J-S40027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH A. FLOWERS                          :
                                               :
                       Appellant               :   No. 105 WDA 2019

       Appeal from the Judgment of Sentence Entered December 11, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0001077-1999


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED OCTOBER 11, 2019

        Joseph Flowers appeals the judgment of sentence imposed after he was

resentenced pursuant to Montgomery v. Louisiana, 136 S.Ct. 718 (2016),

and Miller v. Alabama, 567 U.S. 460 (2012). We affirm.

        On October 7, 1999, a jury found Flowers guilty of murder in the first-

degree, Aggravated Assault, Firearms Not to be Carried Without a License,

and Person Not to Possess Firearm for shooting two men, one of whom died.1

Flowers was 17 years old at the time. The facts giving rise to these convictions

are as follows:

        The evidence established that on January 5, 1999, [Flowers] was
        staying at Apartment 57G in the Crawford Village Apartments in
        McKeesport. He was supposed to meet a Tara Evans there.
____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(a), 2702(a), 6105, and 6106, respectively.
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      Evan[s]’ boyfriend, Carlos Bray, went to apartment 57 G [sic] to
      confront [Flowers] over his involvement with Evans. Bray was
      accompanied by his cousin, Michael Bray. Neither was armed. The
      Brays entered the apartment and [Flowers] retreated to the
      kitchen. When Carlos Bray entered the kitchen, [Flowers] shot
      him. After Bray fell to the floor, [Flowers] shot him again.

      When Michael Bray turned and tried to flee the apartment,
      [Flowers] stepped over the body of Carlos Bray, knelt, aimed and
      shot Michael Bray in the back. [Flowers] fled the apartment and
      was arrested a short time later. He gave a statement to Detective
      James Morton in which he admitted that he shot Carlos and
      Michael Bray but claimed that he did so in self-defense. [Flowers]
      did not testify at trial or present any other evidence.

Commonwealth v. Flowers, 828 A.2d 396 (Pa.Super. filed April 23, 2003)

(unpublished memorandum) (quoting trial court opinion). The trial court

imposed a mandatory life sentence without parole for the first-degree murder

conviction. We affirmed the judgment of sentence. See id.

      Flowers filed a pro se Post Conviction Relief Act (“PCRA”) petition

seeking relief under Miller and Montgomery. See 42 Pa.C.S.A. §§ 9541-

9546. Miller held “that mandatory life without parole for those under the age

of 18 at the time of their crimes violates the Eighth Amendment’s prohibition

on ‘cruel and unusual punishments.’” Miller, 567 U.S. at 465. Montgomery

held that “Miller announced a substantive rule that is retroactive in cases on

collateral review.” Montgomery, 136 S.Ct. at 732. The PCRA court vacated

Flowers’ judgment of sentence and scheduled a resentencing hearing. See

Order of Court, filed 5/9/17.




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      At the resentencing hearing, Flowers presented testimony from a

mitigation specialist, Bianca D’Auria, as well as testimony from his mother and

aunt. Flowers also testified.

      D’Auria testified that she had written a report after interviewing Flowers

three times, speaking with his family, and reviewing his records from the

Department of Corrections, the Office of Children, Youth and Family Services,

and juvenile court. N.T., Resentencing Hearing, 12/11/18, at 5. The court

accepted her report into evidence. Id. She did not testify as an expert but

rather, in defense counsel’s words, as a “specialist” who had “talk[ed] to

people, review[ed] records, [and] put together a report so the Judge [would]

have a picture of [Flowers’] past, his present, [and] what happened around

the time of the crime.” Id. at 6.

      In her report, D’Auria wrote that in coming to a conclusion regarding

Flowers’ mitigation she considered multiple factors: the impact on the

victim(s); the impact on the community; his degree of culpability; his age at

the time of the offense; his mental capacity at the time of the offense; his

maturity, the “criminal sophistication,” notably that he had no prior violent

offenses; the “nature and extent of prior delinquent/criminal history”; and his

“amenability to treatment/potential for rehabilitation/reduction of threat to

the safety of the public or others.” See Mitigation Report, filed 6/04/18, at

16-18.




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      Regarding Flowers’ potential for rehabilitation, she concluded the

following:

      [Flowers] has spent the last 19 years of his life incarcerated. He
      has remained misconduct free since 2014. None of his
      misconducts have been violent in nature. [Flowers] has
      participated [in] many classes such as Stress and Anger
      Management and Character Development that have helped him to
      grow as an individual and prepare for release. [Flowers] continues
      to set goals for himself to continue his growth. He takes time to
      read and expand his knowledge of Physics and other topics.
      [Flowers] also takes lessons from his time in the juvenile system
      and he applies them to his current relationships. He continues to
      demonstrate a desire and motivation to grow.

Id. at 18.

      The report then ends with the following quote from Flowers:

      I’m glad I had to serve time. The way I though[t] back then I
      would have felt like I got over. It would have boost[ed] my ego
      on a bad level. Doing the time put into perspective the value of
      life, not just mine, everyone’s. It took the first ten years to get to
      the point to be able to take responsibility, to get to the point of
      self-reflection. I have to take responsibility for my own actions. I
      can’t expect everything to go right without putting in the work.
Id.

      Next, the court heard testimony from Flowers’ mother, Jacqueline Miles.

She testified about being addicted to drugs when Flowers was a child and as

a result not being consistently present in his life. N.T., Resentencing, at 18.

She also testified that while he knew the identity of his father, his father “just

didn’t have the time” for him. Id. at 19. She also testified that she began to

see a change in Flowers after approximately four to five years in prison.

      [Miles]: Around 2003, 2004 we started really talking. Then he
      started around maybe – it’s kind of hard to keep up with the years
      since there’s been a whole lot of them, you know. But eventually

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      we started talking about what happened around that time and that
      day. And, you know, he told me then he realizes that none of that
      would have ever happened had he been where he was supposed
      to be in school that day. And he has always had remorse for the
      situation, he always spoke about it. He even asked me at one
      point, “Mom, could you please reach out to that family just to see
      if there’s anything we can do?” I said, “Wait, you’re locked up” but
      I know what he meant, and I made that effort. . . . But like I said,
      he’s a different person now.

Id. at 20, 21-22.

      The court then heard testimony from Flowers’ aunt, Cynthia Norfleet-

Jackson, who also testified about the difference she had seen in Flowers since

his incarceration.

      [Jackson]: . . . Now since [Flowers’] incarceration and everything,
      we started back writing around 2004 and in 2006 was when I
      made my actual visit with him up to Somerset. At first, it was like,
      “I’m tired of this place but I know what I did, you know, I wish I
      would have thought differently had I been in the right please
      instead of where I was, but I’m willing to deal with this situation
      here but I don’t like it here.” . . . I have been to Somerset and I
      have been to Houtzdale where he is at now. Somerset, I could see
      the growth. He wasn’t looking at it like, “okay, I don’t have to be
      here forever. I’m going to focus on what I can do to be a better
      person.” And I would take my grandsons, I have two grandsons
      that I’m raising. And [Flowers] would counsel with them as well
      and let them know that this is not a place they wanted to be. They
      didn’t need to associate themselves with gangs or anything like
      that. Don’t let peer pressure bother them, stay in school.

Id. at 23, 25-26.

      Finally, the court then heard testimony from Flowers. Flowers expressed

his remorse for the crime and discussed the change in his life during these

last twenty years of being incarcerated.

      [Defense Counsel]: How do you feel you have changed since your
      teenage years, since the day this happened up until today?

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     [Flowers]: One of the biggest changes I think I’ve made is I’m
     more secure in myself. Instead of counting on how everybody else
     looks at me, they are going to think that’s cool or whatever, I
     choose to walk my own path because in the end I have to pay for
     whatever I do, I have to pay for my own consequences. So I can’t
     base my actions, my decisions on how you feel or how you think.

     Over the years, I found that pretty much walking in a circle or
     banging my head against the same wall, doing the same behavior
     is called insanity. It’s repeating the same behavior and getting the
     same results. That hasn’t been successful, so I started finding
     ways to find positive things to do, positive people to be around. I
     take it upon myself to further my education. I would get books
     from Books Through Bars, they give free books.

     [Flowers]: Then another thing as far as my personal growth. I
     don’t like to blame because for anything else anymore.

                                  ***
     [Defense Counsel]: And the transformation that you put yourself
     through helped you get through the last 20 years, that again was
     long before you knew there was a chance you were going to get
     out one day.

     [Flowers]: Yes. When you are first going though and you’re going
     through SCI Camp Hill, they give prescription programs that they
     feel you should take based on many factors but mainly dependent
     on your charges and so on. I got in the classes as soon as I was
     able to, because going home or not, why not better myself? So I
     took the programs immediately. I continued seeking programs. .
     . . Then another thing as far as my personal growth. I don’t like
     to blame people for anything else anymore.

                                     ***

     [Defense Counsel]: Okay. I’m sure you thought about what
     happened that day in 1999. What are your thoughts about what
     happened how [do] you feel about it?

     [Flowers]: That’s the most tragic day in my history. Not
     necessarily of what happened to me but because of the wide-
     range effect that it took on others. A young man lost his life. That
     life that was extinguished can never be brought back and I feel

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      horrible about it. The fact that his family had to endure the
      hardship, whether it be something as simple as missing him or
      him not being able to be there to support them through things.
      That weighed heavily on me day-to-day and then the effect it had
      on the families.

                                     ***

      [Defense Counsel]: Is there anything else you would like to [sic]
      the Judge to know?

      [Flowers]: That I’m extremely sorry. I mean, if they were here
      today I would love to tell them how sorry I am and if there was
      ever any way they could think of that I could repay them, I owe
      them eternally.

Id. at 29-30, 32, 33-34.

      At the conclusion of the hearing, the court resentenced Flowers to

concurrent terms of 30 years’ incarceration to life imprisonment for the first

degree murder conviction and five to 10 years’ incarceration for the

aggravated assault conviction, with credit for time served. Id. at 46; see also

Order of Sentence, dated 12/11/18. Flowers filed a post-sentence motion,

which the court denied. This timely appeal followed.

      Flowers raises the following claim:

            I. The trial court erred in re-sentencing [Flowers] since
            [Flowers’] minimum sentence of 30 years imprisonment for
            murder 1 was manifestly excessive since this was essentially
            a murder 3 case ([Flowers] was confronted by both victims,
            who came to violently confront appellant rather than having
            a peaceful discussion) and [Flowers] was a frightened, 17
            year old, [Flowers] has served 20 years state imprisonment
            and is now a responsible, mature, levelheaded, remorseful,
            37 year old man, who has spent his 20 years incarcerated
            attempting to make himself a more productive and better
            human being, is no longer a threat to society, and there is
            no reason to believe that he should have to spend at least

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            10 more years incarcerated, at taxpayer expense, to pay for
            crimes and be rehabilitated to the point that he could be
            reintegrated into society; hence, the minimum sentence of
            30 years imprisonment was manifestly excessive.

Flowers’ Br. at 8.

      Flowers’ claim challenges the discretionary aspects of his sentence. As

such, we must first determine whether: “(1) the appellant preserved the issue

either by raising it at the time of sentence or in a post[-]sentence motion; (2)

the appellant filed a timely notice of appeal; (3) the appellant set forth a

concise statement of reasons relied upon for the allowance of his appeal

pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial

question for our review.” Commonwealth v. Conte, 198 A.3d 1169, 1173

(Pa.Super. 2018) (citation omitted) (alteration in original).

      Flowers has satisfied the first three prongs. We now address whether he

has raised a substantial question. Flowers argues “that his 30 year minimum

sentence was manifestly excessive.” Flowers’ Br. at 12. He notes that we have

found substantial questions to be raised “when the claim of excessiveness is

that the sentence is so manifestly excessive as to constitute too severe a

punishment[,]” and where “the [t]rial [c]ourt did not provide sufficient

reasons for the excessive sentence[.]” Id. (citing Commonwealth v.

Mouzon, 812 A.2d 617 (Pa. 2002), and Commonwealth v. Wilson, 946

A.2d 767 (Pa.Super. 2007)). However, Flowers does not argue that the

sentence created too severe a punishment or that the court did not provide

the reasons for its sentence. Without further explanation as to why such a

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sentence is excessive, he has failed to raise a substantial question.

Nonetheless, if he had raised a substantial question, we would conclude that

the claim lacked merit.

      We review an appeal from the discretionary aspects of sentence for an

abuse of discretion. See Commonwealth v. Nevels, 203 A.3d 229, 247

(Pa.Super. 2019) (citing Commonwealth v. Cook, 941 A.2d 7, 11-12

(Pa.Super. 2007)). “An abuse of discretion is not merely an error of judgment,

but is rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence of record.” Commonwealth v.

Santos, 176 A.3d 877, 882 (Pa.Super. 2017) (quoting Commonwealth v.

Antidormi, 84 A.3d 736, 749-50 (Pa.Super. 2014)).

      In the argument section of his brief, to support his assertion that the

court imposed a manifestly excessive sentence, Flowers discusses the

mitigation evidence he presented at the sentencing hearing as well as his

opinion that the crime he committed “in reality [was] a Murder 3.” Flower’s

Br. at 13.

      To begin, we reject Flowers’ argument that the crime committed herein

was “in reality a Murder 3,” as it denies the jury’s verdict. Flowers was charged

and convicted of murder in the first degree, a verdict of which this Court

affirmed. See Flowers, No. 1170 WDA 2000 at 1.




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      Flowers notes his mitigating factors included his bleak upbringing

(absent father and drug addicted mother), his age at the time of the shooting,

the confrontational nature of the shooting, his continuous remorse, and his

noted good behavior while incarcerated. A review of the resentencing hearing

reflects that the trial court considered these mitigating factors in fashioning

its sentence.

      The court read the extensive report of D’Auria and also heard testimony

from Flowers’ mother and aunt, as well as from Flowers himself. Based on this

evidence, “[the] court departed downwards precisely because of the

circumstances of the offense and the efforts [Flowers] has made towards

preparing himself for reentry into society, efforts that he made when he had

no reason to believe that he ever would be paroled.” Trial Court Opinion, filed

5/02/19, at 5.

      Furthermore, the current sentencing statute for juveniles, Section

1102.1(a)(1), requires that a juvenile 15 years of age or older convicted of

first-degree murder be sentenced to a minimum of 35 years’ incarceration to

life. See 18 Pa.C.S.A. § 1102.1(a)(1). While the court was not bound by

Section 1102.1(a)(1), we find it persuasive that the court imposed a sentence

that is five years less than what sentence it could have imposed had Flowers’

committed the same crime today. See id. (“A person who has been convicted

after June 24, 2012, of a murder of the first degree, . . . shall be sentenced

to a term of life imprisonment . . . the minimum of which shall be at least 35


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years to life”) (emphasis added). The court’s sentence was not manifestly

excessive. See Commonwealth v. Foust, 180 A.3d 416, 441 (Pa.Super.

2018) (affirming judgment of sentence following resentencing pursuant to

Miller where court imposed two consecutive terms of 30 years to life

imprisonment, where evidence existed of defendant’s rehabilitation while

incarcerated for past 20 years).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2019




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