J-A21019-15

                                 2015 PA Super 187

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                      v.

QU’EED BATTS

                            Appellant                  No. 1764 EDA 2014


               Appeal from the Judgment of Sentence May 2, 2014
              In the Court of Common Pleas of Northampton County
               Criminal Division at No(s): CP-48-CR-0001215-2006

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

CONCURRING AND DISSENTING OPINION BY FITZGERALD, J.:

                                                   FILED SEPTEMBER 04, 2015

        The   Majority     Opinion   thoroughly   summarizes   the   factual   and

procedural history of the instant appeal, as well as the legal framework

established by Miller and the prior Pennsylvania Supreme Court decision in

this matter.1 Majority Slip Op. at 1-14. I concur that Miller must be applied

narrowly as a rejection of the mandatory imposition of a juvenile life-

without-parole sentence.       See id. at 8-9 (discussing Batts II, 66 A.3d at

295-96).      I also agree the current law does not support Appellant’s

suggestion that we import the standards and procedures for the imposition

*
    Former Justice specially assigned to the Superior Court.
1
  See Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 47
(2012); Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (2013)
(“Batts II”).
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of the death penalty to juvenile life-without-parole sentences.   See id. at

21-24 (discussing 42 Pa.C.S. § 9711 and Appellant’s Brief at 89, 93).

However, following a review of Pennsylvania’s sentencing law, I believe

waiver under Pa.R.A.P. 2119(f) is not appropriate and would hold the trial

court failed to consider properly the unique issues raised when imposing a

sentence of life-without-parole.   Thus, for the reasons that follow, I would

remand this matter for resentencing.

     It is undisputed that Miller held “mandatory life-without-parole

sentences for juveniles violate the Eighth Amendment.” Miller, ___ U.S. at

___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 19 (emphasis added). In focusing

on the mandatory nature of sentencing, Justice Kagan’s lead opinion in

Miller concluded: “By making youth (and all that accompanies it) irrelevant

to imposition of that harshest prison sentence, such a scheme poses too

great a risk of disproportionate punishment.” Id. at ___, 132 S. Ct. at 2469,

183 L. Ed. 2d at 35.      Miller declined to consider whether the Eighth

Amendment categorically barred juvenile life-without-parole sentences. See

id.at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 35-36; Batts II, 620 Pa. at

123, 66 A.3d at 291.

     Nonetheless, the lead opinion in Miller stated:

        [W]e think appropriate occasions for sentencing juveniles
        to this harshest possible penalty will be uncommon. That
        is especially so because of the great difficulty . . . of
        distinguishing at this early age between the juvenile
        offender whose crime reflects unfortunate yet transient
        immaturity, and the rare juvenile offender whose crime


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           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.

Miller, ___ U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 36 (citations,

quotation marks, and footnote omitted) (emphasis added).

      While Miller must be applied narrowly, see Batts, 620 Pa. at 131-32,

66 A.3d at 296, the United States Supreme Court set forth two guiding

principles: first, “children are constitutionally different from adults for

purposes of sentencing[;]” and second, “youth matters in determining the

appropriateness of a lifetime of incarceration without the possibility of

parole.” See Miller, ___ U.S. at ___, 132 S. Ct. at 2464-65, 183 L. Ed. 2d

at   20,   24-25.      Those   polestars   reflected   the   following   penological

considerations:

           First, children have a “‘lack of maturity and an
           underdeveloped sense of responsibility,’” leading to
           recklessness, impulsivity, and heedless risk-taking.
           Second, children “are more vulnerable . . . to negative
           influences and outside pressures,” including from their
           family and peers; they have limited “contro[l] over their
           own environment” and lack the ability to extricate
           themselves from horrific, crime-producing settings. And
           third, 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 irretrievabl[e] deprav[ity].”

Id. ___ U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 20-21 (citations

and footnote omitted). Moreover,

           [“]‘[o]nly a relatively small proportion of adolescents’” who
           engage in illegal activity “‘develop entrenched patterns of


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        problem behavior.’” . . . [“D]evelopments in psychology
        and brain science continue to show fundamental
        differences between juvenile and adult minds”—for
        example, in “parts of the brain involved in behavior
        control.”      [T]hose findings—of transient rashness,
        proclivity for risk, and inability to assess consequences—
        both lessened a child’s “moral culpability” and enhanced
        the prospect that, as the years go by and neurological
        development occurs, his “‘deficiencies will be reformed.’”

Id. at ___, 132 S. Ct. at 2464-65, 183 L. Ed. 2d at 21-22 (citations

omitted).

     The Miller Court summarized:

        [T]he distinctive attributes of youth diminish the
        penological justifications for imposing the harshest
        sentences on juvenile offenders, even when they commit
        terrible crimes. Because “‘[t]he heart of the retribution
        rationale’” relates to an offender’s blameworthiness, “‘the
        case for retribution is not as strong with a minor as with an
        adult.’” Nor can deterrence do the work in this context,
        because “‘the same characteristics that render juveniles
        less culpable than adults’”—their immaturity, recklessness,
        and impetuosity—make them less likely to consider
        potential punishment. Similarly, incapacitation could not
        support the life-without-parole sentence . . . . Deciding
        that a “juvenile offender forever will be a danger to
        society” would require “mak[ing] a judgment that [he] is
        incorrigible”—but “‘incorrigibility is inconsistent with
        youth.’” And for the same reason, rehabilitation could not
        justify that sentence.       Life without parole “forswears
        altogether the rehabilitative ideal.”         It reflects “an
        irrevocable judgment about [an offender’s] value and place
        in society,” at odds with a child’s capacity for change.

Id. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 23-24 (citations omitted).

     Following Miller, the Pennsylvania Supreme Court remanded this

matter for resentencing and directed the trial court, inter alia, to consider

age-related factors. See Batts II, 620 Pa. at 133, 66 A.3d at 297 (citing


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Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012)). However,

the Batts II decision did not provide guidance on how to consider age-

related factors. Id. at 296-97. In my view, the answer lies in the traditional

sentencing principles in Pennsylvania and an evaluation of the effects of

Miller.

      Traditionally, sentencing for murder of the first degree represented an

exception   to   Pennsylvania’s   “indeterminate,   advisory,   and   guided”

sentencing scheme. See Commonwealth v. Yuhasz, 592 Pa. at 120, 131,

923 A.2d 1111, 1117 (2007); Batts II, 620 Pa. at 131, 66 A.3d at 295.

The General Assembly mandated the imposition of a single, maximum

sentence of at least a term of life imprisonment for first-degree murder.

See, e.g., 18 Pa.C.S. § 1102(a) (subsequently amended Oct. 25, 2012); 42

Pa.C.S. § 9711; Batts II, 620 Pa. at 131, 133-34, 66 A.3d at 295, 297;

accord 18 Pa.C.S. § 1102.1(a), (b); Commonwealth v. Yount, 419 Pa.

Super. 613, 623, 615 A.2d 1316, 1321 (1992) (recognizing trial court could

not sentence first-degree murderer to lesser term than life). That sentence

was made “without parole” under the Prisons and Parole Code.          See 61

Pa.C.S. § 6137(a)(1); Batts II, 620 Pa. at 131, 66 A.3d at 295-96.         As

noted in Batts II, this mandatory sentencing scheme applied to a juvenile-

defendant when the trial court denied a petition for decertification under the

Juvenile Act. See 42 Pa.C.S. §§ 6302, 6322(a); Batts II, 620 Pa. at 131,

66 A.3d at 295-96.



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      Following Miller, a trial court must impose a maximum sentence of

life, but may impose a minimum sentence in a term of years. See Batts II,

620 Pa. at 133-34, 66 A.3d at 296; cf. 18 Pa.C.S. § 1102.1(a). The trial

court may also impose a maximum term of life imprisonment and, after

consideration of age-related factors, withhold the possibility of parole at the

time of sentencing. See Knox, 50 A.3d at 735; cf. 18 Pa.C.S. § 1102.1(d).

      Although the determination of an appropriate minimum sentence is

amendable to analysis under Pennsylvania’s traditional sentencing scheme,

the denial of the possibility of parole remains a novel and evolving issue. 2

The imposition of a juvenile life-without-parole sentence, in my view,

requires different considerations.   Cf. Commonwealth v. Lawrence, 99

A.3d 116, 122 (Pa. Super. 2014) (describing juvenile life-without-parole

sentence as “preventing a juvenile . . .    from ever obtaining any hope of

release from confinement”); accord Miller, ___ U.S. at ___, 132 S. Ct. at

2465, 183 L. Ed. 2d at 24 (“Life without parole ‘forswears altogether the

rehabilitative ideal.’   It reflects ‘an irrevocable judgment about [an

offender’s] value and place in society,’ at odds with a child’s capacity for

change.”).    Moreover, factors such as the protection of the public, the

gravity of the offense in relation to the impact on the victim and the

2
  For example, under Section 1102.1(d), which does not directly govern this
case, see Batts II, 66 A.3d at 294, a juvenile life-without-parole sentence
may be imposed so long as the trial court “consider[s] and make[s] findings
on the record” of “age-related characteristics of the defendant” along with
six other factors. See 18 Pa.C.S. § 1102.1(d)(7).



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community,    and   the   defendant’s   rehabilitative   needs   are   implicitly

considered by the fact that a juvenile-defendant convicted of first-degree

murder will be subject to some form of supervision by the Commonwealth

for life. See 42 Pa.C.S. § 9721(b); Commonwealth v. Walls, 592 Pa. 557,

569, 926 A.2d 957, 964 (Pa. 2007).

      Conversely, Miller and Batts ended decades of sentencing under the

mandatory life-without-parole scheme for juveniles convicted of first-degree

murder. Indeed, our prior law provided no meaningful basis to challenge a

sentence withholding the possibility of parole.

      Turning to the specifics of this case, I disagree with the Majority that

Appellant’s claims regarding the consideration of age-related factors have

been waived under Pa.R.A.P. 2119(f).       See Majority Slip Op. at 21.        A

sentence for murder is not a felony or misdemeanor subject to the

discretionary review process.   See 18 Pa.C.S. § 106 (listing murder as a

separate class of offense from felonies and misdemeanors); 42 Pa.C.S. §

9781(b) (“The defendant or the Commonwealth may file a petition for

allowance of appeal of the discretionary aspects of a sentence for a felony or

a misdemeanor to the appellate court that has initial jurisdiction for such

appeals.”); Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa.

508, 513, 522 A.2d 17, 19 (1987) (Rule 2119(f) “furthers the purpose

evident in the Sentencing Code as a whole of limiting any challenges to the

trial court’s evaluation of the multitude of factors impinging on the



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J-A21019-15


sentencing decision to exceptional cases.”).   Moreover, the standards and

procedures for sentencing a juvenile to life without parole do not arise from

the Sentencing Code. See 42 Pa.C.S. § 9781(b) (requiring petitioning party

to show substantial question that sentence imposed in not appropriate under

[the Sentencing Code]). Lastly, our assessment of the requirement that a

trial court “consider” age-related factors when imposing a juvenile life-

without-parole sentence raises a sufficiently extraordinary legal question to

warrant review despite a procedural default. Therefore, I would decline to

find Appellant’s issues waived under Rule 2119(f).

     Our standard of review is as follows:

        [T]he proper standard of review when considering whether
        to affirm the sentencing court’s determination is an abuse
        of discretion. [A]n abuse of discretion is more than a mere
        error of judgment; thus, a sentencing court will not have
        abused its discretion unless “the record discloses that the
        judgment exercised was manifestly unreasonable, or the
        result of partiality, prejudice, bias or ill-will.” In more
        expansive terms, [“a]n abuse of discretion may not be
        found merely because an appellate court might have
        reached a different conclusion, but requires a result of
        manifest unreasonableness, or partiality, prejudice, bias,
        or ill-will, or such lack of support so as to be clearly
        erroneous.”

Walls, 592 Pa. at 564, 926 A.2d at 961 (citations omitted). However,

        [t]he grant of broad discretion does not render the
        sentence imposed immune to challenge in the appellate
        courts:

           [The] deference paid to the trial court does not
           necessitate a rubber stamped approval of the
           sentences imposed by the sentencing court.
           Appellate review of sentencing matters would


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J-A21019-15


            become a mockery and a sham if all sentences were
            routinely affirmed under the guise of discretion of
            the trial court. Further, it must be considered our
            function to review sentences in a more detached
            manner so that we can ensure not only a fair and
            impartial sentence under the circumstances, but also
            to protect against grossly disparate treatment of like
            offenders throughout the Commonwealth.

Commonwealth v. Vega, 850 A.2d 1277, 1281 (Pa. Super. 2004) (citation

omitted). Further, where, as here, the presiding judge at sentencing is not

the trial judge, “many of the factors justifying the deference normally

accorded to the sentencing court are not present . . . .” Commonwealth v.

Billicki, 355 Pa. Super. 416, 419, 513 A.2d 990, 991 (1986) (citations

omitted).

      Instantly, the trial court set forth a thorough summary of its findings

of fact, conclusions of law, and explanation of its sentence over sixty pages

of transcript. See N.T., 5/2/14, at 6-66. After summarizing approximately

eleven aggravating factors and four mitigating factors, the court determined

“the factors not in [Appellant’s] favor significantly outweigh the factors in his

favor.” See id., at 64-65. Under ordinary circumstances, such diligence on

the part of a trial court alone provides a basis for not disturbing its exercise

of discretion. See Commonwealth v. Begley, 566 Pa. 239, 302, 780 A.2d

605, 643 (Pa. 2001) (“As long as the trial court’s reasons demonstrate that

it weighed the Sentencing Guidelines with the facts of the crime and the

defendant’s character in a meaningful fashion, the court’s sentence should

not be disturbed.”).   Nevertheless, a closer inspection of the trial court’s


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findings of facts and conclusion of law reveals two gaps in the court’s

reasoning.

       First, the trial court, in my view, properly set forth the threshold issue

when     imposing    a   juvenile     life-without-parole     sentence—that       is,   the

distinction “between the juvenile offender whose crime reflects unfortunate

yet transient immaturity, and the rare juvenile offender whose crime

reflects irreparable corruption.” See Miller, ___ U.S at ___, 132 S. Ct. at

2469, 183 L. Ed. 2d at 36 (emphasis added); N.T., 5/2/14, at 66. However,

its   specific   conclusions   that    it   would    “give   [Appellant]   only    limited

consideration for his youth and immaturity,” and its holding that “[w]here

defendant actively seeks out and welcomes peer pressure, the peer pressure

does not diminish his culpability” requires further comment.                 See N.T.,

5/2/14, at 47, 49, 52.

        In limiting its consideration of youth and immaturity, the trial court

reasoned:

              Although there may be circumstances in which a crime
           can be partially explained by a young defendant’s
           recklessness,    poor   judgment,     lack   of   foresight,
           susceptibility to peer pressure, or weak impulse control,
           this was not such a crime. [Appellant] did not act on
           impulse. He was not caught up in youthful risk-taking
           behavior and lacked the ability to foresee how it might get
           out of control. [Appellant] made a purposeful choice to
           move out of his parents’ home and commit himself to life
           in the Bloods gang. He knew from prior experience and
           observation that the Bloods gang was a violent criminal
           organization and that he would be asked to commit violent
           criminal acts. Four days after [Appellant] moved out of his
           parents’ house, Bradley offered [Appellant] the opportunity


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J-A21019-15


         to prove himself by committing murder, and [Appellant]
         acted on the opportunity. He was not caught up in the
         heat of a stressful confrontation but had time to plan and
         deliberate. He placed a mask over his face, pulled gloves
         onto his hands, and picked up a handgun. He got out of
         the car and walked down the street toward the Edwards
         house. When he walked up the steps to the front porch
         with the gun in his hand, he was not acting on impulse or
         a lack of appreciation for what might happen next. He
         knew exactly what he was going to do. He made a
         calculated decision to shoot two defenseless boys at point
         blank range. He shot one boy in the back as he was
         running away. He shot the other boy twice in the head as
         he lay helpless on the porch and looking directly up into
         his face. This was not a crime that resulted from youthful
         impulsivity, a mistake in judgment, or inability to foresee
         the consequences of his actions. [Appellant] intended to
         kill, and he did kill. Whether he did so to earn a promotion
         or only to meet the gang’s expectations, his intent was to
         prove to his fellow criminals that he was willing to commit
         a cold-blooded murder.

            I am not suggesting that premeditated murder can
         never be considered impulsive for purposes of sentencing.
         There might well be circumstances under which
         premeditated murder could be the product of poor
         judgment, lack of foresight, susceptibility to peer pressure,
         and weak impulse control. That is not the case here.

N.T., 5/2/14, at 46-47. The court further emphasized that although a senior

gang member, Vernon Bradley, “invited” the commission of the crime,

Appellant agreed to do so and “acted alone”. See id. at 57. Appellant was

fourteen years old at the time of the crimes.

      The trial court was entitled to consider the callous and deliberate

nature of Appellant’s killing of sixteen-year-old Clarence Edwards and

shooting eighteen-year-old Corey Hilario in the back. Similarly, the court’s

findings that Appellant’s association with the Bloods and his decision to “act


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J-A21019-15


alone” were “volitional” rebut Appellant’s claim of duress. However, the fact

that Appellant made conscious choices between the ages of twelve and

fourteen does not necessarily diminish the distinctive attributes of youth.

Cf. Miller, ___ U.S. at ___, 132 S. Ct. at 2464-65, 183 L. Ed. 2d at 20-21

(“children have a lack of maturity and an underdeveloped sense of

responsibility, leading to recklessness, impulsivity, and heedless risk-taking.

Second, children are more vulnerable . . . to negative influences and outside

pressures, including from their family and peers” (internal quotation marks

omitted)).

      The evidence at the resentencing hearing established a “troubled

childhood” that included Appellant’s removal from his young mother’s care3

when he was five years old. See N.T., 5/2/14, at 41. He moved “frequently

from one home to another” and spent time in foster homes, as well as a

homeless shelter for youths. See id. According to the trial court’s summary

of the facts, Appellant returned to his mother and stepfather’s care at the

age of twelve, when he was in the seventh grade.         Id. at 42.   Appellant

befriended a Blood, who was subsequently imprisoned. Id. at 25. When in

eighth grade, Appellant “was approached by the Bloods and invited to join

the gang.” Id. The trial court noted, “Because [Appellant’s] own family life

had been fractured, he found gang life appealing.” Id.


3
 Appellant’s mother was thirteen when Appellant was born. N.T., 5/2/14, at
16.



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      When Appellant was in the ninth grade, approximately two years after

reuniting with his mother, Appellant moved out of her home following a

family dispute.   Id.   at 42.   He stayed with gang members after leaving

home. Id. at 27. Appellant met Bradley, a more senior Blood, who “invited”

him to confront Edwards.     See id. at 47.    Four days later, Appellant and

Bradley were in a car with other Bloods and Bradley asked who wanted to

“put in work.” See id. at 14, 47. Ultimately, Appellant agreed, and Bradley

“gave him a mask and a handgun.” Id. at 14. Appellant put on a glove,

approached the victims’ home, shot Hilario in the back as Hilario fled into the

house, and shot Edwards twice in the head after Edwards fell to the ground.

Id. at 14, 27-28. Appellant was fourteen years old when he committed the

murder and attempted murder.

      These were horrific crimes. However, the court finding that Appellant

“acted alone” ignored the totality of circumstances under which Appellant

met Bradley, Bradley instigated Appellant to undertake the criminal acts,

and Bradley gave Appellant the weapon.4

      Further, Appellant’s descent into gang association after returning to his

mother’s care at the age of twelve and the commission of the crime at the

age of fourteen correlate with the distinctive attributes of youth.        The

4
  At trial, Appellant testified that no one in the car responded after Bradley
asked, “Who’s going to put work in?” N.T., 7/30/07, at 64. Bradley asked
again and no one responded. Id. Bradley then handed the gun and mask to
Appellant and stated, “Blood, I just brought you home. You can’t put work
in for me?” Id. at 65.



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Commonwealth’s expert, Dr. Timothy J. Michals, testified at trial that

Appellant was not forced to join a gang, but “there was a need on his part to

belong to something, and he made the choice of going in that direction.”

N.T., 7/26/07, at 160-61.      Nevertheless, Dr. Michals opined Appellant

exhibited “rash and impulsive willingness to court danger and risk harm. He

acts fearless in the face of threats and punitive action.”   Id. at 166.   Dr.

Steven E. Samuel, another Commonwealth expert at the decertification

hearing, opined that Appellant was “vulnerable to the demands of an older,

more powerful male.”     Report by Steven Samuel, Ph.D., 1/12/07, at 6.

Appellant’s defense experts, Dr. Frank M. Datillio, and Dana Cook, both

suggested Appellant was vulnerable to gang influences. Report by Frank M.

Datillio, Ph.D., 11/21/13, at 15; Addendum to Report by Dana Cook, M.S.,

12/31/13, at 3 (unpaginated). The court further credited the testimony of

Dr. Susan E. Kraus, a county psychologist, who evaluated Appellant for the

presentence report. She testified that Appellant was willing “to do anything

to become accepted as a successful gang member, including the commission

of murder.” N.T., 5/2/14, 46, 52. Even if Appellant’s decision to join the

Bloods was “volitional,” it was the purposeful decision of a juvenile who was

then twelve or thirteen years old.

      Further, the trial court’s own findings that Appellant’s criminal actions

were “out of character” for him, belie its determination to devalue the

attributes of youth. N.T., 5/2/14, at 51-52. Before the shootings, Appellant



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had no prior criminal record, but engaged in fights, and began to use and

sell drugs.   Id. at 37, 44, 51.      After the shootings, Appellant had six

disciplinary infractions while incarcerated, including a fight in 2010 and

throwing liquid at another inmate in 2014. Id. at 34-35, 51. However, as

the court observed, those episodes did not approach the level of violence

displayed in the instant crimes.      Id. at 51-52.        Thus, the trial court’s

discounting of Appellant’s youthful attributes and susceptibility to gangs as it

related to his culpability lacked support in the record.

      Second, the trial court noted that all the experts at resentencing

agreed that Appellant “demonstrated some capacity for change in recent

years.”   Id. at 54.   It observed the Commonwealth’s expert, Dr. Michals,

stated Appellant was resistant to treatment and had limited potential for

rehabilitation due to “chronic psychological maladjustment.”        N.T., 5/1/14,

at 49, 59.    Dr. Michals also suggested Appellant “is who he is[,]” and

described Appellant as being “impulsive,” possessing “poor judgment,” and

engaging in “acting out” behavior.        N.T., Id. at 49-50.         Dr. Michals

concluded, “Characteristics can change but it’s very difficult to make

changes to the basic structure of . . . personality.” Id. at 59.

      However, the court also noted Appellant’s two experts and an

independent evaluator opined Appellant was amenable to rehabilitation.

N.T., 5/2/14, at 54.     Specifically, Dr. Datillio stated Appellant has “the

capacity to change,” “the desire is genuine,” and his “remorse is genuine.”



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N.T., 5/1/14, at 110.    Ms. Cook opined Appellant has “an extraordinary

amount of potential to be a law-abiding member of society . . . .” Report by

Dana Cook, M.S., 12/31/13, at 4 (unpaginated).         Dr. Kraus determined

Appellant “‘appear[ed] to have made significant changes in his thinking and

behavior over his years in prison and at this point appears competent and

amenable to treatment.’”     N.T., 5/2/14, at 53.     Dr. Kraus opined that

Appellant would need supervision if released. Id.

      The trial court determined Appellant’s “young age weigh[ed] slightly

in [his] favor in assessing [his] amenability to treatment and rehabilitation

and [his] rehabilitation and [his] capacity for change.” Id. at 61 (emphasis

added). It concluded that it could not “be confident of significant change . .

. without years of therapy” or “an extended period of incarceration.” Id. at

54, 59-60.

      In my view, the trial court’s findings and conclusions contradict the

principle that “youth matters” because of the innate ability of a juvenile to

change and mature. Cf. Miller, ___ U.S. at ___, 132 S. Ct. at 2464, 183 L.

Ed. 2d at 21 (“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

irretrievabl[e] deprav[ity].’). The court heard evidence that fourteen was a

critical age as Appellant was “just forming [his] sense of self, [his] sense of

judgment and reason.” N.T., 5/1/14, at 107. Further, although the court

purported to consider 18 Pa.C.S. § 1102.1, it did not discern the General



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Assembly’s policy decision that youth particularly matters when the juvenile-

defendant is younger than fifteen when he commits the crime.            See 18

Pa.C.S. § 1102.1(a)(1)-(2) (reducing mandatory minimum sentence from

thirty-five years for those aged fifteen or older to twenty-five years for those

under age of fifteen).

      The trial court, moreover, framed its choice as two extremes: the

Commonwealth’s recommendation that Appellant be sentenced to life

without parole, and Appellant’s request for a sentence of twenty-five years

to life as suggested by 18 Pa.C.S. § 1102.1. See N.T., 5/2/14, at 56. But

see Batts II, 620 Pa. at 127 66 A.3d at 293.        There was no meaningful

consideration of a minimum term of incarceration, above the twenty-five

year minimum sentence it rejected.5 See N.T., 5/2/14 at 64; cf. 18 Pa.C.S.

§ 1102.1(e) (permitting trial court to sentence above mandatory minimum

sentence).

      Similarly, the trial court suggested that a sentence less than life

without parole would be an act of “leniency” or “mercy,” which would

depreciate the seriousness of the offense and impact on the victims.        The

court, inter alia, referred to sentencing factors that “weigh against leniency,”


5
  Appellant presents a compelling argument that although the trial court
recognized a long-term possibility for rehabilitation and reform, its decision
to reimpose a sentence of life without parole could have the effect of making
treatment less available to Appellant during his incarceration. Appellant’s
Brief at 87.




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and opined that “[c]ompassion for [Appellant] does not diminish the needs

of the victim and the community to see that justice is done.”            See N.T.,

5/2/14, at 56, 67-68.           After imposing its sentence, the court posed a

rhetorical question whether Appellant’s family would ask for mercy if the

Appellant had been killed.6 Id. at 68. Shortly thereafter, it concluded the

resentencing proceeding, stating, “Mercy for [Appellant] will have to come

from God. God have mercy on [his] soul.” Id. at 68.

      The court misperceives the nature of our indeterminate sentencing

scheme by viewing an appropriately crafted definite minimum sentence as

lenient.      See Yuhasz, 592 Pa. at 131, 923 A.2d at 1117-1118;

Commonwealth v. Daniel, 430 Pa. 642, 647-48, 243 A.2d 400, 403

(1968) (“[T]he maximum sentence is the only portion of the sentence which

has   legal   validity,   and    that   the   minimum   sentence   is   merely   an

administrative notice” regarding the availability of parole.)      An appropriate

minimum sentence would create no right to release on parole. See Rogers

v. Bd. of Prob. & Parole, 555 Pa. 285, 292, 724 A.2d 319, 323 (1999);

Commonwealth v. Kleinicke, 895 A.2d 562, 572 (Pa. Super. 2006) (en


6
  The presiding judge also related an incident when his law clerk stated,
“Have mercy,” after which the presiding judge visited the crime scene before
imposing sentence. N.T., 5/2/14, at 67-68. The judge parked in front of
the victims’ home, imagined Appellant shooting Hilario and Edwards, and
pondered the effects of the crime upon Edwards’ grandmother. Id. Such
personal identification with the victims, as human as that is, does not reflect
a dispassionate and impartial weighing of the impact of the offense against
the attributes of youth.



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banc). Parole requires further assessments. Parole would only be granted

after “a prisoner has demonstrated to the Parole Board’s satisfaction, his

future ability to function as a law-abiding member of society.” See Rogers,

555 Pa. at 292, 724 A.2d at 322-23.                If granted, release would be

conditional, and the juvenile-defendant would remain subject to supervision

by the Commonwealth. Thus, I believe the court did not properly assess the

possibility    of   Appellant’s   rehabilitation   or     consider   the   sentencing

alternatives available to it.

      In sum, I would conclude the record reveals an abuse of discretion

when imposing a life-without-parole sentence. The trial court’s discounting

of Appellant’s youthful attributes and susceptibility to peer pressure lacked

support in the record.       The court failed to recognize the inherent possibility

and   record      evidence   of   a   fourteen-year-old    offender’s   potential   for

rehabilitation.     Further, it did not consider the sentencing alternatives.

Therefore, I would remand this matter for resentencing.




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