Commonwealth v. Melvin

J-A16034-17

2017 PA Super 301

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEREMY MELVIN, :
:
Appellant : No. 1438 WDA 2016

Appeal from the Judgment of Sentence August 19, 2016
in the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001959-2003

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

OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 20, 2017

Jeremy Melvin (Appellant) appeals from the August 19, 2016 judgment

of sentence imposed following a resentencing hearing pursuant to

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”). We affirm.

On November 10, 2003, [A]ppellant was arrested and
charged with homicide, aggravated assault, robbery, escape, and
other related offenses involving an incident at the George Junior
Republic, a residential treatment facility for at-risk youth located
in Grove City, Pennsylvania. [Appellant had been placed at this
facility after he was adjudicated delinquent.] Appellant and
Anthony Machicote (“Machicote”) had conspired to escape the
facility by overpowering a guard. During the early morning hours
of November 10, 2003, Machicote called the night manager (“the
victim”) to his room. While the victim spoke with Machicote,
[A]ppellant put the victim in a chokehold. Appellant and
Machicote secured the victim, put a sock in his mouth, and then
tied a sheet around his mouth. After taking the victim’s car keys

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-A16034-17

and wallet, they fled from the facility. The victim died as a result
of suffocation.

Subsequently, both men surrendered and made
inculpatory statements to the police. A hearing was held on
August 4, 2004 on [A]ppellant’s motion to suppress; and
thereafter, the motion was denied. On October 19, 2004,
[A]ppellant entered a guilty plea to murder in the second
degree, and the remaining charges were nolle prossed pursuant
to a plea agreement. On January 7, 2005, [A]ppellant was
sentenced to life imprisonment without the possibility of parole
and to pay costs and fines. Appellant did not file post-sentence
motions or a direct appeal.

On January 23, 2006, [A]ppellant, acting pro se, filed a
timely [Post Conviction Relief Act (PCRA)] petition. Stephen G.
Delpero, Esq., was appointed as counsel and an amended PCRA
petition was filed. A hearing was held on May 30, 2006 before
the Honorable Thomas Dobson. Thereafter, the PCRA court
denied the petition on May 31, 2006. A timely notice of appeal
was filed June 30, 2006, and [A]ppellant was ordered to file a
concise statement of matters complained of on appeal. Appellant
complied with the court’s order.

Commonwealth v. Melvin, 928 A.2d 1126 (Pa. Super. 2007) (unpublished

memorandum at 1-2). On April 24, 2007, a panel of this Court affirmed the

denial of Appellant’s PCRA petition. Id. Appellant did not seek review by our

Supreme Court.

On July 8, 2010, Appellant filed a second PCRA petition, which was

denied by the trial court without a hearing. No appeal followed. Appellant’s

third PCRA petition was filed on May 23, 2012. Shortly thereafter, on June

25, 2012, the Supreme Court of the United States issued its opinion in

Miller v. Alabama, wherein the Court held that “the Eighth Amendment

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forbids a sentencing scheme that mandates life in prison without possibility

of parole for juvenile offenders.” 567 U.S. 460, 479 (2012).

On September 30, 2013 [the PCRA c]ourt granted
[Appellant’s] third PCRA petition on the grounds the sentence
was unlawful in light of Miller[.]

The Commonwealth took an appeal from that order.

On October 30, 2012 the Supreme Court of Pennsylvania
in Commonwealth v. Cunningham, 81 A.3d 1 ([Pa.] 2013)
ruled that Miller was not retroactive.

The Commonwealth withdrew its appeal.

On December 18, 2013 the Commonwealth was granted
leave to reinstate its appeal.

On July 22, 2014 the Superior Court of Pennsylvania
reversed [the PCRA c]ourt’s order of September 20, 2013, at
[Commonwealth v. Melvin, 105 A.3d 798 (Pa. Super. 2014)
(judgment order)].

[Appellant] filed a petition for allowance of appeal. It was
denied by the Supreme Court of Pennsylvania on December 11,
2014. [Commonwealth v. Melvin, 104 A.3d 524 (Pa. 2014)].

On January 25, 2016 the United States Supreme Court in
Montgomery v. Louisiana, — US —, [136 S.Ct. 718] (2016),
held that Miller [] was retroactive.

On March 18, 2016[, Appellant] filed a motion for leave to
amend his PCRA petition in light of the holding in Montgomery.

At a status conference on May 5, 2016 [the PCRA c]ourt
granted the request to amend, vacated [Appellant’s] sentence
and scheduled sentencing[.]

On August 19, 2016[, the PCRA c]ourt sentenced
[Appellant] to a term of imprisonment of not less than 30 years
nor more than life.

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A post-sentence motion was filed. It was denied without a
hearing on August 30, 2016. This appeal followed.

PCRA Court Opinion, 11/1/2016, at 3-4 (unnecessary capitalization omitted).

Both Appellant and the PCRA court have complied with the mandates

of Pa.R.A.P. 1925. Appellant raises the following issues for this Court’s

review, which we have renumbered for ease of disposition.

1. Did the [PCRA] court impose an illegal sentence when it acted
without any statutory authority?

2. Did the [PCRA] court impose an illegal sentence by not
sentencing [Appellant] for the lesser included charge of third
degree murder or the underlying felony of robbery?

3. Did the [PCRA] court err by ruling the ex post facto clause of
our Constitutions prevented him from considering current
Sentencing Guidelines to an offense from 2003?

4. Did the [PCRA] court abuse its discretion when it denied
[Appellant’s] request for additional financial aid even though he
showed the material’s content, its relevance and its cost?

5. Did the [PCRA] court err by ruling that witnesses could give
“victim impact” evidence without satisfying the statutory
definition of a “victim”[?]

6. Did the [PCRA] court err in allowing character evidence to be
admitted through opinion and not reputation evidence?

Appellant’s Brief at 6 (PCRA court answers omitted).

In his first two issues on appeal, Appellant presents a challenge to the

legality of his sentence, arguing that the PCRA court had no valid statutory

authority to impose a term-of-years sentence with a maximum term of life

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imprisonment at his resentencing and, because the crime at issue here was

committed before June 24, 20121, the only possible legal sentence is “on the

lesser included offense of third[-]degree murder or the underlying felony of

robbery.” Appellant’s Brief at 25-49. “When reviewing the legality of a

sentence, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super. 2017)

(citation omitted).

By way of background, in 2013, our Supreme Court decided Batts I,

which addressed the effect of the holding in Miller on incarcerated

Pennsylvanians serving mandatory life sentences without the possibility of

parole (LWOP) for homicides committed while those persons were juveniles

(so-called “juvenile lifers”). Applying this new precedent, the Court in Batts

I held that

[the] argument that the entire statutory sentencing scheme for
first-degree murder has been rendered unconstitutional as
applied to juvenile offenders is not buttressed by either the
language of the relevant statutory provisions or the holding in
Miller. Section 1102, which mandates the imposition of a life
sentence upon conviction for first-degree murder, see 18
Pa.C.S. § 1102(a), does not itself contradict Miller; it is only
when that mandate becomes a sentence of [LWOP] as applied to
a juvenile offender—which occurs as a result of the interaction
between Section 1102, the Parole Code, see 61 Pa.C.S. §
6137(a)(1), and the Juvenile Act, see 42 Pa.C.S. § 6302—that
Miller’s proscription squarely is triggered. [] Miller neither
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1
As discussed below, June 24, 2012 is the operative date for the new
juvenile sentencing guidelines set in place after the Supreme Court’s
decision in Miller.

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barred imposition of [an LWOP] sentence on a juvenile
categorically nor indicated that a life sentence with the
possibility of parole could never be mandatorily imposed on a
juvenile. Rather, Miller requires only that there be judicial
consideration of the appropriate age-related factors set forth in
that decision prior to the imposition of a sentence of life
imprisonment without the possibility of parole on a juvenile.

Batts I, 66 A.3d at 296. The Court recognized the difference in potential

penalty between juvenile offenders like Batts, who was tried and convicted

of first-degree murder prior to the issuance of Miller, and those who

committed offenses after the Supreme Court’s decision in Miller.

As to the former, it is our determination here that they are
subject to a mandatory maximum sentence of life imprisonment
as required by Section 1102(a), accompanied by a minimum
sentence determined by the common pleas court upon
resentencing. Defendants in the latter category are subject to
high mandatory minimum sentences and the possibility of life
without parole, upon evaluation by the sentencing court of
criteria along the lines of those identified in Miller.

Id. at 297.

Thus, the Court remanded Batts’ case for resentencing and instructed

the trial court to consider the non-inclusive list of factors outlined in Miller

before determining whether to impose upon Batts an LWOP sentence.

Following a hearing, Batts was resentenced to LWOP. He took a

second appeal to this Court, which affirmed his new judgment of sentence.

Our Supreme Court granted Batts’ petition for allowance of appeal to

address Batts’ contention, inter alia, that the Court should exercise “its

authority under the Pennsylvania Constitution to promulgate procedural

safeguards [for juveniles convicted of first- and second-degree homicide]

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including (a) a presumption against juvenile [LWOP sentences]; (b) a

requirement for competent expert testimony; and (c) a “beyond a

reasonable doubt” standard of proof[.]” Commonwealth v. Batts, — A.3d

—, 2017 WL 2735411 at *11 (Pa. 2017) (Batts II).

In June of 2017, while the instant case was pending, our Supreme

Court issued its opinion in Batts II. The Court noted that,

[d]espite the passage of four years since we issued our decision
in Batts I, the General Assembly has not passed a statute
addressing the sentencing of juveniles convicted of first-degree
murder pre-Miller, nor has it amended the pertinent provisions
that were severed in Batts I. As we have previously stated, the
General Assembly is quite able to address what it believes is a
judicial misinterpretation of a statute, and its failure to do so in
the years following the Batts I decision gives rise to the
presumption that the General Assembly is in agreement with our
interpretation.

Batts II, 2017 WL 2735411 at *25 (footnotes, some citations and quotation

marks omitted).

However, addressing the specific issues raised by Batts, the Court

determined that, “in Pennsylvania, a faithful application of the holding in

Miller, as clarified in Montgomery,[2] requires the creation of a

presumption against sentencing a juvenile offender to life in prison without

the possibility of parole.” Batts II, 2017 WL 2735411 at *31. The Court
____________________________________________

2
As the Court explained, Montgomery “means that only ‘the rarest of
juvenile offenders’ are eligible to receive a sentence of [LWOP]. Only in
‘exceptional circumstances’ will [LWOP] be a proportionate sentence for a
juvenile.” Batts II, 2017 WL 2735411 at *31 (citations and footnote
omitted).

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then placed the burden of rebutting this presumption on the Commonwealth,

concluding as follows.

To rebut the presumption, the Commonwealth has the
burden to prove, beyond a reasonable doubt, that the juvenile
offender is permanently incorrigible and thus is unable to be
rehabilitated. Consistent with the mandate of Miller and
Montgomery, for a life-without-parole sentence to be
constitutionally valid, the sentencing court must find that the
juvenile offender is permanently incorrigible and that
rehabilitation would be impossible. The Commonwealth’s
evidence and the sentencing court’s decision must take into
account the factors announced in Miller and section 1102.1(d)
of the Crimes Code. Even if the Commonwealth satisfies its
burden of proof, the sentencing court is not required to impose a
life-without-parole sentence upon a juvenile offender.

Batts II, 2017 WL 2735411 at *37–38.

Finally, and of note with respect to the current appeal, our Supreme

Court reaffirmed the sentencing scheme applicable to juvenile offenders for

whom the sentencing court determines LWOP sentences are inappropriate

(i.e., imposition of a term-of-years to life sentence as discussed above) and

specifically “instruct[ed] sentencing courts to look to the mandatory

minimum sentences set forth in section 1102.1(a) for guidance in setting a

minimum sentence for a juvenile convicted of first-degree murder prior

to Miller.” Batts II, 2017 WL 2735411 at *24 n.17.

In creating the aforementioned sentencing scheme, the Court

expressly rejected the claim of Batts and his amici, which Appellant herein

now argues, that there is no legislatively authorized sentence for juveniles

convicted of first-degree murder prior to 2012. Id. at *18-22. The Court also

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rejected Batts’ contentions that the forty year maximum penalty for third-

degree murder is the only legal alternative and that severance of the statute

is impossible. Id. at *23-27. Importantly, the Court held, inter alia, that a

trial court, in resentencing a juvenile offender convicted prior to Miller, was

constitutionally permitted to impose a minimum term-of-years sentence and

a maximum sentence of life imprisonment, thus “exposing these defendants

to parole eligibility upon the expiration of their minimum sentences” 3. Batts

II, 2017 WL 2735411 at *21. We are bound by our Supreme Court’s

decision. Thus, we disagree with Appellant that his resulting thirty-years-to-

life sentence is illegal and, as a result, we hold that he is not entitled to

relief on his first two claims.

In his third issue, Appellant argues that the trial court erred in

determining that the ex post facto clause of the Pennsylvania and United

States Constitutions barred application of Appellant’s sentencing guidelines.4

Appellant’s Brief at 66-72. Although we agree with Appellant that the court’s

PCRA ex post facto analysis is in error, in this case, such error does not

require remand.

The sentencing guidelines provide sanctions proportionate
to the severity of the crime and the severity of the offender’s
prior conviction record. This establishes a sentencing system
____________________________________________

3
Batts was sentenced for the crime of first degree murder, while Appellant
herein pled guilty to murder in the second degree. However, we discern no
difference that would place Appellant’s claim outside of the Batts analysis.

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with a primary focus on retribution, but one in which the
recommendations allow for the fulfillment of other sentencing
purposes including rehabilitation, deterrence, and incapacitation.
204 Pa. Code § 303.11(a).

***

Moreover, the guidelines set forth a framework, to be
considered by the sentencing court in fashioning an
individualized sentence. See Commonwealth v. Walls, [] 926
A.2d 957, 962–963 (2007); see also 42 Pa.C.S. §§ 2154(a),
9721; see generally 204 Pa. Code §§ 303.1–.18(c). To be
clear, while the court must consider the guidelines, the court is
also afforded broad discretion in sentencing matters, as it is in
the best position to evaluate the individual circumstances before
it. Walls, 926 A.2d at 961. Thus, the guidelines “merely inform
the sentencing decision.” Id. at 962.

Commonwealth v. Fortson, — A.3d. —, 2017 PA Super 162 at *6 (Pa.

Super. 2017).

In response to Miller and the codification of section 1102.1 (setting

forth the applicable sentences for murder, murder of an unborn child, and

murder of a law enforcement officer committed by persons under the age of

18 where those convictions occurred after June 24, 2012), the Sentencing

Commission created a basic sentencing matrix specifically for juvenile first-

and second-degree homicide offenders where the offense occurred after

June 24, 2012. See 204 Pa. Code § 303.16(b) (emphasis added).

Because Appellant was 16 years old at the time of the murder at issue

and had a prior record score of zero, using the new matrix, Appellant’s

guidelines under subsection 303.16(b) called for a standard range sentence

of 360 to 624 months. See Appellant’s Brief at 67. However, because the

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offense at issue here occurred prior to June 24, 2012, the subsection

303.16(b) guidelines are inapplicable to Appellant. Rather, as discussed

above, in Batts II our Supreme Court mandated that where, as here, the

lower court determines that a juvenile LWOP sentence is inappropriate for an

offender who was convicted of homicide before Miller, the court must, in

fashioning a term-of-years-to-life sentence, consider the sentencing

requirements codified at 18 Pa.C.S. § 1102.1, which provides, in relevant

part, as follows.

(c) Second degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the second degree, second
degree murder of an unborn child or murder of a law
enforcement officer of the second degree and who was under the
age of 18 at the time of the commission of the offense shall be
sentenced as follows:

(1) A person who at the time of the commission of
the offense was 15 years of age or older shall be
sentenced to a term of imprisonment the minimum
of which shall be at least 30 years to life.

18 Pa.C.S. § 1102.1. Here, the PCRA court found persuasive the “logic” of

subsection 1102.1(c)(1) and imposed a thirty-year-to-life sentence. N.T.,

8/19/2016, at 85. As this sentence is compliant with subsection

1102.1(c)(1) and Batts II, we find no reason to disturb it.5

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5
The record is unclear as to why the lower court generated a subsection
303.16(b) guideline form for Appellant when this case did not meet the
criteria under that subsection. However, we note that Appellant’s thirty-
years-to-life sentence is a standard range sentence according to those
guidelines.

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Appellant next claims that the PCRA court abused its discretion in

denying him additional funds to hire for his resentencing the same expert

who evaluated Appellant prior to his guilty plea. Appellant’s Brief at 50-61.

Appellant argues that the court’s refusal to grant him additional funds made

it impossible for him to make a persuasive argument with respect to the

factors outlined in Miller6 that the United States Supreme Court has

identified as relevant considerations for resentencing of juvenile homicide

offenders to LWOP sentences. Id. at 53-55.

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6
As the Court in Batts II explained,

The Miller Court concluded that sentencing for juveniles must be
individualized. This requires consideration of the defendant’s age
at the time of the offense, as well as “its hallmark features,”
including:

immaturity, impetuosity, and failure to appreciate
risks and consequences[;] ... the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how
brutal or dysfunctional[;] ... the circumstances of the
homicide offense, including the extent of his
participation in the conduct and the way familial and
peer pressures may have affected him[;] ... that he
might have been charged and convicted of a lesser
offense if not for incompetencies associated with
youth—for example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own
attorneys[;] ... [and] the possibility of rehabilitation
... when the circumstances [i.e. (the youthfulness of
the offender)] most suggest it.

Batts II, 2017 WL 2735411 at *14–15 (citations omitted).

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It is well-established that indigent defendants have a right
to access the same resources as non-indigent defendants in
criminal proceedings. The state has an affirmative duty to
furnish indigent defendants the same protections accorded those
financially able to obtain them. Procedural due process
guarantees that a defendant has the right to present competent
evidence in his defense, and the state must ensure that
an indigent defendant has fair opportunity to present his
defense.

However, [t]he provision of public funds to hire experts to
assist in the defense against criminal charges is a decision
vested in the sound discretion of the court and a denial thereof
will not be reversed absent an abuse of that discretion.

Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016)

(citations and quotation marks omitted).

In Batts I, which was the prevailing law at the time of Appellant’s

resentencing, the Court held that the sentencing court “should consider” the

Miller factors in determining whether a juvenile homicide offender should be

subjected to an LWOP sentence; however, the Court was silent as to both

the applicable burden of proof and whether expert testimony was necessary

to make a Miller argument. Batts I, 66 A.3d 286 at 297.

In Batts II, our Supreme Court clarified the applicable sentencing

procedure, holding as follows.

Pursuant to our consideration of the attendant due process
concerns and the definitive language used by the Supreme
Court, we conclude that to overcome the presumption against
the imposition of a sentence of life without parole for a juvenile
offender, the Commonwealth must prove that the juvenile is
constitutionally eligible for the sentence beyond a reasonable
doubt. In an effort to satisfy this burden, the Commonwealth
may present evidence relating to the factors announced in Miller
and the factors appearing in section 1102.1(d).

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Consistent with the requirements of due process and
section 1102.1(b), if the Commonwealth seeks to have the
sentencing court impose a sentence of life without parole on a
juvenile offender, it must provide reasonable notice to the
defendant prior to the sentencing hearing.

Batts II, 2017 WL 2735411 at *34 (citations omitted). Further, with

respect to the necessity of expert testimony, the Court opined,

[t]here is an undeniable appeal to Batts’ contention that expert
testimony is necessary for a court to determine that a juvenile
offender is permanently incorrigible. We decline, however, to go
so far as to hold that expert testimony is constitutionally
required to rebut the presumption against the imposition of a
sentence of [LWOP]. Expert testimony is admissible in
Pennsylvania if the information is outside of the common
knowledge of the factfinder and the testimony of an expert, so
qualified based upon his or her “knowledge, skill, experience,
training or education,” will aid in the understanding of the fact at
issue and the expert utilized a generally accepted methodology.
The necessity thereof is thus within the discretion of the
sentencing court.

Given the presumption against [LWOP] and the
Commonwealth’s burden beyond a reasonable doubt to rebut the
presumption, it is difficult to conceive of a case where the
Commonwealth would not proffer expert testimony and where
the sentencer would not find expert testimony to be necessary.
Nonetheless, whether expert testimony is required to rebut the
presumption against permanent incorrigibility beyond a
reasonable doubt will be determined on a case-by-case basis by
the sentencing court.

Batts II, 2017 WL 2735411 at *34 (citations omitted).

While we recognize that the Batts II structure was not in place at the

time of Appellant’s sentencing, we find no abuse of the court’s discretion. It

is well-settled that “an indigent defendant does not have the right to choose

his own expert or receive funds to hire his own. [Where an indigent

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defendant] asked for experts and was given them by the trial court, the fact

they were not the ones he would have chosen does not render them less

effective or independent in their evaluation.” Commonwealth v.

Wholaver, 989 A.2d 883, 895 (Pa. 2010) (citations omitted). The Batts

decisions make clear that, while the court must consider the Miller factors in

cases where the Commonwealth is attempting to meet its burden of

overcoming the presumption against juvenile LWOP sentences, expert

testimony is not constitutionally required. Batts II, 2017 WL 2735411

at*14–15.

Moreover, the PCRA court recognized that LWOP sentences for juvenile

offenders are “appropriate in very limited circumstances” that did not apply

to this case. N.T., 8/19/2016, at 46. Thus, even if the PCRA court’s

decision regarding expert funds was in error, the issue is now moot because

the court ruled that an LWOP sentence was inappropriate for Appellant. We

note that Appellant does not challenge the discretionary aspects of his

sentence with respect to the application of various sentencing factors

outlined in the Sentencing Code, but focuses instead on the court’s failure to

provide him funds for an expert of his choice. For the aforementioned

reasons, this claim fails.

Finally, Appellant argues that the PCRA court erred in holding that the

court committed evidentiary errors with respect to the character and victim

impact evidence admitted at his sentencing. First, Appellant contends that

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the court erred in admitting the testimony of Commonwealth witnesses

Robert Lanschak, the victim’s direct supervisor, and Tom Jones, the human

resources director at George Junior Republic, arguing that neither man fits

the definition of “victim” under the Crime Victims Act, 18 Pa.C.S. § 11.103 7.

Appellant’s Brief at 73-75.

Mr. Lanschak, who discovered the victim’s body, testified as to the

personal impact of the discovery, N.T., 8/19/2016, at 12-14, while Mr. Jones
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7
“Victim” is defined by the Crime Victims Act as follows:

(1) A direct victim.

(2) A parent or legal guardian of a child who is a direct victim,
except when the parent or legal guardian of the child is the
alleged offender.

(3) A minor child who is a material witness to any of the
following crimes and offenses under 18 Pa.C.S. (relating to
crimes and offenses) committed or attempted against a member
of the child’s family:

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 3121 (relating to rape).

(4) A family member of a homicide victim, including stepbrothers
or stepsisters, stepchildren, stepparents or a fiance, one of
whom is to be identified to receive communication as provided
for in this act, except where the family member is the alleged
offender.

18 P.S. § 11.103.

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explained the subsequent remedial measures George Junior Republic took to

insure such an incident did not happen again, and the effect of the incident

on other employees. Id. at 19-21. Although neither Mr. Lanschak nor Mr.

Jones is a “victim” as defined by the Act, the sentencing court had broad

discretion to consider their testimony. It is well-settled that,

prior to imposing sentence [a] sentencing judge may
appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may consider,
or the source from which it may come.

Nevertheless, the discretion of a sentencing judge is not
unfettered; a defendant has the right to minimal safeguards to
ensure that the sentencing court does not rely on factually
erroneous information, and any sentence predicated on such
false assumptions is inimicable [sic] to the concept of due
process. Obviously, the probability of receiving accurate
presentence information is considerably enhanced when the
defendant has an opportunity to review and dispute the facts
and allegations available to the sentencing judge.

Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009) (internal

citations and quotation marks omitted).

Here, Appellant was present for the testimony of Mr. Lanschak and Mr.

Jones and his attorney availed himself of the opportunity to cross-examine

both individuals. Given that impact on the community is a relevant

sentencing consideration, see e.g. Commonwealth v. duPont, 730 A.2d

970, 986 (Pa. Super. 1999) (holding trial court appropriately considered

hearsay statements in letter from police chief of the neighborhood in which

the crimes occurred, as impact on the community is an appropriate

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sentencing consideration), Appellant’s argument that the testimony of Mr.

Lanschak and Mr. Jones was improper is devoid of merit.

Next, Appellant argues that the court erred when it allowed two

witnesses to testify at sentencing that the victim was a “good employee.”

Appellant’s Brief at 62-63. Appellant contends that this character evidence,

admitted as both witness’s personal opinion as opposed to their

understanding of the victim’s reputation in his community, was erroneously

admitted. Id. Appellant’s argument is focused on whether this evidence

constitutes proper character testimony under Rule of Evidence 405.8 We

disagree. The testimony elicited at the sentencing hearing makes clear that

the witnesses’ opinions as to the victim being a good employee were not

being offered as character evidence but to add context to the witness’s

individual impact statements. To the extent that the evidence was improper,

Appellant offers no argument that the PCRA court relied upon those limited

statements in fashioning his sentence. Accordingly, we hold that this issue

is without merit.

For all of the forgoing reasons, we affirm Appellant’s judgment of

sentence.

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8
The Rule provides that “[w]hen evidence of a person’s character or
character trait is admissible, it may be proved by testimony about the
person’s reputation. Testimony about the witness’s opinion as to the
character or character trait of the person is not admissible.” Pa.R.E. 405.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2017

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