Com. v. Street, L.

J. S57009/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAMON STREET, : No. 952 WDA 2015
:
Appellant :

Appeal from the Judgment of Sentence, January 21, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011095-2009

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 24, 2016

Lamon Street appeals from the judgment of sentence of January 21,

2015, following imposition of a sentence of life imprisonment without the

possibility of parole (“LWOP”) in this first-degree murder case. Appellant

was a juvenile at the time of the murder, bringing his case within the

purview of Miller v. Alabama, U.S. , 132 S.Ct. 2455, 183 L.Ed.2d

407 (2012), and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013)

(“Batts II”) (invalidating mandatory LWOP sentences for juvenile

offenders). After careful review, we affirm.

On a prior direct appeal, this court summarized the facts of this case

as follows:

On May 22, 2009, roughly eight to eleven
persons congregated near the outside of a certain
residence on Alpine Street in Pittsburgh. Those

* Retired Senior Judge assigned to the Superior Court.
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persons included Sofion Moore and his girlfriend,
Shavaughn Wallace. Some thirteen gunshots were
fired toward the group. When the shooting started,
Wallace was inside a car. Moore warned her to lie
down. While it is not clear to us if Wallace did so or
if she tried to exit the vehicle, she was hit by gunfire.
As a result, she and her unborn child died.

Shortly after the incident, Moore told police
that he did not know who the shooter was. Later,
however, he identified Appellant as the gunman
based on a photo array shown to him by police. At
Appellant’s eventual trial, Moore first indicated he
had not seen the shooter. After additional
examination, Moore testified that he had seen
Appellant firing the gun. Moore’s testimony
indicated Appellant approached from behind Moore
and Moore then turned and saw him.

Some of the persons who had congregated on
Alpine Street were members of a gang known as the
Hoodtown Mafia. Appellant was associated with the
Brighton Place Crips (“the Crips”), a rival gang.
There had been various shootings between members
of the two gangs leading up to May 22, 2009.

The day after the shooting, Appellant spoke
with Dwayne Johnson who was associated with the
Crips. Appellant told Johnson, “I did that shit around
Hoodtown.” N.T., 02/27/12, at 97. Johnson testified
that he interpreted Appellant’s statement to mean
that Appellant had shot Wallace. Appellant also told
Johnson words to the effect that Appellant had been
“off on pills and he didn’t care.” Id. at 98. The
context of the testimony suggested that Appellant
meant he was using pills at the time of the shooting.
Johnson also testified that, based on his friendship
with Appellant, Johnson knew that Appellant had, at
times, used the drug Ecstasy.

In or around March 2010, Johnson and
Appellant came into contact while they were in a
federal correctional facility, both of them having
been indicted in a federal case as members of the

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Crips. By that time, Appellant had also been
charged with homicide in the instant case. The two
of them discussed Appellant’s homicide case. While
they did so, Appellant indicated that, on the date of
the shooting, he had been driven to the scene by
another member of the Crips named Fifty. Appellant
stated that he walked a certain distance, saw a
group of people and started shooting. Appellant also
explained that he had seen Moore in the group.
Moreover, Appellant claimed that Moore could not
have seen Appellant shooting because Moore had his
back turned toward Appellant. Appellant also
explained to Johnson that Wallace did not run during
the incident but, instead, was beside a vehicle when
Appellant shot her.

Johnson eventually pled guilty to federal
charges. At some point, he agreed to testify in the
present case. In return for his cooperation, the
U.S. Attorney’s Office moved to reduce his sentence
and the assistant district attorney prosecuting
Appellant’s case agreed to testify for Moore in federal
court with respect to his sentence. Additionally, his
family received witness-relocation funds to move
from Allegheny County.

Appellant presented alibi testimony from his
former girlfriend, Dominique Benton. She claimed
Appellant had been with her on the day of the
shooting while they watched movies. On
cross-examination, the Commonwealth asked Benton
if, at some previous time, she had planned to be an
alibi witness for another former boyfriend,
apparently in an unrelated murder case. Appellant
objected to the Commonwealth’s question on
relevance grounds; the court overruled the objection
on the basis that the question was relevant to
Benton’s credibility.

Appellant was convicted of first-degree murder
and related offenses after a non-jury trial. The court
sentenced him to life imprisonment without the
possibility of parole. Appellant later filed
post-sentence motions claiming, inter alia, that he

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should receive a new trial because the verdict was
against the weight of the evidence. The court denied
his motions. Appellant filed this timely appeal.

Commonwealth v. Street, 69 A.3d 628, 630-631 (Pa.Super. 2013). In a

published opinion, this court affirmed appellant’s convictions but vacated the

judgment of sentence and remanded for re-sentencing in accordance with

Batts II. See Street, 69 A.3d at 634 (“In Batts, the Pennsylvania

Supreme Court indicated that the appellate remedy for the unconstitutional

imposition of a mandatory life-without-parole sentence upon a juvenile

situated similarly to Appellant is a remand for resentencing at which the

court must consider the sentencing factors set forth in Miller and then

resentence the appellant accordingly.”).

Prior to re-sentencing, however, appellant filed a motion for a new trial

based on after-discovered evidence in the form of a new witness,

Sir John Withrow (“Withrow”). The trial court scheduled a hearing on that

motion immediately prior to re-sentencing on January 21, 2015. After

hearing Withrow’s testimony, the trial court denied appellant’s motion for a

new trial and proceeded to re-sentencing. Dr. Alice Applegate

(“Dr. Applegate”), a forensic psychologist, testified on behalf of appellant,

and Dr. Bruce Wright, M.D. (“Dr. Wright”), a psychiatrist, testified for the

Commonwealth. The trial court also heard testimony from the victim’s

mother, Carla Gaines-Robinson (“Gaines-Robinson”). After consideration of

all the testimony, together with the experts’ reports and other material, the

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trial court re-imposed a sentence of LWOP. Post-sentence motions were

denied, and this timely appeal followed. Appellant complied with

Pa.R.A.P. 1925(b), and the trial court has filed a Rule 1925(a) opinion.

Appellant has raised the following issues for this court’s review:

I. Did the lower court impose an unconstitutional
and illegal sentence by sentencing [appellant]
to [LWOP]?

II. Did the lower court abuse its discretion by
giving undue weight to the serious nature of
the offense itself when sentencing [appellant]
to [LWOP] despite the abundance of mitigating
Miller factors established at the resentencing?

III. Did the lower court abuse its discretion in
denying [appellant]’s motion for a new trial
where a new witness whose identity could not
have been discerned prior to trial came
forward after [appellant]’s conviction and
identified another person as the shooter?

Appellant’s brief at 5 (capitalization omitted).

In his first issue on appeal, appellant claims that the trial court

imposed an illegal sentence when it re-sentenced him to LWOP. According

to appellant, because his first direct appeal was still pending when Miller

was handed down, the trial court was required to impose a minimum

sentence. (Appellant’s brief at 26-27.)

Our standard of review for examining the legality of a sentence on

appeal is as follows.

A challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has
jurisdiction. It is also well-established that if no

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statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
Issues relating to the legality of a sentence are
questions of law[.] . . . Our standard of review over
such questions is de novo and our scope of review is
plenary.

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014),

appeal denied, 121 A.3d 494 (Pa. 2015) (citations and quotation marks

omitted).

Appellant relies on the following language from Batts II:

We recognize the difference in treatment accorded to
those subject to non-final judgments of sentence for
murder as of Miller’s issuance and those convicted
on or after the date of the High Court’s decision. As
to the former, it is our determination here that they
are subject to a mandatory maximum sentence of
life imprisonment as required by Section 1102(a),[1]
accompanied by a minimum sentence determined by
the common pleas court upon resentencing.

Batts II, 66 A.3d at 297.

Recently, in Commonwealth v. Batts (“Batts III”), 125 A.3d 33

(Pa.Super. 2015), appeal granted in part, 135 A.3d 176 (Pa. 2016), this

court addressed the identical claim and rejected the appellant’s

interpretation of Batts II as requiring a minimum sentence:

In arguing that the trial court is required to impose a
minimum sentence (i.e., a sentence of life with
parole), Appellant reads one sentence of our
Supreme Court’s opinion in Batts II in isolation and
contends that it required the trial court to impose a
minimum sentence (i.e., a sentence of life with

1
18 Pa.C.S.A. § 1102(a).

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parole). We decline to read Batts II as categorically
prohibiting a sentence of life without parole for
juveniles sentenced before Miller, which would
afford those juveniles a greater protection than the
United States Supreme Court held was
constitutionally necessary in Miller, a result that our
Supreme Court specifically condemned. Id. It
would also subject the juveniles convicted before
Miller was decided and Section 1102.1 was effective
to a lesser sentence than those convicted after
Miller and subject to Section 1102.1.[2] We decline
to interpret Miller and Batts II as categorically
prohibiting a sentence of life without parole for
juveniles, such as Appellant, convicted of murder
before Miller was issued. See Batts II, supra at
296; see also id. at 300 (Baer, J., concurring)
(stating that the Court’s decision was to “remand[ ]
the case to the trial court for it to resentence
Appellant based upon his individual circumstances to
a sentence of life imprisonment either with the
possibility of parole or without the possibility of
parole . . . [ ]”).

Batts III, 125 A.3d at 46.3

In his second issue on appeal, appellant challenges the discretionary

aspects of his sentence. Appellant alleges that the trial court’s sentence of

2
On October 25, 2012, while Batts II was awaiting
decision, a new statutory sentencing scheme for
juveniles convicted of murder, Section 1102.1, took
effect. See 18 Pa.C.S.A. § 1102.1. Section 1102.1
is our legislature’s response to Miller, but applies
only to juveniles who were convicted of murder on or
after June 25, 2012, the date Miller was issued. Id.
§ 1102.1(a).

Batts III, 125 A.3d at 38.
3
On April 19, 2016, the Pennsylvania Supreme Court granted partial
allowance of appeal in Batts III. However, the court denied the petition for
allowance of appeal with regard to this particular issue.

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LWOP was manifestly excessive and unreasonable and that the trial court

failed to properly consider mitigating evidence, including all of the

age-related Miller factors.

Accordingly, we review Appellant’s challenge to
the trial court’s weighing of sentencing factors,
including those age-related ones, as a challenge to
the discretionary aspects of his sentence. See
[Commonwealth v. Seagraves, 103 A.3d 839, 842
(Pa.Super. 2014), appeal denied, 116 A.3d 604
(Pa. 2015)] (reviewing a juvenile appellant’s
challenge to a life without parole sentence reimposed
on remand following Miller and Batts II for an
abuse of discretion); see also Commonwealth v.
Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015)
(noting a discretionary aspects challenge based on a
claim of an excessive sentence along with an
assertion that the trial court did not consider a
mitigating factor may present a substantial
question); Commonwealth v. Zirkle, 107 A.3d
127, 133 (Pa.Super. 2014) (treating a claim
challenging the weight the trial court gave to various
sentencing factors as one going to the discretionary
aspects of the sentence). A challenge to the
discretionary aspects of a sentence is not appealable
as of right; instead, an appellant must petition for
permission to appeal. Commonwealth v. Colon,
102 A.3d 1033, 1042 (Pa.Super. 2014), appeal
denied, Pa. , 109 A.3d 678 (2015). We
evaluate the following factors to determine whether
to grant permission to appeal a discretionary aspect
of sentencing.

Before we reach the merits of this issue,
we must engage in a four part analysis
to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved
his issue [at sentencing or in a motion to
reconsider and modify sentence];
(3) whether Appellant’s brief includes a
concise statement of the reasons relied
upon for allowance of appeal with respect

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to the discretionary aspects of sentence
[as required by Pennsylvania Rule of
Appellate Procedure 2119(f)]; and
(4) whether the concise statement raises
a substantial question that the sentence
is appropriate under the sentencing
code. The third and fourth of these
requirements arise because Appellant’s
attack on his sentence is not an appeal
as of right. Rather, he must petition this
Court, in his [Rule 2119(f)] concise
statement of reasons, to grant
consideration of his appeal on the
grounds that there is a substantial
question. [I]f the appeal satisfies each
of these four requirements, we will then
proceed to decide the substantive merits
of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-
330 (Pa.Super. 2013) (citations omitted), appeal
denied, 622 Pa. 765, 81 A.3d 75 (2013).

Batts III, 125 A.3d at 43-44.

Instantly, appellant filed a timely notice of appeal and preserved his

claims in his timely post-sentence motion. Appellant has also included the

requisite Rule 2119(f) statement in his brief, in which he argues that the

trial court gave undue weight to the seriousness of the offense and ignored

mitigating Miller factors that were established at re-sentencing.

(Appellant’s brief at 29-30.) These included appellant’s early exposure to

violence as a juvenile and the poor environment in which he was raised.

(Id. at 30.) According to appellant, even Dr. Wright testified that he

demonstrated some potential for rehabilitation. (Id.) Therefore, appellant

contends that the trial court’s sentence of LWOP was a de facto death

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sentence and was unnecessary and excessive. (Id.) We determine that

these allegations raise a substantial question for our review, and we will

address appellant’s sentencing claim on the merits. Zeigler, supra;

Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.Super. 2012) (en banc)

(an allegation that the sentencing court focused exclusively on the

seriousness of the crime raises a substantial question); Commonwealth v.

Macias, 968 A.2d 773, 776 (Pa.Super. 2009) (“an averment that the court

sentenced based solely on the seriousness of the offense and failed to

consider all relevant factors raises a substantial question.” (citations

omitted)).

Sentencing is a matter vested in the
sound discretion of the sentencing judge,
and a sentence will not be disturbed on
appeal absent a manifest abuse of
discretion. In this context, an abuse of
discretion is not shown merely by an
error in judgment. Rather, the appellant
must establish, by reference to the
record, that the sentencing court ignored
or misapplied the law, exercised its
judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.

Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999) (en banc) (quotations marks and
citations omitted). See also Commonwealth v.
Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007)
(citation omitted) (“An abuse of discretion may not
be found merely because an appellate court might
have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality,
prejudice bias or ill-will, or such a lack of support as
to be clearly erroneous.”).

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The rationale behind such broad
discretion and the concomitantly
deferential standard of appellate review is
that the sentencing court is “in the best
position to determine the proper penalty
for a particular offense based upon an
evaluation of the individual circumstances
before it.” Commonwealth v. Ward,
524 Pa. 48, 568 A.2d 1242, 1243 (1990);
see also Commonwealth v. Jones, 418
Pa.Super. 93, 613 A.2d 587, 591 (1992)
(en banc) (offering that the sentencing
court is in a superior position to “view the
defendant’s character, displays of
remorse, defiance or indifference and the
overall effect and nature of the crime.”).
Simply stated, the sentencing court
sentences flesh-and-blood defendants and
the nuances of sentencing decisions are
difficult to gauge from the cold transcript
used upon appellate review.

Id. Nevertheless, the trial court’s discretion is not
unfettered. “When imposing a sentence, the
sentencing court must consider the factors set out in
42 Pa.C.S. § 9721(b), that is, the protection of the
public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of
the defendant . . . . [A]nd, of course, the court must
consider the sentencing guidelines.”
[Commonwealth v.] Fullin, 892 A.2d [843,]
847-48 [Pa.Super. 2006].

Commonwealth v. Coulverson, 34 A.3d 135, 143-144 (Pa.Super. 2011).4

4
We note that one of the issues the Pennsylvania Supreme Court agreed to
consider on appeal from Batts III is whether a heightened standard of
review should apply to juvenile LWOP sentences, rather than the customary
abuse of discretion standard. Until our supreme court holds otherwise, we
will continue to employ a deferential standard of appellate review. See
Batts III, 125 A.3d at 43 (rejecting the appellant’s argument that a
heightened burden of proof, and correspondingly more stringent standard of

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In addition, before imposing an LWOP sentence upon a juvenile

offender, such as appellant, the trial court must consider certain age-related

factors, including his age at the time of the offense, the circumstances of the

crime, his past exposure to violence, his family environment, and his

rehabilitative potential:

In Batts II, our Supreme Court explained that
Miller’s holding is narrow, i.e., mandatory sentences
of life imprisonment without the possibility of parole
are not constitutional when imposed on juveniles
convicted of murder. It accordingly rejected
Appellant’s argument that Miller rendered
Section 1102 unconstitutional in its entirety as
applied to juveniles, reasoning as follows.

Section 1102, which mandates the
imposition of a life sentence upon
conviction for first-degree murder, see
18 Pa.C.S. § 1102(a), does not itself
contradict Miller; it is only when that
mandate becomes a sentence of life-
without-parole as applied to a juvenile
offender--which occurs as a result of the
interaction between Section 1102, the
Parole Code, see 61 Pa.C.S.
§ 6137(a)(1), and the Juvenile Act, see
42 Pa.C.S. § 6302--that Miller’s
proscription squarely is triggered. Miller
neither barred imposition of a life-
without-parole sentence on a juvenile
categorically nor indicated that a life
sentence with the possibility of parole
could never be mandatorily imposed on a
juvenile. Rather, Miller requires only

appellate review, should apply in juvenile LWOP cases, similar to death
penalty cases). Moreover, we reject the Commonwealth’s suggestion that
we should postpone a decision in this case pending our supreme court’s
resolution of the appeal in Batts III.

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that there be judicial consideration of the
appropriate age-related factors set forth
in that decision prior to the imposition of
a sentence of life imprisonment without
the possibility of parole on a juvenile.

Batts II, supra at 295-296 (some citations
omitted). The Court also noted that it would not
expand the holding of Miller absent a common law
history or a legislative directive. Id. at 296 (citation
omitted). Accordingly, our Supreme Court remanded
to the trial court with instructions to consider the
following age-related factors in resentencing
Appellant.

[A]t a minimum [the trial court]
should 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 his
participation in the crime, his
family, home and neighborhood
environment, his emotional
maturity and development, the
extent that familial and/or peer
pressure may have affected him,
his past exposure to violence, his
drug and alcohol history, his ability
to deal with the police, his capacity
to assist his attorney, his mental
health history, and his potential for
rehabilitation.

[Commonwealth v.] Knox, 50 A.3d [732,]
745 [(Pa.Super. 2012)] (citing Miller, 132
S.Ct. at 2455) [(remanding for resentencing
a juvenile who had previously received a
mandatory life without parole sentence in
violation of Miller, and instructing trial
court to resentence juvenile to either life
with parole or life without parole), appeal
denied, 620 Pa. 721, 69 A.3d 601 (2013)].
We agree with the Commonwealth that the

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imposition of a minimum sentence taking
such factors into account is the most
appropriate remedy for the federal
constitutional violation that occurred when a
life-without-parole sentence was
mandatorily applied to Appellant.

Batts II, supra at 297 (first brackets in original).

Batts III, 125 A.3d at 38-39.

We now turn to the evidence adduced at appellant’s re-sentencing.

Appellant was just shy of his 18th birthday at the time of the offense,

17 years, 11 months and 3 days old. (Notes of testimony, 1/21/15 at 83.)

Dr. Applegate, testifying for appellant, noted that he had no history of

animal cruelty, fire-setting, or bed-wetting. (Id. at 52.) Appellant had no

history of involvement with Children, Youth and Families. (Id.) His IQ was

94, which is considered average. (Id.)

Dr. Applegate testified that appellant’s mother was 15 years old at the

time of his birth. (Id. at 62.) As such, his mother was still developing when

appellant was born. (Id.) Appellant had to compete with his mother’s

paramours for affection. (Id.) Appellant’s father was absent from

appellant’s life and was also involved with gangs. (Id. at 63.)

When he was 7 or 8 years old, appellant experienced a traumatic

event when his uncle was shot. (Id.) At the time of the shooting, appellant

was riding on his uncle’s back. (Id.) Appellant related that he was

“in shock.” (Id.) When he was a teenager, a father-figure of appellant’s,

Michael Gafore, was shot to death. (Id. at 53.) Dr. Applegate testified that

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this event had the effect of “catapulting him into a 26-month period of

juvenile conduct problems and adjustment disorders.” (Id. at 52-53.) Dr.

Applegate diagnosed appellant with, inter alia, anxiety disorder NOS (not

otherwise specified) including generalized anxiety, social anxiety,

obsessive/compulsive disorder, phobias, mood disorder NOS, and a history

of conduct disorder (adolescent onset -- moderate). (Id. at 51-52.)

Dr. Applegate acknowledged that appellant’s prison record was not

exemplary; however, she testified that appellant did not have a documented

history of violence prior to the murder of Shavaughn Wallace. (Id. at

58-61.) Dr. Applegate testified that in her opinion, appellant is amenable to

treatment and could become a productive member of society. (Id. at 67.)

Dr. Applegate testified that appellant is beginning to show some signs of

maturation, including insight into his criminal conduct. (Id. at 57-58.)

Dr. Wright testified for the Commonwealth. Dr. Wright noted a history

of behavioral problems going back to elementary school. (Id. at 103.) In

9th grade, appellant was expelled for possession of marijuana. (Id. at

103-104.) Appellant was also charged with drug and gun offenses as a

juvenile. (Id. at 104.) During his interview with Dr. Wright, appellant

acknowledged his participation in the Brighton Place Crips but stated, “We

weren’t really Crips, we were just a bunch of people. We got labeled Crips.”

(Id. at 106.) Appellant did admit that he carried firearms and earned

$6,000-7,000 per week selling drugs. (Id.)

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Dr. Wright diagnosed appellant with an adjustment disorder with

anxiety. (Id. at 107.) Dr. Wright noted persistent behavioral problems

following incarceration at Allegheny County Jail, as well as at

SCI Pine Grove. (Id. at 108.) Dr. Wright also noted that appellant’s mother

tried to smuggle him drugs into state prison, which was evidence of

continuing behavioral problems. (Id. at 109.) Dr. Wright observed that

after the shooting of Wallace, appellant fled and was able to elude arrest for

some time, which reflects relatively sophisticated criminal conduct. (Id. at

110.)

Dr. Wright testified that appellant has limited insight into the

magnitude of his persistent criminal behavior, and cannot be rehabilitated

until he accepts responsibility for his actions. (Id. at 111.) Dr. Wright

acknowledged that appellant obtained an HVAC certificate while incarcerated

and that he has “some rehabilitative potential.” (Id. at 111-112, 118.)

However, Dr. Wright testified that previous attempts at rehabilitation have

been overwhelmingly unsuccessful. (Id. at 112.)

The victim’s mother, Gaines-Robinson, also testified regarding the

impact appellant’s crime has had on her and her family. Gaines-Robinson

testified that she and her mother have received grief counseling. (Id. at

130.) Since her daughter’s murder, Gaines-Robinson was diagnosed with

hypertension and is on blood pressure medication. (Id.) She no longer

feels safe among crowds. (Id.) Gaines-Robinson testified to the victim’s

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outstanding character, intellect, and personality. (Id. at 129.) In her

opinion, appellant has shown no remorse for his actions. (Id. at 133.)

After hearing the testimony and arguments of counsel and reviewing

the reports, the trial court determined that a sentence of LWOP was

appropriate:

Okay. Mr. Street, I’ve listened all day to the
pros and cons. The things that you have done right
apparently in life is [sic] that you haven’t killed any
animals when you were less than ten and you’ve
gotten a degree in HVAC. However on the other side
I have to weigh in to the fact that you were almost
18 years of age. Your criminal history is extensive
beginning when you were a very young man. You
were a member of a gang. You admitted to making
about $6,000 a week selling heroin. I can’t imagine
how many people were hurt through those activities
as well as being the enforcer of the gang. You did do
well when you were in placement but however the
minute that you were released you went back to
your criminal activity including misconduct in jail.
But the thing that weighs the heaviest against you is
you did shoot a young woman in the back and killed
her unborn child. Those people are never getting
another chance. I feel that criminal behavior is all
you know and I feel you are an accomplished
criminal.

Id. at 140-141.

Overall, we cannot say that the trial judge here, the Honorable

Donna Jo McDaniel, abused her discretion in re-imposing an LWOP sentence.

Appellant was one month shy of his 18th birthday at the time of the crime.

He had an extensive juvenile record. He admitted to participating in drug

and gang activity. While his childhood is, in many ways, tragic, the

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circumstances of this crime were particularly heinous. Appellant shot a

pregnant woman in the back, killing her and her unborn child. He then fled

the area and evaded law enforcement. Judge McDaniel considered all the

Miller age-related factors, but ultimately found that an LWOP sentence was

appropriate. (Trial court opinion, 11/13/15 at 7.)

Finally, appellant challenges the denial of his motion for a new trial

based on Withrow’s proffered testimony that appellant was not the gunman.

To obtain relief based on after-discovered evidence,
appellant must demonstrate that the evidence:
(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were
granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009), quoting

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). “Unless the trial

court has clearly abused its discretion in denying a new trial on the basis of

after-discovered evidence, its order will not be disturbed on appeal.”

Commonwealth v. Cull, 688 A.2d 1191, 1198 (Pa.Super. 1997), appeal

denied, 698 A.2d 64 (Pa. 1997) (citation omitted).

Withrow testified that he was incarcerated at SCI Forest when he

learned that appellant was serving a life sentence for Wallace’s murder.

(Notes of testimony, 1/21/15 at 8-9.) According to Withrow, he was walking

around the area of Alpine Avenue the evening of May 22, 2009, and

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witnessed the shooting. (Id. at 9-11.) Withrow testified that he was in a

position to see the shooter’s face and it was not appellant. (Id. at 11-13.)

Withrow knows appellant from the neighborhood. (Id. at 13.) Withrow

testified that he came forward to clear his conscience. (Id. at 20.) Withrow

recently converted to Islam and is a “new person.” (Id.)

Judge McDaniel, who also presided over appellant’s non-jury trial, did

not find Withrow to be a credible witness. (Id. at 46-47.) It is well settled

that credibility determinations cannot be disturbed on appeal. See

Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (“[T]here is no

justification for an appellate court, relying solely upon a cold record, to

review the fact-finder's first-hand credibility determinations.”).

Furthermore, as Judge McDaniel observes, Terrchell Little (“Little”),

appellant’s first cousin, offered substantially similar testimony. (Trial court

opinion, 11/13/15 at 5.) Little testified that she saw the gunman and it was

not appellant. (Notes of testimony, 2/27-29/12 at 144, 148.) She could not

identify the shooter, but it was not appellant. (Id.) Therefore, Withrow’s

testimony would have been merely corroborative of Little’s testimony.

In addition, as recounted above, Moore identified appellant as the

gunman in a photo array and at trial. Johnson also testified that appellant

admitted to shooting Wallace. Judge McDaniel, sitting as finder-of-fact,

obviously credited this testimony. Therefore, it is highly unlikely that

Withrow’s testimony would change the verdict. The trial court did not abuse

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its discretion in denying appellant’s motion for a new trial based on

after-discovered evidence.

Judgment of sentence affirmed.

Shogan, J. joins the Memorandum.

Strassburger, J. files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/24/2016

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