Com. v. Clary, T.

J-A24027-19
2020 PA Super 1

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL LAMAR CLARY :
:
Appellant : No. 3105 EDA 2018

Appeal from the Judgment of Sentence Entered May 31, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008066-1999

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL LAMAR CLARY :
:
Appellant : No. 3107 EDA 2018

Appeal from the Judgment of Sentence Entered May 31, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001873-2000

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

OPINION BY DUBOW, J.: Filed: January 2, 2020

Appellant, Terrell Lamar Clary, appeals from the May 31, 2018 Judgment

of Sentence of 48 years’ to life imprisonment imposed upon resentencing after

the grant of post-conviction relief based on Miller v. Alabama, 567 U.S. 460

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A24027-19

(2012), and Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718 (2016).1

Appellant challenges certain evidentiary rulings made at his resentencing

hearing, as well as the discretionary aspects and legality of his sentence. After

careful review, we affirm.

Facts and Procedural History

A detailed recitation of the procedural and factual history is unnecessary

to our disposition. Briefly, in 1999, when Appellant was 16 years old, he shot

Juan Watson in the chest. The next day, he shot and killed William Six.

Appellant was charged, inter alia, with the murder of Mr. Six and attempted

murder of Mr. Watson.

On August 17, 2000, a jury found Appellant guilty of First-Degree

Murder and related charges in the death of Mr. Six (Docket No. 8066-99) and

guilty of Attempted Murder and related charges in the shooting of Mr. Watson

(Docket No. 1873-00).2 On November 6, 2000, the court sentenced Appellant,

in relevant part, to a statutorily mandated sentence of life without parole

____________________________________________

1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic LWOP upon a homicide defendant for a murder
committed while the defendant was under eighteen years old. Miller, 567 U.S.
at 479. In Montgomery, the U.S. Supreme Court held that its decision
in Miller, supra, applies retroactively. Montgomery, 136 S.Ct. at 732.
2 The matters were consolidated for trial. Appellant filed an appeal for each
docket and filed an Application for Consolidation, asserting that the issues on
both appeals are identical. This Court granted the Application and consolidated
the matters on appeal.

-2-
J-A24027-19

(“LWOP”) for the first-degree murder conviction.3 This Court affirmed the

Judgment of Sentence. Commonwealth v. Clary, 820 A.2d 702 (Pa. Super.

2003) (unpublished memorandum).

On March 22, 2016, Appellant filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”) asserting that his LWOP sentence was

unconstitutional under Miller and Montgomery. The PCRA court granted

relief, vacated Appellant’s sentence, and scheduled the case for resentencing.

A three-day resentencing hearing commenced on May 7, 2018. The

Commonwealth sought a LWOP sentence. The Commonwealth presented

testimony from, inter alia, Detective Dillon, with whom Appellant had

interacted when he was 16 years old. The Commonwealth also presented

testimony from an expert in gang affiliation in rebuttal.

On May 9, 2018, after providing a thorough review of the applicable

sentencing factors, the court determined that Appellant was not permanently

incorrigible and declined to impose a LWOP sentence. The court resentenced

Appellant to a term of 42 years to life imprisonment for his First-Degree

Murder conviction, a consecutive sentence of 6 to 12 years of imprisonment

for his Attempted Murder conviction; and a consecutive sentence of 7 years

of probation for a gun violation charge. Thus, the court sentenced him to an

____________________________________________

3 The court also imposed a consecutive sentence of 6 to 12 years of
imprisonment for his Attempted Murder conviction; and a consecutive
sentence of 7 years of probation for a gun violation charge.

-3-
J-A24027-19

aggregate term of 48 years’ to life imprisonment, followed by 7 years’

probation.

Appellant filed a Post-Sentence Motion, which the trial court denied.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Issues Raised

Appellant raises the following four issues on appeal, which we have

reordered for ease of disposition:

1. Did the sentencing court abuse its discretion in allowing the
Commonwealth to present expert testimony regarding gang affiliation
and activity where no expert report or other notice was provided to the
defense and [Appellant’s] gang activity was one of the critical factors
that shaped the court’s decision?

2. Did the sentencing court abuse its discretion in denying defense counsel
the right to cross-examine a Commonwealth witness on issues of
[Appellant’s] interactions with police where “the ability to navigate the
system” is one of the enumerated factors that must be considered in
Miller and the sentencing court erroneously found that [Appellant] was
able to navigate the system?

3. Did the sentencing court abuse its discretion in imposing a manifestly
excessive and unreasonable sentence where the court failed to follow
the mandates of Miller, Montgomery, and Batts?

4. Is the sentence imposed an illegal sentence as it is a de facto life
sentence when the court found that [Appellant] was not permanently
incorrigible?

Appellant’s Br. at 3.

Issue 1: Rebuttal Testimony

Appellant’s first issue challenges an evidentiary ruling. The admissibility

of evidence lies “within the sound discretion of the trial court, and a reviewing

-4-
J-A24027-19

court will not reverse the trial court’s decision absent a clear abuse of

discretion.” Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010)

(citations omitted). See, e.g., Commonwealth v. Feflie, 581 A.2d 636, 643

(Pa. Super. 1990) (noting that the admission of rebuttal testimony is within

the discretion of the trial court). “An abuse of discretion is not merely an error

of judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citations

omitted).

Appellant asserts that the trial court abused its discretion in permitting

the Commonwealth to present as a rebuttal witness a gang expert, Lieutenant

Eric Echevarria, when the Commonwealth failed to disclose this witness to

Appellant in violation of Pa.R.Crim.P. 573. Appellant’s Br. at 60.

Pa.R.Crim.P. 573(B)(1) outlines the Commonwealth’s mandatory

obligation to disclose certain evidence to a defendant, including exculpatory

evidence, inculpatory statements, and tangible evidence. See Pa.R.Crim.P.

573(B)(1). However, our rules contain no “provision which requires the

Commonwealth to disclose rebuttal witnesses[.]” Feflie, supra at 643.4

Further, we have opined that it is impossible for the Commonwealth “to

____________________________________________

4Feflie discusses Pa.R.Crim.P. 305, the identical predecessor to Rule 573.
Commonwealth v. Burke, 781 A.2d 1136, 1139 n.4 (Pa. 2001).

-5-
J-A24027-19

provide the defense with a complete list of every possible witness who might

be called in rebuttal, since plans for such rebuttal obviously cannot be finalized

until the defense is presented.” Commonwealth v. Oliver, 379 A.2d 309,

313 (Pa. Super. 1977). See also Commonwealth v. Novasak, 606 A.2d

477, 487 (Pa. Super. 1992) (quoting Commonwealth v. Thiel, 470 A.2d

145, 148 (Pa. Super. 1983) (“[W]e cannot expect the Commonwealth to

anticipate the materiality of all possible rebuttal evidence[.]”)).

In this case, Appellant presented testimony from John Hepburn, Ph.D.,

an expert in sociology, corrections, and “security threat group management,”

including organized gang members. Dr. Hepburn interpreted evidence

relevant to whether Appellant continued to act as a gang member in prison.

N.T. Resentencing, 5/9/18, at 20-21. On cross-examination, the

Commonwealth questioned Dr. Hepburn on Appellant’s classification as “H-5,”

and asked him to interpret symbols on a letter from a gang member as well

as a list of names and addresses on a yellow piece of paper. Id. at 56, 75,

84-86. Dr. Hepburn testified that the H-5 classification typically means mid-

level, but did not know the exact classification relative to Appellant’s alleged

gang. Id. at 56. Dr. Hepburn could not interpret the symbols on the letter and

did not know if the list of names was a roster of gang members. Id. at 75,

84-86.

In rebuttal, the Commonwealth called Lieutenant Detective Echevarria

as an expert witness to testify regarding gang activity, including gang

-6-
J-A24027-19

language. Appellant’s counsel objected, arguing that the Commonwealth

should have informed him of the rebuttal expert. The court overruled the

objection and permitted Detective Echevarria to testify. He testified in detail

about the H-5 classification, interpreted the symbols on the letter that the

Commonwealth had shown to Dr. Hepburn, opined as to Appellant’s status in

the gang based on those symbols, and identified the yellow paper as a list of

gang members and their hierarchy. Id. at 116-19, 121-22.

Following our review, we conclude that the sentencing court did not

abuse its discretion in permitting the rebuttal testimony of Detective

Echevarria. Appellant has presented no authority to support his claim that the

Commonwealth was required to disclose the names of its rebuttal witnesses.

As the resentencing court concluded, the Commonwealth could not have

known whether it needed to produce a rebuttal witness until after Appellant’s

defense experts completed their testimony. Trial Ct. Op. at 35. See Feflie,

supra at 643 (concluding the Commonwealth was not required to disclose

witnesses rebutting prison procedure and alibi evidence testimony); Oliver,

supra at 313 (concluding the Commonwealth complied with the rules of

discovery where it disclosed all its witnesses, except some called only on

rebuttal). Accordingly, this claim is meritless.

Issues 2-4: Sentencing

Before we address Appellant’s specific issues, each of which references

Miller and its progeny, we provide the following background.

-7-
J-A24027-19

Miller’s Applicability and Appellate Review

In Miller, the U.S. Supreme Court held that it was unconstitutional to

impose mandatory LWOP sentences for defendants who committed their

crimes while under the age of 18. Miller, 567 U.S. at 465. The Court

nonetheless opined that a LWOP sentence is still a viable sentence for “the

rare juvenile offender whose crime reflects irreparable corruption,” and a

judge or jury must consider individualized characteristics and circumstances,

including an offender’s youth and attendant characteristics, before imposing

this harshest possible penalty. Id. at 479-80, 483, 489. In Montgomery, the

U.S. Supreme Court held that its decision in Miller, supra, applies

retroactively. Montgomery, 136 S.Ct. at 732. The Court “expressly left it to

the States to determine how the holding in Miller was to be implemented in

state court proceedings.” Commonwealth v. Batts, 163 A.3d 410, 432 (Pa.

2017) (“Batts II”) (citation omitted).

In Batts II, our Supreme Court concluded “that to effectuate the

mandate of Miller and Montgomery,” it would provide a procedural

safeguard to ensure that LWOP sentences “are meted out only to ‘the rarest

of juvenile offenders’ whose crimes reflect ‘permanent incorrigibility’” by

recognizing a presumption against the imposition of a LWOP sentence for a

juvenile offender. Batts II, 163 A.3d at 415-16. Therefore, if the

Commonwealth seeks a LWOP sentence for a juvenile offender, it must prove

beyond a reasonable doubt that the offender “exhibits such irretrievable

-8-
J-A24027-19

depravity that rehabilitation is impossible.” Id. at 455 (quoting Montgomery,

supra at 733) (emphasis omitted). If the Commonwealth satisfies its burden

of proof, the sentencing court has discretion to impose a LWOP sentence upon

the juvenile offender. Batts II, supra at 460.

When the Commonwealth requests a sentence of LWOP, the sentencing

court must consider the Miller and Section 1102.1(d) factors5 on the record,

before imposing a sentence. Commonwealth v. Machicote, 206 A.3d 1110,

1120 (Pa. 2019); Batts II, supra at 459-60. If the court imposes the

requested LWOP sentence, it “must find that the juvenile offender is

permanently incorrigible and that rehabilitation would be impossible.” Batts

II, supra at 459.

However, if, as here, the court sentences “a juvenile offender to a life

with the possibility of parole, traditional sentencing considerations apply[,]”

and the court considers the factors set forth in 42 Pa.C.S. § 9721(b). Id. at

____________________________________________

5Miller requires examination of the following factors related to youth and its
attendant characteristics (“Miller factors”):

“[A]t minimum it 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.

Batts II, supra at 421 n.5 (citations omitted).

-9-
J-A24027-19

460 (citation omitted, emphasis added). Section 9721(b) provides that the

court shall fashion a sentence “that is consistent with the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the defendant.”

42 Pa.C.S § 9721(b).

Thus, where, as here, the sentencing court rules in a defendant’s favor

by declining the Commonwealth’s request to sentence the appellant to LWOP,

on appeal, we need not review whether the court properly considered the

Miller factors. Rather, we review the appellant’s sentence as we would any

other sentence imposed pursuant to Section 9712(b). See Batts II, supra at

460.

Issue 2: Scope of Cross-Examination

Appellant contends that the sentencing court abused its discretion by

precluding his counsel from questioning Detective Dillon about interactions

with Appellant when he was 16 years old, a line of questioning relevant to one

of the Miller factors, i.e., Appellant’s ability to deal with police. Appellant’s

Br. at 54.

In addressing the Commonwealth’s request to impose a LWOP sentence,

the sentencing court correctly considered evidence regarding the Miller

factors. The sentencing court, however, determined that Appellant was not

permanently incorrigible and declined the Commonwealth’s request to impose

a LWOP sentence. The sentencing court instead sentenced Appellant based on

- 10 -
J-A24027-19

the factors set forth in 42 Pa.C.S. § 9721(b). It is those factors we must use

to evaluate Appellant’s sentence.

Appellant’s claim that the sentencing court erred in not permitting

Appellant’s counsel to question Detective Dillon about one of the Miller factors

is moot because the sentencing court ruled in Appellant’s favor and did not

impose a LWOP sentence. Thus, the sentencing court’s failure to consider

evidence regarding one of the Miller factors did not harm Appellant’s position

that the sentencing court should not impose a LWOP sentence. Additionally,

we conclude that the sentencing court did not abuse its discretion in limiting

the scope of Appellant’s cross-examination of Detective Dillon because our

review of the record supports the court’s conclusion that the precluded

questioning would have been irrelevant or cumulative of facts already

established in the record. See Trial Ct. Op., dated 12/12/18, at 25-26.

Issue 3: Excessive Sentence

Appellant challenges the discretionary aspects of his sentence, arguing

that the court improperly analyzed certain mitigating sentencing factors to

impose a manifestly excessive and unreasonable sentence. Appellant’s Br. at

64.

Challenges to the discretionary aspects of sentencing are not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

- 11 -
J-A24027-19

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief sufficiently addresses the challenge in a statement included

pursuant to 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. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

To properly preserve an issue challenging the discretionary aspects of

sentencing, a defendant must object and request a remedy at sentencing, or

raise the challenge in a post-sentence motion. Commonwealth v. McAfee,

849 A.2d 270, 275 (Pa. Super. 2004). The Pennsylvania Rules of Criminal

Procedure specifically caution defendants that, when filing post-sentence

motions, “[a]ll requests for relief from the trial court shall be stated with

specificity and particularity[.]” Pa.R.Crim.P. 720(B)(1)(a). See

Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015) (noting

that the trial court must be given the opportunity to reconsider its sentence

either at sentencing or in a post-sentence motion). See, e.g.,

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003)

(concluding that the defendant waived his discretionary aspects of sentencing

claim regarding the sentencing court’s failure to state the reasons for his

sentence on the record where the defendant’s post-sentence motion only

argued that his sentence was unduly severe and that the trial court abused its

discretion under the sentencing code).

- 12 -
J-A24027-19

Appellant contends that the court erred in concluding that: (1) Appellant

did not have a diminished capacity to deal with police; (2) Appellant did not

have diminished culpability; and (3) Appellant was never sexually abused.

Appellant’s Br. at 66-75. He also contends that the court misinterpreted Dr.

Hepburn’s testimony regarding lifetime gang affiliation. Id. Additionally,

Appellant argues that the court abused its discretion in resentencing him by

failing to consult Section 1102.16 as an “essential starting point.” Id. at 50-

51.

Appellant properly preserved only his challenge to the court’s

consideration of the evidence regarding his ability to deal with police when he

raised it in his Post-Sentence Motion.7 Because Appellant filed a timely Notice

of Appeal and included a Statement of Reasons Relied Upon for Allowance of

Appeal pursuant to Pa.R.A.P. 2119(f), we next address whether Appellant has

raised a substantial question for our review.

____________________________________________

6 Our Supreme Court noted that section 1102.1 will “help frame the exercise
of judgment by the court in imposing a sentence and may provide
an essential starting point. . . that must be respected and considered” when
determining the appropriate minimum sentence for a juvenile convicted of
first-degree murder prior to the Miller decision.” Commonwealth v. Batts,
163 A.3d 410, 458 (Pa. 2017) (citation and internal quotations omitted).

7Appellant did not raise his remaining arguments at sentencing or in his Post-
Trial Motion. Accordingly, they are waived. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (en banc) (concluding
substantial question waived for failing to raise it at sentencing or in post-
sentence motion).

- 13 -
J-A24027-19

Whether a substantial question has been raised regarding a

discretionary sentence is determined on a case-by-case

basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A

substantial question exists 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 the sentencing process.” Id. (citation and

internal quotation marks omitted).

Specifically, this Court has held that

the Rule 2119(f) statement must specify where the sentence falls
in relation to the sentencing guidelines and what particular
provision of the Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on the
record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must specify
what fundamental norm the sentence violates and the manner in
which it violates that norm (e.g., the sentence is unreasonable or
the result of prejudice because it is 500 percent greater than the
extreme end of the aggravated range).

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).

This Court has consistently held that an allegation that a sentencing

court “did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate.” Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) (citation and internal

quotation marks omitted). See also Commonwealth v. Rhoades, 8 A.3d

912, 918-19 (Pa. Super. 2010) (stating “an allegation that the sentencing

court failed to consider mitigating factors generally does not raise a substantial

- 14 -
J-A24027-19

question for our review”); Commonwealth v. Williams, 562 A.2d 1385,

1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that the

sentencing court did not adequately consider various factors is, in effect, a

request that this court substitute its judgment for that of the lower court in

fashioning a defendant's sentence).

In the instant case, Appellant fails to reference the sentencing guidelines

at all, the particular provision of the Code violated, or the “fundamental norm

the sentence violates and the manner in which it violates that norm.”

Appellant, rather, avers only that the lower court’s analysis of a potential

mitigating factor renders his sentence excessive and unreasonable. Thus,

Appellant has failed to raise a substantial question. See Rhoades, supra at

918-19; Williams, supra at 1388. Accordingly, we decline to review

Appellant’s discretionary aspects of sentencing challenge.

Issue 4: De Facto LWOP

In his final issue, Appellant raises a challenge to the legality of his

sentence. He asserts that, even though the court did not impose a LWOP

sentence, the trial court imposed an impermissible de facto life sentence in

violation of Miller.8 Appellant’s Br. at 76.

A claim challenging a sentencing court’s legal authority to impose a

particular sentence presents a question regarding the legality of the sentence.

____________________________________________

8 We note that Appellant argues only that the court improperly imposed a de
facto life sentence. He does not argue that the court abused its discretion in
imposing consecutive sentences.

- 15 -
J-A24027-19

Commonwealth v. Henandez, ___ A.3d ___, 2019 WL 3940215, at *4 (Pa.

Super. filed Aug. 21, 2019). “The determination as to whether a trial court

imposed an illegal sentence is a question of law; an appellate court’s standard

of review in cases dealing with questions of law is plenary.” Id. (citation

omitted).

A trial court may not impose a term-of-years sentence on a juvenile

convicted of homicide that equates to a de facto LWOP sentence unless it

finds, beyond a reasonable doubt, that the juvenile is incapable of

rehabilitation. Miller, 56 U.S. at 479; Commonwealth v. Foust, 180 A.3d

416, 433 (Pa. Super. 2018). However, “defendants convicted of multiple

offenses are not entitled to a ‘volume discount’ on their aggregate sentence.”

Foust, supra at 434 (citations omitted). Thus, “we must consider the

individual sentences, not the aggregate, to determine if the trial court imposed

a term-of-years sentence which constitutes a de facto LWOP sentence.” Id. at

438.

This court has distinguished between individual term-of-years

sentences which constitute de facto LWOP sentences and those that do not.

Foust, supra at 438. In Foust, this Court concluded that a 150–

year sentence is a de facto LWOP sentence and a 30 years’ to life sentence

does not constitute a de facto LWOP sentence. Id.

For sentences that fall between the clearly constitutional and

unconstitutional parameters, we have concluded that a sentence is not a de

facto LWOP sentence where there is “some meaningful opportunity to obtain

- 16 -
J-A24027-19

release based on demonstrated maturity and rehabilitation.” Commonwealth

v. Bebout, 186 A.3d 462, 467 (Pa. Super. 2018) (citation omitted). Thus, “it

must at least be plausible that one could survive to the minimum release date

with some consequential likelihood that a non-trivial amount of time at liberty

awaits.” Id. at 468 (emphasis omitted). If there is no meaningful opportunity

for parole, the sentence constitutes a de facto LWOP sentence. Id. We,

therefore consider the age the appellant would be eligible for parole to

determine whether the new sentence is the functional equivalent of LWOP. Id.

In Commonwealth v. Anderson, ___ A.3d ___, 2019 WL 6335390, at

*7-8 (Pa. Super. filed Nov. 27, 2019), a post-Miller case, the appellant

received a sentence of 50 years’ to life imprisonment upon resentencing. 2019

WL 6335390, at *2. Because Anderson was 17 years old at the time he began

serving his sentence, he would, thus, be eligible for parole at age 67. Id. at

*6. We, therefore, concluded that his sentence was not the functional

equivalent of LWOP. Id. at *7. See also Bebout, supra at 468 (concluding

the appellant’s 45 years’ to life sentence in which he would be eligible for

parole at the age of 60 was not de facto LWOP); Commonwealth v. Lekka,

210 A.3d 343, 357-58 (Pa. Super. 2019) (concluding that because the

appellant’s term of 45 years’ to life imprisonment rendered him eligible for

parole at the age of 62, it was not a de facto LWOP sentence); Foust, supra

at 438, 441 (concluding that the appellant’s two consecutive 30 year to life

sentences were not a de facto LWOP sentence and noting that even

- 17 -
J-A24027-19

considering Appellant’s aggregate sentence, he had a chance of being released

into society in his 70s).

In the instant case, the resentencing court imposed a term of 42 years’

to life imprisonment for Appellant’s first-degree murder conviction, a

consecutive term of 6 to 12 years of imprisonment for his Attempted Murder

conviction; and a consecutive term of 7 years of probation for a gun violation

charge.

None of the sentences standing alone are de facto life sentences.

Because Appellant was 16 years old at the time he began serving his sentence,

he will be eligible for parole for his first-degree murder conviction when he is

58 years old. Since Appellant will have a “meaningful opportunity to obtain

release,” we conclude that Appellant’s sentence cannot be considered a de

facto LWOP sentence. Thus, Appellant’s claim that his sentence is illegal is

without merit.

Because there is no merit to Appellant’s claims, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/2/2020

- 18 -