J-S44008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 NEIL SIMPSON                              :
                                           :
                    Appellant              :    No. 1408 WDA 2018

        Appeal from the Judgment of Sentence Entered June 7, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001534-1999


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 16, 2019

      Appellant, Neil Simpson, appeals from the judgment of sentence

imposed on June 7, 2018, in the Erie County Court of Common Pleas following

vacation of his original October 20, 2016 sentence of life imprisonment without

the possibility of parole. We affirm the judgment of sentence but remand for

clarification of the costs for which Appellant is responsible consistent with this

Memorandum.

      This Court previously summarized the facts and initial procedural history

as follows:

            The facts, as gleaned from the record, show that shortly
      after 11:30 p.m. on April 8, 1999, [Willie] Williamson
      [(“Williamson”)]   and   [his   half-brother,  sixteen-year-old
      Appellant,] and an unrelated juvenile male, attacked Ronald
      Guzowski [(“Guzowski”)], who was walking home in an inebriated
      condition from a tavern in the city of Erie. The trio knocked
      Guzowski down, kicked him in the head and smashed a brick in
      his face. As Guzowski lay unconscious and bleeding, Williamson
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       and [Appellant] robbed him. Guzowski was severly injured by the
       attack, but survived.

             Present at the scene was Martin Ondreako [(“Ondreako”)],
       a companion of Williamson and [Appellant,] who witnessed the
       crime against Guzowski but did not participate in it. The attack
       was also witnessed by a juvenile female who later told police that
       Ondreako might be able to provide them with relevant
       information. Ondreako was interviewed by police several times.
       He reluctantly implicated Williamson and [Appellant].

             Williamson and [Appellant] learned of Ondreako’s
       cooperation with the police investigation. Although [Francisco]
       DeLeon [(“DeLeon”), Williamson’s and Appellant’s brother-in-law]
       did not participate in the robbery and beating of Guzowski,
       [DeLeon] later conspired with Williamson and [Appellant] to
       murder Ondreako. On or about April 28, 1999, Williamson,
       [Appellant,] and DeLeon lured Ondreako to an isolated location
       where they stabbed him to death. [The trio] then dumped
       Ondreako’s body into Lake Erie, buried the knife they used to kill
       him, and set fire to their own blood-stained clothing. The body
       was recovered approximately one week later and [the trio was]
       subsequently arrested.

              The April 8th robbery and beating [of Guzowski] were joined
       for trial with the April 28th murder [of Ondreako], and [Williamson,
       DeLeon, and Appellant] were tried together following the denial of
       their joint pre-trial motion to sever the charges and to be tried
       separately. A consolidated jury trial was conducted in the Court
       of Common Pleas of Erie County in March of 2000 following the
       denial of [a] joint motion for change of venue/venire.

            Following conviction[1] and sentencing,2 . . . post-trial
       motions were denied and . . . appeals [were] filed . . . .



____________________________________________


1  Appellant was convicted of first degree murder, 18 Pa.C.S. § 2502(a),
criminal conspiracy, 18 Pa.C.S. § 903(a), and retaliation against a witness, 18
Pa.C.S. § 4953(a).




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              2 The Commonwealth sought the death penalty. The
              jury returned a sentence of life imprisonment for each
              [defendant] for the murder of Ondreako.[2]

Commonwealth v. Simpson, 788 A.2d 1035, 1465 WDA 2000 (Pa. Super.

filed 9/28/01) (unpublished memorandum at 1–3) (footnote omitted).           We

affirmed the judgment of sentence on September 28, 2001. Id.

       On October 24, 2006, Appellant filed a “Motion for Permission to File

Allowance of Appeal Nunc Pro Tunc” that was treated as a first petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.

Following the appointment of counsel, the PCRA court denied the petition.

Order, 11/21/06. Appellant did not file an appeal.

       Appellant, pro se, filed a second PCRA petition on July 12, 2010. The

PCRA court appointed counsel, who filed a no-merit letter.             The court

ultimately permitted counsel to withdraw and denied the PCRA petition.

Orders, 12/8/10.

       On July 16, 2012, Appellant, pro se, filed a third PCRA petition alleging

that his sentence, as a juvenile, to life imprisonment without the possibility of


____________________________________________


2  The instant sentencing court noted that Appellant “had an extensive record
of juvenile criminality, including two adjudications for aggravated assault prior
to his fourteenth birthday” and “multiple adjudications for burglary . . . .”
Sentencing Court Opinion, 12/4/18, at 1 and n.1. The original sentencing
court had imposed a consecutive aggregate sentence of twelve and one-half
to thirty-seven years of imprisonment for the April 8th attack on Mr. Guzowski.
Id. at 2. We note that the Honorable John A. Bozza presided over Appellant’s
original jury trial, he has entertained every PCRA petition Appellant filed, and
he resentenced Appellant, which is the judgment of sentence currently on
appeal.

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parole was unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460

(2012). Following the filing of multiple extensions of time to file a counseled

supplemental petition, which the PCRA court granted, Appellant filed, inter

alia, a fourth pro se PCRA petition on March 9, 2016, within sixty days of the

filing of Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).

Following the appointment of counsel, the PCRA court vacated Appellant’s life

sentence and ordered resentencing. Order, 12/8/16. Pursuant to Appellant’s

request and following a hearing on the matter, the sentencing court awarded

appointed counsel $1,500.00 “to assist in developing and presenting evidence

on behalf of” Appellant. Order, 12/11/17.

      The sentencing court held a resentencing hearing on June 7, 2018.

Appellant presented the testimony of: an activity specialist for the Department

of Corrections (“DOC”); a unit manager at SCI Albion, where Appellant was

incarcerated; a licensed social worker at SCI Albion; a corrections counselor

at SCI Albion; an expert in juvenile justice; a program manager for Erie

County Re-Entry Services and Support Alliance; and Appellant. N.T., 6/7/18,

at 5, 13, 19, 23, 35, 72, 81. The Commonwealth presented the testimony of

the murder victim’s mother. Id. at 87. The sentencing court summarized its

judgment of sentence as follows:

      Appellant was re-sentenced to a minimum period of incarceration
      of 35 years and a maximum period of incarceration of life on the
      murder conviction. In addition, the [c]ourt made the sentence
      consecutive to his sentence of 3 to 7 years . . . for retaliation
      against a witness, but concurrent with the sentence for criminal
      conspiracy and concurrent with other sentences he received . . .

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      for which he was also serving an extensive period of
      incarceration.2 His aggregated sentence was 38 years to life. He
      received credit of approximately 19 years for the time he already
      served. At the time of his re-sentencing, [Appellant] was 35 years
      old. He will be eligible for parole when he is 54 years old.

            2. . . . At the time of his re-sentencing, . . . Appellant
            was serving his sentences [relating to his convictions
            of conspiracy and retaliation against a witness, which
            had been imposed consecutive to his life sentence for
            murder] and [for the crimes relating to the assault of
            Mr. Guzowski]. Only [the] sentence . . . for murder
            had been vacated.

             Following his re-sentencing, [Appellant] filed a Motion for
      Post-Sentence Relief, arguing that his new sentence was also
      unconstitutional because the date upon which he would be eligible
      for parole would not give him a meaningful opportunity for
      release. In support of his position, he relied, in significant part,
      on the case of United States v. Grant, 887 F.3d 131(3rd Cir. 2018).
      The Commonwealth filed a response objecting to . . . Appellant’s
      position and following argument, . . . Appellant’s motion was
      denied.

Sentencing Court’s Opinion, 12/4/18, at 4. Appellant filed this timely appeal;

both Appellant and the sentencing court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. Did the Sentencing Court impose an unconstitutional sentence
      when it imposed the aggregate minimum sentence of 38 years, a
      sentence which is a de facto life sentence, as it deprives Appellant
      of a meaningful opportunity for release?

      2. Did the Sentencing Court impose an illegal sentence when it
      directed Appellant to pay costs generally without clarification that
      the costs would not include the costs of re-sentencing?

Appellant’s Brief at 8.

      Appellant is challenging the legality of his sentence. Commonwealth

v. Foust, 180 A.3d 416 (Pa. Super. 2018), petition for allowance of appeal

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filed, 126 WAL 2018.3         “When reviewing the legality of a sentence, our

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

Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019) (citing

Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super. 2017)).

       The basis for Appellant’s claim relates to this Court’s discussion and

holding in Foust, wherein we extensively reviewed Miller and Montgomery

and the cases upon which they relied, and held that “a trial court may not

impose a term-of-years sentence on a juvenile convicted of homicide if that

term-of-years sentence equates to a de facto life-without-parole sentence

unless it finds, beyond a reasonable doubt, that the juvenile is incapable of

rehabilitation.” Foust, 180 A.3d at 433. The Foust Court also concluded that

the two consecutive sentences of thirty years to life imprisonment that were

imposed on the defendant for two first-degree-murder convictions must be

examined separately, and viewed as such, each thirty-year sentence was not

an unconstitutional de facto life sentence. Id. at 434–438.

       In setting forth his claim herein that his sentence is de facto a life

sentence that deprives him of a meaningful opportunity for release, Appellant

acknowledges that this Court has rejected such contentions in Foust (thirty-


____________________________________________


3 Appellant avers that our Supreme Court “held” the allocator petition in
Foust   pending   the   Pennsylvania Supreme     Court’s    decision   in
Commonwealth v. Felder, 181 A.3d 1252, 660 EDA 2015 (Pa. Super. filed
December 20, 2017) (unpublished memorandum), appeal granted, 187 A.3d
909, 41 EAL 2018 (Pa. 2018), which was argued on September 11, 2019,
Commonwealth v. Felder, 18 EAP 2018. Appellant’s Brief at 27 n.2.

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years-to-life-imprisonment not a de facto life sentence without the possibility

of parole); Commonwealth v. White, 193 A.3d 977 (Pa. Super. 2018)

(thirty-five years to life imprisonment with earliest opportunity for parole at

age fifty-two not a de facto life sentence without the possibility of parole),

appeal denied, 193 A.3d 977, 304 WAL 2018 (Pa. filed June 17, 2019); and

Commonwealth v. Bebout, 186 A.3d 462 (Pa. Super. 2018) (forty-five

years to life imprisonment with earliest opportunity for parole at age sixty not

a de facto life sentence without the possibility of parole).4 Appellant’s Brief at

27–30. Despite this controlling precedent, Appellant advances the proposition

of the Connecticut Supreme Court in Casiano v. Comm’r of Correction, 115

A.3d 1031, 1046 (Conn. 2015),5 that an individualized finding of the

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4  There are many more non-precedential decisions that have upheld life
sentences upon the resentencing of defendants, who were juveniles at the
time of the murders, that may be cited for persuasive authority on this issue.
Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decisions of the
Superior Court filed after May 1 2019, may be cited for their persuasive
value); see, e.g., Commonwealth v. Hernandez, 2019 WL 3940215, 2210
EDA 2018 (Pa. Super. filed August 21, 2019) (Non-Precedential Decision)
(aggregate sentence of forty-five years to life imprisonment, with earliest
opportunity for parole at age sixty-two, not a de facto life sentence without
the possibility of parole); Commonwealth v. Wilson 2019 WL 4200951,
2498 EDA 2018 (Pa. Super. filed September 5, 2019) (Non-Precedential
Decision) (aggregate sentence of thirty-eight years to life imprisonment, with
earliest opportunity for parole at age seventy-five, was not a de facto life
sentence without the possibility of parole).

5 Although we are not bound by decisions of our sister courts, we may use
case law from other jurisdictions for guidance “to the degree we find them
useful and not incompatible with Pennsylvania law,” when we are confronted
“with a question heretofore unaddressed by the courts of this



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defendant’s life expectancy is required as a prerequisite to resentencing.

Appellant’s Brief at 29–30.          The Bebout Court specifically rejected the

Casiano Court’s theory, Bebout, 186 A.3d at 468, and thus, Appellant’s

attempt to rely on this out-of-state case law is rejected.

       In Lekka, 210 A.3d 343, this Court concluded that our decision in

Bebout was “especially relevant.” Lekka, 210 A.3d at 357. In light of binding

precedent, we rejected the appellant’s claim that his sentence of forty-five

years to life imprisonment, with credit for time served from the date he

originally entered the correctional system, constituted a de facto life sentence

without the possibility of parole. We held:

       that [the a]ppellant has not demonstrated that he has no
       meaningful chance of survival until he completes his 45-year
       minimum sentence to enjoy his time at liberty at parole, should
       he be granted release. While [the a]ppellant will not be eligible
       for parole until age 62, two years longer than the defendant in
       Bebout, Appellant has not shown any significant difference
       between the ages at the earliest possible point of release that
       would distinguish his case from Bebout. Furthermore, though
       [the a]ppellant has cited statistical data concerning life
       expectancy and case law of other states, as in Bebout, we must
       conclude that [the a]ppellant has not offered a workable standard
       as to what types of terms-of-years sentences are the de facto
       equivalent of life-without-parole sentences.

Id. at 358. Appellant’s attempt to make these identical arguments is rejected

for the same reasons.




____________________________________________


Commonwealth.” Commonwealth v. Manivannan, 186 A.3d 472, 483–484
(Pa. Super. 2018).

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       As pointed out by the Commonwealth, Appellant failed to establish that

he does not have a reasonable likelihood of surviving until he is eligible for

parole. Commonwealth Brief at 6. There is no disagreement that Appellant

will be eligible for parole in 2037, when he is fifty-four years old. Appellant’s

Brief at 27; Sentencing Court Opinion, 12/4/18, at 6. Appellant is far more

favorably situated than either Mr. Bebout or Mr. Lekka, who will be six and

eight years older, respectively, than Appellant at the age of parole eligibility.

Moreover, as noted by the sentencing court, there is no indication in the record

that Appellant’s diagnosis of Stevens-Johnson Syndrome meaningfully

impacts his life expectancy so as to distinguish him from the defendants in the

previously cited relevant appeals.6 Accordingly, in light of all relevant case



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6  Appellant avers that juvenile justice expert, Randolph A. Matuscak, who
testified at resentencing and filed an expert report that was admitted at the
hearing, explained that this diagnosis was serious and potentially fatal.
Appellant’s Brief at 31. However, Appellant fails to cite to the place in the
record or the report where such evidence was advanced. Id. It is not this
Court’s responsibility to scour the record to find evidence to support an
argument. Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super.
2018). Merely referencing the report is insufficient. We have independently
reviewed the testimony and the report. There is no testimony at the
sentencing hearing to that effect. While the report indicates that Appellant
suffered from Stevens-Johnson Syndrome in 1995 when he had an allergic
reaction to the drug Ritalin, Matuscak Report at 7, and again in 1997, id. at
10, we agree with the sentencing court’s observation that there is “no
evidence in the record that [Appellant’s] generally anticipated life expectancy
is markedly unusual.” Sentencing Court Opinion, 12/4/18, at 11 (footnote
omitted).




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law bearing on this issue, we decline to find that Appellant’s sentence

constituted a de facto life sentence without the possibility of parole.

       In his second issue, Appellant asserts the sentencing court imposed an

illegal sentence when it signed a written re-sentencing order directing

“[Appellant] to pay costs.”         Order, 6/7/18.    Appellant suggests that the

general language of this order could be interpreted to require Appellant to pay

the costs of re-sentencing, “which is illegal given that Appellant should not be

punished for challenging the constitutionality of the previously-imposed,

mandatory life without parole sentence.”7          Appellant’s Brief at 23, 33.   In

support, Appellant cites Commonwealth v. Lehman, 201 A.3d 1279, 1281

(Pa. Super. 2019), appeal granted, 69 MAL 2019,8 which held that the




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7   Although this issue was not raised in Appellant’s Pa.R.A.P. 1925(b)
statement, the legality-of-the-sentence claim is not waived. Commonwealth
v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (legality-of-sentence claim
may be addressed anytime, including by the appellate court sua sponte.).

8   The issue identified on appeal is as follows:

       Whether the Pennsylvania Superior Court erred as a matter of law
       by holding that the costs relating to contested expert testimony in
       a contested resentencing do not constitute costs of prosecution
       under 16 P.S. § 1403, and are ineligible for imposition upon a
       defendant reimbursement as part of a sentence as a matter of law
       rather than the sentencing court's discretion[?]

Commonwealth v. Lehman, ___ A.3d___, 69 MAL 2019 (Pa. filed June 25,

2019).


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imposition of resentencing costs on a defendant in Appellant’s position was

inappropriate.

      The Commonwealth is in agreement with Appellant, as are we, that the

sentencing order should be clarified that the costs for which Appellant is

responsible are those outstanding costs remaining from the time of his original

sentencing. Commonwealth’s Brief at 8.

      Judgment of sentence affirmed.         Case remanded for proceedings

consistent with this Memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2019




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