Com. v. Smith, S.

J-A10039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL EDWARD SMITH :
:
Appellant : No. 3599 EDA 2016
Appeal from the Judgment of Sentence October 31, 2016
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002130-1996
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2018
Appellant, Samuel E. Smith, appeals from the judgment of sentence of
life imprisonment without parole, imposed October 31, 2016, following a grant
of Appellant’s Post-Conviction Relief Act (PCRA) petition for resentencing
pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012), Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), and Commonwealth v. Batts, 66 A.3d
286 (Pa. 2013) (Batts I). We affirm.
The procedural history and relevant facts are as follows:
On October 10, 1996, Appellant pleaded guilty to first-degree murder,
robbery, and conspiracy.1 Appellant was sentenced to a mandatory term of
life imprisonment without the possibility of parole and an aggregate,
concurrent sentence of ten to twenty years of imprisonment on the remaining
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1 18 Pa. §§ 2502(a), 3701(a)(1)(i), and 903, respectively.
* Retired Senior Judge assigned to the Superior Court.
J-A10039-18
charges. Appellant was sixteen at the time he committed the murder.
Appellant did not file a direct appeal.
During his incarceration, Appellant filed multiple, unsuccessful petitions
for writ of habeas corpus and PCRA relief. However, on July 27, 2012,
Appellant pro se filed a PCRA petition alleging that he was entitled to relief
pursuant to the United States Supreme Court’s decision in Miller, where the
Court held that “mandatory life without parole for those under the age of 18
at the time of their crime violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishment.’” Miller, 132 S. Ct. at 2460. Appellant’s petition
was stayed pending the disposition of cases pending before the Pennsylvania
Supreme Court. While Appellant’s case was on hold, the United States
Supreme Court decided Montgomery, holding that Miller applied
retroactively. Montgomery, 136 S. Ct. at 736; see also Commonwealth
v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016) (recognizing “the Miller rule
of law … to be retroactive for purposes of collateral review as of the date of
the Miller decision on June 25, 2012.”). In response to this decision,
Appellant’s case was scheduled for resentencing.
On July 25, 2016, Appellant requested a stay of his sentencing hearing,
pending the decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)
(Batts II). Notes of Testimony (N.T.), 7/25/16, at 2. The sentencing court
denied Appellant’s motion but approved a stipulation that: (1) the
Commonwealth was required to prove beyond a reasonable doubt that
Appellant qualified for a sentence of life without the possibility of parole; and
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(2) there is a presumption against imposing a life sentence without the
possibility of parole on a juvenile offender. Id. at 7-8. Appellant also
presented a motion to continue the sentencing hearing in order to secure
expert witnesses to counter the Commonwealth’s expert witnesses. Id. at 8-
9. While the sentencing court declined to postpone the Commonwealth’s
presentation of evidence, it nonetheless afforded Appellant extra time to
secure witnesses and prepare his case.2 Id. at 29.
On July 26, 2016, the sentencing court commenced Appellant’s
resentencing hearing. The Commonwealth presented extensive testimony
from numerous witnesses, including for example: the original police
investigators, victim impact statements, as well as expert testimony.
Appellant presented testimony from family and friends. For appellate
purposes, we highlight the following relevant testimony:
The Commonwealth called Lieutenant Michael Torres, a Pennsylvania
Department of Corrections Officer. Notes of Testimony (N.T. Excerpt),
7/26/16, at 3.3 Lieutenant Torres was qualified as an expert in prison gangs.
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2 The court directed Appellant to advise it of the time he would require. N.T.,
7/25/16, at 29. The following day, Appellant requested sixty days to secure
his expert witnesses, and a date was set for September 7, 2016. N.T.
Continuance, at 4. Following the Commonwealth’s presentation, the
sentencing hearing was in fact continued until October 18, 2016.
3 The sentencing court provided this Court with three volumes of transcripts
for July 26, 2016. The first volume contains the main records for the first half
of Appellant’s sentencing hearing and hereinafter will be labeled N.T.
Sentencing. The second volume includes excerpt testimony from three
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Id. at 3-7. He testified that Appellant was the leader of prison gang known
as the State Prison Skinheads (SPS), a neo-Nazi white supremacist group. Id.
at 20. Lieutenant Torres also related information regarding Appellant’s
attempted escape in 2004. According to Lieutenant Torres, Appellant planned
a detailed escape utilizing former and current inmates affiliated with SPS and
planned to secure a firearm. Id. at 15-16. A confidential informant, whom
Appellant threatened to kill once he established his identity, thwarted this
attempt. Id. at 18-19. As a result of this escape attempt, Appellant was
transferred to State Correctional Institute (SCI) Greene, a maximum-security
prison with a high-risk prisoner designation, where he is currently housed.
Id. at 19. Lieutenant Torres also reported that prior to Appellant’s appeal,
Appellant had received nineteen prison misconducts. Id. at 9.
Finally, Lieutenant Torres also opined that, in his experience, Appellant
was a rare and uncommon inmate. Id. at 34-37. He based this assessment
on Appellant’s files, past escape attempt, membership in a prison gang, and
the number of misconducts. Id. According to Lieutenant Torres, Appellant’s
nineteen misconducts were excessive, as were his number of days in
restrictive housing. Id. at 9, 13-14. Lieutenant Torres conceded that there
was a period of time in which Appellant had received no misconducts but
____________________________________________
witnesses, and hereinafter will be labeled N.T. Excerpt. The last volume is an
excerpt of Appellant’s request for a continuance and will be labeled N.T.
Continuance.
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offered two explanations for Appellant’s good behavior: 1) he was eligible for
resentencing; and 2) he wanted to maintain his gang leadership. Id. at 34-
35. Lieutenant Torres testified that his office had confiscated a document
from Appellant that was entitled the “Supreme Word.” Id. at 26.4 The
document identified Appellant as the editor of the “Supreme Word” and a
member of SPS. Id. at 27. According to Lieutenant Torres, the document
contained images of skinheads, symbols, and articles espousing rhetoric
against Jews, “all colored races,” and the mafia, ending with a hidden salute
to Hitler. Id. at 28-33.
Next, over Appellant’s objection, the Commonwealth called Special
Agent Michael Fitzgerald of the Federal Bureau of Investigations (FBI) to
testify as an expert in neo-Nazi groups. N.T. Excerpt, at 73-76.5 Agent
Fitzgerald based his testimony on his almost twenty-six years in the FBI, his
fifteen years investigating domestic terrorism, and his review of Appellant’s
record prior to the sentencing hearing. N.T. Excerpt, at 70-72, 75, 94. Agent
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4 The “Supreme Word” newsletter was a compilation by Appellant containing
white supremacist rhetoric and skinhead illustrations by Appellant depicting
hanging race traitors (informants); an excerpt from a “martyr for the cause”
who died in a gun fight with the FBI; and articles from various neo-Nazi
fundamentalists. N.T. Excerpt, at 78-86.
5According to Appellant, Agent Fitzgerald was not an expert in Pennsylvania
prison gangs, was not qualified to discuss the philosophy espoused in
Appellant’s newsletter, and his testimony was cumulative to Lieutenant Torres’
earlier testimony. N.T. Excerpt, at 75-76.
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Fitzgerald testified that, in his expert opinion, should Appellant be released
from custody, he would be connected to a network that would make him a
danger to the general public and specifically, to Jews, minorities, and law
enforcement. N.T. Excerpt, at 94-96.
The Commonwealth called Dr. John O’Brien, a psychiatrist, to testify.
N.T. Excerpt, at 99-100. Dr. O’Brien had reviewed an earlier psychiatric
evaluation of Appellant but was unable to conduct his own evaluation. N.T.
Excerpt, at 100-01.6 Dr. O’Brien also reviewed Appellant’s record, which
included a history of fire setting, an incident where Appellant shot a dog, and
a history of substance abuse. Id. at 106. Based on Dr. O’Brien’s review of
Appellant’s records, he concluded, with a reasonable degree of medical
certainty, that Appellant has Anti-Social Personality Disorder (“ASPD”). Id.
at 101. While Dr. O’Brien noted that ASPD is not treatable, he stated that it
could attenuate with age. Id. at 113-14. Dr. O’Brien also testified that it is
rare to diagnose a person with ASPD and that the number of individuals with
ASPD involved in prison gangs is also similarly rare. Id. at 116, 119.
Dr. O’Brien was not confident of Appellant’s rehabilitation because
Appellant merely presented a superficial sense that he can adjust, essentially
“flying under the radar” for the previous ten years. Id. at 118. Dr. O’Brien
____________________________________________
6The psychiatric evaluation was originally conducted by Dr. Sadoff on June
16, 1996, before Appellant had originally pleaded guilty. See N.T. Excerpt, at
100.
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also expressed concern that Appellant would rely on his connections with SPS
if released from prison. Id. at 119.
Next, the Commonwealth called Appellant’s longtime friend, Sherry
Flick, to testify. Mrs. Flick testified that she originally connected with Appellant
through a mutual friend named Dwayne in 2002. N.T. Sentencing, at 117.
Dwayne was one of the men who attempted to aid Appellant in his 2004
escape attempt and was involved in the same prison gang, SPS. Id. at 124;
N.T. Excerpt, at 15. Mrs. Flick testified that she had a past romantic
relationship with Appellant despite being married, although their relationship
is now platonic. N.T. Sentencing, at 117, 121. While Mrs. Flick testified that
she did not hold the same beliefs as Appellant, she nonetheless helped to copy
and distribute copies of Appellant’s newsletter, titled “Supreme Word.” Id. at
126-29. She also testified that around the time of his filing of his PCRA
petition, Appellant told her that he no longer identified as a white supremacist
as he had become a Christian. Id. at 119. Additionally, evidence was
presented that, during the course of their fourteen-year relationship, Mrs. Flick
had deposited around $10,000 into Appellant’s prison account. Id. at 117;
N.T., 10/18/16, at 81. Following her testimony, the Commonwealth rested its
case, reserving the right to recall its experts or rebuttal witnesses.
Three months later, Appellant presented his case. First, Appellant called
Dr. Carol Armstrong, a neuropsychologist. Dr. Armstrong acknowledged that
she had not reviewed any material on Appellant’s case or met with Appellant
prior to writing her report. N.T., 10/18/16, at 23. However, Dr. Armstrong
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explained the differences between adult and juvenile brains and opined that
juveniles are not capable of making future predictions or controlling
inappropriate behavior as well as adults. Id. at 18-19. Nonetheless, Dr.
Armstrong was impeached on cross-examination, and the sentencing court did
not find her testimony credible. Id. at 60-62; see also N.T., 10/19/16, at
64-65.
Next, Appellant presented Dr. William Russell as an expert in forensic
psychology. Dr. Russell, in preparing for court, reviewed Dr. Sadoff’s report,
the sentencing memoranda, the notes of testimony, letters from Lieutenant
Michael Torres and the district attorney, and Dr. O’Brien’s report. N.T.,
10/18/16, at 65, 120. He also met with Appellant twice. Id. Based on his
review of Appellant’s information, Dr. Russell agreed with Dr. O’Brien’s ASPD
diagnosis but considered Appellant at a low risk for recidivism based on his
improved behavior over the past eight years. Id. at 78-79, 91. Noting the
discrepancies in Appellant’s initial reports of the murder, Dr. Russell stated
that Appellant is still manipulative. Id. at 116-118. By way of example, Dr.
Russell referenced Appellant’s recent statements that he had embraced
Christianity and distanced himself from the prison gang. Dr. Russell
contrasted this claim with a transcript of the phone conversation between
Appellant and his friend Mrs. Flick on December 26, 2015, during which they
discussed putting Jews in ovens. Id. at 97-98. Overall, Dr. Russell noted that
Appellant had not “lost the concept of race and white supremacy.” Id. at 96,
125. Dr. Russell also mentioned Appellant’s 2004 letter to Mrs. Flick where
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Appellant stated, “when I was real little, I wanted a pet monkey. I never
thought I would come to prison and have thousands of them, smiley face[.]”
Id. at 96-97.
Following Dr. Russell’s testimony, the Commonwealth recalled Dr.
O’Brien, who also discussed transcripts from the 2015 conversation between
Appellant and Mrs. Flick. Of significance to Dr. O’Brien was Appellant’s
comments about putting Mrs. Flick’s husband in a shallow grave, which
demonstrated that he had ongoing aggressive ideation. N.T., 10/18/16, at
143. Dr. O’Brien also commented on Appellant’s prior abuse of his sister,
Sherry Hume, when he was a juvenile. N.T., 10/18/16, at 146-47.7 Dr.
O’Brien concluded that Appellant was a rare and uncommon individual who
had a poor chance of being rehabilitated. Id. at 151, 160-61.8
The following day, Appellant exercised his right to allocution. N.T.,
10/19/16, at 5-30. Appellant apologized for the pain and loss his actions
caused both his and the victim’s families. Id. at 5, 16, 29. Appellant went
on to say that he was an “emotional mess” after the murder. Id. at 7. He
asserted that he had distanced himself from all gang activity and no longer
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7 At the time of Appellant’s arrest, his sister, Sherry Hume, reported that her
brother had choked her until she turned blue after she had informed him that
she was saving the milk he was drinking for another sibling. N.T. Sentencing,
at 109-13. Mrs. Hume also testified that Appellant abused his younger
siblings. Id. at 111.
8Prior to this hearing, on October 11, 2016, Dr. O’Brien was able to meet with
Appellant and conduct a psychiatric evaluation. N.T., 10/18/19, at 132-33;
see also Commonwealth’s Exhibit 23.
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wanted to have racist views. Id. at 11, 13. According to Appellant, religion
was helping, but he admitted that he still struggled with being a racist and
used racial slurs. Id. at 13, 15. Appellant stated that he maintained healthy
relationships with his family, although he admitted to a strained relationship
with his younger sister, who has a multiracial child. Id. at 14, 19. Appellant
noted positive prison activities in which he was involved, such as: recreational
painting and designs; going to the library; obtaining his GED; working two
jobs; and he indicated that he is on a waitlist for a peer inmate program. Id.
at 16, 19, 26.
Appellant also sought to explain why he wanted a gun for his prison
escape. Id. at 23-25. According to Appellant, it was
insurance that I would never be put in the hole for the rest of my
life … I didn’t want a gun for any other reason than that. It’s one
of them things. I’m glad it was stopped before it ever came to
fruition beyond talking and minimal planning and like nobody --
like I didn’t make a physical attempt[.]
Id. at 24. As a result of his escape attempt, Appellant stated that he rarely
sees his family and is restricted in what he can do and the jobs he can hold in
prison. Id. at 24-25.9 Appellant rested his case and incorporated again by
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9Appellant’s sister testified that the visits from his family are limited to once
or twice a year because of the distance Appellant’s family has to travel. See
N.T. Sentencing, at 87.
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reference his sentencing memorandum, which had been already admitted into
evidence. Id. at 4, 42.10
At the conclusion of the hearing, the court stated that:
We also believe that it is the Commonwealth that has the burden
of proof beyond a reasonable doubt to establish that this
defendant is uncommon and rare and an unusual juvenile who
would likely kill in the future, and the public can only be protected
by him being incarcerated for the rest of his natural life.
We believe the Commonwealth has met that burden, and we
believe that this defendant has earned and has continued to
exhibit earning a sentence of life without the possibility of parole.
N.T., 10/19/18, at 67.
After considering the evidence presented, the court sentenced Appellant
to life without parole. Id. at 67-68. Appellant timely filed a motion to modify
his sentence, which was denied. Appellant timely appealed and filed a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive
opinion.
On appeal, Appellant raises the following issues:
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10 On appeal, during oral arguments, on May 3, 2018, this Court asked
Appellant to point out in the record, specifically, what conduct related to
Appellant’s rehabilitation over his twenty-year incarceration. However,
Appellant could not adequately provide an answer. On May 17, 2018,
Appellant filed an Application for Post-Submission Communication explicitly
directing this Court’s attention to places in the record that indicated
Appellant’s rehabilitation. More specifically, Appellant directed this Court’s
attention to various letters of support from African-American inmates, proof
of achievements and certificates, and accommodations from various
employers at the prison. Thus, we grant Appellant’s application for Post-
Submission Communication.
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1. Did the trial court violate the First and Fourteenth Amendments of
the U.S. Constitution and Article 1 Section 7 of the Pennsylvania
Constitutional in admitting evidence, over objection, regarding
Appellant’s affiliation with the State Prison Skinheads and other
references to Appellant’s White Supremacists beliefs when the
Commonwealth presented no evidence of actions by Appellant that
would make these beliefs or affiliations relevant to the matter before
the court?
2. Did the trial court err in allowing the expert testimony of Special
Agent James Fitzgerald over objection of counsel?
3. Does Appellant’s sentence violate the constitutional mandate
articulated by the U.S. Supreme Court in Miller v. Alabama, 132 S.
Ct. 2455 (2012)[,] and Montgomery v. Louisiana, 136 S. Ct. 718(2016)[,] that life without parole sentences should be “unusual” or
“rare” and reserved only for those who are “permanently incorrigible,
irreparably corrupt, or irretrievably depraved”?
a. Is the instant case one of the “unusual” or “rare” cases
permitting such a sentence?
b. Did the trial court make a finding supported by competent
evidence that appellant is “permanently incorrigible,
irreparable corrupt or irretrievably depraved”?
4. Did the Commonwealth meet its burden of proof beyond a reasonable
doubt to justify a life without parole sentence?
5. Did the trial court err in not giving appropriate consideration and
weight to the Miller sentencing factors that counsel against imposing
the harshest sentence on a juvenile
a. Did the trial court improperly abuse its discretion in imposing
an excessive or unreasonable sentence of life without parole by
failing to adequately and appropriately consider Appellant’s
ability to be rehabilitated as required by Miller and
Montgomery?
6. Did the trial court incorrectly rely upon the antisocial personality
disorder diagnosis in concluding that Appellant’s approximately
twenty year prison history supported a prediction of future
dangerousness while the diagnosis itself includes a diminution of
criminal behavior as an individual ages?
7. Did the trial court err in denying Appellant’s continuance request of
July 26, 2016 sentencing hearing when the defense did not have
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adequate time to procure expert review of the Commonwealth’s
proffered expert testimony?
See Appellant’s Brief at 6-7 (capitalization omitted; issues renumbered for
ease of disposition).
Evidentiary Issues
We will begin by addressing Appellant’s evidentiary issues, as they lay
the foundation for Appellant’s argument challenging his resentencing to life
without parole as a juvenile.
The standard for reviewing the admission of evidence is an abuse of
discretion. Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018).
In particular, it is well settled that a court has abused its discretion if “the
record disclosed that the judgment exercised was manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.” Id. at 454 (quoting
Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)).
Appellant contends that the trial court violated his First and Fourteenth
Amendment rights by admitting evidence of his affiliations with SPS and his
white supremacist beliefs. See Appellant’s Brief at 58 (citing to Delaware v.
Dawson, 503 U.S. 159 (1992)). According to Appellant, his affiliations were
not relevant to the sentencing court’s consideration. Id. Appellant argues
that the only evidence presented was of his ideology and there was no nexus
between Appellant’s ideology and violent criminal acts. Id. at 59. Appellant
asserts that the Commonwealth used his affiliation with SPS to make a
“speculative leap to projected future dangerousness.” Id. Thus, Appellant
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concludes that such irrelevant evidence was not a permissible sentencing
consideration and prejudiced him. Id. at 58.
As mentioned supra, the admission of evidence during sentencing is in
the sound discretion of the court and will not be disturbed absent an abuse of
discretion. King, 182 A.3d at 454-55. The court can consider any evidence
it deems relevant, as it is “neither bound by the same rules of evidence nor
criminal procedure as it is in a criminal trial.” Id. at 455. This includes all
evidence relating to any aggravating or mitigating factor. Commonwealth
v. Young, 637 A.2d 1313, 1321-22 (Pa. 1993). Thus, reversal of the decision
requires a finding of an abuse of discretion and prejudice. Commonwealth
v. Franklin, 580 A.2d 25, 31 (1990).
In Dawson, during sentencing, the prosecution and the defendant’s
attorney stipulated that Dawson was a member of the Aryan Brotherhood, a
white supremacist prison gang. Dawson, 112 S. Ct. at 1096. In return for
the stipulation, the prosecution agreed not to call any expert witnesses to
testify regarding the Aryan Brotherhood. Id. The Supreme Court held that
the stipulation was a constitutional error because the narrowness of the
stipulation lacked context and was “totally without relevance” to Dawson’s
sentencing. Id. at 1098. No evidence had been introduced regarding the
Aryan Brotherhood’s unlawful or violent acts, and the evidence was not
relevant to rebut any mitigating evidence offered by Dawson. Id. However,
the Supreme Court noted that if there was relevant evidence connecting the
Aryan Brotherhood’s violent acts to the defendant, such evidence may have
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been admissible; there is no per se barrier to the admission of evidence
concerning one’s beliefs and associations at sentencing merely because the
First Amendment protects such beliefs. Id. at 1097-98. The Dawson Court
provided examples of why a defendant’s gang affiliations would be relevant
admissible evidence, such as establishing a potential future dangerousness,
and rebut mitigation or character evidence. Id. at 1098.
The instant case is easily distinguishable from Dawson, and Appellant’s
argument that his gang affiliations were not relevant to his sentencing
consideration is without merit. Here, the information regarding Appellant’s
affiliation with SPS was introduced at sentencing to establish Appellant’s
future dangerousness and potential for rehabilitation. N.T., 1/26/16, at 94-
96; see also TCO, 5/25/17, at 12-13. Agent Fitzgerald testified regarding
white supremacist gangs, their far reach, and their violent acts. N.T. Excerpt
7/26/16, at 70-99. The Commonwealth presented evidence that: (1)
Appellant was still in contact with gang members and associates; (2) members
of the gang had plotted to acquire Appellant a gun for use in his escape
attempt; (3) Appellant had made threats against the lives of specific
individuals; and (4) the ideology of the gang particularly espouses a rhetoric
of violence against Jews, other minorities, and law enforcement. See N.T.
Sentencing, at 117; see also N.T Excerpt, at 15-19, 28-33. At Appellant’s
sentencing, he admitted he still holds racist beliefs. N.T., 10/19/16, at 13.
Thus, the information regarding SPS was appropriately considered to counter
Appellant’s claim that he was rehabilitated, and no longer presented a danger
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to the public, and was not a violation of his First or Fourteenth Amendment
rights. See e.g., Dawson, 112 S. Ct. at 1097. Therefore, the sentencing
court did not abuse its discretion in admitting this evidence. King, 182 A.3d
at 454-55; Young, 637 A.2d at 1321-22; Franklin, 580 A.2d at 25.
Appellant also asserts that the court erred in allowing the expert
testimony of Special Agent Fitzgerald. See Appellant’s Brief at 60.11
According to Appellant, Agent Fitzgerald has never: (1) testified “as an expert
in any courtroom”; (2) published any academic studies involving gangs; or
(3) been qualified as an expert in prison gangs or the Pennsylvania prison
system. Id. Thus, Appellant concludes that Agent Fitzgerald should not have
been permitted to testify as an expert in prison gangs in the Pennsylvania
Prison system. Id.Pennsylvania has long maintained a liberal standard for admitting expert
testimony:
The qualification of an expert witness rests within the sound
discretion of the trial judge, and absent an abuse of discretion,
the decision of the trial judge should be upheld. “It is well
established in this Commonwealth that the standard for
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11 In support of his argument, Appellant cites to Frye v. United States, 293
F. 1013 (D.C. Cir. 1923. The Frye court held that in order for scientific, expert
testimony to be admissible, the methodology relied upon must have gained
general acceptance in the field to which it belongs. Frye, 293 F. at 1013.
See Appellant’s Brief at 60. Frye is not relevant to this issue because the
expert testimony was not novel, and Appellant is not challenging Agent
Fitzgerald’s background as an FBI agent, which formed the basis of his expert
deductions. In fact, there was no argument made that Agent Fitzgerald’s
training and background was not widely accepted by those in law enforcement,
especially in the FBI.
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qualification of an expert witness is a liberal one. The test to be
applied when qualifying an expert witness is whether the witness
has any reasonable pretension to specialized knowledge on the
subject under investigation. If he does, he may testify and the
weight to be given to such testimony is for the trier of fact to
determine.” It is also well-established that a witness does not
need formal education on the subject matter of the testimony, and
may be qualified to render an expert opinion based on training
and experience.
Commonwealth v. Wallace, 817 A.2d 485, 494 (Pa. Super. 2002) (quoting
Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa.1995)) (internal citations
omitted); see also Pa.R.E. 702 (stating testimony is allowed if “(a) the
expert's scientific, technical, or other specialized knowledge is beyond that
possessed by the average layperson; (b) the expert's scientific, technical, or
other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and (c) the expert's methodology is
generally accepted in the relevant field.”).
Here, the sentencing court allowed Agent Fitzgerald to testify as an
expert in neo-Nazi groups. N.T Excerpt, at 73-74. Agent Fitzgerald had been
in the FBI for approximately twenty-six years, fifteen of which were spent
investigating domestic terrorism, including white supremacist groups. Id. at
70, 75. Agent Fitzgerald was a certified undercover agent and had gone under
cover in white supremacist and neo-Nazi groups. Id. at 71-72.
Thus, because Agent Fitzgerald had specialized knowledge beyond the
average layperson and this knowledge would help the fact-finder understand
white supremacist gangs, the sentencing court did not abuse its discretion in
qualifying him as an expert. Wallace, 817 A.2d at 495; Pa.R.E. 702.
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Appropriate Constitutional Standard
With these evidentiary issues resolved, we turn to Appellant’s
sentencing claims. Appellant contends that the sentencing court violated the
constitutional mandates articulated in Miller v. Alabama, 132 S. Ct. 2455(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), namely, that
life without parole sentences for juveniles should be unusual, rare, and
reserved only for those who are permanently incorrigible, irreparably corrupt,
or irretrievably depraved. See Appellant’s Brief at 22.12 Appellant suggests
that he is capable of rehabilitation and specifically notes the sentencing court’s
recognition that he has learned “at least to some extent, to comport his
behavior in prison.” Id. at 31 (quoting N.T., 10/19/16, at 61). Thus,
Appellant concludes, his case is not one of the unusual or rare cases permitting
such a sentence, and the sentencing court did not make a finding supported
by competent evidence that Appellant is permanently incorrigible, irreparably
corrupt, or irretrievably depraved. Id.
Under Miller and Montgomery[ v. Louisiana, ––– U.S. –––, 136
S.Ct. 718, 193 L.Ed.2d 599 (2016)], a sentencing court has no
discretion to sentence a juvenile offender to life without parole
unless it finds that the defendant is one of the “rare” and
“uncommon” children possessing the above-stated
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12In this section of Appellant’s brief, he summarizes all of his arguments on
appeal. As Appellant raises these same issues later in his brief, they will not
be addressed in Appellant’s first issue.
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characteristics[13], permitting its imposition. Montgomery, 136
S.Ct. at 726, 734; Miller, 567 U.S. at 479, 132 S. Ct. 2455; see
Graham, 560 U.S. at 73, 130 S.Ct. 2011; Roper[ v. Simmons],
543 U.S. [551,] 572–73, 125 S.Ct. 1183, 161 L.Ed.2d 1 [ (2005)
]. A sentence of life in prison without the possibility of parole for
a murder committed when the defendant was a juvenile is
otherwise disproportionate and unconstitutional under the Eighth
Amendment. Montgomery, 136 S.Ct. at 734, 735.
Thus, in the absence of the sentencing court reaching a
conclusion, supported by competent evidence, that the defendant
will forever be incorrigible, without any hope for rehabilitation, a
life-without-parole sentence imposed on a juvenile is illegal, as it
is beyond the court's power to impose. See [Commonwealth v.]
Vasquez, 560 Pa. 381, 744 A.2d [1280,] 1282 [ (2000) ];
[Commonwealth v.] Shiffler, 583 Pa. 478, 879 A.2d [185] 189
[ (2005) ]; In re M.W., 555 Pa. 505, 725 A.2d [729,] 731 [
(1999) ]. As stated by the Montgomery Court, “when a State
enforces a proscription or penalty barred by the Constitution, the
resulting conviction or sentence is, by definition, unlawful.”
Montgomery, 136 S.Ct. at 729–30. As such, we must review the
sentencing court's legal conclusion that Batts is eligible to receive
a sentence of life without parole pursuant to a de novo standard
and plenary scope of review. Commonwealth v. McClintic, 589
Pa. 465, 909 A.2d 1241, 1245 (2006). Because this legal
conclusion is premised upon the presentation of testimony and the
sentencing court's credibility determinations, it presents a mixed
question of fact and law. In such circumstances, we defer to the
findings of fact made by the sentencing court as long as they are
supported by competent evidence, but give no deference to that
court's legal conclusions. Pennsylvania Nat. Mut. Cas. Ins. Co.
v. St. John, 630 Pa. 1, 106 A.3d 1, 13 (2014); Commonwealth
v. James, 620 Pa. 465, 69 A.3d 180, 186 (2013);
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011);
In re Condemnation by Urban Redevelopment Auth. of
Pittsburgh, 590 Pa. 431, 913 A.2d 178, 183 (2006).
____________________________________________
13 A sentence of life without parole for a juvenile is permissible only if the
“crime was not the result of the 'unfortunate yet transient immaturity’
endemic of all juveniles.” Commonwealth v. Batts, 163 A.3d 410, 435 (Pa.
2017).
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Commonwealth v. Coia, 168 A.3d 219, 222–23 (Pa. Super. 2017) (quoting
Batts II, 163 A.3d 410, 435-36 (Pa. 2017)).
A faithful application of Miller and Montgomery “requires the creation
of a presumption against sentencing a juvenile offender to life in prison
without the possibility of parole.” Batts II, 163 A.3d at 452; see also Coia,
168 A.3d at 223.14 The burden of rebutting this presumption is placed upon
the Commonwealth. Batts II, 163 A.3d at 459. Finally, to rebut the
presumption, the Commonwealth must prove, “beyond a reasonable doubt,
that the juvenile offender is permanently incorrigible and thus is unable to be
rehabilitated.” Id.
While the sentencing court did not use the specific language of Miller,
stating that Appellant was “irretrievab[ly] deprav[ed,]” it is clear that the court
was referring to Appellant’s lack of rehabilitation potential. Miller, 132 S. Ct.
at 2458. The court recognized the burden was on the Commonwealth. N.T.,
10/19/16, at 67. The sentencing court concluded that the Commonwealth had
____________________________________________
14 In Coia, the defendant was sentenced prior to the Pennsylvania Supreme
Court’s decision in Batts II. Coia, 168 A.3d at 224. Thus, our Court vacated
his sentence, remanded for reconsideration with the later-established
presumption against the imposition of a life without parole sentence for a
juvenile offender, and required the Commonwealth to rebut the presumption
with evidence establishing beyond a reasonable doubt that the defendant was
permanently incorrigible and unable to be rehabilitated. Id. In the instant
case, although Appellant was sentenced while Batts II was pending on
appeal, the parties stipulated, prior to resentencing, that there was a
presumption against life sentences without the possibility of parole and that
the Commonwealth must prove its case beyond a reasonable doubt. See N.T.
7/25/16, at 7-8. Accordingly, a remand is unnecessary.
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met its burden to establish that Appellant was a “rare and uncommon” child.
Id. During the sentencing, the court noted:
We also believe that it is the Commonwealth that has the burden
of proof beyond a reasonable doubt to establish that this
defendant is uncommon and rare and an unusual juvenile who
would likely kill in the future, and the public can only be protected
by him being incarcerated for the rest of his natural life.
We believe the Commonwealth has met that burden, and we
believe that this defendant has earned and has continued to
exhibit earning a sentence of life without the possibility of parole.
N.T., 10/19/18, at 67. The court applied the correct standard. Thus,
Appellant’s claim is specious and without merit, and Appellant is not entitled
to relief. Coia, 168 A.3d 219 at 222-23.
The Sufficiency of the Commonwealth’s Evidence
In a related claim, Appellant asserts that the Commonwealth failed to
meet its burden to prove beyond a reasonable doubt that a life sentence
without parole was justified. See Appellant’s Brief at 47-50. Specifically,
Appellant argues that the Commonwealth did not establish that he was beyond
rehabilitation. Id. According to Appellant, Dr. O’Brien’s testimony was
ambivalent. Appellant argues that Dr. O’Brien stated that Appellant had a
“documented capability of performing at work and … meeting the
programmatic needs[,]” but that his “rehabilitative potential is in my opinion
hard to glean[.]” Id. at 48. Appellant further contends that Dr. O’Brien’s
conclusion was based on speculation rather that the “subjective state of
certitude” required by the reasonable doubt standard. Id. at 49. According
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to Appellant, there was evidence of Appellant’s ability to be rehabilitated. Id.
at 49-50. For example, Appellant states he could be rehabilitated because he
had met the qualifications for and was granted an incentive-based transfer.
Id.15 Thus, Appellant concludes that the Commonwealth did not present
competent evidence of Appellant’s lack of rehabilitative potential beyond a
reasonable doubt. Id.
Essentially, Appellant challenges the sufficiency of the Commonwealth’s
evidence, which presents a question of law.
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted). Therefore, our standard of review is de novo, and the
____________________________________________
15 An incentive-based transfer allows an inmate to be transferred closer to his
home region. See Appellant’s Exhibit 1, tab 41; see also Appellant’s Brief at
49-50. In order for an inmate serving a life sentence to qualify for a transfer,
the inmates must have: (1) been compliant with their Correctional plan; (2)
maintained a Level 3 Custody Level; (3) have no Class 1 or Class 2
misconducts within the prescribed time period; (4) have completed ten years
of their sentence; and (5) have a period of ten years of overall positive
adjustment. Id. The requirements also state that if an inmate fails to
maintain the incentive-based requirements, he will be transferred away from
his home region. Id.- 22 -
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scope of review is plenary. Commonwealth v. Delgros, 183 A.3d 352, 356
(Pa. 2018).
Here, Appellant does not accurately represent the testimony of Dr.
O’Brien. In fact, Dr. O’Brien stated that from his review of Appellant’s record,
Appellant presented a “superficial sense” of rehabilitation which is why he
determined that Appellant’s rehabilitative potential was “hard to glean[.]”
N.T. Excerpt, at 118. Dr. O’Brien clarified that Appellant’s behavior had shifted
from individualized ASPD to institutionalized ASPD. See N.T. Excerpt, at 112-
13. According to Dr. O’Brien, Appellant is better able to conceal and
manipulate his disability and “direct others to do his dirty work.” Id. at 113.
Dr. O’Brien opined that this was consistent with Appellant’s “intelligence and
Antisocial Personality Disorder diagnosis.” Id. at 112. Further, Dr. O’Brien
testified that with Appellant’s shift into organized antisocial behavior, he is
able to shift from acts of violence to other types of criminal activity. Id. at
117-18.
After this initial testimony, Dr. O’Brien personally examined Appellant
on October 11, 2016. N.T., 10/18/16, at 132-33. Based on this examination,
Dr. O’Brien further clarified his original statements:
[Appellant’s] profile predisposes him to interpersonal difficulty
because it adversely influences rehabilitation efforts –
interpersonal difficulties that could adversely influence
rehabilitation efforts. He was also identified as an individual who
would not be very receptive to suggestions from others and
resistant to treatment, and indicated that if he were pressured
into therapy by outside circumstances, his cooperation would tend
to be minimal … personality disorders and antisocial disorders do
attenuate to a certain degree with age, but there’s some variation
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in that. But the bottom line is that [Appellant]’s testing reveals
ongoing symptoms consistent with that diagnosis.
Id. at 150-51; see also Commonwealth’s Exhibit 23 and 24 (Dr. O’Brien’s
Report and results from Appellant’s tests respectively). Dr. O’Brien concluded
with a reasonable degree of medical certainty Appellant’s chances of being
rehabilitated is poor and that he was a rare and uncommon juvenile. Id. at
151, 160-61. Thus, Appellant’s claim that Dr. O’Brien’s testimony did not
meet the required burden of proof is not persuasive, in light of the entire
record of Dr. O’Brien’s testimony. Widmer, 744 A.2d at 751. Therefore, as
a matter of law, Dr. O’Brien’s testimony was sufficient. Id.
Further, Appellant’s main argument in support of Appellant’s
rehabilitative potential was the grant of his incentive-based transfer request
on May 10, 2016. Appellant’s Brief at 49-50; see also Appellant’s Exhibit 1,
tab 43. However, Appellant fails to mention that this transfer grant was
revoked due to Appellant’s misconduct on October 11, 2016, one week prior
to the second portion of his sentencing hearing. N.T., 10/18/16, at 166-67.
Additionally, even if Appellant’s argument was credible, this evidence goes to
an argument against the weight of the evidence and not to the sufficiency of
the evidence. See, e.g., Commonwealth v. Crosley, 180 A.3d 761, 768
n.2 (Pa. Super. 2018).
The Discretionary Aspects of Appellant’s Sentence
Appellant raises two, interrelated arguments challenging the
discretionary aspects of his sentence. Accordingly, we shall address them
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together. Appellant claims that the trial court did not give the appropriate
consideration and weight to the Miller sentencing factors. See Appellant’s
Brief at 43. According to Appellant, the sentencing court: (1) improperly
allowed the nature of the crime and past conduct to drive the sentence; (2)
did not consider Appellant’s upbringing; (3) failed to consider evidence of
Appellant’s rehabilitation; and (4) improperly relied on Appellant’s ASPD
diagnosis as a predictor for future dangerousness without considering the
possible attenuation of criminal behavior. Id. at 43-44, 51.
In the instant case, Appellant
challenges the discretionary aspects of sentencing for which there
is no automatic right to appeal. This appeal is, therefore, more
appropriately considered a petition for allowance of appeal. Two
requirements must be met before a challenge to the judgment of
sentence will be heard on the merits. First, the appellant must set
forth in his [or her] brief a concise statement of matters relied
upon for allowance of appeal with respect to the discretionary
aspects of his [or her] sentence. Pa.R.A.P. 2119(f). Second, he or
she must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.
42 Pa.C.S.A. § 9781(b)[.]
The determination of whether a particular case raises a substantial
question is to be evaluated on a case-by-case basis. Generally,
however, in order to establish that there is a substantial question,
the appellant must show actions by the sentencing court
inconsistent with the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process.
Commonwealth. v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)
(quoting Commonwealth v. Marts, 889 A.2d 608, 610-11 (Pa. Super.
2005)). In addition to filing these requirements, an appellant must have
timely appealed and preserved the issues on appeal. King, 182 A.2d at 453.
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Here, Appellant has timely appealed, preserved his issues on appeal through
a post-sentence motion to modify his sentence, and filed a proper 2119(f)
statement. Thus, we must determine if Appellant has raised a substantial
question. Seagraves, 103 A.3d at 841-42 ( stating “[i]n reviewing a
challenge to the discretionary aspects of sentencing, we evaluate the court's
decision under an abuse of discretion standard.”) (quoting Dodge, 77 A.3d at
1274).
“We are, of course, mindful that it is apparent that this Court's
determination of whether an appellant has presented a substantial question
in various cases has been less than a model of clarity and consistency, even
in matters not involving excessive sentence claims.” Commonwealth v.
Dodge, 77 A.3d 1263, 1272 n. 8 (Pa. Super. 2013). Nevertheless we have
recognized a distinction between a sentencing court’s failure to consider the
factors required by law, in this case as outlined by Miller, and allegations that
the court has failed to properly weigh these factors. Id. For example,
allegations that the sentencing court failed to consider the Miller factors raises
a substantial question. Seagraves, 103 A.3d at 842. However, an argument
that the court failed to “adequately” consider the mitigating evidence does not
raise a substantial question. Dodge, 77 A.3d at 1272.
Here, Appellant states that
[t]he sentencing court considered the nature of the crime and past
conduct primarily in determining the sentence. Rather, Appellant
asserts that the court erred in not adequately and appropriately
considering Appellant’s ability to be rehabilitated as required by
the Miller and Montgomery Supreme Court decisions.
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Appellant’s Brief at 19. Unlike in Seagraves, Appellant does not assert the
Miller factors were ignored, rather Appellant asserts that the court failed to
adequately consider those factors. Id. Thus, Appellant’s argument, that the
sentencing court did not adequately consider Appellant’s ability to be
rehabilitated, does not present a substantial question and does not warrant a
review on the merits of Appellant’s argument. Dodge, 77 A.3d at 1272 n. 8.
Nevertheless, the record supports that the sentencing court properly
considered the Miller factors. N.T., 10/18/16, at 67; see also TCO 5/25/17,
at 6. The court had access to an extensive sentencing memorandum provided
by Appellant, which included significant mitigating factors and the court made
specific mention of his review of these on the record. N.T., 10/19/16, at 66.
Additionally, to the extent Appellant challenges the court’s reliance on
Appellant’s ASPD diagnosis, we note that the court is free to rely on evidence
of a defendant’s mental health. See e.g., Miller, 132 S. Ct. at 2467 (quoting
Eddings v. Oklahoma, 102 S. Ct. 869, 877 (2012) (stating that “just as the
chronological age of a minor is itself a relevant mitigating factor of great
weight, so must the background and mental and emotional development of a
youthful defendant be duly considered”)); Batts II, 163 A.3d at 422-24
(discussing expert testimony concerning defendant’s mental health);
Seagraves, 103 A.3d at 850 (referencing the relevance of a defendant’s
mental health history). Thus, even if we were to recognize that Appellant
presented a substantial question, we discern no abuse in the court’s discretion
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in sentencing Appellant. Dodge, 77 A.3d at 1274; Seagraves, 103 A.3d at
842.
Request for Continuance
Finally, Appellant claims that the court erred in denying his request to
continue the July 26, 2016 sentencing hearing. See Appellant’s Brief at 62.
According to Appellant, the Commonwealth belatedly notified him of its
intention to introduce expert testimony. Id. Appellant suggests that the last
minute addition of expert testimony did not afford him adequate time to
prepare a response. Id. Appellant’s claim is without merit.
Our Court has held that a sentencing court’s decision to deny a
continuance request will be overturned if “prejudice or a palpable and manifest
abuse of discretion is demonstrated.” Commonwealth v. Pries, 861 A.2d
951, 953 (Pa. Super. 2004) (citing Commonwealth v. Griffin, 804 A.2d 1,
12 (Pa. Super. 2002). Further,
[a]n appellant must be able to show specifically in what manner
he was unable to prepare his defense or how he would have
prepared differently had he been given more time. We will not
reverse a denial of a motion for continuance in the absence of
prejudice.
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citing
Commonwealth v. Brown, 505 A.2d 295, 298 (Pa. Super. 1986).
Here, the record does not support Appellant’s assertion. Essentially the
sentencing court did grant Appellant’s continuance request. See N.T,
7/25/16, at 29-30. Although the court declined to postpone the
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Commonwealth’s presentation of its case, it gave Appellant three months to
acquire experts and prepare a response. Appellant also conceded that he
would be amenable to having the Commonwealth present its case, if he could
receive “a very lengthy adjournment from tomorrow until the next time we
call experts.” Id. at 10. Further, Appellant was able to cross-examine
Commonwealth’s main expert, Dr. O’Brien, a second time during the October
portion of Appellant’s sentencing hearing. N.T., 10/18/16, at 161.
Additionally, Appellant was able to secure Dr. Russell as an expert witness,
who met with Appellant twice in the interim, three-month period.
Thus, we conclude that Appellant’s argument is devoid of merit.
Appellant has not shown that he was prejudiced by the continuance and is not
entitled to relief. Ross, 57 A.3d at 91.
Application for Post-Submission Communication granted; judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/18
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