J-A30016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT
                                              OF PENNSYLVANIA
                      Appellee

                 v.

KRISTOPHER HEGGINS

                      Appellant              No. 1820 WDA 2016


    Appeal from the Judgment of Sentence imposed August 10, 2016
           In the Court of Common Pleas of Allegheny County
            Criminal Division at No: CP-02-CR-0007504-2000


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT
                                                     OF
                                                PENNSYLVANIA
                      Appellee

                 v.

KRISTOPHER HEGGINS

                      Appellant              No. 1821 WDA 2016


    Appeal from the Judgment of Sentence imposed August 10, 2016
           In the Court of Common Pleas of Allegheny County
            Criminal Division at No: CP-02-CR-0007508-2000
J-A30016-17


    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    KRISTOPHER HEGGINS

                             Appellant                No. 1836 WDA 2016


       Appeal from the Judgment of Sentence imposed August 10, 2016
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0007508-2000

BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                          FILED JANUARY 3, 2019

        In these consolidated appeals,1 Appellant Kristopher Heggins appeals

his sentence of thirty years to life imprisonment imposed during his

resentencing for second degree murder,2 a crime committed in 1997 while

Appellant was a juvenile. We vacate Appellant’s sentence and remand for

further proceedings.

        The trial court summarized the history of this case as follows:

        [Appellant] has appealed from the judgment of sentence entered
        on August 10, 2016 following a re-sentencing hearing and grant
        of [p]ost-[c]onviction collateral relief . . . .

        This case has a long and complex procedural history. [Appellant]
        was charged with [c]riminal [h]omicide, [r]obbery and [c]riminal
        [c]onspiracy in connection with the shooting death of Salvatore
        Brunsvold. At the time of Mr. Brunsvold’s death, [Appellant] was
____________________________________________


1We consolidated these appeals sua sponte in an order dated December 28,
2016.

2   18 Pa.C.S. § 2502(b).

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     16 years old. Following a jury trial held before this [c]ourt in
     September 2000, [Appellant] was convicted of [s]econd-[d]egree
     [m]urder and the remaining charges. The judgment of sentence
     was affirmed by the Superior Court on September 18, 2002 and
     his [p]etition for [a]llowance of [a]ppeal was denied by the
     Pennsylvania [Supreme] Court on June 20, 2003.

     On March 17, 2004, [Appellant] filed a pro se Post Conviction
     Relief Act Petition. J. Richard Narvin, Esquire, was appointed to
     represent [Appellant], and after several delays, an [a]mended
     PCRA Petition was filed on July 16, 2007. This [c]ourt initially
     dismissed the [a]mended [p]etition, but after reviewing counsel’s
     [m]otion to [r]econsider, this [c]ourt vacated the dismissal and
     scheduled an evidentiary hearing on the [a]mended [p]etition.
     Several changes of counsel and corresponding postponements
     ensued, and the evidentiary hearing was eventually held on April
     21, 2010.

     Following the evidentiary hearing, this [c]ourt thoroughly
     reviewed the record and trial transcripts in their entirety. On
     September 22, 2010, this [c]ourt convened a second PCRA
     hearing at which time it found that trial counsel was ineffective
     for failing to object to the testimony of the Danville Correctional
     Institute witnesses regarding [Appellant]’s supposed gang
     membership and past criminal activity and also for introducing
     [Appellant]’s     otherwise     inadmissible    prior   convictions.
     Consequently, this [c]ourt granted collateral relief in the form of
     a new trial. The Commonwealth appealed the award of a new
     trial and the Superior Court reversed this [c]ourt’s [o]rder on May
     9, 2012. Reargument was subsequently denied on August 9,
     2012. No further action was taken until [Appellant] sought, and
     was granted, leave to file a [p]etition for [a]llowance of [a]ppeal
     [n]unc [p]ro [t]unc. The [p]etition for [a]llowance of [a]ppeal
     was filed and was denied on August 27, 2013.

     While the appeal of this [c]ourt’s [o]rder for a new trial was
     pending, [Appellant] filed a counseled [PCRA] [p]etition, his
     second, on July 10, 2012, raising a claim pursuant to Miller v.
     Alabama, [567 U.S. 460] (2012). However, shortly thereafter,
     he filed a [p]etition to [w]ithdraw the PCRA Petition, and this
     [c]ourt granted that request on July 23, 2012.

     On October 24, 2013, [Appellant] filed a pro se “Post Conviction
     Relief Act Continuance/Extension of Original PCRA Petition,”

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       which he attempted to characterize as a second amendment to
       his 2004 PCRA [p]etition but was, in actuality, his third PCRA
       [p]etition. J. Richard Narvin, Esquire, was appointed to represent
       [Appellant], though [Appellant] later sought to have Mr. Narvin
       removed from the case due to a “personality” difference. That
       motion was denied. Thereafter, Mr. Narvin filed a Turner3 “[n]o
       [m]erit” [l]etter citing the untimeliness of the [p]etition and
       sought permission to withdraw from the representation, which
       this [c]ourt then permitted. After giving appropriate notice of its
       intent to do so and reviewing [Appellant]’s response thereto, this
       [c]ourt dismissed [Appellant]’s third PCRA [p]etition on August
       18, 2014. A direct appeal was taken and remained pending for
       some time, though it was eventually remanded for resentencing
       on March 15, 2016 in light of the new decision in Montgomery
       v. Louisiana, 136 S.Ct. 718 (2016).

       However, on February 18, 2016, several weeks after the
       Montgomery decision but before the Superior Court took action
       on the prior appeal, [Appellant] filed his fourth [PCRA] [p]etition
       raising another Miller claim, this time in conjunction with the
       retroactivity ruling in Montgomery. Counsel was appointed to
       represent [Appellant] and an [a]mended [p]etition quickly
       followed (also before the Superior Court’s [r]emand [o]rder).
       Thereafter, this [c]ourt granted relief in the form of a
       resentencing hearing.

       The resentencing hearing was held on August 10, 2016. After an
       extensive review of the record and consideration of testimony
       from [Appellant] and his mother, a victim impact statement from
       Mr. Brunsvold’s widow and arguments from counsel, this [c]ourt
       imposed a term of imprisonment of 30 years to life.[4] Timely
       [p]ost-[s]entence [m]otions were filed and were denied on
       November 4, 2016. This appeal followed.[5]


____________________________________________


3   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

4 The trial court imposed no further penalty on Appellant’s robbery and
conspiracy convictions.

5 Appellant filed a timely notice of appeal, and both Appellant and the trial
court complied with Pa.R.A.P. 1925.


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Trial Court Opinion, 5/5/17, at 1-3.

      Several other important facts deserve mention. The Commonwealth

neither alleged nor proved that Appellant was the shooter. During trial, the

Commonwealth argued that Appellant was guilty of second-degree murder,

not first degree murder.   N.T., 9/29/00, at 41-42 (there was “more than

ample evidence to convict the defendant of murder of the second degree.

That is acting in concert with another person to commit a robbery resulting

in death making him responsible as an accomplice or conspirator”).         In

particular, the Commonwealth argued that Appellant admitted that he “was

teaching this other person how to do a robbery, and that the robbery went

bad and resulted in the shooting of [Mr. Brunsvold].”      Id. at 47 (closing

argument). The victim of the shooting was a minister who was married with

three young children.    A Commonwealth witness testified that Appellant

stated that his compatriot fired the gun, and that he himself would never

have shot the victim. N.T., 9/26/00, at 49. The trial court charged the jury

on the elements of second-degree murder and added the following

instruction:

      When two people are partners in a successful or unsuccessful
      attempt to commit a felony and one of them kills a third party,
      both parties may be found guilty of felony murder. Neither
      partner has to intend to kill or to anticipate that anyone will be
      killed. The person killed can be someone other than the victim
      of a felony.

Id. at 80.




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      We further note that the trial court sentenced Appellant to a maximum

of life imprisonment with the possibility of parole. At Appellant’s resentencing

hearing, the trial court gave the following reasons for this sentence:

      Mr. Heggins, when I sentenced you the first time it was a really
      easy decision. I didn’t have any problem, it was mandatory, and
      I truly believed that you needed to be in jail for the rest of your
      life. I had some doubts when I reviewed your case as a PCRA. I
      was not convinced that your confession to this crime was given
      voluntarily on your part, and therefore I ordered you a new trial.
      However, the Superior and Supreme Court have reversed me and
      I respect their decision. So the truth is that you have been
      convicted and stand convicted. My feelings about the confession
      apparently were not persuasive.

      To start off with, you committed an extraordinarily heinous crime,
      and I do believe you committed this crime. I love that your
      mother doesn’t believe it, but I think you did commit it. You
      were the perpetrator, and you murdered by shooting in the
      head a man of God who was married with three little
      children. There was no reason for this crime. You didn’t know
      each other, you weren’t in opposite gangs. You just arbitrarily
      went up and killed him.

      You do have a bad juvenile record, I agree with [the
      Commonwealth]. However, that was a significant period of time
      ago. In your behalf, I find that you have continued family support
      as you did during the trial, and you have indicated your remorse.
      I did notice that you did not do well until about two years ago and
      do have 22 misconducts at Frackville. Now all of a sudden the
      Miller case came down and you start to be an achiever and start
      doing things to help making [sic] your life better.

      I have to believe that there is some hope in this world for
      juveniles that commit really, really awful crimes, that they will be
      rehabilitated, and I am hoping that you will be one of those
      people. At the count of second degree murder, I am going to
      sentence you to serve not less than 30 years, nor more than life
      ....

      I would also like the record to reveal that I have been looking
      into this issue and this case for at least 30 days. I spent an

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J-A30016-17


      incredible amount of time, an incredible amount of thought. I
      hope, Mr. Heggins, that you don’t let me down when you get out.
      You will still be young enough to do something with your life.

N.T., 8/10/16, at 15-17 (emphasis added).

      Appellant raises two issues in this appeal:

      1. Did the sentencing court commit legal error by sentencing
      [Appellant] to confinement for 30 years to life on his conviction
      for second degree murder because both the minimum and
      maximum term of that sentence is unconstitutional as imposed
      on a juvenile who did not himself kill the victim or have the
      intention of doing so, and who was not found to be incorrigible
      by the sentencing court?

      2. Did the sentencing court err by sentencing [Appellant] to
      confinement for 30 years to life on his conviction for second
      degree murder because the sentencing court’s consideration of
      the factors in Miller v. Alabama, 567 U.S. 460 (2012) and
      Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012), was
      inadequate and erroneous, did not account for the presumption
      of immaturity and reduced culpability of juvenile offenders, and
      did not afford [Appellant] an individualized analysis of an
      appropriate sentence?

Appellant’s Brief at 4-5.

      Appellant’s second argument is dispositive, thus making it unnecessary

to address the constitutional claim in his first argument. Commonwealth v.

Herman, 161 A.3d 194, 209 (Pa. 2017) (“courts should avoid constitutional

issues when the issue at hand may be decided upon other grounds”) (citations

omitted).

      Appellant makes two claims in his second argument: (1) the trial court

failed to consider all thirteen sentencing factors for juveniles delineated in




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Knox;6 and (2) the trial court “fundamentally misapprehended the nature of

the underlying offense” and ignored other crucial sentencing criteria.

        These claims challenge the discretionary aspects of Appellant's

sentence. “The right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Instead, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

        An appellant challenging the discretionary aspects of his sentence
        must invoke this Court's jurisdiction by satisfying a four-part test:

        [W]e conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
        and 903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify sentence, see
        Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal
        defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
        question that the sentence appealed from is not appropriate
        under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
____________________________________________


6   These factors include:

        [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.

Knox, 50 A.3d at 745.

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

determination of whether there is a substantial question is made on a case-

by-case basis, and this Court will grant the appeal only when the appellant

advances a colorable argument that the sentencing judge's actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms that underlie the sentencing process.

Commonwealth v. Sierra, 752 A.2d 910, 912–13 (Pa. Super. 2000).

      Here, Appellant timely appealed, raised challenges to the discretionary

aspects of his sentence in post-sentence motions, and included in his brief

the necessary Pa.R.A.P. 2119(f) statement of reasons for allowance of appeal.

Further, Appellant raised substantial questions by arguing the trial court failed

to apply all of the Knox factors and fundamentally misperceived the nature

of his offense. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.

2009) (sentencing court’s failure to set forth adequate reasons for sentence

raises substantial question). We therefore proceed to the merits of his claims.

      Appellant’s first claim—that the trial court failed to apply the Knox

factors—lacks merit. To explain why, we sketch the development of the law

since Miller v. Alabama. On June 25, 2012, the United States Supreme

Court held in Miller that mandatory sentences of life imprisonment without

parole (“LWOP” or “LWOP sentence”) for minors violate the Eighth

Amendment’s prohibition against cruel and unusual punishment. Id., 567

U.S. at 469–89. Several weeks after Miller, this Court held in Knox that, in

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view of Miller, trial courts could not sentence juveniles to LWOP without first

considering, at a minimum, the thirteen factors recited above in footnote 6.

Knox, 50 A.3d at 745.

      In October 2012, the General Assembly reacted to Miller by enacting

18 Pa.C.S.A. § 1102.1, which provides, inter alia, that an individual between

the ages of 15 and 17 years old convicted of second-degree murder after

June 24, 2012 must be sentenced to a minimum term of thirty years to life

imprisonment. 18 Pa.C.S.A. § 1102.1(c)(1).

      Following Section 1102.1’s enactment, our Supreme Court issued two

decisions that further shaped sentencing contours for juveniles convicted of

first or second-degree murder prior to June 25, 2012. In Commonwealth

v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”), the Court held that Section

1102.1 does not apply to those minors, like Appellant, who were convicted of

first or second-degree murder prior to June 25, 2012.      Batts I, 66 A.3d at

293. Subsequently, in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)

(“Batts II”), the Court held:

      When sentencing a juvenile to life in prison with the possibility of
      parole (regardless of whether a life-without-parole sentence was
      sought by the Commonwealth), the sentencing court should be
      guided by [S]ection 1102.1(a) in determining the minimum term
      of imprisonment. Although not directly applicable to juveniles
      convicted of first-degree murder prior to Miller, as Justice Baer
      recognized in his concurrence in Batts I, we cannot ignore the
      policy determination made by the General Assembly as to the
      minimum sentence a juvenile convicted of first-degree murder
      must receive . . . .




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       In sentencing a juvenile offender to life with the possibility of
       parole, traditional sentencing considerations apply. See 42
       Pa.C.S.[A.] § 9721(b). The sentencing court should fashion the
       minimum term of incarceration using, as guidance, [S]ection
       1102.1(a) of the Crimes Code.

Batts II, 163 A.3d at 457, 460.

       Pursuant to Batts II, Knox no longer applies when, as here, the trial

court declines to sentence a juvenile homicide offender to LWOP. Instead of

applying Knox in this circumstance, the trial court need only apply

“traditional sentencing considerations” and seek guidance from Section

1102.1(a).7 Id.

       Appellant’s next claim is more successful. He contends that the trial

court ignored several criteria within Section 1102.1 at resentencing, including

Appellant’s diminished capacity and immaturity due to his age at the time of

his crime, the effect of peer pressure on his decisionmaking, and his

neighborhood environment. In addition, Appellant argues that the trial court



____________________________________________


7 In view of Batts II, Appellant’s reliance on Commonwealth v. Hicks, 151
A.3d 216 (Pa. Super. 2016), is misplaced. In Hicks, a juvenile defendant
was convicted of first-degree murder prior to, but sentenced following, June
25, 2012, the effective date of Section 1102.1. The trial court sentenced the
defendant to 35 years to life imprisonment, reasoning that this was the
mandatory minimum sentence under Section 1102.1 for offenders between
15 and 18 years of age at the time of the offense. This Court reversed on
the ground that Section 1102.1 did not apply to homicides committed prior
to June 25, 2012, and we remanded for resentencing in accordance with
Knox and Miller. Id., 151 A.3d at 230. Hicks’ instruction to apply Knox,
however, no longer controls due to Batts II’s directive to apply traditional
sentencing considerations and seek guidance from Section 1102.1 in this
situation.

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J-A30016-17


fundamentally misperceived his role in the victim’s death by claiming that

Appellant himself shot the victim.

      Section 1102.1(d) provides:

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

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

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

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

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

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

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

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

      (i) Age.

      (ii) Mental capacity.

      (iii) Maturity.

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

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

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J-A30016-17



     (vi) Probation or institutional reports.

     (vii) Other relevant factors.

Id. (emphasis added).

     Because Appellant’s crime took place before June 25, 2012, the trial

court was required to use the criteria within Section 1102.1(d) as “guidance”

for fashioning an appropriate sentence. Batts II, 163 A.3d at 457, 460. The

court performed this duty improperly.        It misconstrued the “nature and

circumstances” of Appellant’s offense, 18 Pa.C.S.A. § 1102.1(d)(4), by

stating erroneously at resentencing that Appellant was “the perpetrator” who

“just arbitrarily went up and shot” the victim. N.T., 8/10/16, at 16. The

Commonwealth neither alleged nor proved that Appellant was the shooter; it

only proved that Appellant was the accomplice or co-conspirator of the

perpetrator.   In addition, while the court mentioned Appellant’s juvenile

offense record, it did not address his mental capacity or immaturity at the

time of his crime, both of which are pertinent under Section 1102.1(d)(7).

Finally, Appellant’s treatment records in prison indicate that his criminal

conduct was partly the result of peer pressure during his childhood and

adolescence, “[an]other relevant factor[]” under Section 1102.1(d)(7), but

the court failed to take this into consideration. These errors constitute an

abuse of the court’s sentencing discretion that might well have affected the

length of Appellant’s sentence, thereby necessitating additional sentencing

proceedings.

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J-A30016-17


      We vacate Appellant’s sentence and remand for a new sentencing

proceeding in which the trial court applies traditional sentencing factors and

seeks guidance from all factors articulated in Section 1102.1(d).             In

particular, we direct the trial court to (1) take into account that Appellant was

not the actual shooter, (2) factor Appellant’s mental capacity and maturity,

or lack thereof, into its sentencing determination, and (3) assess whether

peer pressure during Appellant’s childhood and adolescence should affect

Appellant’s sentence. Since resentencing has the potential to disrupt the trial

court’s entire sentencing scheme, we not only vacate Appellant’s sentence

for second-degree murder but also his sentences for robbery and conspiracy

and remand for resentencing on all convictions.           Commonwealth v.

Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (“if a trial court errs in its

sentence for one count in a multi-count case, then all sentences for all counts

will be vacated so that the court can re-structure its entire sentencing

scheme”).

      Judgment of sentence vacated. Case remanded for further proceedings

in accordance with this memorandum. Jurisdiction relinquished.

      Judge Bowes files a concurring memorandum.

      President Judge Emeritus Ford Elliott concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2019




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