directly across the street and shoot
ten shots at two people on the front porch to scare them, to say
that he’s never told anyone before today who the person with him
was, first, is to admit that there was a person with him, but
second, is inaccurate as to what is shown by later testimony, that
Price was named by Mr. Hicks at his second interview with the
police, and not just for the retaliatory shooting.
Mr. Hicks initially testified here today that he was not with
[Appellant] that day at all. When challenged about the testimony
about the Impala from the trial, suddenly he remembered that he
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had spent a good bit of time with [Appellant] that day, had been
to the mall. They had played – he had left and returned and
played games with [Appellant].
And the testimony from the trial, as I recall it, is that less
than an hour before the shooting Mr. Harrison and Mr. Dorsey saw
Mr. Hicks and [Appellant] together [in] that Impala and then
watched that Impala circling the house, the front porch of which
was then shot at.
With regard to Mr. [Hicks’s] testimony that it again was an
accident, there was no planning. That would be contrary to the
testimony of a man with the last name McDonald who had no
apparent interest in any of this. He appeared to be an
independent party. His testimony, as I recall, was to an incident
a couple days before the shooting where [Appellant] and Mr. Hicks
were at Mr. McDonald’s home and said they were looking for
Dorsey, and Harrison -- Harris and Harrison, and if that -- if they
found them, it was [Appellant] – Mr. Hicks who said someone
would get hurt or get killed, I believe.
And according to Mr. McDonald’s testimony, Mr. Hicks then
made a – I’m sorry, [Appellant] then made a statement to the
effect that he was going to stand by his friend, go along for the
ride, something to that effect.
So there was corroborating evidence to the identification,
and it is clear that unlike a case where there might be mistaken
identification, these people all knew each other. So I cannot find,
in light of all of this, Mr. [Hicks’s] testimony today to be credible.
N.T. Resentencing Hearing, 2/9/18, at 88-90.
Thus, the court found Hicks’ testimony to be lacking in credibility, such
that it would not change the outcome if a new trial were to be held. We
discern no abuse of discretion. Hicks delivered inconsistent testimony.
Perhaps most glaringly, he failed to offer an adequate explanation for why he
recanted his initial affidavit before his own second resentencing hearing was
completed.
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In his reply brief, Appellant attacks the court’s failure to commence its
examination of the persuasiveness of Hicks’s testimony from the assumption
that the jury would believe it. Appellant’s Reply Brief at 4. In support of his
position, Appellant directs our attention to Commonwealth v. Payne, 210
A.3d 299 (Pa.Super. 2019) (en banc), a case where we stated that the court
“must examine the persuasiveness of the new evidence assuming the fact-
finder believes it.” Id. at 302. However, Appellant’s reading of Payne
oversimplifies the necessary analysis that a court must undertake in these
circumstances. This Court went on to explain that this type of analysis
prompts the court to consider the nature of the new evidence in light of other
trial testimony, evaluating whether the new evidence is consistent or
inconsistent with the previous trial testimony. Id. This context is critical to
our analysis.
Appellant is correct that the trial court did not explicitly use the magic
words, “assuming the fact-finder believes it.” Appellant’s Reply Brief at 4.
However, the absence of these words does not mean that the trial court
engaged in an improper evaluation of the evidence correctly. As the trial
court’s analysis demonstrates, it compared Hicks’s testimony with the other
evidence presented by the Commonwealth at trial. Ultimately, the trial court
concluded that Hicks’s testimony was too inconsistent with the credible
eyewitness testimony, placing Appellant with Hicks in the days and minutes
leading up to the murder and repeatedly threatening the victims and
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brandishing firearms, to change the outcome. Eyewitness identification
testimony of Appellant at the scene of the crime also directly contradicted
Hicks’s testimony that Appellant was not present. Since the trial court
conducted the correct analysis and the record supports its conclusions, we find
no abuse of discretion in its decision to deny Appellant’s after-discovered
evidence claim. Accordingly, we affirm the trial court’s denial of Appellant’s
after-discovered evidence claim.
In his next issue, Appellant challenges the discretionary aspects of his
sentence. Specifically, he alleges that the resentencing court imposed a
sentence without first considering his personal history, characteristics, and
other Miller2 factors. Appellant’s brief at 83.
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2 In Miller, the Supreme Court listed factors that resentencing courts must
consider before issuing a life without parole sentence to a juvenile. Our
Supreme Court summarized those factors in Commonwealth v. Batts “Batts
II”, 163 A.3d 410 (Pa. 2017), as follows:
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
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 i.e. (the
youthfulness of the offender) most suggest it.
Id. at 431 (cleaned up).
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We note preliminarily that since the Commonwealth did not seek a LWOP
sentence, the resentencing court was not required to consider the Miller
factors. See Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super.
2018). However, because Appellant’s issue also raises a claim that the court
failed to consider relevant sentencing factors engrained in the sentencing
code, we consider his arguments under the discretionary aspects of sentencing
scheme. See id. (holding that the Miller factors were immaterial where the
Commonwealth did not seek LWOP, and instead, considering the sentencing
issue as a discretionary aspects challenge under the sentencing code).
The following principles apply to our consideration of whether review of
the merits of this claim is warranted: “An appellant is not entitled to the
review of challenges to the discretionary aspects of a sentence as of right.
Rather, an appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction.” Commonwealth v. Samuel, 102 A.3d
1001, 1006 (Pa.Super. 2014). In determining whether an appellant has
invoked our jurisdiction, we consider four factors:
(1) whether appellant has 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 has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id. at 1006-07.
Appellant timely filed both a post-sentence motion and a notice of
appeal. In his motion, Appellant challenged the court’s alleged failure to
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consider all of the mitigating facts that were submitted, including Appellant’s
personal history and background. Therefore, this issue was properly
preserved. Appellant’s brief contains a statement of reasons relied on for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). In his statement,
Appellant claims that a substantial question is presented by the fact that the
trial court violated a fundamental norm in the sentencing process when it
imposed an excessive sentence without considering Appellant’s personal
history and characteristics. Appellant’s brief at 77. We find that this claim
raises a substantial question since Appellant is challenging the excessiveness
of his sentence in conjunction with the resentencing court’s alleged failure to
consider mitigating factors. White, supra at 984 (finding that a substantial
question was raised where a juvenile, previously sentenced to LWOP, raised
an excessive sentencing claim along with an assertion that the sentencing
court failed to consider mitigating factors). Accordingly, we now turn our
attention to Appellant’s challenge to his sentence.
The following principles apply to our substantive review of Appellant’s
claim: “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
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Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,
we review the trial court’s determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
A trial court’s sentence “should call for confinement 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). “When imposing sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.” Antidormi, supra at 761 (citations and
quotation marks omitted).
Once LWOP is foreclosed as a resentencing option, the Batts II Court
instructed juvenile resentencing courts to impose a minimum term of years
sentence with a maximum sentence of life imprisonment, utilizing 18 Pa.C.S.
§ 1102.1 for guidance. Under § 1102.1, a juvenile convicted of first-degree
murder who was fifteen years of age at the time of the crime shall be
sentenced to a minimum term of imprisonment of at least thirty-five years,
with a maximum sentence of life. 18 Pa.C.S. § 1102.1(a)(1).
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Appellant received an aggregate sentence of thirty years to life and he
alleges that the resentencing court provided an “inadequate statement” at the
resentencing hearing of its reasons for imposing that sentence. Appellant’s
brief at 83. More specifically, Appellant claims that the court failed to fully
consider Appellant’s age, personal history, and the information contained
within his mitigation report. Id. A review of the record belies Appellant’s
assertions.
The resentencing court began the hearing by acknowledging its review
of Appellant’s mitigation report and summarizing the main points on the
record:
I have read [Appellant’s] sentencing memorandum. It does
include a number of certificates of completion of various programs
and a statement that other than two incidents in 2011 and 2012
and one in 2015 he has been misconduct free.
He has been recommended as a mentor and works in the
maintenance area with a high rating.
N.T. Resentencing Hearing, 2/9/18, at 7. The court entertained Appellant’s
witnesses who testified about his school experiences pre-incarceration and
progress in prison. The court also heard argument by Appellant’s attorney’s,
along with Appellant’s allocution expressing remorse to the family of the victim
before fashioning its sentence. Id. at 14-43, 94-102. Notably, Appellant’s
attorney pointed out that Appellant was mere months beyond his fifteenth
birthday when he was an accomplice to this murder, which is significant
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because § 1102.1 places the starting point for his minimum sentence ten years
higher than if he had still been fourteen years old. Id. at 97.
The sentencing court received and considered extensive mitigation
evidence at the resentencing hearing about Appellant’s age and personal
history. Thereafter, the court placed its reasons on the record for imposing
the thirty-year minimum sentence:
So with regard to the sentencing factors, I have taken into
consideration the guidelines for a person over the age of [fifteen]
being a minimum sentence of [thirty five] years, as compared to
the guidelines for a person who is one under [fifteen] years of age.
That is [twenty five] years. And, I note that [Appellant] was about
two months over the age of [fifteen].
And in regard to the list of factors to be considered, the
extent of his participation does differ from Mr. Hicks in that Mr.
Hicks was the shooter. However, it is also clear that [Appellant]
was with Mr. Hicks in the days leading up to the shooting and in
the hour leading up to the shooting at the white Impala, based on
the testimony of Mr. McDonald, and it was – I believe it was Mr.
Dorsey with regard to the Impala.
He was, by virtue of the testimony of the teachers who were
here today, in school, somebody they considered to be a kind
person, who did appear to be more of a follower, a passive
personality as opposed to an aggressive personality. And while
he was ultimately removed from that school in the tenth grade
because of behavior issues, the nature of those issues was not
clear in any of the material I received here today.
By virtue of the testimony of the teachers who were present,
it appeared to be more likely non-combative type but more in the
manner of maybe not following rules or being a jokester or
something of that nature. There is no evidence that the behaviors
that caused him to be expelled were of a violent nature.
In addition to that, your testimony from the witnesses at
SCI Pine Grove do indicate a young men who after an initial
adjustment period has made efforts to rehabilitate and has
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completed a number of programs and is a mentor, a good mentor
for other young men at SCI Pine Grove. He does have extensive
family support here with him today.
So in light of all of the factors that I need to consider in
making a sentence, I would resentence him as follows. . . .
Id. at 106-07. The court then reiterated its explanation from the hearing in
its opinion:
Appellant asked that he receive an aggregate minimum of
20 years. The Commonwealth asked the [c]ourt to set the
minimum at 47.5 years, the same sentence as Hicks received after
his Miller resentencing hearing. This [c]ourt, in imposing a
[thirty] year minimum sentence, considered the Batts guidelines
for a [fifteen] year old convicted of homicide. This [c]ourt further
considered the extent of Appellant’s participation in the crime, in
that Appellant was not the shooter but actively participated in
planning the ambush and locating the victim. This [c]ourt further
considered the testimony of the teachers who testified at the
sentencing who described Appellant as kind, a follower and having
a passive personality. In addition, this [c]ourt considered the
testimony regarding Appellant’s positive adjustment to
incarceration, the numerous programs he has completed, his
status as a mentor, as well as his extensive family support. The
sentence imposed balances this [c]ourt’s appreciation of the
severity of the charges with its consideration of Appellant’s
potential for rehabilitation.
Trial Court Court Opinion, 11/2/18, at 5.
Our review confirms that the resentencing court considered prior to
imposing sentence every mitigation factor that Appellant claims in his brief
that the court failed to. The court then weighed the mitigation evidence
against the nature of the crime and victim impact statement in light of §
1102.1. We have no license to reweigh the evidence. See Macias, supra at
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778. Consequently, Appellant is not entitled to any relief on his second claim
and we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2020
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