Com. v. Valasquez, D.

J-A27042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
DAVID VALASQUEZ :
: No. 3470 EDA 2018
Appellant
Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1200451-1997
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 08, 2020
David Valasquez (Appellant) appeals from the September 5, 2018
judgment of sentence imposed following a resentencing hearing pursuant to
Miller v. Alabama, 567 U.S. 460 (2012)1 and Montgomery v. Louisiana,
136 S. Ct. 718 (2016).2 We affirm
“On October 26, 1997, [Appellant], then aged seventeen years and two
months old, was arrested and charged with murder and related offenses.”
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and unusual
punishments.” 567 U.S. at 465 (internal quotation marks omitted).
2 In Montgomery, the United States Supreme Court held that Miller applies
retroactively to cases on state collateral review.
J-A27042-19
Trial Court Opinion, 1/23/2019, at 1. These charges stemmed from the
September 28, 1997 shooting death of John Anthony Marin (decedent) in a
Dunkin Donuts shop in Philadelphia, Pennsylvania. A prior panel of this Court
summarized the facts of this matter as follows.
Five to ten minutes before the shooting, decedent had ran
into the shop in an excited state, and asked the cashier to call
911. Decedent told the cashier that three males had tried to rob
him, and that one of the males was following him into the shop.
Appellant came up to the window of the donut shop, and decedent
pointed him out. Appellant returned to the shop five minutes later
and shot decedent twice inside the store, then hopped on a
chrome bicycle and fled across Roosevelt Boulevard, disappearing
between the houses before police arrived. Decedent was
pronounced dead at the scene by the [m]edical examiner, and
police questioned [eyewitness, Norberto] Lopez[,] about the
shooting. Lopez described [A]ppellant as wearing a matching
green khaki outfit with green jacket and cap, and tan Timberland
boots. He also showed police where [A]ppellant fled across the
[b]oulevard and between the two houses[.] No weapons were
found on decedent, or at the scene. Police did recover a working
videotape from one of three surveillance cameras inside the store.
On October 22, 1997, Lopez was re-interviewed by police
detectives at the 25th District station, and [he] identified
[A]ppellant as the shooter from a police photo array. Lopez also
informed detectives that he knew [A]ppellant as “David” because
[A]ppellant used to date his next[-]door neighbor. Police secured
[] arrest and search warrant[s] for [A]ppellant’s residence … and
executed the warrants on October 25, 1997. Appellant was
arrested in the basement, and the following items were recovered
and placed on property receipts: a green shirt, a pair of tan boots,
narcotics, two photos of [A]ppellant, and a letter addressed to
[A]ppellant[.]
Appellant was taken to [p]olice headquarters where he was
placed in an interrogation room until his mother arrived. In the
presence of his mother, [A]ppellant was questioned by police
detectives Joseph Centeno and Richard Harris. The detectives
informed [A]ppellant that [Appellant] was there in response to
[the] shooting, and, then proceeded to read him his rights. Both
-2-
J-A27042-19
[A]ppellant and his mother were read his rights, and given a
written copy to read and sign, which they initialed. Appellant
waived his right to counsel, and stated that he shot decedent
because decedent had put a gun in his mouth, robbed him, and
taken his money, and a wristwatch. Appellant went to his friend
“Mike’s” house and got a gun, then went to his friend “George’s”
house and picked up a bike, then went across the boulevard
looking for decedent. After shooting him, [A]ppellant came back
across the boulevard, took the gun back to Mike, and then
dropped the bike off with George before going home. Police
attempted to locate the male [A]ppellant referred to as “Mike,”
but were unable to find him. The murder weapon was never
recovered.
Commonwealth v. Valasquez, 959 A.2d 469 (Pa. Super. 2008), quoting
Trial Court Opinion, 5/24/2006, at 2-4.
After a jury trial before the Honorable Robert A. Latrone, the
jury convicted [Appellant] of first-degree murder, possession with
intent to distribute[3] (PWID), and possession of an instrument of
crime (PIC), On May 10, 1999, Judge Latrone imposed the then-
mandatory sentence of life imprisonment without parole [(LWOP)]
for first-degree murder, and concurrent sentences of three to six
years of imprisonment for PWID and two and one-half to five years
of imprisonment for PIC.
Trial Court Opinion, 1/23/2019, at 1 (unnecessary capitalization and quotation
marks omitted). This Court affirmed Appellant’s judgment of sentence on June
13, 2008,4 and our Supreme Court denied his petition for allowance of appeal.
Valasquez, supra, appeal denied, 959 A.2d 469 (Pa. 2008).
____________________________________________
3 When Appellant was arrested, he was in possession of heroin.
4 It appears the reason for the nearly ten-year delay between the imposition
of Appellant’s sentence in 1999 and this Court affirming Appellant’s judgment
of sentence in 2008 was partly due to the ineffective assistance of prior
counsel. See Valasquez, supra (“Appellant filed a timely notice of appeal
-3-
J-A27042-19
On August 2, 2012, Appellant filed a PCRA petition, claiming that his
sentence was unconstitutional under Miller.5 On February 26, 2016, after the
United States Supreme Court issued its holding in Montgomery, Appellant
filed a supplemental PCRA petition.
On September 5, 2018, th[e trial c]ourt granted
[Appellant’s PCRA petition] and vacated his May 10, 1999
sentence. Prior to sentencing, the Commonwealth agreed to
recommend [a] sentence of [20] years to life imprisonment. After
hearing the relevant evidence presented during the resentencing
hearing, th[e trial court] rejected the Commonwealth’s
recommendation and imposed a [25] years to life imprisonment
sentence for first-degree murder, and no further penalty on the
remaining charges.
On September 17, 2018, [Appellant filed timely] a post-
sentence motion for reconsideration of sentence. On October 31,
2018, [Appellant] filed a supplemental post-sentence motion. On
November 1, 2018[,] after a hearing,[6] th[e trial c]ourt denied the
____________________________________________
on June 8, 1999. On April 6, 2000, the appeal was dismissed due to counsel’s
failure to file a brief. Appellant filed a [petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,] new counsel was appointed and
an amended petition filed seeking reinstatement of Appellant’s direct appeal
rights due to ineffective assistance. On May 30, 2002 the petition was granted
and Appellant’s direct appeal rights reinstated nunc pro tunc. Another appeal
was filed but was again dismissed on September 5, 2002 due to counsel’s
failure to comply with Pa.R.A.P. 3517. Once again, Appellant sought and was
granted PCRA relief on June 27, 2003 when the PCRA court reinstated
Appellant’s direct appeal rights nunc pro tunc[, and Appellant thereafter filed
timely a nunc pro tunc appeal]”).
5 Appellant’s petition was filed within sixty days of the issuance of Miller.
6 The transcript from the hearing on Appellant’s motion for reconsideration of
sentence is not included in the certified record before us. “While this Court
generally may only consider facts that have been duly certified in the record,
[] where the accuracy of a document is undisputed and contained in the
reproduced record, we may consider it.” Commonwealth v. Barnett, 121
-4-
J-A27042-19
[Appellant’s] post-sentence motion. On November 29, 2018, the
[Appellant] filed a timely notice of appeal[.7]
Trial Court Opinion, 1/23/2019, at 2 (unnecessary capitalization omitted).
Although presented as four distinct issues, Appellant’s claims on appeal
are all interrelated. In essence, Appellant asserts the trial court abused its
discretion and committed errors of law when it resentenced Appellant to 25
years to life imprisonment. Appellant’s Brief at 5-6. Specifically, Appellant
contends the trial court: (1) committed “legal error when resentencing
[Appellant] to a lifetime maximum sentence[;]” (2) placed “too much weight
on traditional penological justifications in light of [Appellant’s] diminished
culpability under the law and demonstrated rehabilitation[;]” (3) penalized
Appellant for maintaining his innocence; (4) failed to consider “newly
discovered evidence of a diagnosed intellectual disability and its impact on
[Appellant’s] waiver of Fifth Amendment rights that resulted in a conviction[;]”
and (5) failed to consider all of the sentencing factors delineated in Miller.
Id. Appellant’s issues implicate both the legality and discretionary aspects of
his sentence. We begin with the relevant legal principles.
A challenge to the legality of a particular sentence may be
reviewed by any court on direct appeal; it need not be preserved
in the lower courts to be reviewable and may even be raised by
an appellate court sua sponte. … [A] claim challenging a
____________________________________________
A.3d 534, 546 n.3 (Pa. Super. 2015). Here, the reproduced record contains
the transcript and there is no dispute as to its contents. Therefore, we may
consider the transcript in our review.
7 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
-5-
J-A27042-19
sentencing court’s legal authority to impose a particular sentence
presents a question of sentencing legality.
Commonwealth v. Batts (Batts II), 163 A.3d 410, 434-35 (Pa. 2017).
Unlike a claim challenging the legality of a sentence,
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his [or her] sentence must invoke this
Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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. 720; (3) 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, 42
Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, as discussed supra, Appellant timely filed a notice of appeal, and
he sought reconsideration of his sentence in a timely-filed post-sentence
motion. In addition, he has included a concise statement of reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s
Brief at 28-30. We now turn to consider whether Appellant has presented a
substantial question for our review.8
____________________________________________
8 The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “A substantial question exists only when the appellant
-6-
J-A27042-19
In his 2119(f) statement, Appellant asserts the trial court abused its
discretion and committed an error of law when the court made “a
determination of sentence without adequate, evident consideration of the
factors set out in Miller[.]” Appellant’s Brief at 30. We find that Appellant has
raised a substantial question. See Commonwealth v. Seagraves, 103 A.3d
839, 843 (Pa. Super. 2014) (concluding that discretionary-aspects claim
following Miller resentencing raised a substantial question despite the fact
that “prior decisions from this Court involving whether a substantial question
has been raised by claims that the sentencing court ‘failed to consider’ or
‘failed to adequately consider’ sentencing factors has been less than a model
of clarity and consistency”) (citation and some quotation marks omitted).
If this Court grants appeal and reviews the sentence, the standard
of review is well-settled: sentencing is vested in the discretion of
the trial court, and will not be disturbed absent a manifest abuse
of that discretion. An abuse of discretion involves a sentence
which was manifestly unreasonable, or which resulted from
partiality, prejudice, bias or ill will. It is more than just an error in
judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)
(citations omitted).
____________________________________________
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).
-7-
J-A27042-19
Furthermore, because this appeal stems from the re-sentencing of a
juvenile defendant convicted of first-degree murder pre-Miller, we review
Appellant’s claims cognizant of the following.
In Batts II, our Supreme Court held, inter alia, that a lower
court, in resentencing a juvenile offender convicted of first-degree
murder prior to Miller, may impose a minimum term-of-years
sentence and a maximum sentence of life imprisonment, thus
“exposing these defendants to parole eligibility upon the
expiration of their minimum sentences.” Batts II, 163 A.3d at
439. In determining the minimum term-of-years sentence, the
Court mandated that lower courts consult the sentencing
requirements codified at 18 Pa.C.S. § 1102.1 for guidance. Id. at
457. Specifically for a juvenile convicted of first-degree murder
pre-Miller, the portion of section 1102.1 that a lower court must
consider is the guidelines set forth in subsection 1102.1(a).[9]
Subsection 1102.1(a)(1) provides, in relevant part, as follows.
____________________________________________
9 Moreover, in addition to the traditional considerations a trial court is required
to consider when resentencing a juvenile LWOP offender,
[t]he Miller Court concluded that sentencing for juveniles must
be individualized. This requires consideration of the defendant’s
age at the time of the offense, as well as “its hallmark features,”
including:
immaturity, impetuosity, and failure to appreciate
risks and consequences[;] ... the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how
brutal or dysfunctional[;] ... the circumstances of the
homicide offense, including the extent of his
participation in the conduct and the way familial and
peer pressures may have affected him[;] ... that he
might have been charged and convicted of a lesser
offense if not for incompetencies associated with
youth—for example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own
attorneys[;] ... [and] the possibility of rehabilitation
-8-
J-A27042-19
(a) First degree murder.--A person who has been
convicted after June 24, 2012, of a murder of the first
degree, first degree murder of an unborn child or
murder of a law enforcement officer of the first degree
and who was under the age of 18 at the time of the
commission of the offense shall be sentenced as
follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older 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).
Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018).
With the foregoing in mind, and following a review of the certified record
and the briefs for the parties, we conclude that the opinion of the Honorable
Barbara A. McDermott thoroughly addresses Appellant’s issues and arguments
and applies the correct law to facts that are supported by the record. We
discern no error of law or abuse of discretion. See Trial Court Opinion,
1/23/2019, at 5 (explaining that, before the re-sentencing hearing, the trial
court “reviewed [Appellant’s] Memorandum in Support of Resentencing, his
Mitigation Report and Reentry Plan, his Housing Performance Record, records
furnished by the Department of Corrections, numerous certificates of
____________________________________________
... when the circumstances [i.e. (the youthfulness of
the offender)] most suggest it.
Batts II, 163 A.3d at 431 (citations omitted).
-9-
J-A27042-19
achievement-including his high school diploma-that he has earned, and a
multitude of letters sent in support of [Appellant’s re-sentencing …,] heard
argument from counsel that highlighted several mitigating factors under
Miller, and considered testimony from [Appellant’s] loved ones and
acquaintances”); id. (explaining that the trial court declined to “consider
mitigating factors in a vacuum” and instead balanced the mitigating factors,
“including those outlined in Miller, with the facts of the case”); id. at 6
(stating that while Appellant’s diminished capacity was considered, it is “but
one factor amongst dozens that th[e trial c]ourt must, and ultimately did,
consider in imposing a just sentence”); id. at 6-7 (asserting that it was
“undoubtedly appropriate for a trial court to consider a defendant’s lack of
remorse as a factor in sentencing at sentencing, provided that it specifically
considered in relation to protection of the public, the gravity of the offense,
and the defendant’s rehabilitative needs”); id. at 8-9 (explaining that
Appellant’s arguments concerning his intellectual disability lacked support and
were too “nebulous to warrant relief”); id. at 9 (finding that Appellant’s issues
concerning his mental capacity, although framed “as a challenge to th[e trial
c]ourt’s perceived unwillingness to consider the mental deficiencies at the time
he confessed to the crimes,” were “nothing more than a thinly veiled attempt
to re[-]litigate his conviction”); id. at 10 (explaining that Appellant’s claim
that the court relied too heavily on §1102.1(a) “in rendering its sentence …
ignores the fact that th[e trial c]ourt significantly deviated from the” statute’s
- 10 -
J-A27042-19
recommended minimum of 35 years’ incarceration); id. at 11 (explaining that
Appellant’s challenge to the legality of his sentence, wherein he claims that
the imposition of a mandatory life tail is unconstitutional, has already been
litigated and this Court has continued to emphasize that lower courts are
required to impose a maximum sentence of life imprisonment when
resentencing juvenile defendant).
Therefore, we adopt the trial court’s opinion of January 23, 2019 as our
own and affirm Appellant’s judgment of sentence based upon the reasons
stated therein.10, 11
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/20
____________________________________________
10 Lastly, to the extent Appellant argues the trial court abused its discretion in
failing to set forth its reasons for the sentence it imposed on the record, see
Appellant’s Brief at 39, we note that this claim was not presented in Appellant’s
post-sentence motion. Thus, it is waived. See Commonwealth v. McAfee,
849 A.2d 270, 275 (Pa. Super. 2004) (“Issues challenging the discretionary
aspects of 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.”).
11 The parties shall attach a copy of the trial court’s January 23, 2019 opinion
to this memorandum in the event of further proceedings.
- 11 -
0037_Opinion
ICirculated
,. 12/03/2019 08:22 AM
r
COMMONWEAL TH OF PENNSYLVANIA
V.
CP-51-CR-12004�1-1997 Comm. v Valasquez. David
Opinion
DA YID VALASQUEZ,
Defendant
\\ll\l\8217974911
l\111 II II l\\\11111
OPINION
McDermott, J. January 23, 2019
Procedural History
On October 26, 1997, the Defendant David Valasquez, then aged seventeen years and two
months old, was arrested and charged with Murder and related offenses. After a jury trial before
the Honorable Robert A. Latrone, the jury convicted the Defendant of First-Degree Murder,
Possession With Intent to Distribute ("PWID"), and Possession of an Instrument of Crime
("PIC"). On May I 0, 1999, Judge Latrone imposed the then-mandatory sentence of life
imprisonment without parole for First-Degree Murder, and concurrent sentences of three to six
years of imprisonment for PWID and two and one-half to five years of imprisonment for PIC.
The Defendant appealed and on June 4, 2004, the Superior Court affirmed his judgment of
sentence. On February 10, 2009, the Supreme Court of Pennsylvania denied his Petition for
Allowance of Appeal. On June 25, 2012, the Supreme Court of the United States issued its
holding in Miller v. Alabama, 567 U.S. 460 (2012), which rendered all mandatory life
imprisonment without parole sentences for juveniles unconstitutional. On January 27, 2016, the
Supreme Court of the United States issued its holding in Montgomery v. Louisiana, --- U.S.----,
136 S. Ct. 718 (2016), which held that the Miller decision applied retroactively.
On September 5, 2018, this Court granted the Defendant post-conviction relief and vacated
his May 10, 1999 sentence. Prior to sentencing, the Commonwealth agreed to recommend
sentence of twenty years to life imprisonment. After hearing the relevant evidence presented
during the resentencing hearing, this Court rejected the Commonwealth's recommendation and
imposed a twenty-five years to life imprisonment sentence for First-Degree Murder, and no further
penalty on the remaining charges.
On September 17, 2018, the Defendant filed a post-sentence motion for reconsideration of
sentence. On October 31, 2018, the Defendant filed a supplemental post-sentence motion. On
November 1, 2018, after a hearing, this Court denied the Defendant's post-sentence motion. On
November 29, 2018, the Defendant filed a timely Notice of Appeal with the Superior Court. On
November 30, 2018, this Court ordered the Defendant to file a Statement of Matters Complained
of on Appeal pursuant to Pa.R.A.P. 1925(b ). On December 21, 2018, the Defendant filed a timely
statement.
During the September 5, 20 I 8 resentencing hearing, the Commonwealth summarized the
facts of the case as follows:
[O]n September 28th of 1997 at about 4:30 in the afternoon the
victim in this case, 28-year-old John Anthony Marin, was in the area
of [ ] 5001 Rising Sun A venue near Dunkin' Donuts. The victim came
into that Dunkin' Donuts and was described by the witnesses as
bleeding from the lips. Mr. Marin approached the cashier and stated
that three people had just tried to rob him.
As the cashier was calling police, witnesses stated that the victim
began to yell to the cashier that the male who had tried to rob him was
entering the store. That male, [the Defendant David Valasquez],
2
approached the victim and fired two shots. Multiple witnesses were
shown photo arrays and identified the shooter as [the Defendant].
[The Defendant] exited the store and rode away on a GT bike.
Upon his apprehension by police, [the Defendant] was found to be in
possession of an amount of heroin that was determined to rise to the
level of PWID. He was warned of his rights and in the presence of
his mother gave a statement to homicide detectives in which he
admitted to the shooting.
His version of what the shooting was about varied from what [the
decedent] had been saying in the Dunkin' Donuts, but nevertheless he
admitted to the shooting.
[The decedent] died of two gunshot wounds, one to the left back
and one to the left thigh.
N.T. 9/5/2018 at 13-14.
Discussion
The Defendant raises nine challenges to the discretionary aspects of his sentence, alleging
that this Court abused its discretion by: (I) failing to sufficiently consider the resentencing factors
outlined in Miller; (2) placing too much weight on traditional penological concerns during
resentencing; (3) placing too much weight on the Defendant's failure to accept responsibility for
the crime; (4) failing to adequately consider the Defendant's rehabilitative needs; (5) failing to
consider the Defendant's mental disability; (6) failing to consider the Defendant's inability to
waive his Fifth Amendment rights; (7) assuming that the Defendant had a basic understanding of
his Miranda rights; (8) considering victim impact testimony concerning statements made by the
Defendant's mother; and, (9) relying too heavily on 18 Pa.C.S. § 1102. l (a) for guidance. The
Defendant further alleges that ( 10) this Court improperly imposed an unconstitutional maximum
penalty of life imprisonment.
When imposing a sentence, a trial court "shall follow the general principle that the
sentence imposed should call for confinement that is consistent with the protection of the public,
the gravity of the offense[ ... ] and the rehabilitative needs of the defendant." 42 Pa.C.S. §
3
9721 (b ). It is well-settled that sentencing is a matter vested in the sound discretion of the trial
court, and will not be disturbed absent a manifest abuse of discretion. Commonwealth v.
Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citing Commonwealth v. Robinson, 931 A.2d 15,
26 (Pa. Super. 2007)). An abuse of discretion is not merely an error in judgment; a defendant
must establish that the sentencing court misapplied the law or exercised its judgment for reasons
of partiality, prejudice, bias, or ill-will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).
A defendant challenging the discretionary aspects of his sentence must establish, inter alia,
that there is a substantial question that the sentence appealed from is not appropriate under the
Sentencing Code. Commonwealth v. Eisenberg, 98 A.3d 1268 1277 (Pa. 2014); 42 Pa.C.S. §
9781 (b ). A substantial question exists when an appellant raises "a colorable argument that the
sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms underlying the sentencing process." Commonwealth v.
Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015). An issue concerning the legality of sentence is
reviewable and cannot be waived. Commonwealth v. Olson, 179 A.3d 1134, 113 7 (Pa. Super.
2018) (citing Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007)
In imposing a sentence, a court shall follow the general principle that the sentence imposed
calls for confinement that is consistent with the protection of the public, the gravity of the offense
as it relates to the impact on the life of the victim and the community, and the rehabilitative needs
of the defendant. 42 Pa.C.S. § 972l(b). The Supreme Court of Pennsylvania has determined that,
when sentencing a juvenile facing a potential life without parole sentence, Miller requires the
sentencing court to consider a juvenile's age at the time of the offense, his diminished culpability
and capacity for change, the circumstances of the crime, the extent of the defendant's participation
4
in the crime, his family, home, and neighborhood environment, his maturity and development,
past exposure to violence, drug and alcohol history, ability to deal with the police, his mental
health history, his potential for rehabilitation, and the extent that familial or peer pressure may
have affected him. Commonwealth v. Batts, 163 A.3d 410, 421, n. 5 (Pa. 2017) ("Batts JI") (citing
Commonwealth v. Batis, 66 A.3d 286, 297 (Pa. 2013) ("Batis f').
The Defendant alleges that this Court gave scant attention to the Miller factors when
imposing sentence, and instead focused too heavily on the nature of the homicide and other
traditional penological concerns. The Defendant is mistaken. Prior to the resentencing hearing,
this Court reviewed the Defendant's Memorandum in Support of Resentencing, his Mitigation
Report and Reentry Plan, his Housing Performance Record, records furnished by the Department
of Corrections, numerous certificates of achievement-including his high school diploma-that he
has earned, and a multitude ofletters sent in support of his resentencing. Each of these
submissions address the Miller factors, which this Court took into consideration during
sentencing. This Court heard argument from counsel that highlighted several mitigating factors
under Miller, and considered testimony from the Defendant's loved ones and acquaintances,
including the Defendant's wife Tamara Cruz, Correctional Officers Alex Pierce, Captain Randy
Irwin, and Lieutenant Casey Cleveland, teacher Arthur Hilinski, and social worker Tammy Joe
Rodgers, each of whom testified to the Defendant's good character.
This Court is not obligated to consider mitigating factors in a vacuum, but must instead
balance these factors, including those outlined in Miller, with the facts of the case. The Defendant
shot the decedent during a robbery. After the decedent attempted to escape, the Defendant tracked
him to an open Dunkin' Donuts where, in plain view of multiple witnesses, executed the decedent
with two gunshot wounds to his back and thigh. The Defendant was convicted of First-Degree
5
Murder, and sentenced to life without parole. By virtue of the Supreme Court's holding in Miller,
the Defendant was granted an opportunity to have his sentence reconsidered. This Court
ultimately imposed a twenty-five year to life sentence. The fact that the Defendant did not receive
his preferred sentence of twenty-years to life does not implicate an abuse of discretion on the part
of this Court.
The Defendant similarly argues that this placed too much weight on penological concerns
when the chief focus of the hearing should have been his own diminished capacity, As stated
above, the Defendant's diminished capacity as associated with his youth is but one factor amongst
dozens that this Court must, and ultimately did, consider before imposing a just sentence. The
Defendant, while recognizing the wide latitude of this Court's discretion, seeks to limit the scope
of that discretion and conform it to his own individual whims. Such an interpretation of this
Court's discretion greatly diminishes the interests of justice. Such interests demand that the Court
consider every factor at its disposal, not just those cherry picked by an individual, convicted
defendant, in order to best protect the community.
The Defendant further alleges that this Court unlawfully punished him by placing too
much weight on his failure to accept responsibility during the resentencing hearing. Prior to and
during the resentencing hearing, the Defendant maintained his innocence of the crime. It is
undoubtedly appropriate for a trial court to consider a defendant's lack of remorse as a factor in
sentencing at sentencing, provided that it is specifically considered in relation to protection of the
public, the gravity of the offense, and the defendant's rehabilitative needs. Commonwealth v.
Grays, 167 A.3d 793, 817 (Pa. Super. 2017) (citing Commonwealth v. Bowen, 975 A.2d 1120,
1125 (Pa. Super. 2009)).
6
Here, the Defendant maintains his innocence, as is his right. However, this Court is
obligated to consider the facts of the case and other evidence when rendering its decision. After
hearing evidence from multiple eyewitnesses that the Defendant himself hunted down and
executed the decedent after he escaped a robbery, it convicted him of First-Degree Murder. While
the Defendant's youth and incapacity at the time of the shooting diminishes his culpability for the
crime, it does not absolve him of it. The cold-blooded and grisly nature of the Defendant's act
demonstrates a callousness not present in most teenagers. This Court notes that the homicide in
question did not result from a split-second, emotional decision that could be solely attributable to
youth. Instead, the facts proven at trial demonstrated that the Defendant stalked the decedent after
attempting to rob him, followed him into a public area filled with innocent bystanders, and
executed him with two shots. The Defendant's actions not only resulted in the decedent's death,
but risked the deaths of other innocent people.
Though the Defendant expressed sorrow for the decedent's family, his alleged sympathy is
not synonymous with remorse. Though this Court could never know for certain whether the
Defendant committed the crime in question, if the Defendant was in fact responsible, as a jury of
his peers deemed him to be, his refusal to accept responsibility and show remorse reflects the same
callousness that was present within him as a teenager. Clearly, the Defendant's lack of remorse,
coupled with the Court's responsibility to protect the public, the gravity of the offense, and the
impact on the lives of the surviving victims, justify the current sentence.
The Defendant also avers that this Court failed to place sufficient weight on his
rehabilitative needs and the protection of the public. Essentially, the Defendant claims that he has
no rehabilitative needs and poses no danger to the public. While this Court disagrees with this
point, even if the Defendant was fully rehabilitated and did present no danger to the public, this
7
Court would still be well within its discretion to impose the instant sentence. As stated above, the
Defendant's rehabilitative needs and the responsibility to protect the public are but two factors a
court must consider when imposing sentence. This Court is also obligated to consider the gravity
of the Defendant's offense. Here, the Defendant shot an individual twice, in broad daylight, in
view of multiple witnesses, and to this day has failed to show remorse for his crime. Again, the
Defendant seeks an a la carte selection of factors to guide this Court's determination, but requests
that this Court's consideration of the gravity of the offense be removed from the menu. The
Defendant's interpretation of sentencing law, that few factors be given prominence while wholly
ignoring others, is unsupported in Commonwealth case law and does not give rise to an argument
warranting relief.
The Defendant argues that this Court failed to consider his intellectual disability when
imposing sentence. But for his intellectual disability, the Defendant contends, he may have
exercised his right to remain silent, have been willing to accept a ten to twenty year plea deal for
the instant case, or, perplexingly, been charged and convicted of a lesser offense. The Defendant's
argument that, even though he now claims his innocence, he would have accepted a guilty plea
offer at the time of the shooting is too nebulous to warrant relief. Similarly, his argument
concerning being charged with a lesser offense fails, as he declines to present a basis to support his
argument.
This Court reviewed the Defendant's mitigation report, which revealed that the Defendant
had an above average IQ of 106 when the test was administered shortly after the murder, had a
sixth grade reading level, eighth grade spelling level, and fifth grade math level at the time of his
arrest. See Defense Exhibit D-1. Unlike other juvenile defendants who were held back in their
studies, the Defendant was enrolled the 11th grade at the time of the murder, and he would go on
8
to earn his high school diploma while incarcerated in 2001, a quick achievement time based on
this Court's experience. Id. Based on this Court's analysis, while the Defendant was diagnosed
with a learning disability at the time he was elementary school age, his slightly above average
intelligence, reading, and spelling levels indicate that he suffered no major intellectual disability
beyond that associated with youth and immaturity, as defined in Miller. The Defendant fails to
state a cause for relief.
The Defendant's next two claims concern his mental capacity to understand and waive his
Fifth Amendment right protecting against self-incrimination. While the Defendant attempts to
frame this argument as a challenge to this Court's perceived unwillingness to consider the mental
deficiencies associated with his youth at the time he confessed to the crime, these claims are
nothing more than a thinly veiled attempt to relitigate his conviction. This Court is not charged
with reconsidering the Defendant's guilt or innocence. A resentencing hearing is not the proper
forum to challenge the sufficiency of the evidence or the reliability of his confession. The
Defendant previously challenged the voluntariness of his confession prior to trial, and Judge
Latrone found his confession to be credible. Any continued challenge made in this forum
constitutes a waste of judicial resources unbecoming of an inmate who has demonstrated remorse
and an ability to rehabilitate himself after committing such a grave offense. No further discussion
is warranted.
Although his position is unclear, the Defendant next appears to argue that this Court was
improperly swayed by victim impact testimony from the decedent's family that, after the trial, the
Defendant's mother laughed atthe family and told them "At least I get to see my son and all you
do get to do is throw dirt and flowers on your son." N.T. 9/5/2018 at 20. As discussed thoroughly
above, this Court supplemented its consideration of the Miller factors with traditional penological
9
concerns such as the protection of the public, the gravity of the offense, and the rehabilitative
needs of the public. Any interaction the Defendant's mother may have had with the decedent's
family was ancillary at best and granted little weight to this Court's consideration.
The Defendant further claims that this Court relied too heavily on 18 Pa.C.S. § 1102. l(a)
in making its determination. For a juvenile convicted after June 24, 2012 of first degree murder,
subsection (a)(l) provides that:
A person who at the time of the commission of the offense was 15
years of age or older 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 of age.
18 Pa.C.S. §II 02. I (a){l ). In Commonwealth v. Batts, 163 A.3d 4 IO (Pa. 20 I 7), the Supreme
Court of Pennsylvania declared that, to promote uniformity in sentencing for pre- and post-Miller
cases, when determining the appropriate minimum term of sentence, sentencing courts should be
guided by the minimum sentences contained in 1102.1 (a), or thirty-five years to life imprisonment
penalties for First-Degree Murder convictions of juvenile defendants between the ages of fifteen
and eighteen. Batts, 163 A.3d at 458.
Here, the Defendant claims that this Court relied too heavily on the Supreme Court's
guidance when it rejected the Commonwealth's resentencing recommendation of twenty years to
life imprisonment. While it is true that this Court considered § 1102.1 (a) in rendering its sentence,
the Defendant ignores the fact that this Court significantly deviated from the Supreme Court's
recommendation by imposing a minimum sentence that was ten years less than the statutorily
recommended penalty. Ultimately, the Defendant received a considerable benefit from this
Court's deviation: a nearly thirty percent decrease from the statutorily recommended sentence.
and had this Court strictly followed the Supreme Court's guidance in this matter, it would have
10
imposed the suggested thirty-five year to life sentence. The Defendant's argument has no basis in
fact and should be rejected.
Finally, the Defendant presents a challenge to legality of his sentence, arguing that this
Court improperly imposed an unconstitutional maximum sentence of life imprisonment. This
issue has been thoroughly resolved in Batts, infra. In Batts, the Supreme Court of Pennsylvania
found that for juveniles convicted prior to Miller, a sentencing court may resentence affected
defendants to a minimum term-of-years sentence and must impose a mandatory maximum
sentence of life in prison, exposing defendants to parole eligibility upon the expiration of their
minimum sentences. Id.; see also 61 Pa.C.S. § 6137(a)(3). In Commonwealth v. Seskey, 170 A.3d
1105 (Pa. Super. 2017), the Superior Court reemphasized that a trial court must impose the
mandatory maximum sentence of life imprisonment when it vacated the appellant's thirteen to
twenty-six year sentence for First-Degree Murder, and remanded the matter for resentencing. See
also Commonwealth v. Olds, ---A.3d----, 2018 WL 3233726 (Pa. Super. 2018) (mandatory
maximum term of life imprisonment does not violate the Eighth Amendment's ban on cruel and
unusual punishment).
This Court imposed a sentence of twenty-five years to life imprisonment. Under the recent
holdings in the Superior and Supreme Court, this Court must impose a mandatory life
imprisonment maximum sentence tail. The Petitioner's claim that this Court's imposition of a
maximum term of life imprisonment and lifetime parole term is unconstitutional is without merit.
Nevertheless, even if this Court was not required to impose a maximum life sentence, it maintains
that a maximum life sentence is appropriate in this case based on the seriousness of the offense
and the threat to the public's safety posed by the Petitioner. This Court would have used its
11
discretion to impose a maximum life sentence had this Court not been obligated to do so by
statute. No further discussion is warranted.
For the foregoing reasons, the judgment of this Court should be affirmed.
BY THE COURT,
Barbara A. McDermott, J
12
Commonwealth v. David Valasquez, CP-51-CR-1200451-1997
� .
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing filing upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Attn: Lawrence Goode, Esq.
Type of Service: DA's Assigned Courthouse Box
Michael C. Falk, Esq.
Samantha L. Rocchino, Esq.
Reed Smith LLP
Three Logan Square
171 7 Arch Street
Suite 3100
Philadelphia, PA 19103
Type of Service: First Class Mail
David Valasquez
DY 0049
SCI Albion
10745 Route 18
Albion, PA 16475-0001
Type of Service: Certified Mail
Honorable arbara A. McDermott