Commonwealth v. Hicks

J-S57016-16

2016 PA Super 257

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TERRILL JAVON HICKS,

Appellant No. 1742 WDA 2015

Appeal from the Judgment of Sentence October 23, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006205-2007

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

OPINION BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, Terrill Javon Hicks, appeals from the judgment of sentence

entered on October 23, 2015, in the Allegheny County Court of Common

Pleas. After careful review, we vacate and remand with instructions.

The trial court provided the following factual background in this

matter:

The testimony in this case is summarized as follows.
Kendall Dorsey testified that on December 23, 2006, while
sitting on the front porch with his friend Kevin Harrison, he saw
Appellant shooting at him and at Harrison. (Transcript of Jury
Trial April 27-May 3, 2010, hereinafter TT[, at] 108-9) Dorsey
saw co-Defendant Raymont Walker standing with Appellant. (TT
109) Dorsey scurried into the house and avoided injury, but
Harrison was shot and killed. (TT 109-10)

Dorsey testified that a few days earlier he was at his friend
John McDonald’s house. (TT 97) He heard a knock on the door.

*
Retired Senior Judge assigned to the Superior Court.
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Another friend, Michael Harris, answered the door. Immediately,
Appellant attempted to pull Harris out of the house, but the
attempt was unsuccessful as Harris was able to close the door.
(TT 98) Dorsey testified that he went upstairs, looked out a
window and observed Appellant and Walker in the street holding
pistols. Ibid.

The following day, the day before the shooting, Dorsey
testified that he had an encounter in the neighborhood with
Appellant. Appellant said that he had been robbed, and that he
thought that Dorsey, Harris and Harrison did it. (TT 100) Dorsey
denied robbing Appellant. Ibid.

The next day, the day of the murder, Dorsey testified that
Appellant and Walker drove up to Dorsey and Harrison while
they were walking a dog. Appellant and Walker exited the car,
and Walker said, “Where is Mike Harris at?” (TT 102) Dorsey
observed that both Appellant and Walker had weapons. (TT 103)
Dorsey and Harrison lied, denying that they knew Harris’
location, and eventually Appellant and Walker got back in their
car, a white Chevrolet Impala, and left. (TT 104)

After that incident, Dorsey testified that he and Harrison
immediately returned to Harrison’s house, where they knew
Harris was. Ibid. Dorsey noticed a white Chevrolet Impala
circling the house, the same car in which he had just seen
Appellant and Walker. Ibid. He safely entered the residence but
eventually went outside to the front porch with Harrison to
smoke a cigarette. (TT 105-6) Dorsey told Harris not to join
them on the porch because Appellant and Walker were looking
for him. (TT 106) Appellant and Walker approached the house.
Appellant fired approximately ten shots, killing Kevin Harrison.

John McDonald corroborated Dorsey’s testimony regarding
the incident at his house. McDonald said that he encountered
Appellant at a gas station the day before Appellant came to his
house. McDonald said Appellant was upset because he had been
robbed. (TT 192) Appellant told McDonald he did not know who
had robbed him. Ibid.

McDonald said that, on the following day, Appellant came
to his house and attempted to forcibly remove Harris from
McDonald’s home when Harris answered the door. (TT 190) The
day after, Appellant and Walker came to his house again. (TT

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191) By that point, Appellant had become convinced that Harris,
Harrison and a third individual nicknamed “Dee” had robbed him.
(TT 192-3) Appellant told McDonald that he was looking for the
people that he thought had robbed him, and if Appellant found
them, either they would get hurt or someone would die. (TT
196) Walker added that what the robbers had done “wasn’t
cool” and that he “was going to ride with Appellant,” his best
friend. (TT 199) McDonald, an army sergeant with eight years of
military experience, observed that Appellant was carrying a gun
which he recognized as a “Glock 45.” (TT 196)

Michael Harris testified that he was inside Harrison’s house
on the couch in the front living room when the shots were fired.
(TT 240) He heard the shots hit the house, so he moved to the
floor and exited toward the rear of the house. He also reiterated
that Appellant had attempted to pull him out of McDonald’s
residence on the day before the shooting. (TT 239)

John Betarie, a Homestead police officer, testified that he
recovered six shell casings at the scene of the shooting in the
location where Dorsey said Appellant was standing, and three
additional projectiles on the kitchen floor. (TT 86) These shell
casings were sent to the crime lab for analysis. Ibid. Dr. Robert
Levine, a forensics expert at the crime lab, testified that the 45
caliber casings found at the scene were all fired from the same
weapon. (TT 347)

Dr. Abdulrezak Shakir, a forensic pathologist with the
Allegheny County Medical Examiner’s Office, conducted the
autopsy of Kevin Harrison. (TT 357-8) Dr. Shakir stated that
Harrison was shot three times. (TT 358) He concluded that
Harrison died as a result of a gunshot wound to the head, and
ruled the manner of death as homicide. (TT 362)

Trial Court Opinion, 2/8/12, at 3-6.

On May 3, 2010, Appellant, Terrill Hicks, was convicted by
a jury of his peers of one count of Murder of the First Degree,
two counts of Aggravated Assault, one count of Criminal
Attempt-Homicide, one count of Possession of Firearm by a
Minor and one count of Criminal Conspiracy [to commit
homicide]. On August 2, 2010, this Court sentenced Appellant
to life without the possibility of parole on the charge of Murder in
the First Degree, a consecutive ten to twenty years for the

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Criminal Attempt-Homicide count, a consecutive five to ten years
for the Aggravated Assault[1] and no further penalty on the
remaining charges. Post sentence motions were denied on
August 25, 2010 and Appellant did not file a timely Notice of
Appeal. On June 29, 2011, Appellant filed a pro se Post-
Conviction Relief Act petition seeking to have his appellate rights
reinstated nunc pro tunc. On November 7, 2010, this Court
reinstated appellate rights to Appellant. Appellant filed a Notice
of Appeal on November 17, 2010 and a Statement of Errors
Complained of on Appeal on November 30, 2010.

Trial Court Opinion, 2/8/12, at 2-3.

While this matter was pending on appeal, the United States Supreme

Court issued an opinion in Miller v. Alabama, ___ U.S. ___, 132 S. Ct.

2455 (2012). The Supreme Court held that mandatory sentences of life

imprisonment without the possibility of parole for defendants under the age

of eighteen at the time of their crimes violate the Eighth Amendment to the

United States Constitution. Miller, 132 S. Ct. at 2464. On November 21,

2013, a panel of this Court vacated Appellant’s judgment of sentence and

remanded for resentencing. Commonwealth v. Hicks, 1822 WDA 2011,

91 A.3d 1293 (Pa. Super. filed November 21, 2013) (unpublished

memorandum).

On October 23, 201[5], after a remand from the Superior
Court of Pennsylvania, [the trial court] re-sentenced Appellant,
Terrill Javon Hicks, on one count each of Murder of the First
Degree, Criminal Attempt-Homicide, Aggravated Assault,
Possession of a Firearm by a Minor, and Criminal Conspiracy.
[The trial court] sentenced Appellant to 35 years to life
imprisonment for the Murder in the First Degree conviction, 10
to 20 years for the Criminal Attempt-Homicide conviction, 2½ to

1
The second conviction for aggravated assault merged with the attempted
homicide conviction for sentencing purposes.

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5 years for the Aggravated Assault conviction, both sentences to
be served consecutive to the Homicide sentence, and no further
penalty on the remaining counts. This Court denied Appellant’s
Motion for Post Sentence Relief on October 28, 2015. Appellant
filed a Notice of Appeal and a Statement of Errors Complained of
on Appeal on November 3, 2015.

Trial Court Opinion on Remand, 2/29/16, at 2 (footnotes omitted).

On appeal, Appellant presents the following issues for this Court’s

consideration:

1. Did the trial court err in denying Appellant’s post sentencing
motions since the evidence was insufficient to convict
Appellant of aggravated assault-[serious bodily injury (“SBI”)]
of Michael Harris since Harris was inside of the house when
shots were fired, and therefore could not have been the
target or a possible victim of the shooter, who shot at
Harrison and Dorsey, who were on the outside porch of the
house. Moreover, the evidence was insufficient to convict
Appellant of conspiracy (with co-defendant Raymont Walker)
to commit homicide (of Harrison), attempted homicide of
Dorsey, aggravated assault-SBI of Dorsey and aggravated
assault-SBI of Harris since there was no evidence presented
at trial of a conspiracy between Appellant and Walker to
commit these crimes[?]

2. Did the trial court err in denying Appellant’s post sentencing
motions since Appellant’s convictions of the homicide of
Harrison, the attempted homicide of Dorsey, aggravated
assault-SBI of Harris, aggravated assault-SBI of Dorsey,
VUFA, and conspiracy with Walker were against the weight of
the evidence due to the incredible and contradictory
testimony of Commonwealth witnesses Harris, Dorsey, and
John McDonald[?]

3. Did the trial court err in denying Appellant’s post sentencing
motions since the trial court erred in denying Appellant’s
motion in limine (pursuant to Pa.R.E. 403) regarding evidence
surrounding the charges against Appellant at 8245-2007
(aggravated assault-SBI of Dorsey, aggravated assault-SBI of
Harris, and VUFA regarding shots fired at the two victims on
4/23/07), which occurred four months after the instant

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homicide/shooting at 6205-2007, and which were severed by
Judge Nauhaus and to be tried separately (but were
eventually nolle prossed after Appellant’s homicide, etc.
conviction at the instant case); the prejudicial effect of the
evidence outweighed its probative value, and deprived
Appellant of a fair jury trial[?]

4. Did the trial court err in denying Appellant’s post sentencing
motions since Appellant’s murder 1 sentence of 35 years to
life imprisonment, and, the imposition of a consecutive
sentence [of] 10-20 years’ imprisonment for attempted
homicide, and a second consecutive sentence of 2.5-5 years’
imprisonment, resulting in an aggregate sentence of 47.5
years to life imprisonment, were each and aggregately
manifestly excessive since [Appellant] showed remorse and
accepted responsibility for his crimes, he was taking steps to
rehabilitate himself and demonstrated that he was a changed
person, and it is unreasonable to believe that it will take
another 39 years, when he will be 62 years old, for Appellant
to reach the point at which he can return to and become a
productive member and positive member of society?

Appellant’s Brief at 3-4 (full capitalization omitted).2

In Appellant’s first issue, he argues that:

there was insufficient evidence to convict [him] of the
aggravated assault-SBI of Michael Harris, and insufficient
evidence to convict of conspiracy with Raymont Walker to
commit the homicide of Harrison, the attempted homicide of
Dorsey, aggravated assault-SBI of Dorsey and aggravated
assault-SBI of Harris since there was no evidence adduced at
trial indicating that any conspiracy or agreement existed.

Appellant’s Brief at 37. After reviewing the record, we conclude that

Appellant is entitled to no relief.

Our standard of review when considering challenges to the sufficiency

of the evidence is well settled:

2
For purposes of our discussion, we have renumbered Appellant’s questions
presented on appeal.

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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proof or proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003).

The trial court addressed Appellant’s challenge to the sufficiency of the

evidence as follows:

As to the conspiracy charge, an eyewitness identified Appellant
as the shooter and identified Walker as being with Appellant. A
few days earlier, Appellant, again accompanied by Walker, tried
unsuccessfully to pull Harris into the street, presumably to exact
revenge against the individual Appellant concluded had robbed
him. Then later Appellant and Walker together went looking for
Harris in the neighborhood. At least two witnesses testified to
seeing one or both men with guns on these earlier occasions.
The white Impala they had been using was observed circling
Harris’ residence. Later, Dorsey observed Appellant and Walker
across the street from Harris’ residence with a gun. At all times
Walker was with Appellant, his self-described best friend.
[Walker] made a statement that he was going to “ride” with
Appellant, a statement which, given the context, easily could be
interpreted beyond its literal meaning. Given the totality of
circumstances, it was not error for the jury to find Appellant and

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Walker conspired to commit the offenses for which Appellant was
convicted[.]

Regarding the Aggravated Assault charge, even assuming
the evidence did not support that Harris was an intended target
of Appellant, Appellant is incorrect in asserting that he cannot be
convicted of Aggravated Assault on an unintended victim.
Aggravated Assault is defined as follows:

2702. Aggravated assault

(a) Offense defined.--A person is guilty of
aggravated assault if he:

(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value of
human life.

Appellant’s assertion that aggravated assault requires an
assailant to intend to cause serious bodily injury to a victim is
clearly erroneous. Under a plain reading of the statute, one who
causes serious bodily injury to another recklessly under
circumstances manifesting extreme indifference to the value of
human life is guilty of this offense. Shooting multiple rounds at
people standing on the front porch of a house demonstrated
Appellant’s extreme indifference to the value of human life.
Commonwealth v. Hunter, 644 A.2d 763 (Pa.Super 1994). This
reckless conduct alone is sufficient to support his conviction for
Aggravated Assault on a person inside the house, especially
when shell casings were recovered from the floor inside that
house.

Trial Court Opinion, 2/8/12, at 6-7.

We agree with the trial court’s analysis. Appellant, in concert with

Walker, pursued the victims and fired multiple shots at an occupied house,

which resulted in Harrison’s death and projectiles penetrating the house

where Harris and Dorsey had hidden. In Hunter, the case cited by the trial

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court, this Court explained that where an individual fired gunshots into a

residence that he knew to be occupied, his indifference as to who might be

shot does not lessen the seriousness of the act, and the intent to do serious

bodily harm can be inferred from discharging a firearm into an occupied

home. See Hunter, 644 A.2d 763, 764 (“Because there exists the

probability that a person in the home could be harmed if someone were to

shoot into the home, an attempt to cause serious bodily harm to such a

person can be inferred.”) (citing Commonwealth v. Eaddy, 614 A.2d 1203

(Pa. Super. 1992)). Accordingly, we conclude there was ample evidence

establishing Appellant’s guilt.

Next, Appellant argues that his convictions were against the weight of

the evidence because the testimony of Commonwealth witnesses Harris,

Dorsey, and John McDonald was contradictory and not credible. We

conclude that no relief is due.

At the outset, we note that the weight attributed to the evidence is a

matter exclusively for the fact finder, who is free to believe all, part, or none

of the evidence and to determine the credibility of the witnesses.

Commonwealth v. Forbes, 867 A.2d 1268, 1272-1273 (Pa. Super. 2005).

The grant of a new trial is not warranted because of “a mere conflict in the

testimony” and must have a stronger foundation than a reassessment of the

credibility of witnesses. Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa.

Super. 2007). Rather, the role of the trial judge is to determine that,

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notwithstanding all of the facts, certain facts are so clearly of greater weight,

that to ignore them or to give them equal weight with all of the facts is to

deny justice. Id.

An appellate court’s purview:

is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence.

Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (internal

citations omitted). An appellate court may not reverse a verdict unless it is

so contrary to the evidence as to shock one’s sense of justice. Forbes, 867

A.2d at 1273. “[T]he trial court’s denial of a motion for a new trial based on

a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

Here, the focus of Appellant’s argument is solely on the credibility of

the Commonwealth’s witnesses. Appellant’s Brief at 39-45. Specifically,

Appellant argues that one of the victims, Dorsey, denied knowing who the

shooter was and delayed in reporting the identity of the shooter. Id. at 42.

Appellant also points to the fact that Dorsey admitted he told police that he

did not know it was Appellant who fired the gun, but at trial, Dorsey stated

that his denial to police was because he planned to retaliate against

Appellant. Id. (citing N.T., 4/27/10-5/3/10, at 111; 136-137). However, as

noted above, it was for the jury as the finder of fact to determine the

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credibility of the witnesses. Forbes, 867 A.2d at 1272-1273. This Court

does not reweigh the evidence, and pursuant to our standard of review, we

cannot conclude that the verdict in this matter in any way shocks the

conscience. We discern no abuse of discretion by the trial court’s denial of

Appellant’s post-sentence motion for a new trial based on the weight of the

evidence.

In his third issue, Appellant avers that the trial court erred when it

denied his motion in limine regarding charges against Appellant at trial court

docket number 8245-2007. As noted above, docket number 8245-2007

concerned charges of aggravated assault and violations of the Uniform

Firearms Act (“VUFA”) filed against Appellant and Deondray Beasley due to

the shots fired at Dorsey and Harris on April 23, 2007, four months after the

homicide in the instant case. The trial court severed the cases, but the

charges at 8245-2007 were nol prossed after Appellant’s conviction in the

case at bar. Appellant argues that evidence of the subsequent shooting

incident at 8245-2007 was prejudicial and outweighed its probative value.

In evaluating the denial or grant of a motion in limine, our standard of

review is the same as that utilized to analyze an evidentiary challenge.

Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014). It is well

settled that “[t]he admission of evidence is solely within the discretion of the

trial court, and a trial court’s evidentiary rulings will be reversed on appeal

only upon an abuse of that discretion.” Commonwealth v. Woodard, 129

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A.3d 480, 494 (Pa. 2015) (citation omitted). “An abuse of discretion will not

be found based on a mere error of judgment, but rather occurs where the

court has reached a conclusion that overrides or misapplies the law, or

where the judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.” Id. (citation omitted). “The court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403.

As discussed above, when Dorsey was initially questioned, he denied

knowing that it was Appellant who had shot at Harris, Harrison, and him.

N.T., 4/27/10-5/3/10, at 111. Dorsey testified that his reluctance to

cooperate with the investigation was because “we don’t deal with police.”

Id. at 171. However, after Appellant again shot at Dorsey in April of 2007,

the event that underlies the separate charges against Appellant at docket

number 8245-2007, Dorsey told police that it was Appellant who had shot at

him both in the shooting that resulted in the death of Harrison in December

of 2006 and in the April 2007 shooting. Id. at 112. Dorsey testified that he

came forward because he came to fear for his safety. Id. at 174. In the

motion in limine and now on appeal, Appellant argues that the events from

April of 2007 should not have been admissible. We disagree.

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“It is axiomatic in a criminal trial that all evidence offered by the

prosecution will be prejudicial to the defendant. Were mere prejudice the

standard, virtually all evidence could reasonably be excluded.”

Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996). For this

reason, the test for admissibility is whether the probative value of the

challenged evidence is outweighed by unfair prejudice. Commonwealth v.

K.S.F., 102 A.3d 480, 484-485 (Pa. Super. 2014); and Pa.R.E. 403.

The trial court addressed this issue as follows:

Appellant alleges this Court erred in denying Appellant’s Motion
in Limine, in that the prejudicial effect of testimony regarding an
alleged shooting four months after the instant homicide
outweighed any probative value. Specifically, Dorsey testified
that four months after witnessing the homicide, a number of
individuals shot at him and other members of his family. (TT
115, 118-119) Dorsey believed that he and his family were in
danger. As a result of this incident Dorsey decided to reveal
additional information to the police. (TT 116, 163, 174)

“Evidence of a defendant’s distinct crimes are not generally
admissible against a defendant solely to show his bad character
or his propensity for committing criminal acts, as proof of the
commission of one offense is not generally proof of the
commission of another.” Commonwealth v. Billa, 555 A.2d 835,
838 (Pa. 1989) (emphasis in original); See Pa.R.E. 404; See also
Commonwealth[] v. Lark, 543 A.2d 491, 497 (Pa. 1988).
However, this general proscription against admission of a
defendant’s distinct bad acts is subject to numerous exceptions if
the evidence is relevant for some legitimate evidentiary reason
and not merely to prejudice the defendant by showing him to be
a person of bad character. Billa, supra. Exceptions that have
been recognized as legitimate bases for admitting evidence of a
defendant’s distinct crimes include, but are not limited to:

(1) motive; (2) intent; (3) absence of mistake
or accident; (4) a common scheme, plan or design
such that proof of one crime naturally tends to prove

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the others; (5) to establish the identity of the
accused where there is such a logical connection
between the crimes that proof of one will naturally
tend to show that the accused is the person who
committed the other; (6) to impeach the credibility
of a defendant who testifies in his trial; (7) situations
where defendant’s prior criminal history had been
used by him to threaten or intimidate the victim; (8)
situations where the distinct crimes were part of a
chain or sequence of events which formed the
history of the case and were part of its natural
development (sometimes called “res gestae”
exception).

Ibid. citing Pa.R.E. 404(b); See also Lark, supra. This list is by
no means exhaustive. See Commonwealth v. Watkins, 843 A.2d
1203, 1215 n. 1 (Pa. 2003). Additional exceptions are
recognized when the probative value of the evidence outweighs
the potential prejudice to the trier of fact. Commonwealth v.
Claypool, 495 A.2d 176 (Pa. 1985). For example, an additional
exception, explaining a delay in reporting a crime, was
recognized in Commonwealth v. Dillon, 925 A.2d 131, 139 (Pa.
2007).

In the case sub judice, the critical eye-witness, Dorsey,
delayed in fully reporting a crime. Only the testimony regarding
the subsequent attempted shooting can explain to the fact finder
such a delay. Thus, the probative value of this evidence is
significant. The prejudicial effect of testimony regarding a later
shooting, in which Appellant may have been involved but was
not directly implicated, in the context of a homicide trial, while
not insignificant, was considerably less than the probative value.
The testimony of the shooting four months after the homicide
does not establish any element of the crimes for which Appellant
is charged, but it does explain the eyewitness’ delay in coming
forward. As such, this Court did not err in determining that its
probative value outweighs any resulting prejudice to Appellant.

Trial Court Opinion, 2/8/12, at 8-10.

After review, we discern no abuse of discretion in the trial court’s

ruling. As explained by the trial court, Pennsylvania recognizes a res gestae

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exception, permitting the admission of evidence of other crimes or bad acts

to tell “the complete story.” Commonwealth v. Hairston, 84 A.3d 657,

665 (Pa. 2014) (citations omitted). “Such evidence may be admitted,

however, ‘only if the probative value of the evidence outweighs its potential

for unfair prejudice.’” Id. (citing Pa.R.E. 404(b)(2)). Herein, the testimony

regarding the April shooting provided the jury with the full history of the

interaction among Appellant, his cohorts, and the victims. Moreover, the

events in April of 2007 provided a background by which the jury could weigh

Dorsey’s testimony and his delay in identifying Appellant as the perpetrator

of the crimes. Accordingly, we conclude that Appellant is entitled to no

relief.

Finally, Appellant claims that the trial court abused its discretion when

it resentenced him pursuant to 18 Pa.C.S. § 1102.1. Specifically, Appellant

avers that his sentence of thirty-five years to life, coupled with two

consecutive terms of imprisonment of ten to twenty years for attempted

homicide and two and one-half to five years for aggravated assault, resulting

in an aggregate sentence of forty-seven and one-half years to life

imprisonment, were each and aggregately manifestly excessive. After

review, we are constrained to conclude that the trial court abused its

discretion in relying solely on section 1102.1 without considering the

sentencing factors set forth in Commonwealth v. Knox, 50 A.3d 732, 745

(Pa. Super. 2012) (citing Miller, 132 S.Ct. at 2455).

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Appellant’s claims of sentencing errors are challenges to the

discretionary aspects of his sentence. We note that “[t]he right to appellate

review of the discretionary aspects of a sentence is not absolute.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather,

where an appellant challenges the discretionary aspects of a sentence, the

appeal should be considered a petition for allowance of appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:

[W]e 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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal only

when the appellant 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

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the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

Herein, the first three requirements of the four-part test are met:

Appellant filed a timely appeal, raised the challenges in a post-sentence

motion, and included in his brief the necessary separate concise statement

of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.

2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

“We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). Here, Appellant argues in his

Pa.R.A.P. 2119(f) statement that the trial court abused its discretion by

imposing a manifestly excessive sentence and by failing to provide the

reasons for the sentence imposed. Appellant’s Brief at 15.

“While a bald claim of excessiveness does not present a substantial

question for review, a claim that the sentence is manifestly excessive,

inflicting too severe a punishment, does present a substantial question.”

Commonwealth v. Haynes, 125 A.3d 800, 807-808 (Pa. Super. 2015)

(citation omitted). Moreover, the sentencing court’s failure to set forth

adequate reasons for the sentence imposed also raises a substantial

question. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.

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2009) (citation omitted). As we noted above, the trial court improperly

relied on 18 Pa.C.S. § 1102.1(a) without making a determination of

sentence duration based on Knox and Miller. Because the trial court was

not bound by 18 Pa.C.S. § 1102.1(a), it could have, within its discretion,

imposed a shorter minimum sentence on the homicide conviction.3

Accordingly, we will consider the merits of Appellant’s sentencing challenges.

First, we note that at Appellant’s resentencing, the trial court reviewed

the pre-sentencing expert reports, stated the applicable sentencing guideline

ranges, and heard testimony from Appellant, his mother, his sisters, and a

family friend. N.T., 10/23/15, at 4, 5-37, 46, 54-56. The trial court

considered the above information and thoroughly explained its rationale for

the sentences imposed. Id. at 54-55.

Additionally, in its Pa.R.A.P. 1925(a) opinion, the trial court further

addressed this issue as follows:

Appellant was originally sentenced to a mandatory term of
life imprisonment on the Murder of the First Degree conviction.
Due to the decision in Miller v. Alabama, Appellant was re-
sentenced.3 In response to Miller v. Alabama, Pennsylvania
enacted 18 Pa.C.S. § 1102.1, which provides the mandatory
minimum sentences for juvenile murderers. A court is required
to sentence a juvenile between ages 15-18 who commits a

3
We are constrained to point out that because Miller and its Pennsylvania
progeny do not prohibit a life sentence, the trial court could have, within its
discretion, imposed a longer minimum sentence. See Knox, 50 A.3d at 745
(noting that while Miller held that mandatory life sentences were
unconstitutional, “our disposition does not mean that it is unconstitutional
for a juvenile actually to spend the rest of his life in prison, only that the
mandatory nature of the sentence, determined at the outset, is
unconstitutional.”) (emphasis added).

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Murder in the First Degree to at least 35 years to life
imprisonment. 18 Pa.C.S. § 1102.1(a)(1).
3
In Miller v. Alabama, the Supreme Court held that
“mandatory life imprisonment 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.” Miller v. Alabama, 132
S.Ct. 2455 (2012).

In accordance with § 1102.1, this Court resentenced
Appellant to 35 years to life imprisonment. This Court sentenced
Appellant to the mandatory minimum required by Pennsylvania
law on the Murder in the First Degree count. As the sentence
was statutorily required, his claim of excessiveness as to this
count lacks merit.

Appellant was sentenced in the standard range for the
counts of Criminal Attempt-Homicide and Aggravated Assault.
None of these sentences are individually excessive because they
are each within the required or standard range proscribed by the
Pennsylvania Sentencing Guidelines. A standard range sentence
carries its own presumption of reasonability. Commonwealth v.
Walls, 926 A.2d 957, 964-965 (Pa. 2007).

Furthermore, the aggregate sentence imposed is not
excessive upon consideration of the sentencing factors of
§ 9721. Appellant heinously murdered 16 year-old Kevin
Harrison on his own front porch and attempted to do the same
to Kendall Dorsey and Michael Harris. Appellant is not entitled to
a volume discount nor should he receive a benefit for his poor
aim. It is this Court’s obligation to protect the public from those
who commit vicious crimes such as those committed by
Appellant. This Court did not act unreasonably or with prejudice.
This sentence is thoroughly reflective of the gravity of the
offense as it relates to the three victims, particularly
Kevin Harrison who was robbed of his life, and of the need to
protect the community, yet allows the possibility for Appellant to
reenter society eventually as a rehabilitated man.

Trial Court Opinion on Remand, 2/29/16, at 4-6.

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J-S57016-16

The trial court correctly noted that 18 Pa.C.S. § 1102.1 carries a

mandatory minimum sentence of thirty-five years to life imprisonment for an

offender who is between fifteen and eighteen years of age at the time of the

offense. Appellant was sixteen years old at the time of the homicide, and

the trial court imposed a thirty-five years to life sentence pursuant to section

1102.1. However, section 1102.1 applies only to convictions that occurred

“after June 24, 2012.” 18 Pa.C.S. § 1102.1(a). Here, Appellant was

convicted on May 3, 2010, prior to the effective date of 18 Pa.C.S.

§ 1102.1(a).

In Commonwealth v. Batts, 125 A.3d 33 (Pa. Super. 2015) (“Batts

III”), our Court addressed this issue as follows:

[T]he new Section 1102.1 did not apply to Appellant
because Appellant was convicted of murder in 2007, before the
effective date of Section 1102.1. Instead, Appellant was subject
to the version of Section 1102 that was in effect at the time of
his sentencing. Accordingly, in [Commonwealth v. Batts, 66
A.3d 286 (Pa. 2013) (“Batts II”)], our Supreme Court examined
“the appropriate remedy for the Eighth Amendment violation
that, under Miller, occurred when Appellant was mandatorily
sentenced to life imprisonment without the possibility of parole
upon his conviction for first-degree murder” in context of the
then-existing statutory scheme in Section 1102. Batts II,
supra.

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.

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J-S57016-16

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 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.

At 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.

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J-S57016-16

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 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[.]

Batts III, at 38–39 (Pa. Super. 2015). However, in Batts III, this Court

also discussed Justice Baer’s concurring opinion in Batts II:

Justice Baer authored a concurring opinion, joining in the
majority’s decision 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 for his conviction of
first-degree murder committed when he was a fourteen year old
juvenile.” [Batts II] at 299-300 (Baer, J., concurring). Justice
Baer further opined that, to achieve uniformity in sentencing,
trial courts should be guided by Section 1102.1 in resentencing
juveniles whose life without parole sentences violated Miller, but
would not otherwise be resentenced under Section 1102.1
because they were convicted before Miller was decided. Id. at
300 (Baer, J., concurring).

Batts III, at 39.4

4
We note that the Supreme Court granted allowance of appeal on April 19,
2016, and entered the following order:

AND NOW, this 19th day of April, 2016, the Petition for
Allowance of Appeal is GRANTED, LIMITED TO the following
issues raised by Petitioner:

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J-S57016-16

Pursuant to the holding in Batts II, we remand this matter to the trial

court to resentence Appellant in accordance with the factors set forth in

Knox and Miller. As the resentencing has the potential to disrupt the trial

court’s entire sentencing scheme, we vacate all of Appellant’s sentences at

1. In Miller v. Alabama, the U.S. Supreme Court
outlawed mandatory life without parole for juveniles
(LWOP), and instructed that the discretionary imposition of
this sentence should be “uncommon” and reserved for the
“rare juvenile offender whose crime reflects irreparable
corruption.”

i. There is currently no procedural mechanism to
ensure that juvenile LWOP will be “uncommon” in
Pennsylvania. Should this Court exercise its authority
under the Pennsylvania Constitution to promulgate
procedural safeguards including (a) a presumption
against juvenile LWOP; (b) a requirement for
competent expert testimony; and (c) a “beyond a
reasonable doubt” standard of proof?

ii. The lower court reviewed the Petitioner’s sentence
under the customary abuse of discretion standard.
Should the Court reverse the lower court’s
application of this highly deferential standard in light
of Miller?

2. In Miller, the U.S. Supreme Court stated that the basis
for its individualized sentencing requirement was Graham’s
comparison of juvenile LWOP to the death penalty. The
Petitioner received objectively less procedural due process
than an adult facing capital punishment. Should the Court
address the constitutionality of the Petitioner’s
resentencing proceeding?

The Petition for Allowance of Appeal is DENIED with respect to
Petitioner’s third stated issue.

Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016).

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trial court docket number CP-02-CR-0006205-2007, and remand for

resentencing at all counts. See Commonwealth v. Vanderlin, 580 A.2d

820, 831 (Pa. Super. 1990) (“[I]f a trial court errs in its sentence for one

count in a multi-count case, then all sentences for all counts will be vacated

so that the court can re-structure its entire sentencing scheme.”). Because

we have vacated Appellant’s judgment of sentence as a whole and remanded

for resentencing on each count, we need not address Appellant’s challenge

to the duration or consecutive nature of the sentences previously imposed.

Judgment of sentence vacated. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016

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