Com. v. Street, L.

J-A06027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMON STREET :
:
Appellant : No. 1038 WDA 2020
Appeal from the Judgment of Sentence Entered January 30, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011095-2009
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: July 18, 2022
Lamon Street (“Street”) appeals from the judgment of sentence
imposed following his convictions for first-degree murder, criminal homicide
of an unborn child, and related offenses.1 We affirm.
The relevant factual and procedural history underlying this appeal is
extensive, but essential to an understanding of the issues presented. In 2009,
a group of individuals associated with a gang assembled in front of a residence
in Pittsburgh. Street, who was associated with a rival gang, fired thirteen
shots at the group, one of which killed Shavaughn Wallace, an eighteen-year-
old pregnant woman, and her unborn child. At the time of the homicides,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2502(a), 2603(a), 6106(a)(1), 2705.
J-A06027-22
Street was a juvenile (seventeen years, eleven months, and three days old).2
Following a non-jury trial, the trial court convicted Street of first-degree
murder, criminal homicide of an unborn child, firearms not to be carried
without a license, and recklessly endangering another person. In February
2012, the sentencing court imposed a mandatory term of life in prison without
the possibility of parole (“LWOP”) for first-degree murder, with no further
penalty for the remaining convictions.3 Street appealed his judgment of
sentence.
While Street’s direct appeal was pending, the United States Supreme
Court decided Miller v. Alabama, 567 U.S. 460 (2012), wherein it held that
statutory schemes such as Pennsylvania’s, which imposed mandatory LWOP
for certain homicide convictions, constituted cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution when
applied to juvenile homicide offenders. Id. at 470. In so ruling, the High
Court reaffirmed the principle that children are constitutionally different from
adults for purposes of sentencing because they have diminished culpability
____________________________________________
2For more detailed description of the facts surrounding the shooting, see
Commonwealth v. Street, 69 A.3d 628, 630-31 (Pa. Super. 2013).
3 At the time of Street’s initial sentencing, Pennsylvania law mandated a LWOP
sentence for a juvenile convicted of first-degree murder or first-degree murder
of an unborn child. See 18 Pa.C.S.A. § 1102(a)(1) (superseded as applied to
juveniles by 18 Pa.C.S.A. § 1102.1). The procedures for sentencing an
individual under section 1102 are set forth in 42 Pa.C.S.A. § 9711 (sentencing
procedures for murder of the first degree).
-2-
J-A06027-22
and greater prospects for reform. Id. at 471. Thus, pursuant to Miller, for
a LWOP sentence imposed on a juvenile homicide offender to pass federal
constitutional muster, the sentencing court must have the discretion to
consider certain factors bearing upon the juvenile’s “youth and attendant
characteristics” before deciding whether to impose a LWOP sentence.4 Id. at
477-78.5
Following Miller, the Pennsylvania Supreme Court decided
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”), wherein it
ruled that, pursuant to Miller, the appropriate appellate remedy for the
unconstitutional imposition of a mandatory LWOP sentence upon a juvenile
homicide offender is to vacate the sentence and remand for the sentencing
court to consider the juvenile’s youth and attendant characteristics pursuant
____________________________________________
4 Pennsylvania’s General Assembly responded to Miller by enacting a new
sentencing statute for juveniles. See 18 Pa.C.S.A. § 1102.1. Section 1102.1
provides that an individual convicted of first-degree murder or first-degree
murder of an unborn child 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 [LWOP], or a term of imprisonment, the minimum of which shall be at
least 35 years to life.” 18 Pa.C.S.A. § 1102.1(a)(1). Section 1102.1(d)
requires the sentencing court to consider numerous age-related
characteristics of the juvenile offender, and to make findings on the record
regarding those factors when determining whether to impose a sentence of
LWOP. See 18 Pa.C.S.A. § 1102.1(d)(7)(i-vii). As Street was convicted prior
to June 24, 2012, his sentencing was subject to the statutory framework set
forth in section 1102 rather than section 1102.1.
5 In Montgomery v. Louisiana, 577 U.S. 190 (2016), the United States
Supreme Court ruled that its holding in Miller announced a substantive rule
of law which applied retroactively to cases on collateral review. See id. at
206.
-3-
J-A06027-22
to Miller or the section 1102.1(d) factors before resentencing the juvenile
offender. See id. at 297.
In light of Miller and Batts I, this Court affirmed Street’s convictions,
but remanded for resentencing. See Street, 69 A.3d at 634. Following
remand, the sentencing court considered Street’s youth and attendant
characteristics pursuant to Miller but nevertheless reimposed LWOP for first-
degree murder. In August 2016, this Court affirmed the judgment of
sentence. See Commonwealth v. Street, 156 A.3d 348 (Pa. Super. 2016)
(unpublished memorandum).
In June 2017, our Supreme Court decided Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017) (“Batts II”). The Batts II Court “exercise[d] [its]
constitutional power of judicial administration to devise a procedure for the
implementation of the Miller and Montgomery decisions in Pennsylvania.”
Id. at 451. The Batts II Court held that procedural safeguards beyond
consideration of youth and attendant characteristics pursuant to Miller or the
sentencing factors set forth in section 1102.1(d) were required to satisfy
Eighth Amendment scrutiny and to ensure that LWOP sentences are meted
out only to “the rarest of juvenile offenders” whose crimes reflect “permanent
incorrigibility,” “irreparable corruption” and “irretrievable depravity.” Id. at
416. The Batts II Court recognized a presumption against the imposition of
LWOP for a juvenile offender and held that the Commonwealth must provide
reasonable notice of its intent to seek a LWOP sentence and then prove beyond
-4-
J-A06027-22
a reasonable doubt that the juvenile offender is “permanently incorrigible and
that rehabilitation would be impossible.” Id. at 459.
In August 2017, Street filed a petition pursuant to the Post Conviction
Relief Act (“PCRA”)6 alleging that his sentence was illegal under Batts II. The
PCRA court agreed, and vacated Street’s sentence. Upon resentencing, the
Commonwealth did not seek a sentence of LWOP. On January 30, 2020, the
sentencing court resentenced Street to consecutive terms of thirty years to
life in prison, one for each homicide count. Street filed a post-sentence motion
and sought leave to obtain an updated expert report. After granting Street
numerous extensions to secure an updated expert report, the court denied
the post-sentence motion. Street filed a timely notice of appeal and both he
and the trial court complied with Pa.R.A.P. 1925.
During the pendency of the present appeal, the United States Supreme
Court decided Jones v. Mississippi, 141 S. Ct. 1307 (2021). The Jones
Court reaffirmed its decisions in Miller and Montgomery and reiterated that
mandatory LWOP sentences for juvenile offenders violate the Eighth
Amendment. Id. at 1311. However, the Jones Court held that sentencing
schemes which allow the discretionary imposition of life sentences after
consideration of the juvenile homicide offender’s youth and attendant
____________________________________________
6 See 42 Pa.C.S.A. §§ 9541-9546.
-5-
J-A06027-22
characteristics pass constitutional muster without the need for a separate
factual finding of permanent incorrigibility. Id. at 1317-18.
In response to Jones, the Pennsylvania Supreme Court issued its
decision in Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022), wherein it
dissolved the procedural requirements set forth in Batts II that are not
constitutionally required; namely, the presumption against sentencing a
juvenile homicide offender to LWOP, and the imposition on the Commonwealth
of the burden of proving beyond a reasonable doubt that the juvenile is
permanently incorrigible. Id. at 1244. The Felder Court ruled that, when
sentencing juvenile homicide offenders, “sentencing courts are required to
consider only the relevant sentencing statutes, which will guarantee that the
sentencer considers the juvenile’s youth and attendant characteristics as
required by Miller.” Id. at 1246. The Felder Court further held that “[s]o
long as the sentence imposed is discretionary and takes into account the
offender’s youth, even if it amounts to a de facto life sentence, Miller is not
violated.” Id.
With this background in mind, we turn to the issues that Street raises
for our review:
1. Whether the trial court’s aggregate sentence of [sixty] years to
life is an unconstitutional and illegal de facto life sentence
which violates Miller . . . and Batts [II]?
2. Whether the trial court erred in failing to properly consider, and
failed to properly articulate its consideration of, the factors it
was required to consider under Miller and Batts [II], which
-6-
J-A06027-22
renders the aggregate sentence of [sixty] years to life both
illegal and an abuse of discretion?
3. Whether the trial court erred, abused its discretion and/or
denied [Street’s] right to due process under the United States
and Pennsylvania Constitutions by preventing [him] from
presenting expert testimony on the key issue of capability of
rehabilitation?
Street’s Brief at 7 (unnecessary capitalization omitted).
As Street’s issues are interrelated, we will address them together. Each
of Street’s issues is premised on a claim that his aggregate sentence of sixty
years to life in prison constitutes an unconstitutional and illegal de facto life
sentence. As this claim presents a challenge to the legality of Street’s
sentence, our standard of review is de novo and our scope of review is plenary.
See Commonwealth v. Clary, 226 A.3d 571 (Pa. Super. 2020).
Street claims that his sentence is unconstitutional and illegal because it
amounts to a de facto life sentence for which the trial court was required to
adequately consider and articulate his youth and attendant characteristics
pursuant to Miller and to make a finding that he is permanently incorrigible
pursuant to Batts II. Street also contends that the trial court erred and
abused its discretion by denying his post-sentence motion before he could
obtain an updated expert report discussing his youth and attendant
characteristics pursuant to Miller and demonstrating that he is not
permanently incorrigible pursuant to Batts II.
Importantly, Street acknowledges that, pursuant to Commonwealth v.
Foust, 180 A.3d 416, 438 (Pa. Super. 2018); appeal denied, ___ A.3d ___,
-7-
J-A06027-22
2022 Pa. LEXIS 701 (Pa. 2022), his consecutive thirty-years-to-life sentences
do not amount to an unconstitutional or illegal de facto life sentence. See
Street’s Brief at 34. For this reason alone, Street’s claims that his sentence
is unconstitutional and illegal must fail. See Commonwealth v. Beck, 78
A.3d 656, 659 (Pa. Super. 2013) (acknowledging that a three-judge panel of
the Superior Court “is not empowered to overrule another panel of the
Superior Court” where the facts of the two cases are indistinguishable).
Moreover, as the Felder Court explained, a sentencing court is not
required to consider a juvenile offender’s youth and attendant characteristics
pursuant to Miller when imposing a discretionary term-of-years sentence.
See Felder, 269 A.3d at 1235 (holding that “even if a term-of-years sentence
amounts to a de facto life sentence, Miller provides no viable avenue for
relief”). Similarly, in light of Jones, our Supreme Court dissolved the
procedural requirement set forth in Batts II which required the
Commonwealth to prove that the juvenile is permanently incorrigible before
imposing a LWOP sentence. Id. at 1244. Thus, as the trial court was not
required to consider Street’s youth and attendant characteristics pursuant to
Miller or to make a finding that Street was permanently incorrigible pursuant
-8-
J-A06027-22
to Batts II when imposing the subject discretionary term-of-years sentence,
Street’s constitutionality and legality of sentencing claims merit no relief.7
In cases where, as here, the Commonwealth did not seek a LWOP
sentence and the sentencing court imposed a discretionary term-of-years-
sentence which does not amount to a de facto life sentence, traditional
sentencing considerations apply. See Commonwealth v. Summers, 245
A.3d 686, 693 (Pa. Super. 2021) (applying traditional sentencing
considerations where the Commonwealth did not seek a LWOP sentence and
appellant received a discretionary term-of-years-sentence);8 see also Foust,
____________________________________________
7As Felder was decided while Street’s present appeal was pending, we
granted his request to file a supplemental brief regarding the impact of Felder
on his issues. In Street’s supplemental brief, he argues that Felder dissolved
the protections required by Batts II solely in relation to the Eighth
Amendment and not as to Article I, Section 13 of the Pennsylvania
Constitution. The Commonwealth argues that Street failed to preserve a claim
under Article I, Section 13 for our review. Even assuming that Street
preserved such a claim, we are bound by the Felder Court’s express
dissolution of its mandates in Batts II. See Felder, 269 A.3d at 1244.
Therefore, until such time as our High Court indicates otherwise, we deem
such dissolution to extend to constitutionality challenges under Article I,
Section 13. See id; see also Commonwealth v. Moye, 266 A.3d 666, 675-
76 (Pa. Super. 2021) (holding that where the juvenile did not receive a de
facto life sentence, there is no viable theory of relief under the Eighth
Amendment or Article I, Section 13).
8 In Felder, the Court did not indicate whether the Commonwealth sought a
LWOP sentence. However, its ruling that “the authority of a sentencing court
to impose a life-without-parole sentence on a juvenile homicide offender is
circumscribed only to the extent set forth in [section] 9721(b) and [section]
1102.1, and by Miller's command to “consider the mitigating qualities of
youth,” suggests that such notice was issued. Felder, 269 A.3d at 1245
(quoting Miller, 567 U.S. at 476).
-9-
J-A06027-22
180 A.3d at 438 (applying traditional sentencing considerations to a preserved
discretionary sentencing claim after determining that a sentence of thirty
years to life in prison did not constitute a de facto LWOP sentence). Such
considerations require the sentencing court to consider the factors set forth in
42 Pa.C.S.A. § 9721(b) and fashion a sentence that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant. See 42 Pa.C.S.A. § 9721(b).
While we are mindful that Street attempted to raise a challenge to the
discretionary aspects of his sentence, the sole discretionary sentencing claim
raised in his post-sentence motion was that the sentencing court abused its
discretion by imposing a de facto LWOP sentence without first considering and
articulating on the record its consideration of his youth and attendant
characteristics pursuant to Miller, his capacity for rehabilitation under Batts
II, and the section 1102.1(d) factors. See Post-Sentence Motion, 2/7/20, at
2-7. As explained above, pursuant to Felder, the sentencing court was not
required to consider Street’s youth and attendant characteristics pursuant to
Miller or whether Street was permanently incorrigible pursuant to Batts II.
Additionally, the sentencing court was not required to consider the section
1102.1(d) factors because Street was convicted prior to June 24, 2012. See
18 Pa.C.S.A. § 1102.1(a)(1) (applying to juveniles convicted of first-degree
murder after June 24, 2012). Instead, because Street was convicted prior to
- 10 -
J-A06027-22
June 24, 2012, his sentencing was subject to section 1102 and the procedures
set forth in section 9711. See 18 Pa.C.S.A. § 1102; see also 42 Pa.C.S.A.
§ 9711.
Street did not assert a claim in his post-sentence motion that the
sentencing court abused its discretion relative to section 1102, section 9711,
or section 9721(b) when fashioning his sentence. See Pa.R.A.P. 302(a)
(providing that issues not raised in the lower court are waived and cannot be
raised for the first time on appeal); see also Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (holding that issues challenging the
discretionary aspects of a sentence must be raised at sentencing or in a post-
sentence motion or they are waived).9 Thus, Street failed to preserve any
____________________________________________
9 We recognize that this Court has considered a discretionary sentencing claim
after determining that a juvenile homicide offender did not receive a de facto
LWOP sentence; however, in those cases the appellant preserved a
discretionary sentencing claim relative to traditional sentencing
considerations. See e.g., Foust, 180 A.3d 439 (addressing preserved claims
that “imposing consecutive sentences . . . was clearly unreasonable and
results in an excessive sentence”); see also Commonwealth v. Derrickson,
242 A.3d 667, 679 (Pa. Super. 2020) (addressing preserved claims that the
sentence was “manifestly excessive and overly harsh,” “unreasonable,”
“based on the serious nature of the crime,” and “failed to give due
consideration as required by [section] 9721”); Commonwealth v. White,
193 A.3d 977, 981 (Pa. Super. 2018) (addressing preserved claims that the
sentence imposed was “excessive” and was not “individualized”). In his post-
sentence motion, Street claimed that the sentencing court’s failure to consider
and make findings on the record regarding his youth and attendant
characteristics pursuant to Miller and that he was incapable of rehabilitation
under Batts II constituted an abuse of discretion “regardless of the general
principle that the running of sentences concurrently or consecutively is
typically reserved to the discretion of the [c]ourt.” Post Sentence Motion,
(Footnote Continued Next Page)
- 11 -
J-A06027-22
such claim for our review.10 Accordingly, as none of Street’s issues merit
relief, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2022
____________________________________________
2/7/20, at 5. Street did not specifically challenge the trial court’s decision to
impose consecutive rather than concurrent sentences or present any claim
that his sentences were inconsistent with the provisions of the sentencing code
or contrary to the fundamental norms underlying the sentencing process. See
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
10 We further observe that the only discretionary sentencing claim that Street
raised in his Pa.R.A.P. 2119(f) statement was that “the trial court failed to
undertake such an analysis and instead simply rubber-stamped the sentence
requested by the prosecutor.” Street’s Brief at 28. Street made this assertion
following a quote from a footnote in Foust, wherein the Court stated, in dicta,
that “[i]f a trial court determines that the facts in a particular case warrant
consecutive sentences, it should detail, on the record, why consecutive
sentences are appropriate.” Foust, 180 A.3d at 441 n.21. To the extent that
the Foust Court’s dicta can be viewed as a legitimate discretionary sentencing
issue, Street waived the issue by not raising it in his post-sentence motion.
See Pa.R.A.P. 302(a); Cartrette, 83 A.3d 1042. Moreover, Street raised no
other discretionary sentencing claim in his Rule 2119(f) statement and the
Commonwealth objected to this omission. See Commonwealth’s Brief at 13-
14. Therefore, for this additional reason, we are unable to review any
discretionary sentencing claim in this appeal. See Commonwealth v. Karns,
50 A.3d 158, 166 (Pa. Super. 2012) (holding that if an appellant fails to include
a discretionary sentencing issue in his Rule 2119(f) statement and the
Commonwealth objects, the issue is waived and this Court may not address
it).
- 12 -