J-A07009-19

                               2020 PA Super 158


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSE JAVIER DEJESUS                     :
                                         :
                   Appellant             :   No. 883 EDA 2018

          Appeal from the Judgment of Sentence January 5, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0001277-1997


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

DISSENTING OPINION BY OLSON, J.:                      FILED JULY 06, 2020

      I must respectfully dissent from my learned colleagues. I believe that

the evidence is insufficient to rebut the presumption against imposing a

life-without-parole sentence and that Appellant’s sentence is illegal. Thus, I

would vacate Appellant’s judgment of sentence and remand for resentencing.

      In Miller v. Alabama, the United States Supreme Court 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. In arriving at this conclusion, the

Supreme Court relied upon its past precedents in Graham v. Florida and

Roper v. Simmons. See Graham v. Florida, 560 U.S. 48 (2010); see also

Roper v. Simmons, 543 U.S. 551 (2005). The Miller Court explained that

Graham and Roper “establish[ed] that children are constitutionally different

from adults for purposes of sentencing” because:


____________________________________
* Former Justice specially assigned to the Superior Court.
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        [1)] children have a lack of maturity and an underdeveloped
        sense of responsibility, leading to recklessness, impulsivity,
        and heedless risk-taking[; 2)] children are more vulnerable
        to negative influences and outside pressures, including from
        their family and peers; they have limited control over their
        own environment and lack the ability to extricate themselves
        from horrific, crime-producing settings[; and, 3)] a child's
        character is not as well formed as an adult's; his traits are
        less fixed and his actions less likely to be evidence of
        irretrievable depravity.

Id. at 471 (quotations, citations, and corrections omitted), quoting Graham,

560 U.S. at 68 and Roper, 543 U.S. at 569 and 570.

      The Miller Court held that, “[b]ecause juveniles have diminished

culpability and greater prospects for reform [than adults] . . . they are less

deserving of the most severe punishments” and, as a class, “the distinctive

attributes of youth diminish the penological justifications” for imposing upon

juveniles life without parole. Miller, 567 U.S. at 471 and 472 (quotations

omitted).     Further,   the   Miller   Court   echoed   Graham    by   “likening

life-without-parole sentences imposed on juveniles to the death penalty

itself.” Id. at 474. The Miller Court explained:

        Life-without-parole terms . . . share some characteristics with
        death sentences that are shared by no other sentences.
        Imprisoning an offender until he dies alters the remainder of
        his life by a forfeiture that is irrevocable. And this lengthiest
        possible incarceration is an especially harsh punishment for
        a juvenile, because he will almost inevitably serve more years
        and a greater percentage of his life in prison than an adult
        offender. The penalty when imposed on a teenager, as
        compared with an older person, is therefore the same in
        name only.

Id. at 474-475 (quotations, citations, and corrections omitted).



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      In Miller, however, the State sought to impose the “ultimate penalty

for juveniles” – a term of life in prison without the possibility of parole – as a

mandatory penalty for a juvenile convicted of murder.          Id. at 475.    The

mandatory nature of this penalty precluded the sentencer from considering

mitigating factors, such as “the distinctive attributes of youth,” before

imposing the State’s most severe punishment upon the juvenile. As the Miller

Court held, this was unconstitutional:

        By removing youth from the balance – by subjecting a
        juvenile to the same life-without-parole sentence applicable
        to an adult – these laws prohibit a sentencing authority from
        assessing whether the law's harshest term of imprisonment
        proportionately punishes a juvenile offender.            That
        contravenes Graham's (and also Roper's) foundational
        principle: that imposition of a State's most severe penalties
        on juvenile offenders cannot proceed as though they were
        not children.

                                       ...

        Mandatory life without parole for a juvenile precludes
        consideration of his chronological age and its hallmark
        features – among them, immaturity, impetuosity, and failure
        to appreciate risks and consequences. It prevents taking into
        account the family and home environment that surrounds
        him – and from which he cannot usually extricate himself –
        no matter how brutal or dysfunctional. It neglects 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. Indeed, it ignores
        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 finally, this mandatory
        punishment disregards the possibility of rehabilitation even
        when the circumstances most suggest it.


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Id. at 474 and 477-478.

      Although the Miller Court did not absolutely preclude a sentence of life

in prison without the possibility of parole upon a juvenile, the High Court

explained:

        given all we have said in Roper, Graham, and this decision
        about children's diminished culpability and heightened
        capacity for change, we think appropriate occasions for
        sentencing juveniles to this harshest possible penalty will be
        uncommon. That is especially so because of the great
        difficulty we noted in Roper and Graham of distinguishing
        at this early age between the juvenile offender whose crime
        reflects unfortunate yet transient immaturity, and the rare
        juvenile offender whose crime reflects irreparable corruption.
        Although we do not foreclose a sentencer's ability to make
        that judgment in homicide cases, we require it to take into
        account how children are different, and how those differences
        counsel against irrevocably sentencing them to a lifetime in
        prison.

Id. at 479-480 (quotations and citations omitted).

      The Supreme Court expounded upon Miller in Montgomery v.

Louisiana. In Montgomery, the Supreme Court held that Miller announced

a new, substantive rule of constitutional law that states must apply

retroactively to juvenile offenders on collateral review. Montgomery, 136

S.Ct. at 726 and 732. In concluding that Miller announced a substantive rule

– and, thus, a rule that “prohibits a certain category of punishment for a class

of defendants because of their status” – the Montgomery Court held:

        Miller requires that before sentencing a juvenile to life
        without parole, the sentencing judge take into account “how
        children are different, and how those differences counsel
        against irrevocably sentencing them to a lifetime in prison.”
        [Miller, 567 U.S. at 480]. The Court recognized that a

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        sentencer might encounter the rare juvenile offender who
        exhibits such irretrievable depravity that rehabilitation is
        impossible and life without parole is justified. But in light of
        children's diminished culpability and heightened capacity for
        change, Miller made clear that appropriate occasions for
        sentencing juveniles to this harshest possible penalty will be
        uncommon.

        Miller, then, did more than require a sentencer to consider a
        juvenile offender's youth before imposing life without parole;
        it established that the penological justifications for life
        without parole collapse in light of the distinctive attributes of
        youth.      Even if a court considers a child's age before
        sentencing him or her to a lifetime in prison, that sentence
        still violates the Eighth Amendment for a child whose crime
        reflects “unfortunate yet transient immaturity.” [Miller, 567
        U.S. at 479]. Because Miller determined that sentencing a
        child to life without parole is excessive for all but “the rare
        juvenile offender whose crime reflects irreparable
        corruption,”     it   rendered     life  without    parole    an
        unconstitutional penalty for “a class of defendants because of
        their status” – that is, juvenile offenders whose crimes reflect
        the transient immaturity of youth. As a result, Miller
        announced a substantive rule of constitutional law. Like
        other substantive rules, Miller is retroactive because it
        necessarily carries a significant risk that a defendant – here,
        the vast majority of juvenile offenders – faces a punishment
        that the law cannot impose upon him.

Montgomery, 136 S.Ct. at 734 (corrections and some quotations and

citations omitted).

      The Pennsylvania Supreme Court interpreted and applied Miller and

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

(hereinafter “Batts II”).    The facts of Batts II – and the Pennsylvania

Supreme Court’s prior opinion in Commonwealth v. Batts, 66 A.3d 286 (Pa.

2013) (“hereinafter Batts I”) – are as follows.




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      On February 7, 2006, Qu’eed Batts walked up to Clarence Edwards and

shot him twice in the head, killing him; Batts also shot Corey Hilario once in

the back, causing him serious bodily injury. Batts II, 163 A.3d at 414. At

the time of the murder, Batts was 14 years old. Id. at 411.

      The jury convicted Batts of first-degree murder, attempted murder, and

aggravated assault and, on October 22, 2007, the trial court sentenced Batts

to serve the then-mandatory term of life in prison without the possibility of

parole for his first-degree murder conviction.     After we affirmed Batts’

judgment of sentence, the Pennsylvania Supreme Court granted Batts’

petition for allowance of appeal.   The Supreme Court then held the case

pending the United States Supreme Court’s decision in Miller. Id. at 419.

      The Pennsylvania Supreme Court issued its opinion in Batts I on March

26, 2013.     Essentially, in Batts I, the Supreme Court held that Batts’

mandatory sentence of life in prison without the possibility of parole was

unconstitutional. Notwithstanding, “juveniles convicted of first-degree murder

prior to Miller could, after the sentencing court's evaluation of the criteria

identified in Miller, be subjected to a sentence of life in prison without the

possibility of parole.” See Batts II, 163 A.3d at 421 (footnote omitted). The

Batts I Court thus remanded the case to the trial court for resentencing. Id.

      After the resentencing hearing, the trial court again sentenced Batts to

life-without-parole for his first-degree murder conviction.   After this Court

again affirmed Batts’ judgment of sentence, the Supreme Court granted Batts’

petition for allowance of appeal.

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       At the outset, the Batts II Court held that a challenge to the sufficiency

of the evidence supporting a life-without-parole sentence is a challenge to the

legality of the sentence. Id. at 435-436. This is because, under Miller and

Montgomery, “a sentencing court has no discretion to sentence a juvenile

offender to life without parole unless it finds that the defendant is one of the

‘rare’ and ‘uncommon’ children” who:

         is entirely unable to change[,] . . . that there is no possibility
         that the offender could be rehabilitated at any point later in
         his life, no matter how much time he spends in prison and
         regardless of the amount of therapeutic interventions he
         receives, and that the crime committed reflects the juvenile's
         true and unchangeable personality and character.

Id. at 435.

       Thus, the Batts II Court held, “in the absence of the sentencing court

reaching a conclusion, supported by competent evidence, that the defendant

will   forever   be   incorrigible,   without   any    hope   for   rehabilitation,   a

life-without-parole sentence imposed on a juvenile is illegal, as it is beyond

the court’s power to impose.” Id.; see also Commonwealth v. Catt, 994

A.2d 1158, 1160 (Pa. Super. 2010) (en banc) (“[a] claim that implicates the

fundamental legal authority of the court to impose a particular sentence

constitutes a challenge to the legality of the sentence”).

       Further, since     a   challenge   to    the   evidentiary sufficiency of a

life-without-parole sentence implicates the legality of the defendant’s

sentence, the Supreme Court held that the appellate court’s standard and

scope of review for such a claim is as follows:


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        we must review the sentencing court's legal conclusion that
        [a defendant] is eligible to receive a sentence of life without
        parole pursuant to a de novo standard and plenary scope of
        review. Because this legal conclusion is premised upon the
        presentation of testimony and the sentencing court's
        credibility determinations, it presents a mixed question of
        fact and law. In such circumstances, we defer to the findings
        of fact made by the sentencing court as long as they are
        supported by competent evidence, but give no deference to
        that court's legal conclusions.

Batts II, 163 A.3d at 435-436 (citations omitted).

      The Batts II Court also “devise[d] a procedure for the implementation

of the Miller and Montgomery decisions in Pennsylvania.”               Id. at 451

(quotations omitted). Specifically, the Batts II Court held:

     “[t]he Commonwealth must give [the defendant] reasonable notice of

      its intention to seek a sentence of life without the possibility of parole,”

      id. at 455 and 459;

     there exists “a presumption against sentencing a juvenile offender to

      life in prison without the possibility of parole;” id. at 452;

     “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” (i.e., the Commonwealth must prove,

      beyond a reasonable doubt, that the defendant “is and forever will be a

      danger to society” and that the defendant “exhibits such irretrievable

      depravity that rehabilitation is impossible”); id. at 455 (quotations,

      citations, and emphasis omitted);


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        “[t]he Commonwealth's evidence and the sentencing court's decision

         must take into account the factors announced in Miller[1] and section

         1102.1(d) of the Crimes Code,[2]” id. at 455 n.23 and 459-460;
____________________________________________


1 In Batts I, the Supreme Court quoted approvingly from this Court’s opinion
in Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012), where we held:

           although Miller did not delineate specifically what factors a
           sentencing court must consider, at a minimum it should
           consider a juvenile's age at the time of the offense, his
           diminished culpability and capacity for change, the
           circumstances of the crime, the extent of his participation in
           the crime, his family, home and neighborhood environment,
           his emotional maturity and development, the extent that
           familial and/or peer pressure may have affected him, his past
           exposure to violence, his drug and alcohol history, his ability
           to deal with the police, his capacity to assist his attorney, his
           mental health history, and his potential for rehabilitation.

Knox, 50 A.3d at 745; see also Batts I, 66 A.3d at 297; Batts II, 163 A.3d
at 455 n.23.

2   18 Pa.C.S.A. § 1102.1(d) declares:

         (d) Findings.--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.



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      “whether expert testimony is required to rebut the presumption against

       permanent incorrigibility beyond a reasonable doubt [must] be

       determined on a case-by-case basis by the sentencing court,” id. at

       456;

      a judge may make the finding of “permanent incorrigibility,” id.;

      if the evidence is sufficient to support a finding of “permanent

       incorrigibility” beyond a reasonable doubt, the trial court still has the
____________________________________________




       (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.

           (vi) Probation or institutional reports.

           (vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1(d).

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       discretion “to impose a life-without-parole sentence or to instead impose

       a sentence that would allow the juvenile to have an opportunity for

       parole consideration,” id. at 457; and,

      “[i]n sentencing a juvenile offender to life with the possibility of parole,

       traditional sentencing considerations apply. See 42 Pa.C.S. § 9721(b).

       The sentencing court should fashion the minimum term of incarceration

       using, as guidance, section 1102.1(a) of the Crimes Code,” id. at 460.

       In the end, the Batts II Court held that Batts’ life-without-parole

sentence was illegal, as the evidence was insufficient to support the sentence

and the trial court, in fact, concluded that Batts was amenable to

rehabilitation. Id. at 439.

       In the case at bar, Appellant claims that the evidence is insufficient to

rebut the presumption against a life-without-parole sentence and that his

sentence is, thus, illegal. I agree.

       As noted above, our standard and scope of review is as follows:

         we must review the sentencing court's legal conclusion that
         [a defendant] is eligible to receive a sentence of life without
         parole pursuant to a de novo standard and plenary scope of
         review. Because this legal conclusion is premised upon the
         presentation of testimony and the sentencing court's
         credibility determinations, it presents a mixed question of
         fact and law. In such circumstances, we defer to the findings
         of fact made by the sentencing court as long as they are
         supported by competent evidence, but give no deference to
         that court's legal conclusions.

Batts II, 163 A.3d at 435-436 (citations omitted).




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      Further, as explained above, the Pennsylvania Supreme Court has

recognized “a presumption against the imposition of a sentence of life without

parole” for juvenile murderers. To rebut this presumption, the Commonwealth

has the burden of proving, beyond a reasonable doubt, that the defendant:

        is entirely unable to change[,] . . . that there is no possibility
        that [the defendant] could be rehabilitated at any point later
        in his life, no matter how much time he spends in prison and
        regardless of the amount of therapeutic interventions he
        receives, and that the crime committed reflects [the
        defendant’s] true and unchangeable personality and
        character.

Id. at 435.

      As   everyone    agrees,    during      the   resentencing   hearing,   the

Commonwealth presented evidence demonstrating that Appellant has not yet

been rehabilitated. Unquestionably, the Commonwealth presented evidence

tending to show that, almost since the time Appellant was imprisoned for

second-degree murder in 1997, he has engaged in a “consistent pattern of

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

and 263. This behavior includes multiple violations of prison regulations and

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

fellow-inmate in the face, which occurred in February 2012; the three times

Appellant “squirted a [shampoo] bottle [filled with] urine [and feces]” at




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inmates or prison employees, which occurred in 2012, 2014, and 2016; and,

Appellant’s multiple acts of sexual harassment.3

       Nevertheless, as everyone also agrees, Appellant is in need of treatment

for his mental problems and yet Appellant has rejected all forms of treatment

during his time in prison, including therapy and medication. Therefore, this is

not a case where all possible forms of treatment were attempted on Appellant

and Appellant continued to engage in aggressive and antisocial behavior.

Rather, the above-cited evidence merely demonstrates that, without

treatment, Appellant’s aggressive and antisocial behavior has continued

unabated.

       The above-cited evidence does not satisfy the Commonwealth’s burden

to establish “that there is no possibility” that Appellant could be rehabilitated.

To be sure, since Appellant has not engaged in treatment or attempted to

rehabilitate himself, the evidence of Appellant’s continued aggressive and

antisocial behavior simply does not speak to the question of whether Appellant




____________________________________________


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




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“is entirely unable to change . . . [and] without any hope for rehabilitation.”

Batts II, 163 A.3d at 435.

       In addition, during the remainder of the resentencing hearing, the

parties presented no evidence that would tend to show that Appellant’s

rehabilitation is impossible. Indeed, the Commonwealth’s own expert witness

(whom the trial court concluded was credible) specifically testified that

rehabilitation was possible for Appellant.4

       During the resentencing hearing, Dr. Russell – the Commonwealth’s

expert witness – testified that Appellant suffers from both antisocial

personality disorder and schizotypal personality disorder. N.T. Resentencing

Hearing, 12/5/17, at 350. He testified that Appellant’s antisocial personality

disorder manifests in Appellant’s long-line of behaviors and actions that

“infringe[] on the rights of others” and that Appellant’s schizotypal personality

disorder manifests in Appellant’s social anxiety, wish to be alone, “odd or

peculiar” behaviors and affectations, “unusual perceptions, [] suspiciousness,

[and] paranoia;” and “engag[ement] in behaviors and then having a different

type of emotional presentation, [such as] smirking while he’s doing an

obscene or aggressive act.”         Id. at 343, 350-351, 353; N.T. Resentencing

Hearing, 12/6/17, at 141-142.


____________________________________________


4 I note that Appellant’s expert witness also testified that Appellant was
capable of being rehabilitated.   See, e.g., N.T. Resentencing Hearing,
12/6/17, at 221-222.


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      While Dr. Russell testified that “there is no cure” for either disorder and

that the disorders will “never go[] away,” as they are a part of Appellant’s

personality, Dr. Russell specifically testified that “many of the folks who have

[antisocial personality disorder], as they begin to hit their mid-50s, their early

60s, the violent behavior, the frequency of the impulsive aggression you see

just stop because of increasing age.” N.T. Resentencing Hearing, 12/5/17, at

356. Further, as to Appellant’s schizotypal personality disorder, Dr. Russell

testified that the personality disorder “can be managed” and that “[w]ith

medication and intensive therapy you could begin to assist [a person suffering

from schizotypal personality disorder] in making strides to lessen the impact

of that personality disorder.”      N.T. Resentencing Hearing, 12/6/17, at

141-143.   Dr. Russell also testified that:    “there’s certainly a possibility if

[Appellant] were to be given a term of years that he could motivate himself

to do what’s necessary to earn parole;” “if [Appellant] were to be successful

outside of a prison system,” Appellant would need to consistently comply with

his therapy and medication; and, in making a risk assessment of a person,

“there is no way you can say that they cannot be rehabilitated or that they

will be rehabilitated.”   Id. at 63-64, 149-150; N.T. Resentencing Hearing,

12/5/17, at 354-355.

      Therefore, Dr. Russell specifically testified that rehabilitation is not

“impossible” for Appellant.    Certainly, he testified that it is possible for

Appellant to be rehabilitated with aging (for his antisocial personality disorder)

and with “medication and intensive therapy” (for his schizotypal personality

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disorder). Further, and importantly, Dr. Russell testified that if Appellant is

one of the “many” individuals for whom aging affects his antisocial personality

disorder, it is reasonable to anticipate that “the violent behavior, the frequency

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

N.T. Resentencing Hearing, 12/5/17, at 345 (emphasis added).

      It is true, Dr. Russell testified, that given Appellant’s past behavior, his

“refusal to participate and engage” in therapy, and his “refusal to maintain the

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

aggressive behavior is high.” Id. at 354-356. However, this testimony does

not establish that there is no possibility that Appellant can be rehabilitated –

it only establishes that Appellant has not yet chosen to accept or participate

in the treatment that might rehabilitate him.

      To be sure, the learned majority apparently acknowledges that the

Commonwealth’s own expert testified that there is a possibility Appellant will

age-out of the violence and impulsive aggression associated with his antisocial

personality disorder and that it is possible for Appellant to manage his

schizotypal personality disorder with medication and therapy.            Majority

Opinion at **31-34.       Nevertheless, the majority still declares that the

evidence is sufficient to rebut the presumption against a life-without-parole

sentence because “Appellant’s aggressive and antisocial behavior [] has not




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ceased despite his entering middle age”5 and Appellant has not yet

participated in his necessary mental health treatment. Id.; see also Majority

Opinion at 32 (“[t]here is nothing in the record to indicate that Appellant’s

psychological disorders will resolve themselves without proper medication and

intervention, yet the Commonwealth has shown Appellant ignores therapeutic

opportunities and refuses to take medication with regularity”).

       Respectfully, the majority is not applying the proper standard. We are

not here to determine whether Appellant was rehabilitated at the time of the

sentencing hearing and we may not attach conditions to make something –

that is otherwise possible – impossible.           Instead, we must ask whether the

Commonwealth proved, beyond a reasonable doubt, that “there is no


____________________________________________


5  As to this point, the majority declares, in full: “Appellant’s aggressive and
antisocial behavior has not ceased despite his entering middle age, a time of
life the expert testimony has concluded that the frequency of impulsive
aggression for many people who have antisocial personality disorder would
‘just stop,’ according to Dr. Russell.” Majority Opinion at *34. However, Dr.
Russell did not say this. Rather, Dr. Russell testified that “many of the folks
who have [antisocial personality disorder], as they begin to hit their
mid-50s, their early 60s, the violent behavior, the frequency of the
impulsive aggression you see just stop because of increasing age.” N.T.
Resentencing Hearing, 12/5/17, at 356 (emphasis added). Dr. Russell
testified that, since Appellant is only in his 40s, there is “[n]o possible way
to know right now” whether Appellant is in the category of people whose
violence and aggressive impulses subside as they age. N.T. Resentencing
Hearing, 12/6/17, at 136. Therefore, contrary to the majority’s statement,
Dr. Russell did not state that Appellant is at the “time of [his] life” where his
violence and impulsive aggression would “just stop” due to age. Instead, Dr.
Russell specifically testified that Appellant has not yet reached the age where
he could possibly age-out of the violence and impulsive aggression associated
with his antisocial personality disorder.


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possibility that [Appellant] could be rehabilitated at any point later in his

life, no matter how much time he spends in prison and regardless of the

amount of therapeutic interventions he receives.” Batts II, 163 A.3d at 435

(emphasis added). “Impossibility” in this context equates to a zero percent

chance of occurrence – and, as explained in more detail above, the

Commonwealth simply did not satisfy its burden of production in this case.

Certainly, the Commonwealth’s own expert testified that rehabilitation for

Appellant is possible.

      On May 20, 1994, Appellant murdered Raymond McKinley in a senseless

and reprehensible act of violence. While in prison for this murder, Appellant

engaged in a “consistent pattern of aggressive, defian[t] behavior” and

committed many violent and appalling acts. Nevertheless, it is undisputed

that Appellant may benefit from mental health treatment and that Appellant

has yet to agree to this treatment. Thus, the Commonwealth’s evidence of

Appellant’s continued aggressive and antisocial behavior merely establishes

that Appellant has not yet been rehabilitated. The evidence simply does not

establish that Appellant “is one of the very rare individuals who is incapable

of rehabilitation” or that “there is no possibility that [Appellant] could be

rehabilitated at any point later in his life, no matter how much time he spends

in prison and regardless of the amount of therapeutic interventions he

receives.” See Batts II, 163 A.3d at 435 and 454 (emphasis added). Indeed,

the Commonwealth’s own expert testified that it is possible for Appellant to

be rehabilitated with medication and therapy and for Appellant’s violent acts

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and impulsive aggression to “just stop” in the future because of increasing

age.

       I thus conclude that the evidence is insufficient to rebut the presumption

against the imposition of a sentence of life without parole and that Appellant’s

sentence is illegal.       Therefore, I would vacate Appellant’s judgment of

sentence and remand for resentencing.6, 7




____________________________________________


6Given my belief that the evidence is insufficient to rebut the presumption
against the imposition of a sentence of life without parole, I will not discuss
Appellant’s remaining issues, as they are moot.

7 I note that, even with the possibility of parole, Appellant may never be
paroled if he fails to be rehabilitated. As the High Court made clear,

       Extending parole eligibility to juvenile offenders does not impose
       an onerous burden on the States, nor does it disturb the finality
       of state convictions. Those prisoners who have shown an inability
       to reform will continue to serve life sentences. The opportunity
       for release will be afforded to those who demonstrate the truth of
       Miller’s central intuition – that children who commit even heinous
       crimes are capable of change.

Montgomery, 136 S.Ct. at 736.


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