J-A30015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    EMRU KEBEDE                                 :
                                                :
                       Appellant                :     No. 301 MDA 2018

             Appeal from the Judgment of Sentence January 3, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0003556-2007


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                                FILED FEBRUARY 26, 2020

        Appellant, Emru Kebede, appeals pro se from the January 3, 2018

Judgment of Sentence of 30 years’ to life imprisonment imposed upon

resentencing after the grant of post-conviction relief based on Miller v.

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

___U.S.___, 136 S.Ct. 718 (2016).1 After careful review, we affirm.

        A detailed recitation of the procedural and factual history is unnecessary

to our disposition. Briefly, in 2007, when Appellant was 16 years old, he

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*   Retired Senior Judge assigned to the Superior Court.

1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic sentence of life without parole upon a homicide
defendant for a murder committed while the defendant was under eighteen
years old. Miller, 567 U.S. at 479. In Montgomery, the U.S. Supreme Court
held that its decision in Miller, supra, applies retroactively. Montgomery,
136 S.Ct. at 732.
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participated in events that led to the murder of the victim by another actor.

On September 10, 2009, a jury found Appellant guilty of Second-Degree

Murder, and on September 18, 2009, the court sentenced Appellant to a

statutorily mandated sentence of life without parole (“LWOP”). This Court

affirmed the Judgment of Sentence. Commonwealth v. Kebede, 23 A.3d

1080 (Pa. Super. 2011) (table).

       On May 22, 2012, Appellant filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”) invoking Miller. The PCRA court denied relief,

and on February 20, 2015, this Court affirmed. Commonwealth v. Kebede,

No. 1228 MDA 2004, 2015 WL 7575706 (Pa. Super. Feb. 20, 2015). While his

Petition for Allowance of Appeal was pending, the U.S. Supreme Court, in

Montgomery, supra, held that Miller would be applied retroactively.

Therefore, the Pennsylvania Supreme Court vacated this Court’s February 20,

2015 Order, and remanded the case for proceedings consistent with

Montgomery.2 Commonwealth v. Kebede, 132 A.3d 973 (Pa. 2016).

       A resentencing hearing commenced on January 3, 2018. Appellant

requested that the court sentence him to a minimum sentence of 15 years’

imprisonment while the Commonwealth requested the court to impose a

sentence of not less than 30 years’ to life imprisonment. After providing a

thorough review of the applicable sentencing factors, the court resentenced

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2 This Court then vacated the Judgment of sentence and remanded the case
to the trial court for resentencing. Commonwealth v. Kebede, No. 1228
MDA 2014, 2016 WL 1064951 (Pa. Super. Mar. 16, 2016).

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Appellant to a standard range sentence of 30 years’ to life imprisonment for

his Second-Degree Murder conviction.

      Appellant filed a Post-Sentence Motion, which the trial court denied.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Issues Raised

      Appellant raises the following six issues on appeal, reordered for ease

of disposition:

   1. Did the trial court violate Appellant’s constitutional right to due process
      and equal protection protected under the Fourteenth Amendment of the
      U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution by
      committing reversible error by failing to give an instruction/definition of
      the “reasonable man” standard as requested by the Appellant regarding
      the inference of malice as applied to the felony murder rule?

   2. Did the trial court violate Appellant’s constitutional right to due process
      and equal protection and commit reversible error by failing to give an
      instruction on involuntary manslaughter in conjunction with the first-
      degree/second-degree murder instruction.

   3. Did the resentencing court violate Appellant’s constitutional right to due
      process protected under the Fourteenth Amendment of the U.S.
      Constitution and Article 1 § 9 of the Pennsylvania Constitution by
      imposing an illegal sentence when it failed to perform an on the record
      consideration of the Miller/Knox factors as required pursuant to the
      Pennsylvania Supreme Court Decision in Commonwealth v. Machiote,
      14 WAP 2018 (Pa. 4/26/2019)?

   4. Did the resentencing court violate Appellant’s constitutional right to
      equal protection and due process protected under the fifth and
      fourteenth amendments of the U.S. Constitution by considering/relying
      upon Title 18 Pa. C.S.A. § 1102.1 as a guiding factor in imposing its
      sentence?[]
            a. § 1102 is unconstitutional as it violates the equal protection
               clause of both the state and federal constitutions. The statute
               differentiates punishment based solely upon a child offender’s

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               chronological age. This arbitrary divide of child offenders
               discriminates against similarly situated juveniles and does so
               by neither protecting any compelling state interest nor is it
               supported by any rational basis.

   5. Did the resentencing court violate Appellant’s due process rights and
      abuse its discretion by sentencing [Appellant] to a manifestly excessive
      period of incarceration for the following reasons?”
         a. The court failed to sufficiently consider the [Appellant’s] progress
            and rehabilitation while incarcerated, as evidenced by his prison
            record and the testimony of prison staff, [Appellant’s] expression
            of remorse during his testimony before the court, [and
            Appellant’s] amenability for rehabilitation.

   6. Did the resentencing court violate Appellant’s due process rights and
      abuse its discretion and impose a manifestly excessive sentence by
      improperly relying on impermissible factors?
         a. The court’s stated reasons for deviating from similarly situated
            defendant[]s were based upon improper factors.
         b. The court improperly relied on statements of the prosecutor about
            facts of the case which were not supported by the criminal trial
            record.

Appellant’s Supplemental Br. at 10-14.

Jury Instructions

      In his first two issues, Appellant asserts that the trial court erred by

failing to give certain jury instructions. Id. at 62-80. These issues, however,

warrant no review.

      An appellant is limited in the issues he can raise in an appeal challenging

a disposition rendered after a remand for resentencing. Commonwealth v.

Williams, 151 A.3d 621, 625 (Pa. Super. 2016). Where an appellant has

already had the benefit of a direct appeal, which resulted in remand for

resentencing, he is barred from raising any issues other than a challenge to

the sentence imposed on remand. Id. (citing Commonwealth v. Anderson,

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801 A.2d 1264, 1266 (Pa. Super. 2002). Cf. Commonwealth v. Sepulveda,

144 A.3d 1270, 1280 n.19 (Pa. 2016) (“[W]here a case is remanded for a

specific and limited purpose, issues not encompassed within the remand order

may not be decided on remand as a remand does not permit a litigant a

proverbial second bite at the apple.”) (internal quotation marks and citation

omitted)). A defendant waives any issues that a defendant should have raised

in the initial direct appeal. Williams, 151 A.3d at 625.

      In his initial direct appeal, Appellant challenged only the sufficiency and

weight of his Second-Degree Murder conviction. See Commonwealth v.

Kebede, No. 838 EMDA 2010, unpublished memorandum at 2 (Pa. Super.

filed January 11, 2011). After the Supreme Court’s decision in Montgomery,

the case was remanded only for resentencing. See Kebede, 132 A.3d at 973;

Kebede, 2016 WL 1064951, at *1.

      Therefore, in this appeal, Appellant can challenge only the sentence

imposed on remand. Moreover, because Appellant could have challenged the

jury instructions in his first appeal but did not do so, Appellant waived his

claims   that   the   trial   court   erred   by   failing   to   give   certain   jury

instructions. See Williams, 151 A.3d at 625; Anderson, 801 A.2d at 1266.

Legality of Sentence

      In his third issue, Appellant challenges the legality of his sentence.

“When reviewing the legality of a sentence, our standard of review is de novo




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and our scope of review is plenary.” Commonwealth v. Lekka, 210 A.3d

343, 355 (Pa. Super. 2019).

       Appellant contends that the sentencing court imposed an illegal

sentence because it failed to consider the factors set forth in Miller/Knox3 on

the record in violation of Commonwealth v. Machiote, 206 A.3d 1110 (Pa.

2019). Appellant’s Supp. Br. at 57-61.

       In Batts II, the Supreme Court established a framework for the

sentencing of juvenile offenders who are convicted of offenses for which the

Commonwealth seeks a LWOP sentence. Commonwealth v. Clary, ___ A.3d

___, 2020 WL 21200, at *4 (Pa. Super. filed Jan. 2, 2020). In cases where

the Commonwealth requests a sentence of LWOP, the sentencing court must

consider the Miller and Section 1102.1(d) factors4 on the record before

imposing a LWOP sentence. Commonwealth v. Machicote, 206 A.3d 1110,

1120 (Pa. 2019); Batts II, supra at 459-60.

       If, however, the Commonwealth does not request a LWOP sentence, the

sentencing court shall apply traditional sentencing considerations. Batts II,


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

4 Miller requires that a sentencing court examine certain factors related to
youth and its attendant characteristics (“Miller factors”). Commonwealth v.
Batts, 163 A.3d 410, 421 n.5 (Pa. 2017) (“Batts II”) (citation omitted).
Knox summarized the Miller factors, which were subsequently adopted by
our Supreme Court in Commonwealth v. Batts, 66 A.3d 286 (2013) (“Batts
I”). Additionally, Pennsylvania’s General Assembly responded to Miller by
enacting a new sentencing statute, 18 Pa.C.S. § 1102.1, for juveniles
convicted of murder after June 24, 2012. Batts II, supra at 419 n.4.

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supra at 460. In such a case, the sentencing court should fashion a sentence

“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 § 9721(b); Clary, supra

at *4; see Batts II, supra at 460.

       In this case, the Commonwealth did not request that the sentencing

court impose a sentence of LWOP; therefore, the trial court was not required

to consider the Miller factors in fashioning a sentence and did not err in failing

to do so. Lekka, supra at 356-57 (concluding trial court did not err when it

did not consider the Miller factors when resentencing defendant where the

Commonwealth did not seek a LWOP sentence). Accordingly, this issue has no

merit.

Constitutionality of Section 1102.1(c)

       In his fourth issue, Appellant argues that Section 1102.1(c) violates the

Equal Protection Clause because it differentiates punishment based solely

upon a specific child offender’s chronological age, 15 years of age or older and

14 years of age and younger, without protecting any compelling state interest

nor having support from any rational basis.5 Appellant’s Br. at 21-38. We,

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5 Section 1102.1(c) imposes a mandatory minimum sentence for juveniles
convicted of second-degree murder after June 24, 2012. If the juvenile
committed the murder when he was fifteen years old or older, the trial court
must impose a mandatory minimum sentence of thirty years’ to life
imprisonment. 18 Pa.C.S. § 1102.1(c). If the juvenile committed the murder



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however, decline to address the merits of this claim because the sentencing

court did not impose the mandatory minimum sentence set forth in Section

1102.1(c). Therefore, Appellant was not harmed by the statute and lacks

standing to challenge its constitutionality.

       It is a fundamental principle of constitutional law that a party

challenging a statute may not raise the issue in the abstract, but must find its

basis in an injury to the party seeking to have the enactment declared

constitutionally infirm. Commonwealth v. Bell, 516 A.2d 1172, 1177

(1986). “[O]ne who is unharmed by a particular feature of a statute will not

be heard to complain of its alleged unconstitutionality.” Commonwealth v.

Wildermuth,        501     A.2d     258,       260   (Pa.   Super.   1985)   (quoting

Commonwealth v. Bonadio, 415 A.2d 47, 49 n.2 (Pa. 1980).

       Section 1102.1 clearly and unambiguously only applies, inter alia, to

juvenile defendants who are convicted of second-degree murder “after June

24, 2012.” 18 Pa.C.S. § 1102.1. Since a jury convicted Appellant in 2009,

Section 1102.1 does not apply to Appellant and the resentencing court did not

and could not sentence Appellant pursuant to Section 1102.1. Because the

sentencing court did not base its sentence on Section 1102.1, Section 1102.1




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when he was younger than 15 years old, the trial court must impose a
mandatory minimum sentence of twenty years’ to life imprisonment. Id.


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did not cause Appellant any “harm,” and therefore, Appellant lacks standing

to challenge its constitutionality.

Discretionary Aspects of Sentencing

      Appellant’s remaining issues challenge the discretionary aspects of

sentencing.   Challenges    to   the discretionary aspects of sentence are   not

appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

Super. 2015). Rather, an appellant challenging the sentencing court's

discretion must invoke this Court's jurisdiction by (1) filing a timely notice of

appeal; (2) properly preserving the issue at sentencing or in a post-sentence

motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate

section of the brief setting forth a concise statement of the reasons relied upon

for allowance of appeal with respect to the discretionary aspects of a

sentence; and (4) presenting a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §

9781(b). Id. The trial court determines on a case-by-case basis whether a

substantial question has been raised regarding discretionary sentencing.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). A

substantial question exists only when the appellant 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. Id. (citation and

quotation omitted).


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      Here, Appellant satisfied the first three elements by filing a timely Notice

of Appeal, preserving the issues in a Post-Sentence Motion, and including a

Rule 2119(f) Statement in his Brief to this Court. Thus, we address whether

Appellant raises a substantial question for each challenge.

      In his next issue, Appellant asserts that he raised a substantial question

because the court abused its discretion in resentencing him when it failed to

adequately consider his progress and rehabilitation while incarcerated as well

as his remorse. Appellant’s Br. at 39. Specifically, he contends that the court

failed to sufficiently consider the following mitigating factors: his parents’

separation; his struggles with substance abuse; his relationship with his

brother who was frequently in and out of prison; and his rehabilitation. Id. at

40.

      It is well-established that claims that the sentencing court did not

adequately consider mitigating factors generally do not raise a substantial

question. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013).

A specific claim that the court refused to weigh mitigating factors as an

appellant wished, absent more, does not raise a substantial question. Moury,

992 A.2d at 175; Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.

2014) (“[W]e have held that a claim that a court did not weigh the factors as

an appellant wishes does not raise a substantial question”).

      Appellant’s claim amounts to no more than a bald allegation that the

sentencing court abused its discretion in failing to consider mitigating factors.


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Pursuant to the above case law, Appellant has failed to raise a substantial

question and this challenge to the discretionary aspects of his sentence, thus,

fails.

         In his sixth issue, Appellant asserts that he raised a substantial question

because the trial court improperly relied on impermissible factors. Specifically,

Appellant contends that in fashioning his sentence, the sentencing court

improperly considered “individuals who have been before [it] under similar

circumstances[,]” and the fact that the resentencing judge remembers “being

on the bench at the time [o]f the trial[.]” Appellant’s Supp. Br. at 48, 51

(quoting N.T. Resentencing Hr’g, 1/3/18, at 96, 97, emphasis omitted).

         This Court has concluded that an allegation that a court relied on an

impermissible factor constitutes a substantial question. Commonwealth v.

Macias, 968 A.2d 773, 776 (Pa. Super. 2009). Thus, Appellant has raised a

substantial question, and we consider the sentence itself.

         Sentencing is a matter vested in the sound discretion of the sentencing

court, and a sentence will not be disturbed on appeal without a manifest abuse

of that discretion. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.

Super. 2003). To constitute an abuse of discretion, the sentence must either

exceed the       statutory   limits   or   be   manifestly   excessive. Id. “[W]here

a sentence is within the standard range of the guidelines, Pennsylvania law

views the sentence as appropriate under the Sentencing Code.” Moury, 992

A.2d at 171. A sentencing court will not have abused its discretion unless the


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record discloses that the sentencing court ignored or misapplied the law,

exercised its judgment for reasons of partiality, prejudice, bias or ill-will, or

arrived at a manifestly unreasonable decision. Mouzon, supra at 1128.

       After review of the parties’ arguments and the record, we conclude that

this issue warrants no relief. The court imposed a standard-range sentence

and detailed its consideration of the parties’ sentencing memorandums,6

Appellant’s mitigation report and psychological evaluation, letters in support

of Appellant, and Appellant’s Department of Corrections’ records in fashioning

Appellant's sentence. Trial Ct. Op. at 3-4 (unpaginated); N.T. Resentencing

Hr’g at 95-98. The sentencing court did not ignore or misapply the law,

exercise its judgment for reasons of partiality, prejudice, bias or ill-will, or

arrive at a manifestly unreasonable decision.

       Because there is no merit to Appellant’s claims, we affirm the judgment

of sentence.




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6 Appellant’s sentencing memorandum discussed the general sentencing
factors, i.e., the protection of the public, the gravity of offense, and his
rehabilitative needs.


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     Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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