J-A18031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RAYMONT WALKER                          :
                                         :
                   Appellant             :   No. 1025 WDA 2018

     Appeal from the Judgment of Sentence Entered February 9, 2018
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0006204-2007


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                       FILED FEBRUARY 18, 2020

     Raymont Walker appeals from the February 9, 2018 order dismissing

his after-discovered evidence claim and resentencing him pursuant to

Commonwealth v. Miller, 567 U.S. 460 (2012), and Montgomery v.

Louisiana, 136 S.Ct. 718 (2016). We affirm.

     The trial court summarized the relevant facts as follows:

     . . . . Kendall Dorsey testified that on December 23, 2006, while
     sitting on the front porch with his friend Kevin Harrison, he saw
     [c]o-defendant Terrill Hicks shooting at him and at Harrison.
     Dorsey saw Appellant standing with Hicks. Dorsey scurried into
     the house and avoided injury, but Harrison was shot and killed
     shortly thereafter.

           Dorsey testified that a few days earlier he was at his friend
     John McDonald’s house. He heard a knock on the door. Another
     friend, Michael Harris, answered the door. Immediately, Terrill
     Hicks attempted to pull Harris out of the house. The attempt was
     unsuccessful as Harris was able to close the door. Dorsey testified
     that he went upstairs, looked out a window and observed
     Appellant and Hicks in the street holding pistols.
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           Dorsey testified that he encountered Hicks the following
     day, the day before the shooting. Hicks said that he had been
     robbed, and that he thought that Dorsey, Harris and Harrison did
     it. Dorsey said he did not rob Hicks.

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

           Dorsey testified that he and Harrison immediately returned
     to Harrison’s house, where Harris was. Dorsey noticed the white
     Impala circling the house, the same car in which he had just seen
     Hicks and [Appellant]. He safely entered the residence but
     eventually went outside to the front porch with Harrison to smoke
     a cigarette. Dorsey told Harris not to join them on the porch
     because Hicks and [Appellant] were looking for him. Hicks and
     Appellant approached the house. Hicks fired approximately ten
     shots, killing Kevin Harrison.

           John McDonald testified similarly to the incident at his
     house. McDonald said that he encountered Hicks at a gas station
     the day before Hicks came to his house. McDonald said Hicks was
     upset because he had been robbed. Hicks did not know who had
     robbed him.

           McDonald said that, on the following day, Hicks attempted
     to forcibly remove Harris from McDonald’s home when Harris
     answered the door. The day after, Hicks and [Appellant] came to
     his house again. By that point, Hicks had become convinced that
     Harris, Harrison and a third individual nicknamed “Dee” had
     robbed him. Hicks told McDonald that he was looking for the
     people that he thought had robbed him, and if Hicks found them,
     either they would get hurt or someone would die. [Appellant]
     added that what the robbers had done “wasn’t cool” and that he
     “was going to ride with [Hicks,]” his best friend. McDonald, an
     army sergeant with eight years of military experience, recognized
     the gun Hicks was carrying as a “Glock 45.”




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

            John Betarie, a Homestead police officer, testified that he
      recovered six shell casings at the scene of the shooting where
      Dorsey said Hicks was standing and three additional projectiles
      from the kitchen floor. These shell casings were sent to the crime
      lab [for] analysis. Dr. Robert Levine, a forensics expert to the
      crime lab, testified that the [.]45 caliber casings found at the
      scene were all from the same weapon.

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

Trial Court Opinion, 1/3/11, at 3-5.

      Appellant was fifteen years old at the time of the shooting.     He was

arrested, charged, and tried jointly with Hicks as an adult for the murder of

Harrison. At the 2010 trial, neither of them testified on his own behalf. At

the conclusion of trial, the jury convicted Appellant of first-degree homicide,

criminal conspiracy, criminal attempt – homicide, aggravated assault, and

possession of a firearm by a minor.      On August 2, 2010, Appellant was

sentenced to life without the possibility of parole (“LWOP”) for first-degree

murder, a consecutive prison term of ten to twenty years for criminal attempt,

and a consecutive thirty to sixty months for aggravated assault. The court

imposed no further penalty for the remaining convictions. Appellant filed a


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direct appeal and we affirmed his judgment of sentence on April 30, 2012.

See Commonwealth v. Walker, 48 A.3d 490 (Pa.Super. 2012) (unpublished

memorandum).

      On July 30, 2012, Appellant filed his first PCRA petition. In the timely

petition, he raised a multitude of issues, including an argument that he was

entitled to resentencing pursuant to Miller. The PCRA court held a hearing

on May 31, 2013, and denied the petition on November 25, 2013. On appeal,

we affirmed that denial.   See Commonwealth v. Walker, 125 A.3d 460

(Pa.Super. 2015) (unpublished memorandum). Appellant filed a petition for

allowance of appeal in our Supreme Court, which was held in abeyance

pending the United States Supreme Court’s decision in Montgomery.

      While Appellant’s PCRA petition was pending in the Supreme Court,

Hicks, who was also a juvenile when the murder occurred, was resentenced

pursuant to Miller. At his resentencing hearing, on October 23, 2015, Hicks

admitted to firing the shots that killed the victim and said that Appellant was

not with him that night. On December 15, 2015, Appellant filed a second

PCRA petition, seeking a new trial on the basis of after-discovered evidence

due to Hicks’s confession at his resentencing hearing.

      Following the United States Supreme Court’s ruling in Montgomery,

our Supreme Court vacated this Court’s order affirming Appellant’s judgment

of sentence, and remanded the case for further proceedings consistent with

Montgomery. See Commonwealth v. Walker, 132 A.3d 980 (Pa. 2016).


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We vacated Appellant’s judgment of sentence and remanded to the trial court

for resentencing. See Commonwealth v. Walker, 145 A.3d 782 (Pa.Super.

2016) (unpublished memorandum).

      Upon motion by the Commonwealth, Appellant’s two PCRA petitions

were consolidated into one evidentiary hearing, which was held on February

9, 2018.     At the hearing, Hicks reiterated the testimony from his own

resentencing hearing, that he was the shooter and Appellant was not involved

in the murder. The court found Hicks’s testimony to be incredible and denied

Appellant’s after-discovered evidence claim. The trial court also conducted a

resentencing hearing, imposing a new aggregate sentence of thirty years to

life in prison.

      Appellant   filed   a   timely   post-sentence   motion   challenging   the

discretionary aspects of his sentence and the denial of his request for a new

trial on the grounds of after-discovered evidence. The trial court denied the

post-sentence motion and a timely notice of appeal followed. Both Appellant

and the trial court complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      I.     Did the trial court err when it denied [Appellant’s PCRA
             petition] for a new trial on the ground of newly-discovered
             evidence where (1) the testimony provided by Terrill Hicks
             could not have been obtained prior to the conclusion of trial
             through the exercise of reasonable diligence as Hicks was
             [Appellant’s] co-defendant and Hicks invoked his Fifth
             Amendment right to remain silent at trial; (2) [Hicks’]
             testimony was not merely corroborative or cumulative of
             other evidence presented at the trial and would not have
             been used solely to impeach the credibility of a witness; and

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              (3) [Hicks’] testimony would result in a different verdict if a
              new trial were granted in [Appellant’s] case?

       II.    Did the trial court abuse its discretion when it resentenced
              [Appellant] to serve an aggregate sentence of [thirty] years
              to life where such a sentence is manifestly unjust,
              unreasonable and excessive when considered in light of
              [Appellant’s] personal history and characteristics and the
              many mitigating factors presented on [Appellant’s] behalf?


Appellant’s brief at 6.

       First, Appellant attacks the trial court’s denial of his after-discovered

evidence claim1 regarding a newly-discovered witness. Our standard of review

examines “whether the PCRA court’s determination is supported by the

evidence of record and free of legal error. We grant great deference to the

PCRA court’s findings, and we will not disturb those findings unless they are

unsupported by the certified record.”          Commonwealth v. Holt, 175 A.3d

1014, 1017 (Pa.Super. 2017) (citation omitted). Additionally, we “may affirm

a PCRA court’s decision on any grounds if the record supports it.”

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012).

       In order to succeed on a claim of after-discovered evidence, Appellant

must show, by a preponderance of evidence, that the witness’s testimony:


____________________________________________


1Although facially untimely, the trial court accepted this claim as a supplement
to Appellant’s first, timely filed and still pending PCRA petition. Thus, this
additional claim was timely. Had the court not done that, Appellant would
have met the newly discovered facts exception to the PCRA’s time bar, since
he established that he raised this claim within sixty days of discovery and
could not have obtained the evidence sooner with the exercise of reasonable
diligence. See 42 Pa.C.S. § 9543(a)(2)(vi).

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      (1) has been discovered after the trial and could not have obtained
      at or prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely for impeaching credibility
      of a witness; and (4) is of such nature and character that a
      different verdict will likely result if a new trial is granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). When deciding

the fourth prong, the court considers “the integrity of the alleged after-

discovered evidence, the motive of those offering the evidence, and the overall

strength of the evidence supporting the conviction.”      Commonwealth v.

Padillas, 997 A.2d 356, 365 (Pa.Super. 2010).        Importantly, accomplice

testimony is viewed with suspicion where the accomplice has already been

convicted so that he “has nothing to lose.” Commonwealth v. Washington,

927 A.2d 586, 597 (Pa. 2007).

      The court held an evidentiary hearing on this issue.     At the hearing,

Hicks testified that he committed the homicide with Derrick Price, not

Appellant. N.T. Resentencing Hearing, 2/9/18, at 54. He explained that he

was closer with Appellant’s brother, and did not know Appellant well, but that

they were “cool.” Id. at 55. However, when tested on cross-examination, he

did admit to spending the majority of the day of the murder with Appellant.

Id. at 64.    He maintained that there was “no elaborate plan” to murder

anyone, and his intent when he fired ten shots at these people was to “scare

them.”   Id. at 56, 66.   The fact that the victim died as a result was “an

accident.” Id. at 66.




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         Notably, although Hicks was housed in the same facility as Appellant

since 2010, he testified that he waited six years to tell Appellant that he knew

Appellant was innocent, until after his own resentencing hearing concluded.

Id. at 50-51.       On January 15, 2016, Hicks gave Appellant an affidavit

indicating Appellant’s innocence.      However, when Hicks received a second

resentencing hearing, he retracted the affidavit. Id. at 54-55, 62. Once Hicks

was resentenced for the second time, he again came forward, agreeing to

testify for Appellant because he was “more mature” now. Id. at 63. Finally,

Hicks admitted that he lied during both of his pre-trial interviews with police.

Id. at 69.

         At the conclusion of Hicks’s testimony, the court explained all of the

inconsistencies in Hicks’s testimony that, when viewed in light of the

Commonwealth’s evidence presented at trial, led it to conclude that Hicks’s

testimony would not change the outcome if Appellant were granted a new

trial:

         . . . . unfortunately[,] Mr. Hicks’[s] testimony has over the course
         of time lacked credibility, and up until today he seems to
         demonstrate inconsistencies that make it not credible. To say that
         it was an accident, to stand directly across the street and shoot
         ten shots at two people on the front porch to scare them, to say
         that he’s never told anyone before today who the person with him
         was, first, is to admit that there was a person with him, but
         second, is inaccurate as to what is shown by later testimony, that
         Price was named by Mr. Hicks at his second interview with the
         police, and not just for the retaliatory shooting.

              Mr. Hicks initially testified here today that he was not with
         [Appellant] that day at all. When challenged about the testimony
         about the Impala from the trial, suddenly he remembered that he

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     had spent a good bit of time with [Appellant] that day, had been
     to the mall. They had played – he had left and returned and
     played games with [Appellant].

           And the testimony from the trial, as I recall it, is that less
     than an hour before the shooting Mr. Harrison and Mr. Dorsey saw
     Mr. Hicks and [Appellant] together [in] that Impala and then
     watched that Impala circling the house, the front porch of which
     was then shot at.

           With regard to Mr. [Hicks’s] testimony that it again was an
     accident, there was no planning. That would be contrary to the
     testimony of a man with the last name McDonald who had no
     apparent interest in any of this.        He appeared to be an
     independent party. His testimony, as I recall, was to an incident
     a couple days before the shooting where [Appellant] and Mr. Hicks
     were at Mr. McDonald’s home and said they were looking for
     Dorsey, and Harrison -- Harris and Harrison, and if that -- if they
     found them, it was [Appellant] – Mr. Hicks who said someone
     would get hurt or get killed, I believe.

            And according to Mr. McDonald’s testimony, Mr. Hicks then
     made a – I’m sorry, [Appellant] then made a statement to the
     effect that he was going to stand by his friend, go along for the
     ride, something to that effect.

            So there was corroborating evidence to the identification,
     and it is clear that unlike a case where there might be mistaken
     identification, these people all knew each other. So I cannot find,
     in light of all of this, Mr. [Hicks’s] testimony today to be credible.

N.T. Resentencing Hearing, 2/9/18, at 88-90.

     Thus, the court found Hicks’ testimony to be lacking in credibility, such

that it would not change the outcome if a new trial were to be held.          We

discern no abuse of discretion.      Hicks delivered inconsistent testimony.

Perhaps most glaringly, he failed to offer an adequate explanation for why he

recanted his initial affidavit before his own second resentencing hearing was

completed.

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      In his reply brief, Appellant attacks the court’s failure to commence its

examination of the persuasiveness of Hicks’s testimony from the assumption

that the jury would believe it. Appellant’s Reply Brief at 4. In support of his

position, Appellant directs our attention to Commonwealth v. Payne, 210

A.3d 299 (Pa.Super. 2019) (en banc), a case where we stated that the court

“must examine the persuasiveness of the new evidence assuming the fact-

finder believes it.”   Id. at 302.   However, Appellant’s reading of Payne

oversimplifies the necessary analysis that a court must undertake in these

circumstances.    This Court went on to explain that this type of analysis

prompts the court to consider the nature of the new evidence in light of other

trial testimony, evaluating whether the new evidence is consistent or

inconsistent with the previous trial testimony. Id. This context is critical to

our analysis.

      Appellant is correct that the trial court did not explicitly use the magic

words, “assuming the fact-finder believes it.” Appellant’s Reply Brief at 4.

However, the absence of these words does not mean that the trial court

engaged in an improper evaluation of the evidence correctly.        As the trial

court’s analysis demonstrates, it compared Hicks’s testimony with the other

evidence presented by the Commonwealth at trial. Ultimately, the trial court

concluded that Hicks’s testimony was too inconsistent with the credible

eyewitness testimony, placing Appellant with Hicks in the days and minutes

leading up to the murder and repeatedly threatening the victims and


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brandishing firearms, to change the outcome.             Eyewitness identification

testimony of Appellant at the scene of the crime also directly contradicted

Hicks’s testimony that Appellant was not present.            Since the trial court

conducted the correct analysis and the record supports its conclusions, we find

no abuse of discretion in its decision to deny Appellant’s after-discovered

evidence claim. Accordingly, we affirm the trial court’s denial of Appellant’s

after-discovered evidence claim.

       In his next issue, Appellant challenges the discretionary aspects of his

sentence.     Specifically, he alleges that the resentencing court imposed a

sentence without first considering his personal history, characteristics, and

other Miller2 factors. Appellant’s brief at 83.


____________________________________________


2 In Miller, the Supreme Court listed factors that resentencing courts must
consider before issuing a life without parole sentence to a juvenile. Our
Supreme Court summarized those factors in Commonwealth v. Batts “Batts
II”, 163 A.3d 410 (Pa. 2017), as follows:

       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.

Id. at 431 (cleaned up).

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      We note preliminarily that since the Commonwealth did not seek a LWOP

sentence, the resentencing court was not required to consider the Miller

factors.   See Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super.

2018). However, because Appellant’s issue also raises a claim that the court

failed to consider relevant sentencing factors engrained in the sentencing

code, we consider his arguments under the discretionary aspects of sentencing

scheme. See id. (holding that the Miller factors were immaterial where the

Commonwealth did not seek LWOP, and instead, considering the sentencing

issue as a discretionary aspects challenge under the sentencing code).

      The following principles apply to our consideration of whether review of

the merits of this claim is warranted:    “An appellant is not entitled to the

review of challenges to the discretionary aspects of a sentence as of right.

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction.” Commonwealth v. Samuel, 102 A.3d

1001, 1006 (Pa.Super. 2014).      In determining whether an appellant has

invoked our jurisdiction, we consider four factors:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id. at 1006-07.

      Appellant timely filed both a post-sentence motion and a notice of

appeal.    In his motion, Appellant challenged the court’s alleged failure to

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consider all of the mitigating facts that were submitted, including Appellant’s

personal history and background.        Therefore, this issue was properly

preserved.   Appellant’s brief contains a statement of reasons relied on for

allowance of appeal pursuant to Pa.R.A.P. 2119(f).         In his statement,

Appellant claims that a substantial question is presented by the fact that the

trial court violated a fundamental norm in the sentencing process when it

imposed an excessive sentence without considering Appellant’s personal

history and characteristics. Appellant’s brief at 77. We find that this claim

raises a substantial question since Appellant is challenging the excessiveness

of his sentence in conjunction with the resentencing court’s alleged failure to

consider mitigating factors. White, supra at 984 (finding that a substantial

question was raised where a juvenile, previously sentenced to LWOP, raised

an excessive sentencing claim along with an assertion that the sentencing

court failed to consider mitigating factors).   Accordingly, we now turn our

attention to Appellant’s challenge to his sentence.

      The following principles apply to our substantive review of Appellant’s

claim:   “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009).       “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”


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Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,

we review the trial court’s determination for an abuse of discretion.

      In this context, an abuse of discretion is not shown merely by an
      error in judgment. Rather[,] the appellant must establish, by
      reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      A trial court’s sentence “should call for confinement that is consistent

with the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a

court is required to consider the particular circumstances of the offense and

the character of the defendant. In considering these factors, the court should

refer to the defendant’s prior criminal record, age, personal characteristics

and potential for rehabilitation.”   Antidormi, supra at 761 (citations and

quotation marks omitted).

      Once LWOP is foreclosed as a resentencing option, the Batts II Court

instructed juvenile resentencing courts to impose a minimum term of years

sentence with a maximum sentence of life imprisonment, utilizing 18 Pa.C.S.

§ 1102.1 for guidance. Under § 1102.1, a juvenile convicted of first-degree

murder who was fifteen years of age at the time of the crime shall be

sentenced to a minimum term of imprisonment of at least thirty-five years,

with a maximum sentence of life. 18 Pa.C.S. § 1102.1(a)(1).

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      Appellant received an aggregate sentence of thirty years to life and he

alleges that the resentencing court provided an “inadequate statement” at the

resentencing hearing of its reasons for imposing that sentence. Appellant’s

brief at 83. More specifically, Appellant claims that the court failed to fully

consider Appellant’s age, personal history, and the information contained

within his mitigation report. Id. A review of the record belies Appellant’s

assertions.

      The resentencing court began the hearing by acknowledging its review

of Appellant’s mitigation report and summarizing the main points on the

record:

            I have read [Appellant’s] sentencing memorandum. It does
      include a number of certificates of completion of various programs
      and a statement that other than two incidents in 2011 and 2012
      and one in 2015 he has been misconduct free.

           He has been recommended as a mentor and works in the
      maintenance area with a high rating.

N.T. Resentencing Hearing, 2/9/18, at 7. The court entertained Appellant’s

witnesses who testified about his school experiences pre-incarceration and

progress in prison. The court also heard argument by Appellant’s attorney’s,

along with Appellant’s allocution expressing remorse to the family of the victim

before fashioning its sentence. Id. at 14-43, 94-102. Notably, Appellant’s

attorney pointed out that Appellant was mere months beyond his fifteenth

birthday when he was an accomplice to this murder, which is significant




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because § 1102.1 places the starting point for his minimum sentence ten years

higher than if he had still been fourteen years old. Id. at 97.

      The sentencing court received and considered extensive mitigation

evidence at the resentencing hearing about Appellant’s age and personal

history. Thereafter, the court placed its reasons on the record for imposing

the thirty-year minimum sentence:

            So with regard to the sentencing factors, I have taken into
      consideration the guidelines for a person over the age of [fifteen]
      being a minimum sentence of [thirty five] years, as compared to
      the guidelines for a person who is one under [fifteen] years of age.
      That is [twenty five] years. And, I note that [Appellant] was about
      two months over the age of [fifteen].

            And in regard to the list of factors to be considered, the
      extent of his participation does differ from Mr. Hicks in that Mr.
      Hicks was the shooter. However, it is also clear that [Appellant]
      was with Mr. Hicks in the days leading up to the shooting and in
      the hour leading up to the shooting at the white Impala, based on
      the testimony of Mr. McDonald, and it was – I believe it was Mr.
      Dorsey with regard to the Impala.

             He was, by virtue of the testimony of the teachers who were
      here today, in school, somebody they considered to be a kind
      person, who did appear to be more of a follower, a passive
      personality as opposed to an aggressive personality. And while
      he was ultimately removed from that school in the tenth grade
      because of behavior issues, the nature of those issues was not
      clear in any of the material I received here today.

            By virtue of the testimony of the teachers who were present,
      it appeared to be more likely non-combative type but more in the
      manner of maybe not following rules or being a jokester or
      something of that nature. There is no evidence that the behaviors
      that caused him to be expelled were of a violent nature.

            In addition to that, your testimony from the witnesses at
      SCI Pine Grove do indicate a young men who after an initial
      adjustment period has made efforts to rehabilitate and has

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      completed a number of programs and is a mentor, a good mentor
      for other young men at SCI Pine Grove. He does have extensive
      family support here with him today.

           So in light of all of the factors that I need to consider in
      making a sentence, I would resentence him as follows. . . .

Id. at 106-07. The court then reiterated its explanation from the hearing in

its opinion:

             Appellant asked that he receive an aggregate minimum of
      20 years. The Commonwealth asked the [c]ourt to set the
      minimum at 47.5 years, the same sentence as Hicks received after
      his Miller resentencing hearing. This [c]ourt, in imposing a
      [thirty] year minimum sentence, considered the Batts guidelines
      for a [fifteen] year old convicted of homicide. This [c]ourt further
      considered the extent of Appellant’s participation in the crime, in
      that Appellant was not the shooter but actively participated in
      planning the ambush and locating the victim. This [c]ourt further
      considered the testimony of the teachers who testified at the
      sentencing who described Appellant as kind, a follower and having
      a passive personality. In addition, this [c]ourt considered the
      testimony regarding Appellant’s positive adjustment to
      incarceration, the numerous programs he has completed, his
      status as a mentor, as well as his extensive family support. The
      sentence imposed balances this [c]ourt’s appreciation of the
      severity of the charges with its consideration of Appellant’s
      potential for rehabilitation.

Trial Court Court Opinion, 11/2/18, at 5.

      Our review confirms that the resentencing court considered prior to

imposing sentence every mitigation factor that Appellant claims in his brief

that the court failed to.   The court then weighed the mitigation evidence

against the nature of the crime and victim impact statement in light of §

1102.1. We have no license to reweigh the evidence. See Macias, supra at




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778. Consequently, Appellant is not entitled to any relief on his second claim

and we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2020




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