Com. v. Jones, A.

J-A28021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

ANTHONY JONES

Appellant No. 592 EDA 2019

Appeal from the Judgment of Sentence Entered August 22, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0006642-1980

BEFORE: PANELLA, P.J., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED APRIL 06, 2020

Appellant Anthony Jones appeals from the August 22, 2018 judgment of

sentence entered in the Court of Common Pleas of Delaware County (“trial

court”), following a resentencing hearing held pursuant to Miller v. Alabama,

132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718

(2016).1 Upon review, we affirm.

In connection with the November 11, 1980 brutal killing of Emily Leo,

Appellant pleaded guilty to murder generally on April 30, 1981. At the time

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 In Miller, the U.S. Supreme Court determined that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller,
132 S. Ct. at 2460. In Montgomery, the U.S. Supreme Court held that Miller
was a new substantive rule that, under the United States Constitution, must
be retroactive in cases on state collateral review. Montgomery, 136 S. Ct.
at 736.
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of the murder, Appellant was three weeks shy of his seventeenth birthday.

Following a degree of guilt hearing, the trial court found Appellant guilty of

first-degree murder and, on November 23, 1981, sentenced him to life

imprisonment without the possibility of parole (“LWOP”).

On March 23, 2016, years after Appellant’s judgment of sentence

became final, he filed a petition for collateral relief under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, requesting relief under Miller

and Montgomery. Appellant argued that his sentence of LWOP for first-

degree murder was unconstitutional because he was under the age of eighteen

at the time of Mrs. Leo’s murder. Following a hearing, the PCRA court agreed

and scheduled a resentencing hearing on the first-degree murder conviction.

On June 13, 2018, the Commonwealth filed a notice of intent to seek

imposition of a life sentence pursuant to Commonwealth v. Batts, 163 A.3d

410 (Pa. 2017) and 18 Pa.C.S.A. § 1102.1. The trial court conducted a

resentencing hearing over the course of three days, commencing on June 19,

2018 and ending on August 22, 2018. At the hearing, Appellant presented,

inter alia, the expert testimony of Dr. Kirk Heilbrun, who testified that he is a

clinical and forensic psychologist. N.T. Hearing, 6/19/18, at 5. Dr. Heilbrun

testified that it was his professional opinion that Appellant was capable of

rehabilitation and re-entry into society. Id. at 28-29. In response, the

Commonwealth did not offer any expert testimony. Finding that the

Commonwealth failed to rebut the presumption against the imposition of a

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LWOP sentence, the trial court resentenced Appellant to fifty years to life in

prison. Specifically, the trial court stated:

[T]he [c]ourt will acknowledge the statement made by
[Appellant]. The [c]ourt, in fact, has prepared an eight-page
written Order which I believe addresses most of the concerns
raised in that matter. The [c]ourt wishes to state for the record
that prior to today’s decision, I reviewed the entire transcript of
the original trial which runs several hundred pages, all of the
[e]xpert reports that have been submitted by [Appellant] along
with the sentencing memos of the parties. I’ve listened carefully
to the testimony presented by both sides as well as the arguments
of [c]ounsel. I think the best place to start the discussion is at
the very beginning with the actual murder of Mrs. Leo.
By all accounts, this woman was a kind and gentle woman who
never harmed a soul in her life. She was the sole support of her
family as her husband was wheelchair-bound with muscular
dystrophy. No one is quite sure what led Mr. [Leroy] Evans and
[Appellant] to choose Mrs. Leo as their victim or what twist of logic
led them to commit her murder. What, however, is quite clear is
what is -- that it was an extremely brutal murder. The injuries
included a fractured skull, hematomas of her face, scalp, neck,
chest, forearms and elbows, four fractured ribs, a fractured
jawbone.
Her murder started with Mr. Evans trying to strangle the poor
woman with a rope. At that point, the parties -- meaning Mr.
Evans and [Appellant] -- believing her to be dead attempted to
dispose of her body. [Appellant] transported the woman not
knowing at this point in time that she was actually alive to a
deserted field. When he discovered that she was in fact still alive,
he basically beat her to a pulp with a brick leading to the injuries
that were outlined above.
During the incarceration that followed [Appellant’s] guilty plea, he
amassed over 30 misconducts, the most severe of which involved
a fellow prisoner that he stabbed and nearly killed in an altercation
apparently over a romantic relationship with another man. He
pled guilty to a charge of [a]ssault by a [p]risoner and received a
life sentence running concurrent with the original sentence which
was life without the possibility of parole. There was a conflict in
the [e]xpert reports about Dr. [Heilbrun] and [Appellant] about
what risk [Appellant] []posed to violently reoffend. [Appellant’s]

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[e]xpert opined that it was a medium risk to reoffend while --
whereas the Commonwealth felt that it was a high risk to reoffend.
The [c]ourt has taken all this information into consideration. The
[c]ourt believes that the Commonwealth has failed to establish
beyond a reasonable doubt that [Appellant] was not capable of
rehabilitation.
During [Appellant’s] incarceration, particularly since 2012, the
frequency and severity of his misconducts have declined
evidencing his developing awareness of consequences and
diminished impulsivity. [Appellant’s] turbulent family life, lack of
positive adult supervision during his developing years, poor
education and borderline intellectual capacity have led to the
conclusion that he was cognitively immature on -- at the time of
the murder of Mrs. Leo.
Nevertheless, the fact that he fully participated in the planning
and execution of robbery that led to her killing and then inflicted
the -- inflicted the horrendous injuries that ended her life, his
attempts to dispose of her body cannot be overlooked. In the
same vain, the acts that led to his 1992 conviction for [a]ssault
by a [l]ife [p]risoner and the sentence of life that was imposed as
a result may not be ignored as they demonstrate that more than
10 years later after the crime while incarcerated, he used a shears
to inflict near fatal injuries when engaged in an altercation with
another inmate.
The Commonwealth has not met the burden of proving that
[Appellant] would be [in]capable of rehabilitation. Having
considered all the foregoing, the [c]ourt imposes a sentence of 50
years to life. The [c]ourt believes that this is consistent with the
principles set forth in Miller and Batts, Section 1102 of the
Crimes Code. The [c]ourt has considered the nature of the crime,
the necessity of protection of the public, the gravity of the original
offense. And for this reason, the sentence has been imposed as
just stated.

N.T. Resentencing, 8/22/18, at 5-8 (emphasis added) (sic). On the same day,

following the resentencing hearing, the trial court, as it had indicated on the

record, filed a detailed order outlining its reasons for the new sentence of fifty

years to life in prison. The court explained:

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5) In determining sentence the [c]ourt has considered the factors
set forth in Miller, supra, Section 1102.1, Sentence of persons
under the age of 18 for murders murder of an unborn child and
murder of a law enforcement officer, and the principles generally
applicable in imposing sentence. See 42 Pa.C.S.A. § 9721 (“the
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant”).

6) The nature and circumstances of the offense committed by the
defendant. Under the pretext of engaging in a purchase, on
November 11, 1980 the [Appellant] and Leroy Evans lured [Mrs.]
Leo, an “Avon Lady” to [Appellant’s] family’s apartment. In fact
[Appellant] and Evans intended to rob her. In the course of the
robbery Mrs. Leo was beaten until she lost consciousness.
[Appellant] believed that Mrs. Leo was dead and in an effort to
dispose of her body he put her in a trashcan and dragged the
trashcan to a lot not far from the apartment. At the lot Mrs. Leo
showed signs of life and [Appellant] attacked her further by
throwing bricks at her head. A witness saw [Appellant] throwing
bricks towards the ground and soon realized that he was
assaulting a living being. The witness reported his observations
and soon police arrived at the scene. [Appellant] took flight. After
a chase and a standoff [Appellant] was taken into custody at his
apartment.

7) Mrs. Leo was attended to by EMT personnel. When they arrived
she was severely bruised, bloody and had fallen into a coma. A
piece of rope was tied around her neck. She was resuscitated and
taken to the hospital where she ultimately died of her injuries. A
medical examiner testified regarding the victim’s extensive
injuries. She suffered severe and numerous blunt force injuries
including cuts and bruises to her head, face, chest, forearms and
elbows. There were indications that these injuries may have been
sustained as she attempted to fend off her attackers. There was
extensive bruising to her scalp, her face and her brain. Her skull
was fractured. There was subdural and subarachnoid bleeding
into her skull. Her neck and thyroid cartilage were severely
bruised. She suffered four fractured ribs, a fractured sternum, a
fractured skull, extreme cerebral contusions, a fractured jawbone
and injuries to her neck & Adam’s apple from strangulation. Mrs.
Leo was forty-eight years old.

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8) [Appellant] pled guilty to murder generally and in exchange the
Commonwealth agreed to forego its pursuit of a death sentence.
[Appellant] agreed to testify against his coconspirator at Evans’s
trial.

9) Degree of culpability. Leroy Evans was seven years older than
[Appellant]. Together they committed robberies on prior
occasions with [Appellant] acting as a “lookout.” On this occasion
however, the two men planned the robbery together, lured Mrs.
Leo, and together brutally assaulted her. Evans left the
[Appellant’s] home after beating Mrs. Leo. [Appellant] attempted
to remove “the body.” When he saw that she was still alive he
ensured her eventual death by using bricks to inflict fatal damage
to her head. [Appellant] acted with Evans and then went further,
acting alone to ensure that she was dead and to dispose of her
body.

10) The impact of the offense on the victim, her family and the
community. John Kaisner, a retired City of Chester police officer
and a nephew-in-law to Mrs. Leo testified at [Appellant’s]
resentencing hearing on June 20, 2018. Mr. Kaisner was called to
the hospital back in 1980 to identify Mrs. Leo. He testified that he
had never in his career seen a person so badly beaten about the
head.

11) Mr. Kaisner describes Mrs. Leo as a petite, kind, friendly and
gentle woman. She was the sole provider and caretaker for her
husband who suffered from muscular dystrophy and was
wheelchair bound. She had one son, a gifted guitar player. After
his mother’s death he never played his guitar again. Her son had
no apparent alcohol abuse issues before his mother’s death but
eventually he died of alcohol poisoning. In Mr. Kaisner’s words,
he “drank himself to death.” His father, Frank Leo, Sr., died
several years after his wife’s murder. The impact of Mrs. Leo’s
death on her remaining family members was devastating: “It
killed that family.”

12) Mrs. Leo’s home was in the McCaffrey housing project in the
City of Chester and she was a well-respected member of that
community. The community came together and said their “good
byes” to support the family at the time of this “horrible” killing.

13) Age. [Appellant] was sixteen years old when he and Leroy
Evans robbed and murdered Mrs. Leo.

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14) Family history. Through the testimony from Dr. Kirk Heilburn,
a well-qualified clinical & forensic psychologist and Julie Smythe,
a mitigation specialist and licensed social worker, the defense
offered a description of [Appellant’s] psychologically, emotionally
and economically impoverished childhood. He was born to a
seventeen year-old mother and was the oldest of her children.
She went on to have a total of seven children with five different
fathers. His mother worked several jobs but struggled to provide
for her family. The family income was about $500 a month.
[Appellant’s] father was not a part of his life. During his
upbringing he witnessed physical abuse suffered by his mother at
the hands of her paramours. [Appellant’s] sister, Monica Jones
testified that she too watched as her mother was beaten by men.
On one occasion her mother jumped out of a second-story window
and broke her leg in an effort to escape an abuser. At the age of
ten, after this incident, Monica Jones permanently left the home
and lived with a relative.

15) As the oldest child [Appellant] took on a self-imposed role as
his mother’s protector and his siblings’ provider. He intervened
when his mother was beaten and he stole money and shoplifted
to provide foods for the children.

16) [Appellant’s] family lived in two different housing projects in
the City of Chester where they were subject to animus and
hostility due to their race. Their apartment was firebombed and
they were forced to relocate to a mainly white project where
family members were verbally and physically assaulted.

17) [Appellant] struggled in school. Beginning in sixth grade, a
grade that he repeated, he received failing grades. He received
special education. Eventually in tenth grade he dropped out of
school. Later he earned a GED while he was incarcerated:

18) Juvenile history. [Appellant] was arrested three times as a
juvenile. He reported that he was involved in other criminal
activity which went undiscovered including robberies with []
Evans.

19) He was in juvenile placement for six months between October
1979 and April 1980. It was the opinion of staff at the Sleighton
Farms residential program that [Appellant] was not prepared to
be released after six months but nevertheless he was returned to
his mother’s care and placed on probation at that time.

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20) Maturity. Dr. Heilbrun testified that the field[s] of psychology
and psychiatry recognize that at the age of sixteen adolescent
psychosocial immaturity affects judgement, emotions and
decision-making. Immaturity in this sphere makes adolescents
more likely to discount risks. They are less likely to recognize the
consequences of their behavior. They are more likely to be
susceptible to peer influences and a traumatic family life, poor
education and low level of intellectual functioning will affect
psychosocial maturity. The [c]ourt accepts Dr. Heilbrun’s
testimony and in light of these factors finds that [Appellant’s]
cognitive maturity was not fully developed at the age of sixteen.

21) Mental Capacity. Dr. Heilbrun administered various
psychological and intelligence tests. [Appellant] “functions
intellectually in the Borderline range.” He has a full scale IQ of
71. He reads at a fourth grade level, spells at a third grade level
and performs at a fourth or fifth grade level in [m]ath. His reading
comprehension is at a fifth grade level. His verbal skills tested
slightly higher but in Dr. Heilbrun’s opinion he is “still borderline.”
The MMPI-2 which measures “current psychological and
personality function” was administered. [Appellant’s] clinical
score on the paranoia and psychopathic deviate subscores was
high. Individuals with this profile are generally predisposed to
psychological and interpersonal problems.

22) Incarceration. [Appellant’s] has been imprisoned for thirty-
eight years and over that time he has accumulated over thirty
misconducts. Some these “misconducts” were relatively minor
but many involved aggressive assaults and behaviors. Three of
the aforesaid misconducts have occurred in the past ten years.
[Appellant] has attributed many of his misconducts to the fact that
fellow inmates knew that he was a Commonwealth witness and
threatened him for that reason.

23) [Appellant] testified against Leroy Evans in 1981 and he has
been subject to threats from other inmates associated with his
role as a Commonwealth witness. In 1982 while housed at SCI
Graterford he received severe threats. He committed arson in his
own cell in an effort to be removed from the general population
when his requests for a transfer were denied. A 2012 misconduct
arose after Miller was decided and [Appellant] was threatened by
a fellow inmate for failing to offer testimony on behalf of Leroy
Evans.

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24) In 1992 when [Appellant] was about 29 years old and housed
at SCI Graterford he stabbed a fellow inmate. [Appellant] entered
a negotiated guilty plea to [a]ssault by a [l]ife [p]risoner (18
Pa.C.S.A. § 2704) on December 1, 1994 and a [l]ife sentence was
imposed to be served concurrently with the sentence imposed in
this case.

25) Investigative reports state that [Appellant] and the victim
worked in the Institution Clothing Plant. An employee supervisor
came upon [Appellant] and Willie Baker and Baker in the midst of
a fight where [Appellant] was thrusting his assigned shears into
Baker’s upper body. Inmates, the supervisor and eventually
correctional officers struggled with [Appellant] trying to get the
shears and pull him off of Baker but to no avail. He was eventually
pulled to the floor and the shears were removed from his hands.
[Appellant] stabbed Baker in the chest, shoulder and stomach.
DOC reports suggest that the stabbing occurred during a dispute
concerning a romantic relationship with a third man.

26) Since 2012 [Appellant] has participated in positive prison
programs. His job performance/attitude and
relationships/personal characteristics overall rating is “average.”

27) Current family support. Family members, particular
[Appellant’s] sisters have demonstrated their support for him
during his incarceration. A home with a sister living in in New
Castle, Delaware is available to him should he be granted parole.

28) Risk of Re-offending. Testing and analysis conducted by Dr.
Heilbrun led him to conclude that [Appellant] is at “medium” risk
of re-offending based on results of the Level Service /Case
Management Inventory. He has matured in prison. He is no
longer cognitively immature and therefore would not be subject
to the impulsivity and cognitive immaturity the, at the age of
sixteen, would have made him unable to recognize and appreciate
the consequences of his behavior. However, DOC reports indicate
[Appellant] falls in the Offender Violence Risk Typology (OVRT)
“Category 3 indicating a high likelihood of re-offending violently.”

29) Substance Abuse. [Appellant] has no significant history of
substance abuse although he was subject to five disciplinary
proceedings for possession of controlled substances, fermented
beverages and drug paraphernalia in the 1980s.

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30) Defendant’s remorse. During his re-sentencing hearing
[Appellant] expressed his remorse for taking part in what he
described as Mrs. Leo’s “brutal killing.” He acknowledged the pain
that he has caused the Leo family and stated that he accepts “full
responsibility” for the part he played in her death. He
acknowledged mistakes he has made inside of prison and pledged
to do better if given the opportunity.

31) Subsequent to his co-defendant’s trial [Appellant] recanted
his testimony on several occasions. Most recently, on July 29,
2016 [Appellant] gave a sworn statement to Leroy Evans’s current
attorney. At the time he gave the statement [Appellant] was
represented by the Delaware County Office of the Public Defender
which had filed the instant petition seeking resentencing.
However, without notifying the Defender’s Office Evans’s attorney
took the sworn statement without counsel for [Appellant] present.
[Appellant] was not advised of his Fifth Amendment rights,
although Evans’s attorney did tell him that he could have an
attorney present if he wanted one. Following each recantation,
including this latest, [Appellant] indicated that these recantations
were made under duress and that he had been threatened by
friends and family of Mr. Evans.

Trial Court Order, 8/22/18, at ¶¶ 5-31 (record citations omitted).

On August 24, 2018, Appellant filed post-sentence motions, challenging

his new sentence of fifty years to life in prison. Following a hearing, the trial

court denied the motion. Appellant timely appealed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents two issues for our review.

I. Whether the lower court imposed an illegal sentence of 50 years
to life confinement for an offense [Appellant] committed when he
was 16 years old - because the commonwealth sought the re-
imposition of life confinement without the possibility of parole and
the lower court failed to consider, on the record prior to
sentencing, the attendant characteristics of youth that mitigate
against the most severe punishment for juvenile offenders, in
violation of Commonwealth v. Machicote, 206 A.3d 1110 (Pa.
2019).

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II Whether the lower court imposed an illegal sentence of 50 years
to life confinement for an offense [Appellant] committed when he
was 16 years old - where such sentence amounts to a de facto life
sentence without the possibility of parole and the commonwealth
failed to prove beyond a reasonable doubt that [Appellant] is
permanently incorrigible, irreparably corrupt or irretrievably
depraved[.]

Appellant’s Brief at 5.

Appellant first argues that, because the Commonwealth sought a LWOP

sentence, the trial court erred in failing to consider on the record the factors

outlined in Miller and Section 1102.1, as required by Machicote.

A claim that a sentencing court failed to comply with the requirements

in Miller is a challenge to the legality of the sentence. Machicote, 206 A.3d

at 1119. When reviewing the legality of a sentence, our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Seskey, 170

A.3d 1105, 1107 (Pa. Super. 2017). A sentence must be vacated if it is found

to be illegal. Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.

2014).

In Commonwealth v. Knox, 50 A.3d 372 (Pa. 2012), we explained:

[A]lthough Miller did not delineate specifically what factors a
sentencing court must consider, at a 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.

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Knox, 50 A.3d at 745.

Section 1102.1 provides in pertinent part:

In determining whether to impose a sentence of life without parole
under subsection (a), the court shall consider and make findings
on the record regarding the following:

(1) The impact of the offense on each victim, including oral and
written victim impact statements made or submitted by family
members of the victim detailing the physical, psychological and
economic effects of the crime on the victim and the victim's family.
A victim impact statement may include comment on the sentence
of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any individual posed
by the defendant.

(4) The nature and circumstances of the offense committed by the
defendant.

(5) The degree of the defendant’s culpability.

(6) Guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing.

(7) Age-related characteristics of the defendant, including:

(i) Age.

(ii) Mental capacity.

(iii) Maturity.

(iv) The degree of criminal sophistication exhibited by
the defendant.

(v) The nature and extent of any prior delinquent or
criminal history, including the success or failure of any
previous attempts by the court to rehabilitate the
defendant.

(vi) Probation or institutional reports.

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(vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1(d).

Preliminarily, we note that our Supreme Court decided Machicote on

April 26, 2019, after Appellant was resentenced on August 22, 2018. The

trial court, therefore, did not have the benefit of Machicote.

In [Machicote] our Supreme Court revisited the circumstances in
which a sentencing court must consider the Miller factors when
resentencing a juvenile offender. In that case, the appellant was
originally convicted of second-degree murder in 2004 for a crime
committed when he was 17 and received a life-without-parole
sentence as required by Section 1102 of the Crimes Code. At the
appellant’s resentencing hearing pursuant to Miller and
Montgomery, the Commonwealth requested a life-without-
parole sentence, but the sentencing court ultimately imposed a
sentence of 30 years to life imprisonment. The court, however,
did not consider the Miller factors as they pertained to the
appellant on the record at the resentencing hearing, and the
appellant argued on appeal that the failure to consider the Miller
factors rendered his new sentence unconstitutional. The Supreme
Court agreed, holding that a court that performs a resentencing
pursuant to Miller and Montgomery of a juvenile offender exposed
to a potential life-without-parole sentence must conduct an
individualized sentencing with reference to the Miller factors, as
well as the criteria listed in Section 1102.1(d), even where the
sentencing court ultimately does not impose a life-without-parole
sentence.

Commonwealth v. Lekka, 210 A.3d 343, 356 (Pa. Super. 2019) (footnote

and citations omitted).

The instant case is distinguishable from Machicote. As detailed above,

even though the trial court here did not have the benefit of the Machicote

decision, it nonetheless considered the Miller and Section 1102.1(d) factors

in an order referenced at the resentencing hearing and filed after the same.

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Indeed, in its August 22, 2018 order, the court thoroughly analyzed

Appellant’s specific characteristics and circumstances, and based upon those,

imposed a sentence of fifty years to life in prison. Accordingly, we conclude

that the trial court complied with the procedural requirement of Machicote.

Appellant next argues that his sentence of fifty years to life

imprisonment constitutes a de facto life sentence without the possibility of

parole because he would not be eligible for parole until the age of sixty-six.

Appellant’s Brief at 39. We disagree.

We recently decided Commonwealth v. Anderson, __ A.3d __, 2020

PA Super 1, 2019 WL 6335390, at *7-8 (Pa. Super. filed November 27, 2019),

a post-Miller case, where, as here, the defendant was resentenced to fifty

years to life imprisonment. Anderson, 2019 WL 6335390, at *2. There, we

held that a sentence of fifty years to life in prison is not the functional

equivalent of LWOP. Anderson, 2019 WL 6335390, at *6 (“Pennsylvania

does not recognize a definitive term of imprisonment as a de facto LWOP

sentence.”). Accordingly, like the defendant in Anderson, Appellant too does

not obtain relief on his de facto LWOP sentence claim. See Commonwealth

v. Bebout, 186 A.3d 462, 468 (Pa. Super. 2018) (concluding the appellant’s

forty-five years to life sentence in which he would be eligible for parole at the

age of 60 was not de facto LWOP); Lekka, 210 A.3d at 357-58 (concluding

that because the appellant’s term of forty-five years to life imprisonment

rendered him eligible for parole at the age of 62, it was not a de facto LWOP

sentence); Commonwealth v. Foust, 180 A.3d 416, 438, 441 (Pa. Super.

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2018) (concluding that the appellant’s two consecutive thirty year to life

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

considering the appellant’s aggregate sentence, he had a chance of being

released into society in his 70s).

In sum, under the circumstances of this case where Appellant was

resentenced prior to our Supreme Court’s issuance of Machicote, we cannot

conclude that the trial court failed to place on the record its reasons for

Appellant’s new sentence. As stated, the trial court considered the Miller and

Section 1102.1(d) factors in an order referenced on the record at the

resentencing hearing and filed after the same. We likewise cannot conclude

that the trial court imposed an illegal de facto life sentence when it sentenced

Appellant to fifty years to life. Accordingly, we affirm Appellant’s judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2020

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