Com. v. Walker, R. ( 2020 )


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  • J-A18031-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
    J-A18031-19
    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:
    ____________________________________________
    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.
    ____________________________________________
    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
    - 17 -
    J-A18031-19
    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
    - 18 -
    

Document Info

Docket Number: 1025 WDA 2018

Filed Date: 2/18/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024