J-A26035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRIAN SAMUEL                              :
                                           :
                    Appellant              :   No. 250 WDA 2019

     Appeal from the Judgment of Sentence Entered January 22, 2019
    In the Court of Common Pleas of Beaver County Criminal Division at
                                 No(s):
                        CP-04-CR-0001376-1996


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 16, 2019

      Appellant, Brian Samuel, appeals from the judgment of sentence

entered on January 22, 2019 in the Criminal Division of the Court of Common

Pleas of Beaver County. On appeal, Appellant challenges the legality of his

sentence as well as the exercise of the court’s discretion in fixing his

punishment. In particular, Appellant alleges that his consecutive sentences

of 30 years to life for two first-degree murder convictions constitute a de facto

sentence of life without the possibility of parole (LWOP) which violates his

constitutional rights.   Appellant also claims that the trial court erred in

imposing upon him the costs of prosecution associated with resentencing

procedures necessitated by the evolution of constitutional law.          In the

alternative, Appellant maintains that the trial court abused its discretion by

imposing an excessive sentence and in denying the appointment of a
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mitigation expert. For the reasons that follow, we conclude that the trial court

imposed lawful sentences and that it did not abuse its discretion during the

course of Appellant’s resentencing proceedings.       We vacate, however, the

judgment of sentence to the extent it directed Appellant to pay the costs of

prosecution.

        The trial court summarized the facts and procedural history in this case

as follows.

        On April 11, 1996, at about 10:00 p.m. in the City of Aliquippa,
        Beaver County, William and Teresa Samuel were murdered,
        contemporaneously, in and just outside their home. [Appellant]
        along with his co-defendants were arrested and charged with both
        killings on or about April 15, 1996. At the time of the incident,
        [Appellant], who was the son of both victims, was 16 years of age,
        born May 21, 1979. Following a jury trial which began on
        September 22, 1997, [Appellant] was found guilty on all counts in
        the information.       The most serious of the counts being
        first-degree murder, the case then proceeded to a penalty phase.
        The jury rendered a verdict of life imprisonment as to one of the
        co-defendants but could not reach a verdict as to [Appellant] or
        [his] other co-defendant. The [trial c]ourt discharged the jury at
        that time and on October 28, 1997, sentenced [Appellant] to two
        consecutive terms of life imprisonment [without the possibility for
        parole] for the first-degree murder convictions.

        [Appellant] appealed from the judgment of sentence and on
        October 6, 1999, th[is] Court affirmed. Subsequently, [Appellant]
        filed a petition for allowance of appeal, and on May 9, 2001 the
        Supreme Court of Pennsylvania issued an order denying
        [Appellant’s] petition. On August 6, 2012, [Appellant] filed a pro
        se motion [pursuant to the Post-Conviction Relief Act1 (“PCRA”)]
        citing Miller v. Alabama[, 567 U.S. 460 (2012)]. Th[e PCRA
        c]ourt appointed the Beaver County Public Defender’s office to
        represent [Appellant] and on May 1, 2013 the [c]ourt entered an
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.


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     [o]rder deferring its decision on [Appellant’s] petition pending [a]
     decision    by    [the    Pennsylvania]     Supreme       Court   in
     Commonwealth v. Cunningham, 51 A.3d 178 (Pa. 2012),
     which had granted an appeal on the issue of whether Miller
     applied retroactively to an inmate serving a sentence of life
     imprisonment without parole when the inmate had exhausted his
     direct appeal rights and is proceeding under the [PCRA].

     On December 23, 2013, the [PCRA c]ourt entered an [o]rder
     providing that our Supreme Court in Commonwealth v.
     Cunningham, 81 A.3d 1 (Pa. 2013) had decided that “Miller’s
     proscription of the imposition of mandatory life-without-parole
     sentences upon offenders under the age of 18 at the time their
     crimes were committed will not be extended retroactively[.]”
     Thereafter, on February 5, 2014, the [c]ourt dismissed
     [Appellant’s] PCRA petition without a hearing.

     On or about March 4, 2016, [Appellant] filed a[ second PCRA
     petition] arguing that the United States Supreme Court held in
     Montgomery v. Louisiana[, 136 S.Ct. 718 (2016)] that Miller
     announced a substantive rule that is retroactive in cases on
     collateral review.      Montgomery, 136 S.Ct. [at] 732[.]
     [Appellant’s second] PCRA [petition] was reassigned to [the
     original PCRA c]ourt for further proceedings on March 9, 2017. On
     or about April 30, 2018, [Appellant] filed a motion for the
     appointment of a mitigation specialist and forensic psychiatrist
     and requested $35,000[.00] in funding for these experts. The
     Commonwealth filed a brief in opposition to [Appellant’s] motion
     and by order dated June 27, 2018, th[e PCRA c]ourt denied
     [Appellant’s] request for expert funding. In that [o]rder [the
     court] held that based upon the Pennsylvania Supreme Court’s
     decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)
     (“Batts II”) and Commonwealth v. Foust, 180 A.3d 416 (Pa.
     Super. 2018), expert testimony was unnecessary in this case.

     On January 22, 2019, th[e trial c]ourt held a sentencing hearing.
     At the time of the hearing, the Commonwealth presented
     testimony and evidence in support of [its] recommendation to the
     court that [Appellant] be resentenced to two terms of 35 years[’]
     imprisonment to life to run consecutively. Contrarily, [Appellant]
     argued in his sentencing memorandum as well as at the time of
     the hearing that the [c]ourt should run the 35[-]year to life
     sentences concurrently so that [Appellant would] be eligible for
     parole by age 51. Having considered the testimony of the
     witnesses, impact statements, the photographic and documentary

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      evidence as well as the testimony by [Appellant] himself, th[e
      c]ourt determined that an appropriate sentence based upon
      [Appellant’s age] at the time of the offense is two, 30-year to life
      sentences to run consecutively.

Trial Court Opinion, 1/29/19, at 1-4.

      Appellant filed a timely notice of appeal to this Court on February 14,

2019. Thereafter, pursuant to Pa.R.A.P. 1925(b), Appellant filed a timely,

court-ordered concise statement of errors complained of on appeal.

      Appellant raises the following claims in his brief to this Court:

      1. Is the imposition of an aggregate sentence of 60 years to life
         on a juvenile a de facto life sentence requiring, as mandated
         by the [Pennsylvania Supreme] Court in [Batts II], the
         resentencing court to find beyond a reasonable doubt that the
         juvenile is permanently incorrigible, irreparably corrupt, or
         irretrievably depraved?

      2. Did the resentencing court err in holding that consecutive
         sentences that in the aggregate constitute an unconstitutional
         de facto life sentence are nevertheless lawful because the court
         may examine the sentence on each individual count separately,
         even when the counts arise from a single episode of criminal
         conduct?

      3. Did the resentencing court err by failing to consider on the
         record the factors contained in Miller and adopted by the
         Pennsylvania Supreme Court in Commonwealth v. Batts, 66
         A.3d 286, 297 (Pa. 2013) [hereinafter “Batts I”] prior to
         sentencing [Appellant] and, as a result, impose a manifestly
         excessive sentence?

      4. Did the resentencing court err by imposing a mandatory
         maximum sentence of life imprisonment for a murder
         committed by a juvenile?

      5. Did the resentencing court err when it ordered [Appellant] to
         pay the costs of prosecution associated with a resentencing
         necessitated by the evolution of constitutional law, particularly
         when the court did not consider [Appellant’s] ability to pay and



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          re-imposed costs that exceed the amounts authorized by
          statute?

       6. Did the resentencing court abuse its discretion when it denied
          [Appellant’s] request for funding for a mitigation expert,
          thereby leaving the court without all of the evidence
          demonstrating     [Appellant’s]    mental,     emotional,   or
          developmental characteristics at the time of the offense?

       7. Did the resentencing court abuse its discretion by failing to
          consider on the record the factors set forth in Miller and 18
          Pa.C.S. § 1102.1(d) prior to sentencing [Appellant] and, as a
          result, impose a manifestly excessive sentence?

Appellant’s Brief at 5-6.

       Appellant’s first five issues challenge the legality of his sentence. Hence,

our standard of review is de novo and our scope of review is plenary. See

Foust, 180 A.3d at 422 (considering constitutionality of imposing 60-year to

life sentence upon juvenile double homicide defendant).2

       In his first and second issues, Appellant argues that his sentence is

illegal because it constitutes a de facto LWOP sentence. Citing Miller and

Montgomery, Appellant argues that juvenile homicide defendants may not

be subject to LWOP sentences in the absence of a determination that they are

permanently incorrigible or incapable of rehabilitation. Appellant points out
____________________________________________


2  Our Supreme Court has placed on hold a petition for allowance of appeal
filed in Foust pending the disposition of an appeal taken from a decision
issued by this Court in Commonwealth v. Felder, 181 A.3d 1252 (Pa. Super.
2017). Felder asks our Supreme Court to consider whether a sentence of 50
years to life constitutes a de facto sentence of life without the possibility of
parole so as to require a finding of permanent incorrigibility by the sentencing
court. See Commonwealth v. Foust, 126 WAL 2018 (Pa. Sept. 5, 2018)
(order holding petition for allowance of appeal in abeyance); see also
Commonwealth v. Felder, 187 A.3d 909 (Pa. 2018) (granting petition for
allowance of appeal).

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J-A26035-19



that Foust extended this rule to de facto life sentences. Moreover, according

to Appellant, multiple consecutive sentences, such as those imposed in this

case, must be examined in the aggregate, and not individually, when

evaluating whether they constitute de facto life sentences.       In Appellant’s

view, both Miller and our Supreme Court’s decision in Batts II support the

idea that sentences must be examined in the aggregate because any

categorical prohibition against “volume discounts” in sentencing wrongly

discounts considerations of youth and allows the facts of a crime to outweigh

valid mitigation arguments.

      Foust stands on all fours with the instant case and squarely rejects the

contentions raised in Appellant’s first two issues. In Foust, a 17 year-old

defendant was convicted of two counts of first degree murder for the

intentional killings of two individuals. In June 1994, he was sentenced to two

consecutive LWOP sentences. In 2016, Foust filed a PCRA petition in which

he argued that his two consecutive LWOP sentences violated the Eighth

Amendment of the United States Constitution as interpreted in Miller and

Montgomery. After granting Foust’s petition, the trial court re-sentenced

him to serve two consecutive 30 to life sentences for his double homicide

convictions.

      In affirming Foust’s new sentences on appeal, this Court held that “a

trial court may not impose a term-of-years sentence, which constitutes a de

facto LWOP sentence, on a juvenile offender convicted of homicide unless it

finds, beyond a reasonable doubt, that he or she is incapable of rehabilitation.”

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Foust, 180 A.3d at 431. Notwithstanding this conclusion, however, we also

said that “when considering the constitutionality of a [punishment imposed

upon a juvenile homicide defendant under Miller, individual] sentences must

be considered when determining if [the] juvenile received a de facto LWOP

sentence.” Id. at 434. Considering the sentences in this manner, Foust held

that “[a] sentence of 30 years to life imprisonment does not constitute a de

facto LWOP sentence which entitles a defendant to the protections of Miller.”

Id. at 420 and 438. In view of this binding precedent, Appellant’s first two

issues merit no relief.

      In his third issue, Appellant contends that the trial court failed to

undertake an on-the-record consideration of the mitigating factors articulated

in Miller, and set forth at 42 Pa.C.S.A. § 1102.1(d). According to Appellant,

the trial court’s failure to address these factors violated his right to an

individualized   assessment   of   an   appropriate   punishment.       Citing

Commonwealth v. Machicote, 206 A.3d 1110 (Pa. 2019), Appellant argues

that since he faced a LWOP sentence, he was constitutionally entitled to an

on-the-record assessment of the factors identified in Miller before his

sentence was imposed. Appellant thus concludes that his sentence is unlawful

because the trial court failed to provide any insight into how or why the

age-related concerns identified in Miller factored into the court’s sentencing

decision.

      For the reasons we explain below in rejecting Appellant’s challenge to

the discretionary aspects of his sentence, we find that the trial court

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adequately examined the mitigating, age-related factors in fixing Appellant’s

punishment. Hence, Appellant’s third issue merits no relief.

        Appellant’s fourth issue asserts that his mandatory maximum sentence

of life is illegal because it violates the concept of individualized juvenile

sentencing developed in Miller and Montgomery. See Appellant’s Brief at

37-39. Our Supreme Court has rejected this contention. In Batts II, our

Supreme Court held:

        For those defendants for whom the sentencing court determines
        a [LWOP] sentence is inappropriate, it is our determination here
        that they are subject to a mandatory maximum sentence of life
        imprisonment as required by section 1102(a), accompanied by a
        minimum sentence determined by the common pleas court upon
        resentencing[.]

Batts II, 163 A.3d at 421.3 Because our Supreme Court has determined that

juvenile homicide defendants such as Appellant are subject to a mandatory

maximum term of life imprisonment, we reject Appellant’s fourth issue on

appeal which asserts that his mandatory maximum sentence of life is illegal.

____________________________________________


3   As we explained in Foust:

        Section 1102 sets forth the mandatory sentence of life in prison
        for a defendant convicted of first- or second-degree murder. Our
        Supreme Court did not find that section 1102 is unconstitutional
        in light of Miller. Instead, it found that 61 Pa.C.S.A. § 6137(a)(1)
        (which prohibits parole for a defendant serving life imprisonment)
        is unconstitutional when applied to juvenile homicide offenders
        capable of rehabilitation. See Batts II, 163 A.3d at 421. Thus,
        section 1102 remains applicable to juveniles who were convicted
        of first- or second-degree murder prior to June 25, 2012.

Foust, 180 A.3d at 429 n.14.

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      In his final challenge to the legality of his sentence, Appellant maintains

that the trial court erred to the extent it required him to pay the costs incurred

by the prosecution during the resentencing process. This claim has merit. We

previously held in similar cases that a defendant cannot be compelled to pay

the costs associated with resentencing occasioned by the evolution in

constitutional law. See Commonwealth v. Davis, 207 A.3d 341, 346 (Pa.

Super. 2019) (trial court imposed unlawful sentence by ordering payment of

costs relating to resentencing since “prosecution” ends at time of acquittal or

conviction and resentencing was necessitated by evolution of constitutional

law which later deemed defendant’s sentence to be illegal), appeal granted,

215 A.3d 968 (Pa. 2019); Commonwealth v. Lehman, 201 A.3d 1279 (Pa.

Super. 2019) (“We hold that the trial court lacked the authority to order

Appellant to pay the costs associated with the resentencing necessitated by

evolution of constitutional law.”), appeal granted, 215 A.3d 967 (Pa. 2019).

Because the trial court lacked authority to compel Appellant to pay the costs

of resentencing necessitated by evolution of constitutional law, it erred to the

extent it did so.

      Having concluded that, with the exception of the imposition of costs,

Appellant's sentence is lawful, we now consider Appellant's alternate

challenges, which assert that the trial court abused its discretion in denying

appointment of a mitigation expert and in sentencing Appellant to two

consecutive terms of incarceration of 30 years to life. Pursuant to statute,


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Appellant does not have an automatic right to appeal the discretionary aspects

of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, he must petition this

Court for permission to challenge the discretionary aspects of his sentence.

Id.

      To reach the merits of a discretionary aspects claim,

      we must engage in a four part analysis to determine: (1) whether
      the appeal is timely; (2) whether Appellant preserved his issue;
      (3) whether Appellant's brief includes a concise statement of the
      reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the [S]entencing [C]ode.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted). Appellant filed a timely notice of appeal and included a Pennsylvania

Rule of Appellate Procedure 2119(f) statement in his appellate brief. Although

Appellant did not raise his discretionary sentencing claims in a timely

post-sentence motion, the record confirms that he raised his claims orally

before the court at his resentencing hearing. Hence, Appellant has preserved

his discretionary sentencing issues for purposes of appellate review.

Accordingly, we examine whether Appellant presents a substantial question

and, if so, whether his discretionary challenges have merit.

      This Court evaluates the presence of a substantial question on a

case-by-case basis. Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.

Super. 2017) (citation omitted). “A substantial question exists only when the

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


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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. Grays, 167 A.3d 793, 816 (Pa. Super. 2017)

(citation omitted).

      In his Rule 2119(f) statement, Appellant argues that this case presents

a substantial question because imposing consecutive sentences for the two

murder convictions was clearly unreasonable and results in an excessive

sentence.   This      argument   presents     a   substantial   question.    See

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014).       Accordingly, we proceed to analyze the

merits of Appellant's discretionary aspects challenge.

      “Sentencing is a matter vested in the sound discretion of the [trial

court], and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.

2017) (en banc) (citation omitted). Pursuant to the Sentencing Code,

      the sentence imposed should call 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 on
      the community, and the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to parrot the words

of the Sentencing Code, stating every factor that must be considered under

Section 9721(b), however, the record as a whole must reflect due

consideration by the court of the statutory considerations at the time of




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sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super.

2017) (internal alterations, quotation marks, and citation omitted).

      Typically, when sentencing a defendant, the trial court is required to

consider the sentencing guidelines. Commonwealth v. Melvin, 172 A.3d

14, 21 (Pa. Super. 2017) (citation omitted).            In this case, however, no

sentencing guidelines exist for juveniles convicted of first-degree murder prior

to June 25, 2012. See id. at 22. Instead, our Supreme Court in Batts II

held that, in these cases, the applicable “sentencing guidelines” that the trial

court should consider are the mandatory minimum penalties set forth in

section 1102.1. See Batts II, 163 A.3d at 443 n.17.

      The   trial   court   offered   the   following   explanation   for   imposing

consecutive 30 to life sentences for Appellant’s double homicide convictions.

      In this case, the [trial c]ourt heard testimony from witnesses
      presented by the Commonwealth who described the impact this
      crime had on their lives and the lives of others in the community.
      The [c]ourt also considered evidence offered by [Appellant],
      including his conduct while incarcerated and the statements he
      made at the time of the hearing expressing remorse for the crimes
      he committed as a juvenile.            [The court] looked at the
      Commonwealth’s and [Appellant’s] exhibits, other relevant
      documents, court filings, photographs of the victims, and impact
      statements when crafting a sentence for [Appellant]. Ultimately,
      [the court] concluded that a sentence of 30 years to life, per
      victim, is fitting for the crime in this case, and individually, each
      30 year sentence does not constitute an unconstitutional de facto
      LWOP sentence.

Trial Court Opinion, 1/29/19, at 8.

      In sum, the trial court considered all relevant documents and testimony

in fixing Appellant’s sentence. After due consideration, the court determined

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that sentences of 30 years to life were appropriate under the circumstances

and that the sentences should run consecutively since two victims lost their

lives in this case.

        We perceive no abuse of discretion in this decision. The trial court

determined that the nature of Appellant’s offenses called for separate

punishments, notwithstanding the rehabilitation Appellant demonstrated while

imprisoned for the past two decades.        Although this Court has previously

invalidated lengthy, consecutive term-of-years sentences, we have not

extended those cases to include violent offenses, see Commonwealth v.

Coulverson, 34 A.3d 135, 138–139 (Pa. Super. 2011), but instead confined

the reach of those decisions to situations involving property crimes.       See

Commonwealth v. Dodge, 957 A.2d 1198, 1202 (Pa. Super. 2008), appeal

denied, 980 A.2d 605 (Pa. 2009). We see no reason to alter that practice

here.

        Finally, we turn briefly to Appellant’s claim that the trial court abused

its discretion in rejecting the appointment of a mitigation expert or forensic

psychiatrist since experts are uniquely suited to opine “on how external

influences such as a juvenile’s home and family life, neighborhood, peer

groups, and exposure to violence and/or substance abuse affected [a]

juvenile’s development and emotional composition, as well as how [a]

juvenile’s development compared to other children of his age.” Appellant’s

Brief at 45. This claim merits no relief.


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      Our Supreme Court has held that the need for expert testimony in

considering issues pertinent to a juvenile’s criminal culpability is a matter that

falls within the discretion of a trial court and is to be determined on a

case-by-case basis. See Batts II, 163 A.3d at 456. We note here that, in

Pennsylvania, the core function of a sentencing court is to ascertain the

circumstances that surround the commission of an offense, including the

rehabilitative needs of an offender.      See 42 Pa.C.S.A. § 9721(b).        With

youthful offenders, this task necessarily includes consideration of domestic

factors that influenced the individual, an individual’s exposure to violence and

drugs, and other common components of the sentencing determination such

as impulsivity and maturity. In this case, the record confirms that the court,

at the resentencing hearing, heard Appellant’s testimony regarding his

remorse for his actions, as well as evidence pertaining to the factors that

influenced him at the time of the offense and his emotional growth and

development during his intervening years in prison. Appellant does not claim

that the trial court did not comprehend the evidence placed before it or that

the lack of expert testimony deprived the court of specific proof of mitigation.

Hence, we are not persuaded that Appellant has shown that the trial court

abused its discretion in refusing to enlist the aid of experts in carrying out one

of its most basic and commonly recurring duties.




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     Judgment of sentence affirmed in part and vacated in part. Judgment

vacated to the extent it imposes costs of resentencing upon Appellant.

Judgment affirmed in all other respects.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2019




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