Com. v. Davis, R.

J-S36044-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT SHABAZZ-DAVIS, :
:
Appellant : No. 51 EDA 2020
Appeal from the Judgment of Sentence Entered October 25, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007330-2013
BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:
MEMORANDUM BY COLINS, J.: FILED JANUARY 03, 2022
Appellant, Robert Shabazz-Davis, appeals from the judgment of
sentence of an aggregate term of 38 years’ to life imprisonment imposed upon
his resentencing. After review, we affirm.
The resentencing court set forth the factual and procedural background
as follows:
On May 28, 2012, at approximately 2:13pm, police officers
from the 22nd District responded to a radio call of a shooting at
1732 Ridge Avenue, Philadelphia, Pennsylvania, 19130. Upon
arrival, officers found decedent Antwan Pack lying in a pool of
blood on the floor inside the Sunshine Laundromat. Police Officer
Joseph Kocher observed that decedent was in critical condition
with multiple gunshot wounds to the back. Eyewitness Jeffry
Noble helped police officers place Mr. Pack into a police wagon.
Mr. Noble and Officer Kocher rode in the back of the wagon with
decedent as he was transported to Hahnemann Hospital. Mr.
Noble testified that en route to the hospital, Mr. Pack stated
someone named “Rob from Highland” had shot him. Officer
Kocher also testified that on the way to the hospital, Mr. Pack
identified the male that shot him as “Rob.” Mr. Pack was admitted
*Retired Senior Judge assigned to the Superior Court.
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to Hahnemann Hospital and was taken into surgery, at around
3:00pm, in an attempt to save his life, but he was pronounced
dead at 7:39pm. The autopsy report showed decedent had been
shot twice in the back and suffered devasting injuries including
fractures to his vertebrae, which rendered him paralyzed, and
lacerations of his liver, left lung, and right lung, which prevented
him from breathing and ultimately caused his death. Six fired
cartridge casings and one projectile were recovered from the
scene of the crime.
Eyewitness Antwyne Askew and Marcus Pough testified at
trial about events that took place the day decedent was shot and
killed. On June 16, 2012, Mr. Askew gave an interview to
homicide detectives wherein he stated that while standing on the
corner of Vineyard Street and Ridge Avenue, on May 28, 2012, he
observed a male on a bicycle brandish a weapon. Seconds later,
he heard gunshots. Looking the direction of the gunshots he
observed, the male on the bicycle known to him as “Rob,” shooting
at decedent. Mr. Askew identified “Rob” as [Appellant] from a
photographic array.
Resentencing Court Opinion, 4/15/21, at 3-4 (citations to the record and some
quotation marks omitted).
Appellant was about three weeks shy of his seventeenth birthday at the
time of the incident. On January 28, 2013, he was arrested and charged with
murder and related offenses based on the foregoing. On October 29, 2014, a
jury convicted Appellant of first-degree murder and firearms not to be carried
without a license.1 On March 13, 2015, the trial court sentenced Appellant to
life imprisonment without the possibility of parole (LWOP) on the homicide
conviction and a consecutive term of 3 ½ to 7 years’ imprisonment on the
firearms offense.
1 The remaining charges were nolle prossed.
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Although this Court affirmed his judgment of sentence on May 8, 2017,
our Supreme Court vacated and remanded to this Court for reconsideration in
light of our Supreme Court’s decision in Commonwealth v. Batts, 163 A.3d
410 (Pa. 2017) (Batts II).2 Commonwealth v. Shabazz-Davis, 161 A.3d
1000 (Pa. Super. 2017), vacated by 172 A.3d 1112 (Pa. 2017).
On remand, this Court concluded that “the reasons the trial court
provided prior to imposing the judgment of sentence of life imprisonment
without the possibility of parole upon Appellant were insufficient to show that
it ‘reach[ed] a conclusion, supported by competent evidence, that [Appellant]
will forever be incorrigible, without any hope for rehabilitation.’”
Commonwealth v. Shabazz-Davis, 183 A.3d 1091 (Pa. Super. 2018)
(unpublished memorandum) (brackets in original). Accordingly, this Court
held Appellant’s sentence was illegal and remanded to the trial court for
resentencing in light of Batts II. Id.Pursuant to this Court’s remand order and in compliance with Batts II,
the trial court conducted a resentencing hearing on October 25, 2019. That
same day, the court resentenced Appellant to 38 years’ to life imprisonment
on the first degree murder conviction and a concurrent term of 3 ½ to 7 years’
imprisonment on the firearms offense.
2 We discuss Batts II infra.
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This timely filed appeal followed.3 Both Appellant and the resentencing
court complied with Pa.R.A.P. 1925.4
On appeal, Appellant challenges the discretionary aspects of his
sentence.5 Appellant raises the following issue:
I. Did the [resentencing] court abuse its discretion in
resentencing Appellant to 38 years to life imprisonment?
Appellant’s Brief at 5 (suggested answer omitted and unnecessary
capitalization omitted).
A challenge to discretionary aspects of a sentence does not entitle
an appellant to review as a matter of right. Rather, before this
Court can address such a discretionary challenge, an appellant
must comply with the following requirements:
An appellant challenging the discretionary aspects of his sentence
must invoke the Superior Court’s jurisdiction on appeal by
satisfying a four-part test: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 2119(f); (3)
3 On April 13, 2020, this Court remanded for the court to conduct a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). The
resentencing court indicated in its opinion that it conducted a hearing on
January 11, 2021, at which time Appellant withdrew his request to proceed
pro se. Resentencing Court Opinion, 4/15/21, at 2-3 n.5.
4The resentencing judge has since retired. The Honorable Diana L. Anhalt
authored the Rule 1925(a) opinion.
5 To the extent the resentencing court analyzed a constitutional challenge to
Appellant’s sentence in its opinion, Appellant makes clear in his brief that he
“is not challenging the constitutionality of the statute in this appeal as it has
already been upheld; rather Appellant is solely raising a challenge to the
discretionary aspects of his sentence.” Appellant’s Brief at 8 n.1; see also
Resentencing Court Opinion, 4/15/21, at 4-6. While Appellant’s brief does not
specify to which statute he refers, we presume he is referring to 18 Pa.C.S.
§ 1102.1.
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whether appellant’s brief has a fatal defect, 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. Moye, --- A.3d ---, 1304 WDA 2020, 2021 WL 5407673,
at *6 (Pa. Super. Nov. 19, 2021). (quotation and citations omitted).
Appellant filed a timely notice of appeal and included in his brief a Rule
2119(f) statement. Appellant argues in his Rule 2119(f) statement that the
resentencing court failed “to properly consider sentencing factors enumerated
in 42 Pa.C.S. [§] 9721, and not fully accounting for mitigation evidence.”
Appellant’s Brief at 4. He also argues that we may exercise discretionary
review because “this excessive sentence [was] based solely on the seriousness
of the offense” and the resentencing court failed “to consider relevant
sentencing factors.” Id. However, Appellant failed to preserve the issue at
resentencing or in a post-sentence motion. See N.T. (Resentencing),
10/25/19, at 49-50 (court advising Appellant of his post-sentencing rights).
By way of background, Appellant was represented by Richard T. Bobbe,
III, Esquire, at trial and sentencing, on direct appeal, and at resentencing.
After resentencing, Attorney Bobbe did not seek reconsideration of Appellant’s
sentence or file any post-sentence motions on Appellant’s behalf, but he filed
the instant notice of appeal on November 25, 2019. While the record is
unclear as to why, on January 13, 2020, the trial court removed Attorney
Bobbe as counsel and appointed Gina Amoriello, Esquire.
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Shortly thereafter, on February 3, 2020, Attorney Amoriello filed in this
Court an application for remand to permit the filing of a post-sentence motion
challenging the sentence, explaining that it is the only issue raised on appeal
and was not properly preserved by prior counsel. Application for Remand,
2/3/20, at 1-2.
This Court denied the application for remand “without prejudice to the
Appellant’s right to again raise the issues in the application before the panel
of this Court assigned to decide the merits of the appeal by either refiling the
application in writing once the case has been assigned to a panel or by raising
the issues in the Appellant’s brief.” Order, 2/21/20. However, Appellant failed
to raise the issue again in an application before this merits panel or in his
brief. Thus, Appellant has waived his challenge to the discretionary aspects
of his sentence. See Pa.R.Crim.P. 720(A)(1); Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (stating “issues challenging
the discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived”) (citation omitted).
In any event, even if Appellant had preserved the claim, he would not
be entitled to relief. In examining whether Appellant has raised a substantial
question that his sentence is not appropriate under the Sentencing Code, we
are mindful of the following:
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A substantial question exists where the appellant sets forth a
plausible argument that the sentence violated a provision of the
[S]entencing [C]ode or is contrary to the fundamental norms of
the sentencing process. On appeal, a defendant must provide, in
writing, a statement specifying the following: (1) where his or her
sentence falls in the Sentencing Guidelines, (2) what provision of
the Sentencing Code has been violated, (3) what fundamental
norm the sentence violated, and (4) the manner in which it
violated the norm.
Moye, 2021 WL 5407673, at *7 (citations and quotation marks omitted).
As detailed above, Appellant claims in his Rule 2119(f) statement that
the court imposed an excessive sentence, failed to consider mitigating factors,
and did not properly apply the statutory factors set forth in 42 Pa.C.S.
§ 9721(b). See Appellant’s Brief at 4. Therefore, assuming Appellant had
properly preserved this issue, we would conclude he raised a substantial
question. See Moye, 2021 WL 5407673, at *7 (holding Moye raised a
substantial question where he claimed the court imposed an excessive
sentence of 50 years’ to life imprisonment, failed to consider mitigating
factors, and did not properly apply the statutory factors in 18 Pa.C.S.
§ 1102.1(d) and 42 Pa.C.S. § 9721(b)) (citing Commonwealth v. Perry, 883
A.2d 599, 602 (Pa. Super. 2005) (excessive sentencing claim made in
conjunction with assertion that court did not consider mitigating factors may
raise substantial question) and Commonwealth v. Mouzon, 571 Pa. 419,
812 A.2d 617, 625-26 (2002) (claim of excessive sentence, even within
statutory limits, may raise substantial question)).
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Our standard of review regarding challenges to the discretionary aspects
of sentencing is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill-will, or
arrived at a manifestly unreasonable decision.
A sentencing court abuses its discretion when it considers
the criminal act, but not the criminal himself. The Sentencing Code
prescribes individualized sentencing by requiring the sentencing
court to consider the protection of the public, the gravity of the
offense in relation to its impact on the victim and the community,
and the rehabilitative needs of the defendant, and prohibiting a
sentence of total confinement without consideration of “the nature
and circumstances of the crime and the history, character, and
condition of the defendant[.]” 42 Pa.C.S. § 9725.
The rationale behind such broad discretion and our
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Moye, 2021 WL 5407673 at *7 (some citations, quotation marks, and
brackets omitted).
By way of background, we have explained the following:
In Miller [v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012)],
the United States Supreme Court held that statutory schemes
such as Pennsylvania’s, which imposed mandatory LWOP for
certain homicide convictions, constituted cruel and unusual
punishment when applied to juvenile homicide offenders. 567 U.S.
at 469, 132 S.Ct. 2455. In doing so, the Court reaffirmed the
principle “that children are constitutionally different from adults
for purposes of sentencing. Because juveniles have diminished
culpability and greater prospects for reform, [] they are less
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deserving of the most severe punishments.” Id. (internal
quotation marks and citation omitted).
***
Pennsylvania’s General Assembly responded to Miller by enacting
a new sentencing statute for juveniles convicted of first-degree
murder after June 24, 2012. 18 Pa.C.S. § 1102.1(a). See 2012
P.L 1655. Section 1102.1(a) provides that an individual convicted
of first-degree murder after June 24, 2012, who was under the
age of 18 but over the age of 15 at the time of the offense, “shall
be sentenced to a term of life imprisonment without parole, or a
term of imprisonment, the minimum of which shall be at least 35
years to life.” 18 Pa.C.S. § 1102.1(a)(1). When determining
whether to impose a sentence of LWOP on a juvenile convicted of
murder, section 1102.1 requires a court to consider and make
findings on the record regarding “the [a]ge-related characteristics
of the defendant,” including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the
defendant.
(v) The nature and extent of any prior delinquent or criminal
history, including the success or failure of any previous
attempts by the court to rehabilitate the defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S. § 1102.1(d)(7)(i-vii).
Moye, 2021 WL 5407673, at *2 & n.10-11 (some citation formatting altered).
In Batts II, our Supreme Court required additional safeguards beyond
those set forth in subsection 1102.1:
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[T]o effectuate the mandate of Miller and
Montgomery [v. Louisiana, 577 U.S. 190, 136 S.Ct.
718, 193 L.Ed.2d 599 (2016)], procedural safeguards
are required to ensure that life-without-parole
sentences are meted out only to “the rarest of juvenile
offenders” whose crimes reflect “permanent
incorrigibility,” “irreparable corruption” and
“irretrievable depravity,” as required by Miller and
Montgomery…. [W]e recognize a presumption
against the imposition of a sentence of life
without parole for a juvenile offender. To rebut
the presumption, the Commonwealth bears the
burden of proving, beyond a reasonable doubt,
that the juvenile offender is incapable of
rehabilitation.
Batts II, supra at 415-16 (emphasis added).
***
Batts II was recently abrogated by the United States Supreme
Court in Jones v. Mississippi, --- U.S. ---, 141 S. Ct. 1307, 209
L.Ed.2d 390 (2021). The Jones Court confirmed that mandatory
sentences of life without the possibility for juvenile offenders
violate the cruel and unusual punishment clause of the Eighth
Amendment of the United States Constitution, but the Court held
that sentencing schemes that allow the discretionary imposition of
life sentences pass constitutional muster and need not require a
separate factual finding of permanent incorrigibility before doing
so. Jones, supra at 1311. As this Court en banc recently
explained in Commonwealth v. DeJesus, 2021 PA Super 213, -
-- A.3d --- (2021):
[Jones] reiterated the principle that a LWOP sentence
for a juvenile homicide offender meets the
requirements of the Eighth Amendment so long as the
sentence is part of a sentencing scheme in which the
sentencer has the discretion to impose a sentence less
than LWOP. [Jones, supra] at 1311. In addition, the
sentencing scheme only requires the sentencer to
consider the juvenile homicide offender’s “youth and
attendant characteristics” to meet the requirements
of the Eighth Amendment. Id. at 1314 (quoting
Miller, 567 U.S. at 483 [132 S.Ct. 2455]). The U.S.
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Supreme Court also rejected the need for the
sentencer to make “an on-the-record sentencing
explanation with an implicit finding of permanent
incorrigibility” to be legal under the Eighth
Amendment. Id. at 1319…. In Batts II, our Supreme
Court interpreted the Eighth Amendment as
[requiring] a sentencing court that imposes a LWOP
sentence [to] make a finding, supported by competent
evidence, of “permanent incorrigibility,” a standard
much higher than the requirement that the sentencing
court consider a “juvenile’s youth and attendant
characteristics.” Since “[i]t is beyond cavil that
[Pennsylvania state courts are] bound by the
determinations of the United States Supreme Court on
issues of federal law, including the construction and
interpretation of the federal constitution[,]” Hall v.
Pa. Bd. of Probation and Parole, [578 Pa. 245],
851 A.2d 859, 863 (2004), we must analyze this
appeal based on Jones. In other words, when
reviewing the legality of a sentencing court’s
imposition of a LWOP sentence, we may only
focus on the Jones factors and not those
espoused in Batts II. We consider the Batts II
factors as part of the discretionary aspects of
the LWOP sentence.
DeJesus, supra at *6-7 (emphasis added).
Moye, 2021 WL 5407673, at *1-2 & n.12.
In the instant case, the resentencing court chose not to sentence
Appellant to LWOP and thus, we need not review whether the court properly
considered the Jones or Batts II factors.
As noted above, section 1102.1 of the Crimes Code was enacted in the
wake of Miller and sets forth the sentences to be imposed upon juvenile
offenders who are convicted of first- or second-degree murder on or after June
25, 2012, the date Miller was issued. Relevant to this case, a juvenile
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offender convicted of first-degree murder who was under the age of 18 but
was at least 15 years old at the time the offense was committed is subject to
a sentence of a minimum of 35 years’ and a maximum of life imprisonment.
18 Pa.C.S. § 1102.1(a)(1). Section 1102.1 does not prohibit a court from
imposing a minimum sentence greater than provided in the statute. 18 Pa.C.S.
§ 1102.1(e). The statute also sets forth a separate set of factors that a court
must consider when determining whether to sentence a juvenile offender to
LWOP. 18 Pa.C.S. § 1102.1(d). However, in cases such as this, “where the
Commonwealth does not seek a LWOP sentence, the sentencing court should
apply the traditional sentencing considerations under 42 Pa.C.S. § 9721(b) of
the Sentencing Code when fashioning its sentence.” Commonwealth v.
Summers, 245 A.3d 686, 693 (Pa. Super. 2021) (citing Commonwealth v.
Lekka, 210 A.3d 343, 355 (Pa. Super. 2019) and Batts II, 163 A.3d at 484);
see also N.T. (Resentencing), 10/25/19, at 16, 42-44. In such cases, the
sentencing court is not required to consider the Miller or subsection 1102.1(d)
factors when rendering the sentence. Lekka, 210 A.3d at 355. In sum, the
resentencing court here was required to consider the traditional sentencing
considerations under subsection 9721(b), but was not required to consider the
factors set forth in subsection 1102.1(d).
Subsection 9721(b) of the Sentencing Code 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
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on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.
§ 9721(b). On appeal, a sentence that is within the sentencing guidelines will
not be vacated unless it is “clearly unreasonable.” 42 Pa.C.S. § 9781(c). We
consider (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the opportunity of the sentencing court
to observe the defendant, including any presentence investigation; (3) the
findings upon which the sentence was based; and (4) the sentencing
guidelines. 42 Pa.C.S. § 9781(d).
Our review of the record in this case indicates that, even if Appellant
had preserved his discretionary sentencing challenge, the resentencing court
did not abuse its discretion in sentencing him to an aggregate term of 38
years’ to life imprisonment. The same judge sentenced Appellant at both the
original sentencing and resentencing hearings. At resentencing, the court
recited the facts of the case and incorporated the entire record from the
original sentencing hearing, including the court’s rationale for then imposing
a LWOP sentence. N.T. (Resentencing), 10/25/19, at 44-45. At the original
sentencing, the court considered the presentence investigation (PSI) report,
Appellant’s mental health evaluation, sentencing guidelines, attorneys’
remarks from both sides, and the witnesses’ testimony at the hearing. Id. at
45. A prior panel of this Court set forth the court’s rationale for imposing the
original sentence as follows:
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The sentencing court [] explained to Appellant why it had ordered
presentence and mental health evaluations to prepare for
sentencing as follows:
[O]ver the time that you were awaiting trial, you
heard from one or more attorneys that our Supreme
Court decided in Batts that, in essence, children are
different from adults for purposes of sentence and it
requires the Court to conduct what’s commonly
referred to as individualized consideration of
mitigating circumstances, particularly the defendant’s
youth, before a sentence of life in prison without the
possibility of parole can be imposed. That is because
children lack those qualities that inure to an adult and
it is their underdeveloped sense of responsibility that
makes them susceptible to influences and they
generally have a less fixed character than adults.
So for that reason, I ordered the various reports and
set the matter down for sentencing today.
[N.T. (Sentencing), 3/13/15,] at 7–8.
Prior to rendering its sentence, the sentencing court heard
from the victim’s grandmother, aunt, and mother, respectively.
Id. at 17–24. The sentencing court also was introduced to various
friends and family members of Appellant all of whom it noted
obviously “have great love for him.” Id. at 40. The court indicated
that it had reviewed the presentence investigation report and
taken into consideration all the required factors including
Appellant’s need for rehabilitation and society’s need for
protection and further stated the following:
I’ve taken into consideration all the factors I’m
required to, including [Appellant’s] need for
rehabilitation and society’s need for protection. I’ve
reviewed the presentence investigation, I’ve reviewed
the mental health examination, and I have gone over
the memorandum prepared by the Assistant District
Attorney.
With respect to [Appellant’s] chronological age, we
have referred to him as being sixteen, but he was
more a seventeen year old than a sixteen year old,
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obviously still a year and a month short of reaching
his majority. But that is to be considered.
Regarding his level of maturity, he’s now fathered two
children. His home environment was not the best but
certainly not the worst. He was co-parented at least
until his father died by both his mother and his father.
I’ll say this with some trepidation. I hope it doesn’t
come back to haunt me. But clearly, men who look
like me are not in their children’s lives to the degree
that they should be and that causes problems, in my
humble opinion.
There was nothing in the record that suggested that
[Appellant] was subject to domestic violence, physical
violence or sexual violence. He was the architect of
this crime. He bears total responsibility for this crime.
It was a vicious killing in the light of day, without any
concern for the fact that somebody might see me and
tell the authorities who did this.
Unlike the previous case I referenced,[6] it wasn’t one
on one, two men face to face. The victim was shot in
the back for the sin of living in the wrong
neighborhood by a young man with no underlying
mental health problems, who has a history of violence
and demonstrating he was not amenable to
rehabilitation.[7]
______
[6] The trial court earlier referenced a case
wherein a young man had fired six shots at
another in a residential community believing he
had been cut off. The other individual fired back,
although no one was killed. N.T. Sentencing,
3/13/15, at 38.
[7]Appellant had an extensive history with the
juvenile justice system which commenced in
June of 2010 when he had been adjudicated
delinquent of felony robbery. Two months after
he was discharged from juvenile supervision on
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March 22, 2012, Appellant committed the
instant murder.
I have heard from the family of the deceased. I’ve
seen members of [Appellant’s] family array
themselves here and stand up, and it’s obvious they
have great love for him.
Our Supreme Court has said that life in prison for a
crime committed by a juvenile should be rare. It is
most unfortunate that this is one of those rare cases.
Id. at, 3/13/15, at 38–41.
Shabazz-Davis, 161 A.3d 1000, 1006–08, vacated by 172 A.3d 1112 (Pa.
2017).
At the time of resentencing, Appellant was 24 years old. The court
considered the Commonwealth’s sentencing memorandum and Appellant’s
mitigation report prepared by the Youth Sentencing Reentry Project (YSRP).
N.T. (Resentencing), 10/25/19, at 6. The offense gravity score (OGS) and
Appellant’s prior record score (PRS), along with the sentencing guidelines of
a standard range sentence of 38 years’ to life imprisonment, were placed on
the record. Id. at 7.
The court heard defense counsel’s remarks about Appellant’s growth
and maturity in the five years since his original sentencing, how he has
adjusted well to incarceration, his involvement with programming at prison,
his anticipated enrollment in a program through Villanova University to work
toward a bachelor’s degree, and his involvement with YSRP. Id. at 9-10. The
court also heard counsel state the names of about a dozen family and friends
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present at the hearing in support of Appellant, including his mother, sisters,
and three individuals from YSRP. Id. at 12-13.
Next, the court heard from Appellant, who apologized to the victim’s
family and his own, expressed sorrow for the murder and pain it caused, and
thanked the court for its support and the opportunity for resentencing. Id. at
15-16.
Finally, the court heard the Commonwealth read five victim impact
statements and list the names of about a dozen individuals present at
resentencing in support of Mr. Pack, and it heard testimony from five members
of Mr. Pack’s family, including his mother. Id. at 17-42.
Contrary to Appellant’s assertion that the court did not fully account for
mitigating factors, the court explicitly stated that it had considered Appellant’s
mitigation report. Id. at 45-46. The court further stated that it had given
due consideration to the required minimum period of incarceration consistent
with the protection of society, the gravity of the offense, and Appellant’s need
for rehabilitation. Id. at 45. The court also specified that it had duly
considered the sentencing guidelines, Appellant’s character and history, and
underlying facts of “this heinous homicide.” Id. The court also considered
the Commonwealth’s sentencing memorandum and controlling case law,
noting it did not want resentencing to result in an appellate court’s remand
for another sentencing hearing that would “put the family through this a third
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time.” Id. at 46. The court remarked that it had “seen absolutely no remorse
on the face of” Appellant. Id. at 46. The court continued:
It troubles me, but I also know that both the United States
Supreme Court and the Pennsylvania Supreme Court have taken
into consideration when Miller v. Alabama was decided and
Commonwealth v. Batts was decided that there are social
scientists, medical doctors, and the like who have much greater
insight into the minds of juveniles than I do, so I adopt those
positions and factor in the same when I impose a sentence,
especially sentences in cases such as this.
N.T. (Resentencing), 10/25/19, at 46-47. Finally, the court recommended, as
defense counsel had requested, that Appellant be incarcerated at a particular
prison to be close to his two small children. Id. at 47; see also id. at 10.
We discern no abuse of discretion by the resentencing court. The
sentence was not excessive or “clearly unreasonable” as the court sentenced
Appellant to a standard range sentence, properly considered the relevant
statutory factors, and stated on the record sufficient reasons for the sentence.
Thus, even if Appellant had preserved his discretionary aspects of sentencing
claim, it would not serve as a basis for relief.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2022
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