Com. v. Dejesus, J.

J-A07009-19

2020 PA Super 158

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOSE JAVIER DEJESUS :

:

Appellant : No. 883 EDA 2018

Appeal from the Judgment of Sentence January 5, 2018

In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001277-1997

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 06, 2020

Appellant, Jose Javier DeJesus, appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County on January 5, 2018,

as made final by the denial of Appellant’s post-sentence motion on February

16, 2018. At issue is whether the trial court properly resentenced Appellant

to serve a term of life in prison without the possibility of parole (hereinafter

“LWOP”) for a murder Appellant committed when he was a juvenile. Following

a careful review, we affirm.

The trial court thoroughly summarized the facts underlying Appellant’s

convictions as follows:

* Former Justice specially assigned to the Superior Court.
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On or about April 16, 1997, [Appellant] was arrested and
charged with murder [and various other crimes]. . . . The
events leading up to the arrest and conviction of [Appellant]
occurred on May 20, 1994[, when Appellant was 17 years
old]. On that date, [Raymond McKinley drove his vehicle to
Chester, Pennsylvania,] . . . in the vicinity of Green and
McIlvan [S]treets, near the Spanish-American Club.
[Raymond’s brother, Thomas McKinley, sat in the passenger
seat of the vehicle.]

Jabriel Soto, a Puerto Rican male who sold cocaine in the area
that day, testified that he had previously sold drugs to
Raymond McKinley and considered Raymond a regular
customer. Jabriel Soto stated that on the day in question,
[he] saw Appellant talking to Raymond McKinley. After []
Soto witnessed Appellant walk away from the McKinley
vehicle, Soto approached the car and completed a drug sale.
Police later recovered two plastic bags from the car
containing white powder that lab tests confirmed was
cocaine.

Jabriel Soto testified that even though Appellant was not a
regular drug dealer, earlier in the day Appellant had said,
“nobody's going to make any sales today.” Soto further
testified that[, after Soto completed his drug sale with
Raymond,] Appellant came up with a gun and pointed it
towards [Raymond]. . . . Soto [testified] that Appellant said,
“give me the money” and that Appellant “was like robbing”
[Raymond]. Thomas McKinley, from his vantage inside the
vehicle, recalled seeing Appellant pull a gun from beneath his
shirt and say, “give it up[.”]

Raymond McKinley [did not give] up any money or drugs.
Instead, Raymond McKinley reached outside the car window
and attempted to wrestle the gun away from Appellant.
However, [] Appellant maintained control of the gun, reached
into the car window and shot Raymond McKinley in the
neck[.]

Both Thomas McKinley and [] Soto identified the shooter as
[] Appellant and described the weapon as a revolver. Soto
specifically described the gun as a “.38 long nose.” Police
recovered a single .38 caliber bullet from the vehicle that

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forensic firearm analysis indicated had been fired from a
revolver.

Thomas McKinley recalled that after the first shot, his brother
pulled the car down McIlvan [S]treet. Soto testified that
Appellant kept shooting even as the car accelerated, firing a
total of two or three shots. One of these shots shattered the
driver's side rear wing window of the McKinley vehicle[.]

After hearing the second or third shot, Thomas McKinley felt
a stinging pain in his hand. Thereafter, the car struck a
building, the Spanish-American Club. [] Soto further testified
that once the shots ended, Appellant looked at him, grinned,
then ran off[.]

When Thomas McKinley finally exited the vehicle, he noticed
that he had blood on him. He testified that the blood was
probably from where he had been glanced by the bullet[.]

Police and paramedics ultimately arrived on the scene and
transported the McKinley brothers by ambulance to
[Crozer-Chester] Hospital.

Thomas McKinley was treated [for a hand wound and
released]. . . . Raymond McKinley arrived at
[Crozer-Chester] Hospital at 3:05 p.m., critically injured and
in profound shock. Dr. [Donald] DeSantis, who ran the
trauma program, indicated that Raymond McKinley had
gunshot wounds of the neck and shoulder. Raymond
McKinley's spinal cord had been essentially destroyed at the
level of the fourth or fifth vertebrae. As a result, Raymond
McKinley was rendered quadriplegic, unable to move or sense
his arms and legs, move his bladder or bowels, swallow, or
breath[e] without a respirator. Raymond McKinley was never
able to come off a respirator. He never went home after the
shooting and ultimately died in a nursing home
[approximately two-and-a-half years after the shooting,] on
January 29, 1997[.]

Dr. DeSantis noted that the life expectancy of a quadriplegic
in Raymond McKinley's condition is approximately three
years due to the susceptibility of such individuals to
infections. When the doctor examined Raymond McKinley on
[May 20, 1994,] there were no indications of respiratory

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infection. Thereafter, Raymond McKinley suffered on and off
from chronic lung infections until his death.

Dr. [Dimitri] Contostavolos, the medical examiner of
Delaware County, performed the autopsy on Raymond
McKinley. The doctor testified . . . that [Raymond’s] cause
of death was infection and respiratory insufficiency resulting
from complications of longstanding [respirator-dependent]
quadriplegia due to the gunshot wound to the neck. . . .
Based on his autopsy and review of Raymond McKinley's
records [] the doctor testified to a reasonable degree of
medical certainty that the manner of death was homicide.

Trial Court Opinion, 8/26/98, at 1-6 (citations and some capitalization

omitted).

The jury found Appellant guilty of Second-Degree Murder, Robbery,

Carrying a Firearm without a License, and two counts of Aggravated Assault.1

On January 27, 1998, the trial court sentenced Appellant to serve the

then-mandatory term of LWOP for his Second-Degree Murder conviction along

with a consecutive term of twelve (12) to sixty (60) months in prison for his

Aggravated Assault conviction related to Thomas McKinley.2 See 18 Pa.C.S.A.

§ 1102(b) (superseded as to juvenile offenders by 18 Pa.C.S.A. § 1102.1

(effective October 25, 2012)); see also 61 Pa.C.S.A. § 6137(a)(1) (declaring

that the Pennsylvania Parole Board may not parole an inmate serving a term

of life in prison).

1 18 Pa.C.S.A. §§ 2502(b); 3701(a)(1)(ii); 6106(a); 2702(a)(1); and
2702(a)(4), respectively.

2The trial court also sentenced Appellant to serve a concurrent term of six (6)
months to twelve (12) months in prison for unlicensed possession of a firearm.

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This Court affirmed Appellant’s judgment of sentence on March 22,

1999, and Appellant did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court. Commonwealth v. DeJesus, ___ A.2d ___,

1509 PHL 1998 (Pa.Super. 1999) (unpublished memorandum) at 1-3.

On June 25, 2012, the United States Supreme Court decided Miller v.

Alabama, 567 U.S. 460, 465 (2012) wherein the High Court held that a

mandatory sentence of “life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishments.’” Id. at 465 (2012). On January 25, 2016, the

United States Supreme Court decided Montgomery v. Louisiana, 136 S.Ct.

718, 732 (2016) wherein it extended the Miller decision and held that “Miller

announced a substantive rule that is retroactive in cases on collateral review.”3

On February 25, 2016, Appellant filed the instant petition under the

PCRA, pro se. Therein, he claimed he was entitled to relief pursuant to Miller

and Montgomery, as he was under the age of eighteen when he committed

the murder and had received a mandatory term of LWOP for his crime. See

Appellant’s Pro Se PCRA Petition, 2/25/16, at 1-9. On March 21, 2016, counsel

3 In Commonwealth v. Secreti, 134 A.3d 77 (Pa.Super. 2016) this Court
held that Montgomery made Miller retroactive for the purpose of reviewing
illegal sentences where a juvenile has been subjected to a mandatory life
sentence. Moreover, Secreti held the January 27, 2016, Montgomery
decision would control for purposes of the then-sixty-day rule in Section
9545(b)(2) of the PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

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entered his appearance on behalf of Appellant and filed an amended petition.

Amended PCRA Petition, 3/21/16, at 1-7. The amended petition clarified

Appellant’s request for relief pursuant to Miller and Montgomery. See id.

On June 5, 2017, after Appellant produced his official birth certificate

and proved that he was seventeen years old at the time of the murder, the

PCRA court granted Appellant post-conviction collateral relief. Specifically, the

PCRA court vacated Appellant’s sentences and ordered resentencing for a later

date. See PCRA Court Order, 6/5/17, at 1.

On July 17, 2018, the Commonwealth filed a Notice of Intent to Seek

Imposition of a Life Sentence. The Commonwealth provided its Notice in

consideration of 18 Pa. C.S. §1102.1, Commonwealth v. Batts, 640 Pa. 401,

163 A.3d 10 (2017) (Batts II), and of the factors and evidence to be

presented at the resentencing hearing.

Appellant’s resentencing hearing was held on December 5th and 6th,

2017. At the outset of the hearing, the parties agreed that Appellant was born

on October 4, 1976. N.T. Resentencing Hearing, 12/5/17, at 11. Thus,

Appellant was 17 years, seven months, and 16 days old at the time of the May

20, 1994, murder and 41 years old at the time of the resentencing hearing.

During the hearing, the Commonwealth presented evidence demonstrating

that prison authorities had filed approximately fifty (50) misconduct reports

against Appellant throughout the time he had been imprisoned for second-

degree murder. Id. at 216. These misconduct reports were filed between

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March 6, 1998, and July 4, 2017. See id. at 219-262. Many of the reports

charged Appellant with violating prison regulations, such as refusing to obey

an order or using abusive or obscene language toward an employee; however,

the Commonwealth presented several instances of Appellant’s criminal

conduct while in prison.

The most egregious criminal conduct occurred on February 12, 2012, at

which time Appellant stabbed another inmate in the face with a toothbrush he

had filed down into a “shiv,” resulting in serious injury to that inmate. Id. at

244-247 and 269. This unprovoked assault occurred in the prison dining hall

and was captured on video. Id. at 244-247. In response to the stabbing, the

prison security department interviewed Appellant. During the interview,

“[Appellant] stated he assaulted [the inmate] because [the inmate] was a

child molester and [Appellant] stated he hated the thought that he didn’t kill

him, but [that when Appellant] get[s] out of the [restrictive housing unit, ‘I

will’].” Id. at 269-270. Because of “the serious nature of the assault, [and

Appellant’s] statement[] that he would kill [the inmate] if [let] out of the

[restrictive housing unit],” the prison recommended that Appellant be

transferred to another institution. Id. at 270.

The Commonwealth also introduced evidence that on three separate

occasions Appellant “squirted a [shampoo] bottle [filled with] urine [and

feces]” at inmates or prison employees. Id. at 47-112. These instances

occurred on October 17, 2012, November 14, 2014, and January 19, 2016.

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The October 17, 2012, action resulted in Appellant’s criminal conviction for

aggravated harassment, a felony of the third degree. Id. at 53-54. Also, on

September 7, 2012, a corrections officer filed a misconduct report against

Appellant after the officer found a shampoo bottle in Appellant’s unit that

contained “a brown semi-liquid that had the very, very strong odor of feces.”

N.T. Resentencing Hearing, 12/5/17, at 32. During the misconduct hearing,

Appellant told the examiners “I wasn’t going to use it on staff, I had gang

problems.” Id. at 40.

Evidence also was presented that Appellant repeatedly sexually

harassed multiple female prison staff members – including by masturbating in

their presence – and had been involved in multiple fights and assaults while

in prison. Id. at 219-262. For example, in November of 2016, about a year

before his resentencing, Appellant exposed himself and masturbated when a

female mental health worker met with him in his cell. Id. at 304-306. In

February of 2017, Appellant received another misconduct for sexual

harassment as a result of his continuing to follow a female employee around

the day room and telling her she was pretty. Id. at 260-261, 270-271. The

SCI records indicate the Department of Corrections was forced to move

Appellant from one facility to another four times throughout his imprisonment

due to his behavior. Id. at 265, 269.

Kevin Lantz, a unit manager for the Pennsylvania Department of

Corrections, testified for the Commonwealth. Mr. Lantz stated that Appellant

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had been a resident of his housing unit from July of 2014 to July of 2017. Id.

at 117-118. On July 5, 2017, Mr. Lantz interviewed Appellant because

Appellant had been involved in an altercation in the dining hall which resulted

in the issuance of a misconduct report against him. Id. at 118. Mr. Lantz

explained that, during the interview, Appellant told him: “[t]he only way for

me to get what I want is to assault somebody in the dining hall.” Id. at 121.

Mr. Lantz testified that, during the three-year period in which he was

acquainted with Appellant, he determined that Appellant is a manipulative,

spiteful, and vengeful person. Id. at 125-126. In addition, he observed:

I'm in charge of a housing unit that has approximately 180
inmates that all have some sort of level of mental health
history. We have various levels of inmates. In my opinion,
[Appellant] is a higher functioning inmate and I've had many
conversations with him in the day room. He has repeatedly
shown a pattern to me of resenting authority. He believes in
fighting the system every chance he gets which is his right,
but he resents authority figures.

Id. at 126.

Finally, Mr. Lantz explained that Appellant repeatedly asks to be given

special privileges and, when those requests are denied, Appellant “acts out.”

Id.

The Commonwealth next presented the testimony of forensic

psychologist Dr. William Russell, whom the trial court accepted as an expert

in the field of “amenability to treatment and rehabilitation to the community,

risk assessment for adults[,] and general psychology.” Id. at 187, 191. Dr.

Russell stated that, in preparation for the resentencing hearing, he reviewed

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Appellant’s past records, interviewed Appellant on July 27, 2017, and,

following the interview, subjected Appellant to psychological testing. Id. at

192-195.

Dr. Russell reviewed a psychological and intelligence assessment which

Dr. James Rokos had performed upon Appellant on January 12, 1998, shortly

after Appellant entered prison. Dr. Russell stated that Dr. Rokos gave

Appellant an IQ test and that “[t]he overall score [of this January 12, 1998

test] indicated that [Appellant] was functioning in the borderline between

below average and borderline with an IQ of . . . around 78.” Id. at 213.

However, Dr. Russell explained that this IQ test was flawed because the test

had been administered in English and Appellant’s native language is Spanish.

N.T. Resentencing Hearing, 12/6/17, at 70. A subsequent IQ test

administered in Spanish resulted in Appellant scoring 91, which is “an average

score.” N.T. Resentencing Hearing, 12/5/17, at 213.

Dr. Russell related that Dr. Rokos also had performed a personality

assessment upon Appellant following which Dr. Rokos concluded: “[Appellant

is a] rather egocentric, impulsive young man who was having difficulty

communicating, who was experiencing different issues in terms of he said he

was hearing voices. He also stated he couldn’t understand what the voices

were saying, but he also talked about seeing shadows and dots.” Id. at 214.

During Appellant’s time in prison, various psychotherapists and prison

officials had recommended that Appellant participate in programs offered by

the prison. However, while Appellant “participated and started several

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programs [over his years in prison, Appellant] never completed a program

other than . . . victim awareness class.” Id. at 215. Appellant failed to

complete the various programs because of a “[c]ombination of he didn’t want

to go any longer, didn’t want to participate in the classes[,] and also he was

disruptive in several classes.” Id.

Regarding Appellant’s chronic misbehavior while in prison, Dr. Russell

stressed that:

from the time [Appellant] came into [prison], he has been
problematic in terms of behavior, in terms of aggression, in
terms of interacting both with staff and corrections officers
as well as fellow inmates. . . . From the time he’s entered
the system through his . . . last placement [at State
Correctional Institution (SCI) Albion], it’s been a consistent
pattern of aggressive, defian[t] behavior.

Id. at 215 and 263.

Further, Dr. Russell noted that, as a result of Appellant’s constant

misbehavior, Appellant received “a Z classification, which means he cannot be

housed in a cell with another inmate,” and Appellant has “probably been in

restrictive housing 35 to 40 percent [of] the time he’s been in the SCI system.”

Id. at 264.

During Appellant’s time in prison, multiple psychotherapists diagnosed

Appellant as suffering from antisocial personality disorder and schizotypal

personality disorder. Id. at 313-339. The psychotherapists prescribed

various types of medication for Appellant’s mental health problems throughout

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his years in prison, yet Appellant consistently has remained noncompliant with

taking the medications as prescribed. Dr. Russell observed:

He’s been offered medication since his placement in the SCI
system. Those medications are numerous. . . . At different
times he's been offered haloperidol, he's been offered
benztropine, Navane, melatonin for sleep, which he did take,
chlorpromazine, clonidine, risperidone, a variety of
antipsychotic medications he's been offered. And at different
times, he has taken them for periods of time. . . .

What's very interesting there is that there's been no change
in his behavior even when he was taking the medications in
terms of his ability to interact and converse and to
communicate. But the big concern in terms of looking at
[Appellant’s] behavior from a risk standpoint is he stops
because he doesn't want to take the medication. . . . [He
told me that h]e always stopped the medication because he
didn't like the dry mouth.

Id. at 317-318.

In anticipation of the resentencing hearing, Dr. Russell performed

psychological testing on Appellant and, like many of Appellant’s prior

psychotherapists, Dr. Russell also diagnosed Appellant as suffering from

antisocial personality disorder and schizotypal personality disorder. Id. at

350. Dr. Russell explained the reasons for his diagnoses as follows:

Personality is the way we think, we feel, we behave. It's part
of our genetics, it's part of our upbringing, it's part of our
exposure. It's what makes me different from Ms. Mann,
which makes me different from Dr. Mechanick. It's who we
are in terms of how we act in the world. When you have a
personality disorder, how you think, feel, and behave is at
contrast with cultural norms. It causes you problems. It
causes you distress. That's a personality disorder. And these
are pretty much lifelong characteristics[.]

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We start with evidence of an adult personality disorder in late
adolescence, and we see it carry through. And particularly
with [Appellant] here, we've seen the same type of behavior,
the same type of thinking, the same type of feeling, and the
same type of behavior carry through for 20 years starting
with his behavior before that even where we saw the acting
out and the aggression, the carrying of guns, the drug sales,
the fighting, the possession of weapons when he was an
adolescent. It's a longstanding pattern, and while there are
questions that came up in terms of what's motivating it, it's
clearly not a mental health disorder in the sense of
schizophrenia. He's not psychotic at this time. He's been
able to maintain good behavior [in prison] now for -- since
July, and that's his decision to behave that way. He's not on
any medication.

...

Antisocial personality disorder represents a pattern of
behavior in an individual that the behavior that he engages
in infringes on the rights of others, and infringing on the
rights of others and this pattern begins in adolescence. And
while we don't have any adolescent mental health records for
[Appellant], clearly, his behavior -- drug sales, possession of
guns, running away -- are typically seen in conduct
disordered adolescence. And the progression from conduct
disorder to antisocial personality disorder is a straight line.
And what you see now is 20 years of adult behavior reflecting
a constant and chronic pattern on infringing on the rights of
others.

...

[Schizotypal personality disorder has] a constellation of
symptoms. Most individuals with schizotypal are loners.
They like to be alone. They don't like to engage. Engaging
with other people causes them discomfort. They're very
often described as peculiar or odd. They often have unusual
perceptions. Again, a lot of the symptomology is similar to
that which you can see on the schizophrenia form.
Oftentimes you'll see that social anxiety, that difficulty in
interacting with people. . . . [As to Appellant, h]e's
uncomfortable. That's -- the flat affect is a common
symptom to schizotypal. Many of the mental health records

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reflect that. The unusual perceptions, the suspiciousness,
the paranoia, those are documented well throughout the
record.

...

The many notations in the psychiatric and mental health
records of [Appellant] being [a] loner, of him being odd or
peculiar, of him engaging in behaviors and then having a
different type of emotional presentation, smirking while he's
doing an obscene or aggressive act. These are very clear
symptoms of [schizotypal] personality disorder. . . . The
overall consistent pattern are the words that you saw
throughout the records, loner, odd, peculiar, difficulty in
getting along with people. That's the [schizotypal]
personality disorder. And no there is no cure.

Id. at 343, 350-351, 353; N.T. Resentencing Hearing, 12/6/17, at 141-142.

Appellant’s antisocial personality disorder manifests in Appellant’s long-

line of behaviors and actions that “infringe[] on the rights of others.”

Appellant’s schizotypal personality disorder manifests in Appellant’s social

anxiety, wish to be alone, “odd or peculiar” behaviors and affectations,

“unusual perceptions, [] suspiciousness, [and] paranoia;” and “engag[ement]

in behaviors and then having a different type of emotional presentation, [such

as] smirking while he’s doing an obscene or aggressive act.” Id. at 343, 350-

351, 353; N.T. Resentencing Hearing, 12/6/17, at 141-142.

Dr. Russell stressed that Appellant’s personality disorders will “never

go[] away” because they are a part of his personality. N.T. Resentencing

Hearing, 12/5/17, at 353. Notwithstanding, Dr. Russell acknowledged that

“many of the folks who have [antisocial personality disorder], as they begin

to hit their mid-50s, their early 60s, the violent behavior, the frequency of the

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impulsive aggression you see just stop because of increasing age.” Id. at

356. With respect to Appellant’s schizotypal personality disorder, Dr. Russell

opined: “[t]he peculiarities, the distortions, the suspiciousness of the

schizotypal personality are probably only going to resolve themselves with a

long-term medication and treatment if they could be resolved.” Id. at 345.

Dr. Russell advised that there is a strong need to protect the public from the

Appellant as he has no desire to change his behavior and his history indicates

a low likelihood that he will comply with any court-ordered treatment. N.T.

12/5/2017, pp. 345, 365.

Dr. Russell acknowledged that Appellant’s expert, Dr. Stephen

Mechanick, diagnosed Appellant as suffering from schizophrenia. Id. at 367.

Dr. Russell disagreed with Dr. Mechanick’s diagnosis because:

In schizophrenia when the individual engages in those sort of
crossover behaviors I described, the schizophrenic is never
going to be able to understand that I engaged in those
behaviors. They’ll continue to deny or go on, whereas the
person with the personality disorder can learn that [a
particular] behavior[ is] inappropriate and that you need to
change it. So there’s a difference in the thinking process.

Id. at 367-368.

Regarding his risk assessment of Appellant, Dr. Russell testified:

When you talk about risk assessment, the refusal to
participate and engage, the refusal to maintain the
medication or take the medication are very concerning
behaviors because if he were to be successful outside of a
prison system, they would have to be going on, compliance
consistently. And when you have a 20-year pattern of
noncompliance, inconsistency, it's extremely concerning from

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a risk standpoint because there's no real reason why it would
change.

...

His past behavior is a solid predictor of placing him at a high
risk of continued engag[ement] in aggressive behavior. . . .
[Specifically, h]is past behavior, . . . his pattern of behavior
wasn't one that came in flux. It didn't -- here and [there] we
didn't see it for two years . . . -- but for 20 years we've seen
multiple examples every year of this behavior. . . . At this
point the [Appellant] that I interviewed and reviewed the
history of 20 years and his adolescence, there's no reason to
think that the behavior would change at this point.

...

[Y]ou can't talk in absolutes, Your Honor. I can't say he'll
never do something or he will do something. But when you
look at the likelihood of his ongoing aggressive behavior, his
ongoing problems in interacting with people, the risk of
continued aggressive behavior is high.

Id. at 354-355 and 356.

Appellant was not rehabilitated at the time of the resentencing hearing

and, “[g]iven his history,” he is not likely to be rehabilitated “without his

volition.” Id. at 356.

On cross-examination, Dr. Russell explained that, in making a risk

assessment of a person, “you cannot say that someone can never be

rehabilitated or that someone will certainly commit a crime. . . . [T]here is no

way you can say that they cannot be rehabilitated or that they will be

rehabilitated. It’s just simply not possible in risk assessment.” N.T.

Resentencing Hearing, 12/6/17, at 63-64. Further, Dr. Russell explained

“aging” is “the only intervention” for antisocial personality disorder and

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explained that, since Appellant is only in his 40s, there is “[n]o possible way

to know right now” whether Appellant is in the category of people whose

violence and aggressive impulses subside as they age. Id. at 36. Dr. Russell

reiterated that although it may not be cured, Appellant’s schizotypal

personality disorder may be managed with medication and intensive

therapeutic interventions. Id. at 141-143

Appellant presented the testimony of mitigation specialist Merrilee Weiss

Bodzin. Id. at 15. Ms. Weiss Bodzin testified that, to prepare for the

resentencing hearing, she “gathered all of the records that were available

about [Appellant’s] background, his records from his childhood that could be

obtained or tried to, spoke to, contacted, found family members[,] interviewed

them and obtained all the information that [she] could and spoke with

[Appellant] and his family members many times.” Id.

Appellant, his siblings, and his mother and father emigrated from

Puerto Rico to live in Chester County, Pennsylvania, when Appellant was eight

years old. Id. at 23. Appellant grew up in Chester County very poor, with an

abusive father who spent a lot of the family’s money on alcohol and with a

mother who was not nurturing. Id. at 51. Appellant was “very disadvantaged

culturally” in Chester County; “he did not understand the language and found

[school] very difficult[; he] was teased by others and had a difficult time and

got in fights[; he] was placed in . . . vocational classes and he dropped out of

school at the age of 15[;]” and he left home at the age of 14. Id. at 38,

40-41, and 51. Although Appellant was “raised in a very Catholic household[,]

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. . . since he has been incarcerated he has found Judaism and is [a] very, very

religious Orthodox Jew and practices daily and studies daily.” Id. at 49.

Appellant next presented the testimony of Dr. Stephen Michael

Mechanick, as an expert in the field of psychiatry. Id. at 191. Dr. Mechanick

testified that, after reviewing Appellant’s records and conducting an in-person

evaluation of Appellant, he diagnosed Appellant as suffering from

schizophrenia. Id. at 201. He testified:

I made that diagnosis based on the fact, in my opinion, that
he has had a history of delusions as well as hallucinations[,]
which are two of the criteria for the diagnosis of
schizophrenia, and these have been present over periods of
time.

In addition, he has shown problems with his functioning
socially it is hard to -- I guess one could say to some degree
occupationally within the correctional setting. His manner
and behavior have been odd. His speech is sometimes odd
and has been described that way. His thought processes are
odd. And it is not due to some other disorder, that is, clearly
in this setting it is not due to the effects of a drug or alcohol.

Id. at 201-202.

Dr. Mechanick testified that schizophrenia is treatable through

medication, “a collaborative relationship [between the doctor and] the patient

to help the patient get on medicine and stay on medicine,” therapy, and

support groups. Id. at 212-213. However, Dr. Mechanick testified that most

of Appellant’s prior psychotherapists diagnosed Appellant as suffering from

antisocial personality disorder and schizotypal personality disorder, rather

than schizophrenia. Thus, Dr. Mechanick testified, Appellant has not yet been

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prescribed the proper treatment for his true mental illness. Id. at 200-202

and 212.

Dr. Mechanick recognized that Dr. Russell diagnosed Appellant as

suffering from schizotypal personality disorder, rather than schizophrenia.

However, Dr. Mechanick testified that, even if Appellant suffers from

schizotypal personality disorder:

Schizotypal personality disorder is a potentially treatable
condition. It is treatable with medications. There is literature
that shows there is a significant response rate. Maybe 40 to
50% of people will respond to medications. It is also
treatable through psychotherapeutic and psychosocial
techniques similar to what I have described with
schizophrenia. So support, education, cognitive behavioral
treatment, engagement in helping to identify and use healthy
coping skills all of these things are helpful for both
[schizotypal personality disorder and schizophrenia]. I would
add . . . [that] psychosocial interventions can also be helpful
with antisocial personality disorder. Not everybody responds.
Some people respond better than others. Some of the more
prominent psychotic symptoms can abate with time, just with
the passage of time as well.

Id. at 216-217.

Further, although Dr. Mechanick did not diagnose Appellant as suffering

from antisocial personality disorder, Dr. Mechanick opined that, if Appellant is

suffering from antisocial personality disorder, Appellant’s “patterns of

behavior . . . [can] be lessened or ameliorated or improved with time and

treatment” and, also, “the tendency to engage in criminal activity or violent

behavior or antisocial behavior does tend to reduce over time.” Id. at

219-220.

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Dr. Mechanick agreed with Dr. Russell that, as of the time of the

resentencing hearing, Appellant posed a “significant risk of engaging in

dangerous and problematic behavior” and had not “shown sufficient

improvement that he would be safe to be released [into] the community.” Id.

at 222-223.

On January 5, 2018, the trial court resentenced Appellant to serve the

originally imposed sentence: a term of life in prison without the possibility of

parole for the second-degree murder of Raymond McKinley and a consecutive

term of twelve (12) months to sixty (60) months in prison for the aggravated

assault upon Thomas McKinley.4 N.T. Resentencing Hearing, 1/5/18, at 6. In

support of its resentence, the trial court issued detailed findings of fact and

conclusions of law.5 Its conclusions of law read, in relevant part, as follows:

1. The [trial] court finds the testimony of the witnesses
employed by the Department of Corrections to be credible.

2. The [trial] court finds the testimony of Dr. William Russell
to be credible.

3. The [trial] court finds the testimony of Merrilee Weiss
Bodzin to be credible as to what she did, but finds the
information contained in her report offered by [Appellant’s]
family members to be unsubstantiated as none of what was
contained in the report was elicited from their testimony on
direct examination.

4 The court also sentenced Appellant to serve a concurrent term of six (6)
months to twelve (12) months in prison for possessing a firearm without a
license. N.T. Resentencing Hearing, 1/5/18, at 6.

5 The trial court enumerated one hundred five (105) Findings of Fact and
thirty-nine (39) conclusions of law.

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J-A07009-19

...

9. The [trial] court finds the testimony of Dr. Stephen
Mechanick to be credible.

10. Preeminently, [Appellant’s] brutal attack on [his
fellow-inmate], as seen on the video, unequivocally
demonstrates the continued aggressive behavior and
antisocial personality disorder of [Appellant] and solidifies
th[e trial] court's decision that [Appellant] is not [amenable]
to rehabilitation and poses a clear threat and ongoing danger
to society should he be released.

11. In Miller v. Alabama, [ ] the United States Supreme
Court [held] that mandatory life-without-parole for juveniles
violates the Eighth Amendment and precludes consideration
of the offender's chronological age and its hallmark features
– among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. Deciding that a juvenile
offender will forever be a danger to society would require
making a judgment that he is incorrigible and finding that his
crime reflects irreparable corruption. Although the Supreme
Court did not foreclose a sentencer's ability to make that
judgment in homicide cases, the sentencer must take into
account how children are different, and how those differences
guide against irrevocably sentencing them to a lifetime in
prison.

12. [In Montgomery v. Louisiana, the United States
Supreme Court] rendered life without parole an
unconstitutional penalty for "a class of defendants because of
their status" – that is, juvenile offenders whose crimes reflect
the transient immaturity of youth.

13. [In Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017),
the Pennsylvania Supreme Court held that] there is a
presumption against the imposition of a sentence of life
without parole for a juvenile offender. To rebut the
presumption, the Commonwealth bears the burden of
proving, beyond a reasonable doubt, that the juvenile
offender is incapable of rehabilitation.

14. After Miller, the Pennsylvania General Assembly enacted
a new sentencing statute for juveniles convicted of first and

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second degree murder after June 24, 2012. 18 Pa.C.S.
§ 1102.1. Because this homicide occurred in [1994], the
statute is not applicable, but should be used for guidance[.]

15. [Enumeration of Batts II factors for imposing a LWOP
sentence, see infra].

16. The killing of Raymond McKinley has had a profound
impact on the family. [Appellant] deprived his wife of the
love and consortium of her husband, which lives on to this
day. [Appellant] prematurely took the father of three
children. So painful is the loss that the daughters could not
bear to come to testify or watch the hearing.

17. The impact on the victim was tragically horrendous.
Rendered a quadriplegic, Raymond [McKinley] immediately
became dependent on a breathing machine; he had to suffer
the indignity of having others wash him, feed him and change
him. While his body did not move, his mind absorbed all that
was going on; he was a prisoner within his own body. He
could not even swat away the flies that landed on his eyes.
He suffered pain, mental anguish and despair for over three
years. Some may say that death was mercy, but losing a
husband, father, and brother to a senseless act of violence
never eradicates the pain or erases the memory of what
Raymond experienced or the helplessness the family felt.
Forever they will be haunted by the searing picture of a shell
of a man lying hopelessly in a nursing home with the
attendant odors always in their nostrils.

18. The family asked th[e trial] court to re-impose the
original sentence of life without parole, as the just
punishment due [Appellant].

19. The impact on the community is enormous. [Appellant]
was a drug dealer. To this very day, the City of Chester is
plagued by a continuing line of dealers, which only adds to
the violence, the same violence which played out at Green
and McIlvain Streets on May 20, 1994. The argument that
[Appellant] was just a runner for the more experienced
pushers is of no moment. [Appellant] was vying to protect
his turf and make a sale. He was street wise. Nothing in the
trial transcripts or the transcripts from the sentencing hearing
point to a naive 17-year-old.

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20. The fact that [Appellant] possessed a gun and
intentionally opened fire on two individuals, regardless of why
they were there, demonstrates a total disregard for the safety
of those who were in and around the Spanish American Club.
As the car attempted to flee from the area, [Appellant] fired
more shots, in the direction of the car without concern for
others.

21. [Appellant] was the lone shooter. When he couldn't make
the sale he attempted to rob the driver. He alone is
responsible for the death of Raymond McKinley.

22. The Pennsylvania Sentencing Guidelines recommend life
in prison.

23. [Appellant] was 17 years of age at the time and would
turn 18 in less than 4 months. The [trial] court finds this to
be significant in its consideration.

24. Dr. James P. Rokos, who was appointed by the court,
administered several tests to [Appellant] on January 12,
1998. The Wechsler Adult Intelligence Scale showed a verbal
scale IQ of 78, a Performance Scale IQ of 87 and a Full Scale
IQ of 80. The Wide Range Achievement Test - Third Revision
(WRAT-3) showed a Reading Level of 6th grade, a Spelling
Level of 6th grade, and an Arithmetic Level of 7th grade. The
Minnesota Multiphasic Personality Inventory was attempted,
but not completed.

25. The above psychological testing places [Appellant] within
the lower limits of the dull normal range of intelligence. The
WRAT-3 found significant underachievement in all areas
measured with respect to formal education and estimated
potential.

26. As to maturity, on the personality assessment,
[Appellant] presented as an egocentric, impulsive and
dependent adult male with low self-esteem and having a
strong need for attention, affection and acceptance and is
easily influenced by others.

27. The [trial] court places great emphasis on Dr. Rokos'
evaluation and report. First, because it was court ordered

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and not done at the behest of counsel. Second, it is the only
definitive psychological record that was performed in and
around the time of the conviction, which [was]
[three-and-one-half] years after the event.

28. Another aspect th[e trial] court has considered was the
inability of the Chester-Upland School District to produce any
records related to [Appellant]. Had the school district been
able to provide documentation, th[e trial] court would have
had an unbiased look into [Appellant’s] early development.
Absent these, there is no concrete evidence from which the
[trial] court can discern [Appellant’s] learning ability, his
assimilation into the community and his disciplinary history.

29. [Appellant] self-reported two instances of juvenile court
involvement, although no definitive record was located. This
leads the [trial] court to believe that [Appellant] at least had
a glimpse into the legal system.

30. The fact, according to him, that he had three placements,
but was unsuccessfully expelled from all three for aggressive
behavior, gives the [trial] court great pause in its evaluation
as to the possibility of rehabilitation.

31. One of the most concerning issues is not only the number
of misconduct reports, but the time period over which these
transpired. If one were truly amenable to rehabilitation, the
record should reflect a diminution rather than an escalation
of events. Nowhere is this more clearly demonstrated than
in the assaults inflicted on correctional staff and the
gruesome and premeditated attack on another inmate as
clearly seen on the video. Furthermore, there was a felony
criminal conviction stemming from one of the assaults on
correctional staff. All of these are documented in the
numerous misconduct reports entered as exhibits.

32. None of the alleged excuses presented by [Appellant] as
justification for the misconducts are satisfactory. These only
add credence to the Commonwealth's claim that [Appellant]
is an aggressive, anger-filled, vengeful person who has total
and unmitigated disdain for authority and is incapable of
complying with rules and regulations and conforming his
behavior to acceptable behavioral standards of the
community.

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J-A07009-19

33. The [trial] court is also confronted with [Appellant’s] lack
of participation in programs meant to address his issues and
help him better himself, as well as his lack of compliance with
medication regimens. Obviously, some of this has been
precipitated by [Appellant’s] behavioral problems which have
resulted in [placements within] the Restrictive Housing Unit
[(RHU)], as well as [relocation] to different institutions.
Notwithstanding, there is documentation that even when
offered, with the exception of the one victim awareness
program, [Appellant] has not taken advantage of any other
programs, including those offered on RHU, no matter how
limited they may be.

34. Although [Appellant’s] counsel argues that given
[Appellant’s] situation of life without parole, there was no
motivation for him to participate in these programs, one
would expect that he would be willing to do so just for his
own well-being. Most compelling is the fact that even after
Miller was decided and the entire juvenile lifer population
was made aware of it, [Appellant] did virtually nothing aimed
at rehabilitation. The Miller decision alone should have
provided sufficient motivation for [Appellant] to participate in
therapy. Therefore, the [trial] court is left to conclude that
[Appellant] has [consciously] chosen not to seek help or
participate in programs aimed at his rehabilitation.

35. The fact that [Appellant] did not incur any misconducts
from November 29, 2006 to May 4, 2011 lends significant
credence to Dr. Russell's analysis that [Appellant’s]
aggressive, antisocial behavior is volitional and not due to
schizophrenia. Likewise, [Appellant] has not incurred any
misconduct reports in the months he has been housed at
George W. Hill Correctional Facility awaiting the
re-sentencing hearing.

36. Dr. Russell's opines that [Appellant] has a diagnosis of
antisocial personality disorder and schizotypal personality
disorder, while Dr. Mechanick opines that he suffers from
paranoid schizophrenia. Regardless, both do agree that
absent some improvement [Appellant] is currently at
significant risk for engaging in dangerous and problematic
behavior. Dr. Mechanick, in an attempt to bolster
[Appellant’s] claim that he suffered side effects from the

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medications prescribed for him to treat his mental health
issues as his basis for refusing to follow the various treatment
regimens, speculates that a new class of second generation
drugs or possible future advancements in pharmaceuticals
designed to treat schizophrenia will prove to be the necessary
elixir to free [Appellant] from his reports of delusions and
hallucinations. Th[e trial] court lacks the ability to see into
the future and can only be guided by what [] has preceded
and what is the current standard of care. Given these
parameters, the [trial] court is unable to conclude that
[Appellant] will be able to improve in the foreseeable future
and remains a significant risk to the community and to
correctional staff at this time.

37. The Commonwealth bears the burden of proving beyond
a reasonable doubt that [Appellant] is one of those rare
individuals who will never be amenable to rehabilitation. This
standard is not without its complications as it is nearly
impossible for any trial judge, just like any psychiatrist, to
predict with mathematical certainty what the future holds.
However, th[e trial] court's decision must and is grounded
solely on the testimony and exhibits presented at the
re-sentencing hearing, as well as the transcripts from the
original trial and sentencing[.]

38. The [trial] court is also mindful that beyond a reasonable
doubt does not mean no doubt nor does it require
mathematical certainty[.]

39. Therefore, after most careful and very deliberate
analysis, th[e trial] court finds that the Commonwealth has
met its burden of proof beyond a reasonable doubt that
[Appellant] is one of those rare individuals who will never be
amenable to rehabilitation.

Findings of Fact and Conclusions of Law, 1/5/18, at 17-23 (some capitalization

and case citations omitted).

On February 16, 2018, the trial court denied Appellant’s post-sentence

motion, and Appellant filed a timely notice of appeal. Appellant filed a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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In its Pa.R.A.P. 1925(a) Opinion filed on April 30, 2018, the trial court relied

upon its reasoning set forth in its January 5, 2018, Findings of Fact and

Conclusions of Law and upon its February 15, 2018, Order wherein it had

denied Appellant’s post sentence motion upon finding no merit to the claims

Appellant raised on appeal. In his appellate brief, Appellant presents five (5)

questions for this Court’s review:

I. Whether the lower court erred by imposing an illegal
sentence of life confinement without the possibility of parole
for second-degree murder committed as a juvenile, in
violation of [Appellant’s] rights under the Eighth and
Fourteenth Amendments of the United States Constitution,
as well as Article 1, Section 13 of the Pennsylvania
Constitution?

II. Whether the sentence is illegal, because the lower court
lacked competent evidence to sentence [Appellant] to life
confinement without the possibility of parole, where a
proper consideration of the attendant characteristics of
youth demonstrates the government failed to overcome the
presumption in favor of parole eligibility?

III. Whether [Appellant’s] sentence of life confinement without
the possibility of parole is illegal, because the government
did not present sufficient evidence to prove beyond a
reasonable doubt that [Appellant’s] rehabilitation is
impossible and, in the alternative, whether the lower court's
finding that rehabilitation is impossible was against the
weight of the evidence?

IV. Whether the court erred by failing to properly apply the
presumption of a sentence of life with the possibility of
parole at each stage of its analysis and by impermissibly
shifting the burden of proof onto the defense to prove
[Appellant] was capable of rehabilitation?

V. Whether [Appellant’s] sentence of life confinement without
the possibility of parole is illegal, because the

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J-A07009-19

Commonwealth failed to provide adequate notice of its
intention to seek life confinement without the possibility of
parole and did not detail the reasons for seeking such a
sentence in its notice?

Appellant’s Brief at 5-6 (italics omitted).

Appellant’s multifaceted argument essentially challenges whether the

trial court properly resentenced him to serve a LWOP for a murder Appellant

committed while he was a juvenile. Whether the trial court has the authority

to impose a given sentence presents a challenge to the legality of that

sentence. Commonwealth v. Robinson, 7 A.3d 868, 870 (Pa.Super. 2010);

see also Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa.Super. 2010)

(en banc) (“[a] claim that implicates the fundamental legal authority of the

court to impose a particular sentence constitutes a challenge to the legality of

the sentence”). The legality of one’s sentence is a question of law and our

standard of review is plenary. Commonwealth v. Garzone, 993 A.2d 306,

316 (Pa.Super. 2010) (citation and quotation marks omitted).

As previously stated, in Miller v. Alabama the United States Supreme

Court held that the Eighth Amendment prohibits sentencing schemes that

mandate LWOP for juvenile homicide offenders. Miller, 567 U.S. at 479. The

High Court reasoned that such mandatory sentencing schemes impermissibly

fail to take into account the age and age-related characteristics of a juvenile

when sentencing him or her. Miller, 567 U.S. at 477-78, 489. This Court

more recently highlighted that the Miller Court further held “states must

provide a juvenile convicted of a homicide offense a meaningful opportunity

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to obtain release based on demonstrated maturity and rehabilitation unless

the sentencing authority finds that the juvenile is incapable of rehabilitation.”

Commonwealth v. Foust, 180 A.3d 416, 431 (Pa.Super. 2018) (petition for

allowance of appeal filed, March 23, 2018). Therefore, the Miller Court did

not deem all life sentences without parole for juveniles to be unconstitutional.

In Batts II, supra,6 our Supreme Court recognized “a presumption

against the imposition of a sentence of life without parole for a juvenile

offender” and held that “to rebut the presumption, the Commonwealth bears

the burden of proving, beyond a reasonable doubt, that the juvenile offender

is incapable of rehabilitation.” Following this decision, to obtain a LWOP

sentence when resentencing a juvenile offender in Pennsylvania, the

6In Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286, 297 (2013) (“Batts
I”); the Pennsylvania Supreme Court quoted approvingly from this Court’s
opinion in Commonwealth v. Knox, 50 A.3d 732, 745 (Pa.Super. 2012),
wherein we held:

although 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.

see also Batts II, 163 A.3d at 455 n.23.

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J-A07009-19

Commonwealth must: (1) provide reasonable notice to the defendant before

the sentencing hearing of its intent to seek a life sentence; and (2) overcome

the presumption against the imposition of an LWOP sentence by proving

beyond a reasonable doubt that the juvenile “forever will be a danger to

society” and “exhibits such irretrievable depravity that rehabilitation is

impossible.” Id., 163 A.3d at 455.

Further, Batts II “devise[d] a procedure for the implementation of the

Miller and Montgomery decisions in Pennsylvania.” Id. at 451. Batts II

directed that in order for an LWOP sentence to be valid, “the sentencing court’s

decision must take into account the factors announced in Miller and section

1102.1(d) of the Crimes Code.” Id. at 459. Batts II identified the Miller

factors as, at a minimum:

[the] 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.

Id. at 421 n. 5 (citations omitted). Thus, the Batts II Court held, “in the

absence of the sentencing court reaching a conclusion, supported by

competent evidence, that the defendant will forever be incorrigible, without

any hope for rehabilitation, a life-without-parole sentence imposed on a

juvenile is illegal, as it is beyond the court’s power to impose.” Id.

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Initially, we consider Appellant’s fifth claim that his due process rights

have been violated because he was not afforded proper notice of the

Commonwealth’s intention to seek a LWOP upon resentencing. The record

clearly indicates the Commonwealth filed a notice of its intent to seek the

imposition of a life sentence wherein it specified it would pursue a life sentence

for Appellant. During an August 12, 2016, status conference, the trial court

indicated it assumed “based on the documents that the Commonwealth is

going to put up a vigorous representation as to why that term should –that

life imprisonment and term should stay.” T

The Commonwealth promised it would “certainly be presenting a full

sentencing hearing.” N.T., 8/12/16, at 7-8. In addition, on July 25, 2017,

the trial court held a status hearing at which time it asked defense counsel, in

Appellant’s presence, whether he had received the Commonwealth’s notice

that it was opposing any reduction of his LWOP sentence; defense counsel

responded in the affirmative. See N.T., 7/25/2017, at 15. Therefore,

Appellant’s present claim to the contrary is disingenuous and meritless.

With regard to Appellant’s remaining, related claims, we find the trial

court’s Findings of Fact and Conclusions of Law demonstrate it meticulously

considered the Miller factors prior to resentencing. Significantly, the trial

court heard testimony and reviewed reports prepared by prison officials and

mental health professionals who agreed that to be rehabilitated, Appellant

needed to participate in programs offered by the prison over the years.

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However, it is undisputed that Appellant has failed to avail himself of the

opportunities and medication afforded to him. As a result, Appellant’s vulgar,

violent and antisocial behavior has persisted.

At the resentencing hearing, the Commonwealth presented evidence

which showed that since the time Appellant was imprisoned for second-degree

murder in 1997, he has engaged in a “consistent pattern of aggressive,

defian[t] behavior.” N.T. Resentencing Hearing, 12/5/17, at 215 and 263.7

This behavior witnessed by individuals who have had regular contact with

Appellant for years includes multiple violations of prison regulations and a

variety of criminal acts, such as Appellant’s: unprovoked stabbing of a fellow

inmate in the face in February 2012; “squirt[ing] a [shampoo] bottle [filled

with] urine [and feces]” at inmates or prison employees, which occurred in

2012, 2014, and 2016; and multiple acts of sexual harassment.

There is nothing in the record to indicate that Appellant’s psychological

disorders will resolve themselves without proper medication and intervention,

yet the Commonwealth has shown Appellant ignores therapeutic opportunities

and refuses to take medication with regularity. Indeed, Appellant, who is now

7 In Miller, the Supreme Court held that a trial court must determine whether,
at the time of the crime, the defendant was “permanently incorrigible.” See
Miller, 567 U.S. at 479-480. Nevertheless, in Montgomery, the Supreme
Court held that a defendant’s post-conviction prison conduct was relevant to
the issue of whether he is “capable of change.” See Montgomery, 136 S.Ct.
at 736; see also Batts II, 163 A.3d at 456 (“Montgomery . . . plainly
requires a court to consider the post-crime conduct of a defendant in
determining whether life without parole is a permissible sentence”).

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J-A07009-19

in his mid-forties, refuses to follow any recommended course of treatment.

Drs. Mechanick and Russell stressed that without rehabilitation, Appellant will

continue to be a danger to others. N.T. Resentencing Hearing, 12/5/17, at

216-17; 317-18, 345. In fact, Dr. Russell testified, that given Appellant’s past

behavior, his “refusal to participate and engage” in therapy, and his “refusal

to maintain the medication or take the medication,” “the risk of [Appellant’s]

continued aggressive behavior is high.” Id. at 354-356.

As the trial court stressed, the victim of Appellant’s shooting, Raymond

McKinley, had his spinal cord essentially destroyed at the level of the fourth

or fifth vertebrae. As a result, Mr. McKinley was rendered a quadriplegic,

unable to move or sense his arms and legs, move his bladder or bowels,

swallow, or even breathe without a respirator. Mr. McKinley never was able to

come off a respirator, nor was he ever able to go home after the shooting. He

ultimately died in a nursing home approximately two-and-a-half years after

he had been shot. Trial Court Opinion, 8/26/98, at 5.

As previously discussed, while in prison Appellant has continued to

violate prison rules and to engage in abhorrent and violent behavior that has

been documented over fifty (50) times. The most serious instance occurred

on February 12, 2012, when Appellant, unprovoked, stabbed and a fellow-

inmate in the face with a filed-down toothbrush, seriously injuring him. N.T.

Resentencing Hearing, 12/5/17, at 244-247, 269. Such perverse and

calculated actions evince they are not controlled by a psychological state but,

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rather, that Appellant is able to prepare and carry out a dangerous plan. Dr.

Russell believed additional evidence of Appellant’s manipulative behavior was

revealed in the SCI records which showed Appellant had requested books on

schizophrenia and psychology from the library. N.T. 12/5/2017, at 316-317.

The fact that Appellant’s abhorrent behavior has reoccurred throughout

the years reveals he has made no real progress toward demonstrating

maturity and rehabilitation. Appellant’s failure, over a period of decades, to

take responsibility for his own brutal actions taken when he was only four

months shy of eighteen and to avail himself of the treatment and medication

afforded to him while in prison supports the trial court’s conclusion that he is

incorrigible.

There is no record evidence that Appellant’s “consistent pattern of

aggressive, defiant behavior” will ever change. Indeed, Appellant’s aggressive

and antisocial behavior has not ceased despite his entering middle age, a time

of life the expert testimony has concluded that the frequency of impulsive

aggression for many people who have antisocial personality disorder would

“just stop,” according to Dr. Russell. N.T. Resentencing Hearing, 12/5/17 at

356.

The learned trial court properly weighed the Miller factors and reached

the correct conclusion that the Commonwealth’s evidence herein was

sufficient to rebut the presumption against the imposition a life sentence

without the possibility of parole. The weighing process of the Miller factors

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is exclusively for the sentencing court, and we, as an appellate court, may not

reweigh sentencing factors and substitute our own judgment of the proper

sentence. Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).

Thus, the trial court's Findings of Fact and Conclusions of Law herein are

supported by the record and free of legal error.

Therefore, we find no merit to Appellant’s remaining claims and affirm

the judgment of sentence.

Judgment of sentence affirmed.

Judge Dubow joins the Opinion.

Judge Olson files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/20

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