J-A27042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
                                               :
    DAVID VALASQUEZ                            :
                                               :   No. 3470 EDA 2018
                       Appellant

       Appeal from the Judgment of Sentence Entered September 5, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1200451-1997


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JANUARY 08, 2020

        David Valasquez (Appellant) appeals from the September 5, 2018

judgment of sentence imposed following a resentencing hearing pursuant to

Miller v. Alabama, 567 U.S. 460 (2012)1 and Montgomery v. Louisiana,

136 S.Ct. 718 (2016).2 We affirm

        “On October 26, 1997, [Appellant], then aged seventeen years and two

months old, was arrested and charged with murder and related offenses.”

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] 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.” 567 U.S. at 465 (internal quotation marks omitted).

2 In Montgomery, the United States Supreme Court held that Miller applies
retroactively to cases on state collateral review.
J-A27042-19


Trial Court Opinion, 1/23/2019, at 1.     These charges stemmed from the

September 28, 1997 shooting death of John Anthony Marin (decedent) in a

Dunkin Donuts shop in Philadelphia, Pennsylvania. A prior panel of this Court

summarized the facts of this matter as follows.

           Five to ten minutes before the shooting, decedent had ran
     into the shop in an excited state, and asked the cashier to call
     911. Decedent told the cashier that three males had tried to rob
     him, and that one of the males was following him into the shop.
     Appellant came up to the window of the donut shop, and decedent
     pointed him out. Appellant returned to the shop five minutes later
     and shot decedent twice inside the store, then hopped on a
     chrome bicycle and fled across Roosevelt Boulevard, disappearing
     between the houses before police arrived. Decedent was
     pronounced dead at the scene by the [m]edical examiner, and
     police questioned [eyewitness, Norberto] Lopez[,] about the
     shooting. Lopez described [A]ppellant as wearing a matching
     green khaki outfit with green jacket and cap, and tan Timberland
     boots. He also showed police where [A]ppellant fled across the
     [b]oulevard and between the two houses[.] No weapons were
     found on decedent, or at the scene. Police did recover a working
     videotape from one of three surveillance cameras inside the store.

           On October 22, 1997, Lopez was re-interviewed by police
     detectives at the 25th District station, and [he] identified
     [A]ppellant as the shooter from a police photo array. Lopez also
     informed detectives that he knew [A]ppellant as “David” because
     [A]ppellant used to date his next[-]door neighbor. Police secured
     [] arrest and search warrant[s] for [A]ppellant’s residence … and
     executed the warrants on October 25, 1997. Appellant was
     arrested in the basement, and the following items were recovered
     and placed on property receipts: a green shirt, a pair of tan boots,
     narcotics, two photos of [A]ppellant, and a letter addressed to
     [A]ppellant[.]

           Appellant was taken to [p]olice headquarters where he was
     placed in an interrogation room until his mother arrived. In the
     presence of his mother, [A]ppellant was questioned by police
     detectives Joseph Centeno and Richard Harris. The detectives
     informed [A]ppellant that [Appellant] was there in response to
     [the] shooting, and, then proceeded to read him his rights. Both

                                    -2-
J-A27042-19


        [A]ppellant and his mother were read his rights, and given a
        written copy to read and sign, which they initialed. Appellant
        waived his right to counsel, and stated that he shot decedent
        because decedent had put a gun in his mouth, robbed him, and
        taken his money, and a wristwatch. Appellant went to his friend
        “Mike’s” house and got a gun, then went to his friend “George’s”
        house and picked up a bike, then went across the boulevard
        looking for decedent. After shooting him, [A]ppellant came back
        across the boulevard, took the gun back to Mike, and then
        dropped the bike off with George before going home. Police
        attempted to locate the male [A]ppellant referred to as “Mike,”
        but were unable to find him. The murder weapon was never
        recovered.

Commonwealth v. Valasquez, 959 A.2d 469 (Pa. Super. 2008), quoting

Trial Court Opinion, 5/24/2006, at 2-4.

               After a jury trial before the Honorable Robert A. Latrone, the
        jury convicted [Appellant] of first-degree murder, possession with
        intent to distribute[3] (PWID), and possession of an instrument of
        crime (PIC), On May 10, 1999, Judge Latrone imposed the then-
        mandatory sentence of life imprisonment without parole [(LWOP)]
        for first-degree murder, and concurrent sentences of three to six
        years of imprisonment for PWID and two and one-half to five years
        of imprisonment for PIC.

Trial Court Opinion, 1/23/2019, at 1 (unnecessary capitalization and quotation

marks omitted). This Court affirmed Appellant’s judgment of sentence on June

13, 2008,4 and our Supreme Court denied his petition for allowance of appeal.

Valasquez, supra, appeal denied, 959 A.2d 469 (Pa. 2008).

____________________________________________


3   When Appellant was arrested, he was in possession of heroin.

4 It appears the reason for the nearly ten-year delay between the imposition
of Appellant’s sentence in 1999 and this Court affirming Appellant’s judgment
of sentence in 2008 was partly due to the ineffective assistance of prior
counsel. See Valasquez, supra (“Appellant filed a timely notice of appeal



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J-A27042-19


         On August 2, 2012, Appellant filed a PCRA petition, claiming that his

sentence was unconstitutional under Miller.5 On February 26, 2016, after the

United States Supreme Court issued its holding in Montgomery, Appellant

filed a supplemental PCRA petition.

               On September 5, 2018, th[e trial c]ourt granted
        [Appellant’s PCRA petition] and vacated his May 10, 1999
        sentence. Prior to sentencing, the Commonwealth agreed to
        recommend [a] sentence of [20] years to life imprisonment. After
        hearing the relevant evidence presented during the resentencing
        hearing, th[e trial court] rejected the Commonwealth’s
        recommendation and imposed a [25] years to life imprisonment
        sentence for first-degree murder, and no further penalty on the
        remaining charges.

             On September 17, 2018, [Appellant filed timely] a post-
        sentence motion for reconsideration of sentence. On October 31,
        2018, [Appellant] filed a supplemental post-sentence motion. On
        November 1, 2018[,] after a hearing,[6] th[e trial c]ourt denied the
____________________________________________


on June 8, 1999. On April 6, 2000, the appeal was dismissed due to counsel’s
failure to file a brief. Appellant filed a [petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,] new counsel was appointed and
an amended petition filed seeking reinstatement of Appellant’s direct appeal
rights due to ineffective assistance. On May 30, 2002 the petition was granted
and Appellant’s direct appeal rights reinstated nunc pro tunc. Another appeal
was filed but was again dismissed on September 5, 2002 due to counsel’s
failure to comply with Pa.R.A.P. 3517. Once again, Appellant sought and was
granted PCRA relief on June 27, 2003 when the PCRA court reinstated
Appellant’s direct appeal rights nunc pro tunc[, and Appellant thereafter filed
timely a nunc pro tunc appeal]”).

5   Appellant’s petition was filed within sixty days of the issuance of Miller.

6 The transcript from the hearing on Appellant’s motion for reconsideration of
sentence is not included in the certified record before us. “While this Court
generally may only consider facts that have been duly certified in the record,
[] where the accuracy of a document is undisputed and contained in the
reproduced record, we may consider it.” Commonwealth v. Barnett, 121



                                           -4-
J-A27042-19


        [Appellant’s] post-sentence motion. On November 29, 2018, the
        [Appellant] filed a timely notice of appeal[.7]

Trial Court Opinion, 1/23/2019, at 2 (unnecessary capitalization omitted).

        Although presented as four distinct issues, Appellant’s claims on appeal

are all interrelated. In essence, Appellant asserts the trial court abused its

discretion and committed errors of law when it resentenced Appellant to 25

years to life imprisonment. Appellant’s Brief at 5-6. Specifically, Appellant

contends the trial court: (1) committed “legal error when resentencing

[Appellant] to a lifetime maximum sentence[;]” (2) placed “too much weight

on traditional penological justifications in light of [Appellant’s] diminished

culpability under the law and demonstrated rehabilitation[;]” (3) penalized

Appellant for maintaining his innocence; (4) failed to consider “newly

discovered evidence of a diagnosed intellectual disability and its impact on

[Appellant’s] waiver of Fifth Amendment rights that resulted in a conviction[;]”

and (5) failed to consider all of the sentencing factors delineated in Miller.

Id. Appellant’s issues implicate both the legality and discretionary aspects of

his sentence. We begin with the relevant legal principles.

        A challenge to the legality of a particular sentence may be
        reviewed by any court on direct appeal; it need not be preserved
        in the lower courts to be reviewable and may even be raised by
        an appellate court sua sponte. …       [A] claim challenging a


____________________________________________


A.3d 534, 546 n.3 (Pa. Super. 2015). Here, the reproduced record contains
the transcript and there is no dispute as to its contents. Therefore, we may
consider the transcript in our review.

7   Both Appellant and the trial court complied with Pa.R.A.P. 1925.

                                           -5-
J-A27042-19


       sentencing court’s legal authority to impose a particular sentence
       presents a question of sentencing legality.

Commonwealth v. Batts (Batts II), 163 A.3d 410, 434-35 (Pa. 2017).

       Unlike a claim challenging the legality of a sentence,

       [c]hallenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. An appellant challenging
       the discretionary aspects of his [or her] sentence must invoke this
       Court’s jurisdiction by satisfying a four-part test:

          We 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.[] § 9781(b).

       Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

       Here, as discussed supra, Appellant timely filed a notice of appeal, and

he sought reconsideration of his sentence in a timely-filed post-sentence

motion. In addition, he has included a concise statement of reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s

Brief at 28-30. We now turn to consider whether Appellant has presented a

substantial question for our review.8


____________________________________________


8 The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “A substantial question exists only when the appellant



                                           -6-
J-A27042-19


       In his 2119(f) statement, Appellant asserts the trial court abused its

discretion and committed an error of law when the court made “a

determination of sentence without adequate, evident consideration of the

factors set out in Miller[.]” Appellant’s Brief at 30. We find that Appellant has

raised a substantial question. See Commonwealth v. Seagraves, 103 A.3d

839, 843 (Pa. Super. 2014) (concluding that discretionary-aspects claim

following Miller resentencing raised a substantial question despite the fact

that “prior decisions from this Court involving whether a substantial question

has been raised by claims that the sentencing court ‘failed to consider’ or

‘failed to adequately consider’ sentencing factors has been less than a model

of clarity and consistency”) (citation and some quotation marks omitted).

       If this Court grants appeal and reviews the sentence, the standard
       of review is well-settled: sentencing is vested in the discretion of
       the trial court, and will not be disturbed absent a manifest abuse
       of that discretion. An abuse of discretion involves a sentence
       which was manifestly unreasonable, or which resulted from
       partiality, prejudice, bias or ill will. It is more than just an error in
       judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)

(citations omitted).



____________________________________________


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 which underlie the sentencing
process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).



                                           -7-
J-A27042-19


       Furthermore, because this appeal stems from the re-sentencing of a

juvenile defendant convicted of first-degree murder pre-Miller, we review

Appellant’s claims cognizant of the following.

             In Batts II, our Supreme Court held, inter alia, that a lower
       court, in resentencing a juvenile offender convicted of first-degree
       murder prior to Miller, may impose a minimum term-of-years
       sentence and a maximum sentence of life imprisonment, thus
       “exposing these defendants to parole eligibility upon the
       expiration of their minimum sentences.” Batts II, 163 A.3d at
       439. In determining the minimum term-of-years sentence, the
       Court mandated that lower courts consult the sentencing
       requirements codified at 18 Pa.C.S. § 1102.1 for guidance. Id. at
       457. Specifically for a juvenile convicted of first-degree murder
       pre-Miller, the portion of section 1102.1 that a lower court must
       consider is the guidelines set forth in subsection 1102.1(a).[9]
       Subsection 1102.1(a)(1) provides, in relevant part, as follows.
____________________________________________


9 Moreover, in addition to the traditional considerations a trial court is required
to consider when resentencing a juvenile LWOP offender,

        [t]he Miller Court concluded that sentencing for juveniles must
       be individualized. This requires consideration of the defendant’s
       age at the time of the offense, as well as “its hallmark features,”
       including:

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



                                           -8-
J-A27042-19



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

              (1) A person who at the time of the commission of the
              offense was 15 years of age or older shall be
              sentenced to a term of life imprisonment without
              parole, or a term of imprisonment, the minimum of
              which shall be at least 35 years to life.

       18 Pa.C.S. § 1102.1(a)(1).

Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018).

       With the foregoing in mind, and following a review of the certified record

and the briefs for the parties, we conclude that the opinion of the Honorable

Barbara A. McDermott thoroughly addresses Appellant’s issues and arguments

and applies the correct law to facts that are supported by the record. We

discern no error of law or abuse of discretion.       See Trial Court Opinion,

1/23/2019, at 5 (explaining that, before the re-sentencing hearing, the trial

court “reviewed [Appellant’s] Memorandum in Support of Resentencing, his

Mitigation Report and Reentry Plan, his Housing Performance Record, records

furnished by the Department of Corrections, numerous certificates of

____________________________________________


              ... when the circumstances [i.e. (the youthfulness of
              the offender)] most suggest it.

Batts II, 163 A.3d at 431 (citations omitted).



                                           -9-
J-A27042-19


achievement-including his high school diploma-that he has earned, and a

multitude of letters sent in support of [Appellant’s re-sentencing …,] heard

argument from counsel that highlighted several mitigating factors under

Miller, and considered testimony from [Appellant’s] loved ones and

acquaintances”); id. (explaining that the trial court declined to “consider

mitigating factors in a vacuum” and instead balanced the mitigating factors,

“including those outlined in Miller, with the facts of the case”); id. at 6

(stating that while Appellant’s diminished capacity was considered, it is “but

one factor amongst dozens that th[e trial c]ourt must, and ultimately did,

consider in imposing a just sentence”); id. at 6-7 (asserting that it was

“undoubtedly appropriate for a trial court to consider a defendant’s lack of

remorse as a factor in sentencing at sentencing, provided that it specifically

considered in relation to protection of the public, the gravity of the offense,

and the defendant’s rehabilitative needs”); id. at 8-9 (explaining that

Appellant’s arguments concerning his intellectual disability lacked support and

were too “nebulous to warrant relief”); id. at 9 (finding that Appellant’s issues

concerning his mental capacity, although framed “as a challenge to th[e trial

c]ourt’s perceived unwillingness to consider the mental deficiencies at the time

he confessed to the crimes,” were “nothing more than a thinly veiled attempt

to re[-]litigate his conviction”); id. at 10 (explaining that Appellant’s claim

that the court relied too heavily on §1102.1(a) “in rendering its sentence …

ignores the fact that th[e trial c]ourt significantly deviated from the” statute’s


                                     - 10 -
J-A27042-19


recommended minimum of 35 years’ incarceration); id. at 11 (explaining that

Appellant’s challenge to the legality of his sentence, wherein he claims that

the imposition of a mandatory life tail is unconstitutional, has already been

litigated and this Court has continued to emphasize that lower courts are

required to impose a maximum sentence of life imprisonment when

resentencing juvenile defendant).

       Therefore, we adopt the trial court’s opinion of January 23, 2019 as our

own and affirm Appellant’s judgment of sentence based upon the reasons

stated therein.10, 11

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/8/20



____________________________________________


10 Lastly, to the extent Appellant argues the trial court abused its discretion in
failing to set forth its reasons for the sentence it imposed on the record, see
Appellant’s Brief at 39, we note that this claim was not presented in Appellant’s
post-sentence motion. Thus, it is waived. See Commonwealth v. McAfee,
849 A.2d 270, 275 (Pa. Super. 2004) (“Issues challenging the discretionary
aspects of sentence must be raised in a post-sentence motion or by presenting
the claim to the trial court during the sentencing proceedings. Absent such
efforts, an objection to a discretionary aspect of a sentence is waived.”).

11 The parties shall attach a copy of the trial court’s January 23, 2019 opinion
to this memorandum in the event of further proceedings.


                                          - 11 -
0037_Opinion
                                                                                                  ICirculated
                                                                                                      ,.      12/03/2019 08:22 AM
                                                                                                 r




               COMMONWEAL TH OF PENNSYLVANIA



                      V.
                                                                                CP-51-CR-12004�1-1997 Comm. v Valasquez. David
                                                                                                   Opinion


               DA YID VALASQUEZ,

                             Defendant
                                                                                     \\ll\l\8217974911
                                                                                            l\111 II II l\\\11111
                                                          OPINION
               McDermott, J.                                                                 January 23, 2019

               Procedural History

                      On October 26, 1997, the Defendant David Valasquez, then aged seventeen years and two

               months old, was arrested and charged with Murder and related offenses. After a jury trial before

               the Honorable Robert A. Latrone, the jury convicted the Defendant of First-Degree Murder,

               Possession With Intent to Distribute ("PWID"), and Possession of an Instrument of Crime

               ("PIC"). On May I 0, 1999, Judge Latrone imposed the then-mandatory sentence of life

               imprisonment without parole for First-Degree Murder, and concurrent sentences of three to six

               years of imprisonment for PWID and two and one-half to five years of imprisonment for PIC.

                      The Defendant appealed and on June 4, 2004, the Superior Court affirmed his judgment of

               sentence. On February 10, 2009, the Supreme Court of Pennsylvania denied his Petition for

               Allowance of Appeal. On June 25, 2012, the Supreme Court of the United States issued its

               holding in Miller v. Alabama, 567 U.S. 460 (2012), which rendered all mandatory life

               imprisonment without parole sentences for juveniles unconstitutional. On January 27, 2016, the
Supreme Court of the United States issued its holding in Montgomery v. Louisiana, --- U.S.----,

136 S.Ct. 718 (2016), which held that the Miller decision applied retroactively.

       On September 5, 2018, this Court granted the Defendant post-conviction relief and vacated

his May 10, 1999 sentence. Prior to sentencing, the Commonwealth agreed to recommend

sentence of twenty years to life imprisonment. After hearing the relevant evidence presented

during the resentencing hearing, this Court rejected the Commonwealth's recommendation and

imposed a twenty-five years to life imprisonment sentence for First-Degree Murder, and no further

penalty on the remaining charges.

       On September 17, 2018, the Defendant filed a post-sentence motion for reconsideration of

sentence. On October 31, 2018, the Defendant filed a supplemental post-sentence motion. On

November 1, 2018, after a hearing, this Court denied the Defendant's post-sentence motion. On

November 29, 2018, the Defendant filed a timely Notice of Appeal with the Superior Court. On

November 30, 2018, this Court ordered the Defendant to file a Statement of Matters Complained

of on Appeal pursuant to Pa.R.A.P. 1925(b ). On December 21, 2018, the Defendant filed a timely

statement.



       During the September 5, 20 I 8 resentencing hearing, the Commonwealth summarized the

facts of the case as follows:

                    [O]n September 28th of 1997 at about 4:30 in the afternoon the
               victim in this case, 28-year-old John Anthony Marin, was in the area
               of [ ] 5001 Rising Sun A venue near Dunkin' Donuts. The victim came
               into that Dunkin' Donuts and was described by the witnesses as
               bleeding from the lips. Mr. Marin approached the cashier and stated
               that three people had just tried to rob him.
                    As the cashier was calling police, witnesses stated that the victim
               began to yell to the cashier that the male who had tried to rob him was
               entering the store. That male, [the Defendant David Valasquez],



                                                                                                  2
               approached the victim and fired two shots. Multiple witnesses were
               shown photo arrays and identified the shooter as [the Defendant].
                   [The Defendant] exited the store and rode away on a GT bike.
               Upon his apprehension by police, [the Defendant] was found to be in
               possession of an amount of heroin that was determined to rise to the
               level of PWID. He was warned of his rights and in the presence of
               his mother gave a statement to homicide detectives in which he
               admitted to the shooting.
                   His version of what the shooting was about varied from what [the
               decedent] had been saying in the Dunkin' Donuts, but nevertheless he
               admitted to the shooting.
                   [The decedent] died of two gunshot wounds, one to the left back
               and one to the left thigh.

N.T. 9/5/2018 at 13-14.

Discussion

       The Defendant raises nine challenges to the discretionary aspects of his sentence, alleging

that this Court abused its discretion by: (I) failing to sufficiently consider the resentencing factors

outlined in Miller; (2) placing too much weight on traditional penological concerns during

resentencing; (3) placing too much weight on the Defendant's failure to accept responsibility for

the crime; (4) failing to adequately consider the Defendant's rehabilitative needs; (5) failing to

consider the Defendant's mental disability; (6) failing to consider the Defendant's inability to

waive his Fifth Amendment rights; (7) assuming that the Defendant had a basic understanding of

his Miranda rights; (8) considering victim impact testimony concerning statements made by the

Defendant's mother; and, (9) relying too heavily on 18 Pa.C.S. § 1102. l (a) for guidance. The

Defendant further alleges that ( 10) this Court improperly imposed an unconstitutional maximum

penalty of life imprisonment.

        When imposing a sentence, a trial court "shall follow the general principle that the

sentence imposed should call for confinement that is consistent with the protection of the public,

the gravity of the offense[ ... ] and the rehabilitative needs of the defendant." 42 Pa.C.S. §



                                                                                                          3
9721 (b ). It is well-settled that sentencing is a matter vested in the sound discretion of the trial

court, and will not be disturbed absent a manifest abuse of discretion. Commonwealth v.

Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citing Commonwealth v. Robinson, 931 A.2d 15,

26 (Pa. Super. 2007)). An abuse of discretion is not merely an error in judgment; a defendant

must establish that the sentencing court misapplied the law or exercised its judgment for reasons

of partiality, prejudice, bias, or ill-will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).

        A defendant challenging the discretionary aspects of his sentence must establish, inter alia,

that there is a substantial question that the sentence appealed from is not appropriate under the

Sentencing Code. Commonwealth v. Eisenberg, 98 A.3d 1268 1277 (Pa. 2014); 42 Pa.C.S. §

9781 (b ). A substantial question exists when an appellant raises "a colorable argument that the

sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is

contrary to the fundamental norms underlying the sentencing process." Commonwealth v.

Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015). An issue concerning the legality of sentence is

reviewable and cannot be waived. Commonwealth v. Olson, 179 A.3d 1134, 113 7 (Pa. Super.

2018) (citing Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007)

        In imposing a sentence, a court shall follow the general principle that the sentence imposed

calls 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 the community, and the rehabilitative needs

of the defendant. 42 Pa.C.S. § 972l(b). The Supreme Court of Pennsylvania has determined that,

when sentencing a juvenile facing a potential life without parole sentence, Miller requires the

sentencing court to 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 the defendant's participation



                                                                                                         4
in the crime, his family, home, and neighborhood environment, his maturity and development,

past exposure to violence, drug and alcohol history, ability to deal with the police, his mental

health history, his potential for rehabilitation, and the extent that familial or peer pressure may

have affected him. Commonwealth v. Batts, 163 A.3d 410, 421, n. 5 (Pa. 2017) ("Batts JI") (citing

Commonwealth v. Batis, 66 A.3d 286, 297 (Pa. 2013) ("Batis f').

       The Defendant alleges that this Court gave scant attention to the Miller factors when

imposing sentence, and instead focused too heavily on the nature of the homicide and other

traditional penological concerns. The Defendant is mistaken. Prior to the resentencing hearing,

this Court reviewed the Defendant's Memorandum in Support of Resentencing, his Mitigation

Report and Reentry Plan, his Housing Performance Record, records furnished by the Department

of Corrections, numerous certificates of achievement-including his high school diploma-that he

has earned, and a multitude ofletters sent in support of his resentencing. Each of these

submissions address the Miller factors, which this Court took into consideration during

sentencing. This Court heard argument from counsel that highlighted several mitigating factors

under Miller, and considered testimony from the Defendant's loved ones and acquaintances,

including the Defendant's wife Tamara Cruz, Correctional Officers Alex Pierce, Captain Randy

Irwin, and Lieutenant Casey Cleveland, teacher Arthur Hilinski, and social worker Tammy Joe

Rodgers, each of whom testified to the Defendant's good character.

        This Court is not obligated to consider mitigating factors in a vacuum, but must instead

balance these factors, including those outlined in Miller, with the facts of the case. The Defendant

shot the decedent during a robbery. After the decedent attempted to escape, the Defendant tracked

him to an open Dunkin' Donuts where, in plain view of multiple witnesses, executed the decedent

with two gunshot wounds to his back and thigh. The Defendant was convicted of First-Degree



                                                                                                      5
Murder, and sentenced to life without parole. By virtue of the Supreme Court's holding in Miller,

the Defendant was granted an opportunity to have his sentence reconsidered. This Court

ultimately imposed a twenty-five year to life sentence. The fact that the Defendant did not receive

his preferred sentence of twenty-years to life does not implicate an abuse of discretion on the part

of this Court.

        The Defendant similarly argues that this placed too much weight on penological concerns

when the chief focus of the hearing should have been his own diminished capacity, As stated

above, the Defendant's diminished capacity as associated with his youth is but one factor amongst

dozens that this Court must, and ultimately did, consider before imposing a just sentence. The

Defendant, while recognizing the wide latitude of this Court's discretion, seeks to limit the scope

of that discretion and conform it to his own individual whims. Such an interpretation of this

Court's discretion greatly diminishes the interests of justice. Such interests demand that the Court

consider every factor at its disposal, not just those cherry picked by an individual, convicted

defendant, in order to best protect the community.

        The Defendant further alleges that this Court unlawfully punished him by placing too

much weight on his failure to accept responsibility during the resentencing hearing. Prior to and

during the resentencing hearing, the Defendant maintained his innocence of the crime. It is

undoubtedly appropriate for a trial court to consider a defendant's lack of remorse as a factor in

sentencing at sentencing, provided that it is specifically considered in relation to protection of the

public, the gravity of the offense, and the defendant's rehabilitative needs. Commonwealth v.

Grays, 167 A.3d 793, 817 (Pa. Super. 2017) (citing Commonwealth v. Bowen, 975 A.2d 1120,

1125 (Pa. Super. 2009)).




                                                                                                         6
       Here, the Defendant maintains his innocence, as is his right. However, this Court is

obligated to consider the facts of the case and other evidence when rendering its decision. After

hearing evidence from multiple eyewitnesses that the Defendant himself hunted down and

executed the decedent after he escaped a robbery, it convicted him of First-Degree Murder. While

the Defendant's youth and incapacity at the time of the shooting diminishes his culpability for the

crime, it does not absolve him of it. The cold-blooded and grisly nature of the Defendant's act

demonstrates a callousness not present in most teenagers. This Court notes that the homicide in

question did not result from a split-second, emotional decision that could be solely attributable to

youth. Instead, the facts proven at trial demonstrated that the Defendant stalked the decedent after

attempting to rob him, followed him into a public area filled with innocent bystanders, and

executed him with two shots. The Defendant's actions not only resulted in the decedent's death,

but risked the deaths of other innocent people.

       Though the Defendant expressed sorrow for the decedent's family, his alleged sympathy is

not synonymous with remorse. Though this Court could never know for certain whether the

Defendant committed the crime in question, if the Defendant was in fact responsible, as a jury of

his peers deemed him to be, his refusal to accept responsibility and show remorse reflects the same

callousness that was present within him as a teenager. Clearly, the Defendant's lack of remorse,

coupled with the Court's responsibility to protect the public, the gravity of the offense, and the

impact on the lives of the surviving victims, justify the current sentence.

        The Defendant also avers that this Court failed to place sufficient weight on his

rehabilitative needs and the protection of the public. Essentially, the Defendant claims that he has

no rehabilitative needs and poses no danger to the public. While this Court disagrees with this

point, even if the Defendant was fully rehabilitated and did present no danger to the public, this



                                                                                                       7
Court would still be well within its discretion to impose the instant sentence. As stated above, the

Defendant's rehabilitative needs and the responsibility to protect the public are but two factors a

court must consider when imposing sentence. This Court is also obligated to consider the gravity

of the Defendant's offense. Here, the Defendant shot an individual twice, in broad daylight, in

view of multiple witnesses, and to this day has failed to show remorse for his crime. Again, the

Defendant seeks an   a la carte selection of factors to guide this Court's determination, but requests
that this Court's consideration of the gravity of the offense be removed from the menu. The

Defendant's interpretation of sentencing law, that few factors be given prominence while wholly

ignoring others, is unsupported in Commonwealth case law and does not give rise to an argument

warranting relief.

       The Defendant argues that this Court failed to consider his intellectual disability when

imposing sentence. But for his intellectual disability, the Defendant contends, he may have

exercised his right to remain silent, have been willing to accept a ten to twenty year plea deal for

the instant case, or, perplexingly, been charged and convicted of a lesser offense. The Defendant's

argument that, even though he now claims his innocence, he would have accepted a guilty plea

offer at the time of the shooting is too nebulous to warrant relief. Similarly, his argument

concerning being charged with a lesser offense fails, as he declines to present a basis to support his

argument.

        This Court reviewed the Defendant's mitigation report, which revealed that the Defendant

had an above average IQ of 106 when the test was administered shortly after the murder, had a

sixth grade reading level, eighth grade spelling level, and fifth grade math level at the time of his

arrest. See Defense Exhibit D-1. Unlike other juvenile defendants who were held back in their

studies, the Defendant was enrolled the 11th grade at the time of the murder, and he would go on



                                                                                                         8
to earn his high school diploma while incarcerated in 2001, a quick achievement time based on

this Court's experience. Id. Based on this Court's analysis, while the Defendant was diagnosed

with a learning disability at the time he was elementary school age, his slightly above average

intelligence, reading, and spelling levels indicate that he suffered no major intellectual disability

beyond that associated with youth and immaturity, as defined in Miller. The Defendant fails to

state a cause for relief.

        The Defendant's next two claims concern his mental capacity to understand and waive his

Fifth Amendment right protecting against self-incrimination. While the Defendant attempts to

frame this argument as a challenge to this Court's perceived unwillingness to consider the mental

deficiencies associated with his youth at the time he confessed to the crime, these claims are

nothing more than a thinly veiled attempt to relitigate his conviction. This Court is not charged

with reconsidering the Defendant's guilt or innocence. A resentencing hearing is not the proper

forum to challenge the sufficiency of the evidence or the reliability of his confession. The

Defendant previously challenged the voluntariness of his confession prior to trial, and Judge

Latrone found his confession to be credible. Any continued challenge made in this forum

constitutes a waste of judicial resources unbecoming of an inmate who has demonstrated remorse

and an ability to rehabilitate himself after committing such a grave offense. No further discussion

is warranted.

        Although his position is unclear, the Defendant next appears to argue that this Court was

improperly swayed by victim impact testimony from the decedent's family that, after the trial, the

Defendant's mother laughed atthe family and told them "At least I get to see my son and all you

do get to do is throw dirt and flowers on your son." N.T. 9/5/2018 at 20. As discussed thoroughly

above, this Court supplemented its consideration of the Miller factors with traditional penological



                                                                                                        9
concerns such as the protection of the public, the gravity of the offense, and the rehabilitative

needs of the public. Any interaction the Defendant's mother may have had with the decedent's

family was ancillary at best and granted little weight to this Court's consideration.

       The Defendant further claims that this Court relied too heavily on 18 Pa.C.S. § 1102. l(a)

in making its determination. For a juvenile convicted after June 24, 2012 of first degree murder,

subsection (a)(l) provides that:

               A person who at the time of the commission of the offense was 15
               years of age or older shall be sentenced to a term of life imprisonment
               without parole, or a term of imprisonment, the minimum of which
               shall be at least 35 years of age.

18 Pa.C.S. §II 02. I (a){l ). In Commonwealth v. Batts, 163 A.3d 4 IO (Pa. 20 I 7), the Supreme

Court of Pennsylvania declared that, to promote uniformity in sentencing for pre- and post-Miller

cases, when determining the appropriate minimum term of sentence, sentencing courts should be

guided by the minimum sentences contained in 1102.1 (a), or thirty-five years to life imprisonment

penalties for First-Degree Murder convictions of juvenile defendants between the ages of fifteen

and eighteen. Batts, 163 A.3d at 458.

       Here, the Defendant claims that this Court relied too heavily on the Supreme Court's

guidance when it rejected the Commonwealth's resentencing recommendation of twenty years to

life imprisonment. While it is true that this Court considered § 1102.1 (a) in rendering its sentence,

the Defendant ignores the fact that this Court significantly deviated from the Supreme Court's

recommendation by imposing a minimum sentence that was ten years less than the statutorily

recommended penalty. Ultimately, the Defendant received a considerable benefit from this

Court's deviation: a nearly thirty percent decrease from the statutorily recommended sentence.

and had this Court strictly followed the Supreme Court's guidance in this matter, it would have




                                                                                                    10
imposed the suggested thirty-five year to life sentence. The Defendant's argument has no basis in

fact and should be rejected.

       Finally, the Defendant presents a challenge to legality of his sentence, arguing that this

Court improperly imposed an unconstitutional maximum sentence of life imprisonment. This

issue has been thoroughly resolved in Batts, infra. In Batts, the Supreme Court of Pennsylvania

found that for juveniles convicted prior to Miller, a sentencing court may resentence affected

defendants to a minimum term-of-years sentence and must impose a mandatory maximum

sentence of life in prison, exposing defendants to parole eligibility upon the expiration of their

minimum sentences. Id.; see also 61 Pa.C.S. § 6137(a)(3). In Commonwealth v. Seskey, 170 A.3d

1105 (Pa. Super. 2017), the Superior Court reemphasized that a trial court must impose the

mandatory maximum sentence of life imprisonment when it vacated the appellant's thirteen to

twenty-six year sentence for First-Degree Murder, and remanded the matter for resentencing. See

also Commonwealth v. Olds, ---A.3d----, 2018 WL 3233726 (Pa. Super. 2018) (mandatory

maximum term of life imprisonment does not violate the Eighth Amendment's ban on cruel and

unusual punishment).

       This Court imposed a sentence of twenty-five years to life imprisonment. Under the recent

holdings in the Superior and Supreme Court, this Court must impose a mandatory life

imprisonment maximum sentence tail. The Petitioner's claim that this Court's imposition of a

maximum term of life imprisonment and lifetime parole term is unconstitutional is without merit.

Nevertheless, even if this Court was not required to impose a maximum life sentence, it maintains

that a maximum life sentence is appropriate in this case based on the seriousness of the offense

and the threat to the public's safety posed by the Petitioner. This Court would have used its




                                                                                                     11
discretion to impose a maximum life sentence had this Court not been obligated to do so by

statute. No further discussion is warranted.

       For the foregoing reasons, the judgment of this Court should be affirmed.

                                                                  BY THE COURT,




                                                                  Barbara A. McDermott, J




                                                                                             12
Commonwealth v. David Valasquez, CP-51-CR-1200451-1997
           �                              .
                                    PROOF OF SERVICE

       I hereby certify that I am this day serving the foregoing filing upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:

                              Philadelphia District Attorney's Office
                              Three South Penn Square
                              Philadelphia, PA 19107
                              Attn: Lawrence Goode, Esq.

Type of Service:              DA's Assigned Courthouse Box

                              Michael C. Falk, Esq.
                              Samantha L. Rocchino, Esq.
                              Reed Smith LLP
                              Three Logan Square
                              171 7 Arch Street
                              Suite 3100
                              Philadelphia, PA 19103

Type of Service:              First Class Mail

                              David Valasquez
                              DY 0049
                              SCI Albion
                              10745 Route 18
                              Albion, PA 16475-0001

Type of Service:              Certified Mail




Honorable arbara A. McDermott
