J-A12011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

RICKY BREEZE MOOREFIELD,

                          Appellant                   No. 709 WDA 2018


       Appeal from the Judgment of Sentence Entered March 1, 2018
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0013363-1996

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 6, 2019

      Appellant, Ricky Breeze Moorefield, appeals from the judgment of

sentence of 40 years’ incarceration to life imprisonment (“40-life”), imposed

following resentencing for his 1999 conviction for first-degree murder, for

which he had originally been sentenced to life without the possibility of parole

(“LWOP”).   Appellant challenges the discretionary aspects of his sentence.

After careful review, we affirm.

            On September 27, 1996, police were called to the scene of
      a shooting. They found the body of Jason Wingfield, who had been
      shot three times in the head and face and once in the elbow.
      During their investigation, the police interviewed several people
      including Kevin Tuggles who ultimately told the police that he had
      seen Appellant shoot the victim. Appellant[, who was 17 years
      old at the time,] was … arrested and interviewed by detectives.
      He gave both oral and audiotaped statements in which he
      admitted shooting Wingfield. Both in his statement and in his
      testimony at trial, Appellant recounted a confrontation he had with
      Jeff Lowry a day or two before the shooting. As a result of this
      confrontation and subsequent … conversations with Lowry and the
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        victim, Appellant stated that he believed either Lowry or the victim
        intended to kill him.

Commonwealth           v.   Moorefield,        No.   301   WDA   2000,   unpublished

memorandum at 1-2 (Pa. Super. filed July 17, 2001). Following a jury trial,

Appellant was convicted of first-degree murder and carrying a firearm without

a license.    On January 19, 2000, the trial court sentenced Appellant to a

mandatory term of LWOP for first-degree murder. This Court affirmed his

judgment of sentence, and our Supreme Court denied further review.

Commonwealth v. Moorefield, 782 A.2d 1057 (Pa. Super. 2001)

(memorandum), appeal denied, 808 A.2d 570 (Pa. 2002).                      Appellant

subsequently filed several unsuccessful PCRA1 petitions, none of which “are

relevant to this appeal.” Appellant’s Brief at 15.

        Appellant filed, pro se, his fourth PCRA petition on March 10, 2016,

“seeking a resentencing hearing in light of the United States Supreme

Court[’s] decisions in” Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2                    The PCRA court

appointed current counsel, who then filed an amended PCRA petition on

Appellant’s behalf. The Commonwealth conceded that Appellant was entitled

to resentencing, and the PCRA court granted the petition.


____________________________________________


1   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

2 In Miller, the Supreme Court of the United States ruled that the Eighth
Amendment prohibits mandatory LWOP sentences for juvenile offenders. In
Montgomery, the Court held that Miller had announced a new substantive
constitutional rule that applied retroactively on state collateral review.

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       A resentencing hearing was held on February 21, 2018. In addition to

Appellant’s testimony, the resentencing court heard testimony from his aunt,

Beatrice Simpson; his wife, Tahnee Moorefield; his daughter, Camaya

Moorefield; and a mitigation expert, Samuel K. Schachner, Ph.D. (“Dr.

Schachner”). The Commonwealth called one witness, Agent Michael Glen of

the Pennsylvania Department of Corrections. On March 1, 2018, the court

resentenced Appellant to 40-life for murder.3 Appellant filed a timely post-

sentence motion on March 12, 2018, which was denied on April 12, 2018. He

then filed a timely notice of appeal on May 11, 2018, and a timely, court-

ordered Pa.R.A.P. 1925(b) statement on June 5, 2018. The resentencing court

issued its Rule 1925(a) opinion on August 22, 2018.

       Appellant now presents the following questions for our review: “Did the

Sentencing Court commit legal error and abuse its discretion when it

resentenced Appellant, a juvenile-lifer, to 40[-]life?” Appellant’s Brief at 4.

       Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. Commonwealth v.
       Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
       challenging the discretionary aspects of his sentence must invoke
       this Court’s jurisdiction by satisfying a four-part test:

          [W]e conduct a four-part analysis to determine: (1) whether
          [the] appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. [720]; (3) whether [the]
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the sentence
____________________________________________


3 The court assessed no further penalty for Appellant’s conviction for carrying
a firearm without a license.

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        appealed from is not appropriate under the Sentencing
        Code, 42 Pa.C.S.[] § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
     appeal denied, … 909 A.2d 303 ([Pa.] 2006) (internal citations
     omitted). Objections to the discretionary aspects of a sentence
     are generally waived if they are not raised at the sentencing
     hearing or in a motion to modify the sentence imposed.
     Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
     appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

           The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
     question exists “only when the appellant 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.” Sierra, supra at 912-13.

           As to what constitutes a substantial question, this Court
     does not accept bald assertions of sentencing errors.
     Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
     2006). An appellant must articulate the reasons the sentencing
     court’s actions violated the sentencing code. Id.

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

     Appellant has satisfied these prerequisites to appellate review of his

discretionary-aspects-of-sentencing claim. He filed a timely notice of appeal

and a timely post-sentence motion raising the issue(s) now presented in his

brief. He also provided a Rule 2119(f) statement in his brief. Additionally,

Appellant presents a substantial question for our review. A “claim that the

sentence is manifestly excessive, inflicting too severe a punishment, …

present[s] a substantial question. Moreover, the sentencing court’s failure to

set forth adequate reasons for the sentence imposed also raises a substantial




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question.” Commonwealth. v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016)

(cleaned up). Accordingly, we may review the merits of Appellant’s claim.4

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, 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.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation

omitted).

       Appellant argues that the resentencing court “ran afoul of the mandates

of Miller in four particulars” when it resentenced him to 40-life. Appellant’s

Brief at 22. Recently, in Commonwealth. v. Machicote, 206 A.3d 1110 (Pa.

2019), the Pennsylvania Supreme Court held that “when a juvenile is exposed

to a potential sentence of [LWOP] the trial court must consider the Miller

factors,[5] on the record, prior to imposing a sentence.”      Id. at 1120.   A
____________________________________________


4In this regard, we reject the resentencing court’s contrary conclusion that
Appellant failed to present a substantial question for appellate review.

5 As our Supreme Court stated in Commonwealth v. Batts, 163 A.3d 410
(Pa. 2017), compliance with Miller

       requires consideration of the defendant’s age at the time of the
       offense, as well as “its hallmark features,” including:

          immaturity, impetuosity, and failure to appreciate risks and
          consequences[;] ... the family and home environment that
          surrounds him—and from which he cannot usually extricate
          himself—no matter how brutal or dysfunctional[;] ... the



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sentencing court’s failure to do so renders the imposed sentence illegal, even

if the defendant is not ultimately sentenced to LWOP. Id.

       Here, the Commonwealth did not seek imposition of LWOP. Thus, the

resentencing court was not required to apply the Miller factors in crafting

Appellant’s new sentence. Nevertheless, the resentencing court considered

the Miller factors when it imposed Appellant’s new sentence of 40-life. See

N.T., 3/1/18, at 9 (“There are also, of course, guidelines provided through the

Miller case about things that we should look at when we are resentencing and

some of those perhaps work in your favor and some of them don’t.”); and

see id. at 9-16 (addressing individual Miller factors prior to imposing

sentence).     Accordingly, out of an abundance of caution, we will consider

whether the resentencing court abused its discretion in applying the Miller

factors in fashioning Appellant’s sentence.       However, it is clear that the

resentencing court did not violate Machicote, as Appellant was never

“exposed to a potential sentence of life without the possibility of parole[.]”

Machicote, 206 A.3d at 1120.
____________________________________________


          circumstances of the homicide offense, including the extent
          of his participation in the conduct and the way familial and
          peer pressures may have affected him[;] ... that he might
          have been charged and convicted of a lesser offense if not
          for incompetencies associated with youth—for example, his
          inability to deal with police officers or prosecutors (including
          on a plea agreement) or his incapacity to assist his own
          attorneys[;] ... [and] the possibility of rehabilitation ...
          when the circumstances [(the youthfulness of the offender)]
          most suggest it.

Id. at 431 (quoting Miller, 576 U.S. at 477-78).

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      Appellant first argues that the resentencing court abused its discretion

by treating Appellant’s age at the time of his crime (17) as an aggravating

factor despite his expert witness’ opinion that Appellant was far more

immature than his chronological age:

      Here, notwithstanding that [Appellant]’s expert, Dr. Schachner,
      characterized him as a “pre-teen” at the time of the shooting due
      to his “limited experience of a moral compass” and “many
      impediments to higher level judgment and consideration of
      decision making,” the [res]entencing [c]ourt thought it more
      important to think of [Appellant] as a near adult. It emphasized
      that [Appellant] was “not a 15-year-old boy . . . not a 14-year-old
      boy … [but] a 17 year old, close to 18 when this [shooting]
      occurred,” as if his chronological age of 17 was a strike against
      him, or meaningful in any way in light of the expert analysis
      provided.

      Quite simply, the [res]entencing [c]ourt viewed [Appellant]’s age
      too simplistically, considering him more as if he were an adult than
      the immature child that he really was. In essence, therefore, the
      … [c]ourt erred in treating [Appellant]’s chronological age as if it
      were an aggravating circumstance, making him someone who’s
      more worthy of a harsher sentence.

Appellant’s Brief at 25 (footnotes omitted).

      The resentencing court rejected this claim for the following reasons:

      With respect to [Appellant]’s claim that this court “minimized” his
      age and aligned him more with an adult than as a “pre-teen” as
      Dr. Schachner described him in his report, the court simply took
      note of the undisputed fact that [Appellant] was eleven (11)
      months[’] shy of committing the crime as an adult. [Appellant]
      was born on August 22, 1979, and he committed the murder on
      September 27, 1996, when he was 17 years [and] 1 month old.
      The court further considered the facts that [Appellant] had
      admitted to Dr. Schachner during his interview regarding the
      circumstances of the crime (i.e.[,] planning the confrontation,
      firing multiple shots, changing clothes and fleeing the scene), and
      it found that his actions aligned more with the actions of an adult
      than that of a 10, 11 or 12 year old. []Psychological Report,

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      10/5/17, [at] 8[]; (Sentencing Transcript [(“ST”)], 3/21/18, [at]
      55).

      Moreover, at the resentencing hearing, Dr. Schachner qualified his

      characterization of [Appellant] as a “pre-teen” when the
      Commonwealth confronted him with the specific facts of the
      murder. [Id.] Indeed, when the Commonwealth asked “how
      admittedly luring someone out into an alley, shooting them three
      times, changing their clothes afterwards … can be equated with
      the actions of an 11 or 12 or ten-year-old?”, Dr. Schachner
      replied, “[w]ith those specific examples, they may be less
      related.” [Id.] He explained that his “pre -teen” description was
      “[s]pecific to [Appellant’s] ability to demonstrate executive
      functioning, cognitive ability, academic achievement and
      recognizing right or wrong.” [Id.]

Resentencing Court Opinion (“RSCO”), 8/22/18, at 7.

      We ascertain no abuse of discretion with regard to the resentencing

court’s consideration of Appellant’s age at the time of the murder. First, the

court was not required to accept Dr. Schachner’s opinion at face value.

Second, his opinion with regard to Appellant’s effective age in terms of his

maturity at the time of the murder was essentially impeached, at least in part.

Third, Appellant’s actual/chronological age is itself a relevant factor to consider

under Miller; indeed, the court was required to consider his chronological age.

See Batts, 163 A.3d at 431. Fourth, it would have been rational for the court

to consider Appellant’s actual age at the time of the crime as an aggravating

factor. Just as it is reasonable to believe that a pre-teen presents a greater

potential for rehabilitation, a corollary follows that a juvenile closer to the age

of   maturity   may   present   relatively   less   potential   for   rehabilitation.

Accordingly, we conclude that this aspect of Appellant’s sentencing claim is

meritless.

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      Next, Appellant argues that the resentencing court abused its discretion

by not permitting him to “elicit the nature and circumstances of the underlying

crime from his perspective.”      Appellant’s Brief at 26 (emphasis added).

Specifically, the court prevented defense counsel from eliciting Appellant’s

subjective views concerning the events that led up to the murder of Jason

Wingfield. See N.T., 2/21/18, 89-93. Appellant specifically complains that

he
      was foreclosed from answering the question [of] why he continues
      to maintain self-defense, and he was denied the opportunity to
      rebut the assertion that this somehow shows a lack of capacity for
      rehabilitation. [Appellant] appreciated that he didn’t get to
      change the facts as the jury found them-which expressly rejected
      his claim of self-defense-but he wanted at least the opportunity to
      tell the [res]entencing [c]ourt why he acted the way he did, why
      he believed self-defense was at issue (rightly or wrongly), and
      why he still believes that to be the case.

      But that did [not] happen here. Rather[,] what happened was
      that the [res]entencing [c]ourt, which wasn’t the trier of fact, got
      a narrow view of the underlying circumstances of this crime,
      without any first-hand perspective from [Appellant], and it was
      left with the Commonwealth’s singular viewpoint as to why
      [Appellant] continued to maintain self-defense-i.e.[,] because
      he’s “not rehabilitated” and he exhibits “a real lack of
      accountability.” That singular perspective robbed [Appellant]’s
      resentencing proceeding of perspective and a full picture that was
      necessary to meting out a truly individualized sentence. In that
      regard, the [res]entencing [c]ourt erred.

Appellant’s Brief at 31-32.

      While the facts and circumstances of the underlying crime are certainly

relevant matters when resentencing pursuant to Miller, Appellant fails to cite

any authority for the proposition that Appellant’s subjective view of those facts

and circumstances are relevant or important factors.       As such, we cannot


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conclude that the resentencing court abused its discretion by refusing to hear

from Appellant in that regard.

       In any event, the resentencing court indicates that it “was well aware of

[Appellant’s] perspective on the matter by way of Dr. Schachner’s testimony

and his expert report, which contained incredibly detailed information from

[Appellant] as to his background and his position regarding the circumstances

of the crime.” RSCO at 8. We agree with the resentencing court that, to the

extent that Appellant’s subjective beliefs regarding the murder were relevant

to his resentencing, the court was aware of them. Moreover, Appellant fails

to specify in his brief how his omitted testimony would have added to or

corrected Dr. Schachner’s report and/or testimony.6       Accordingly, even if

Appellant’s subjective view of the facts and circumstances of this case were

relevant, we would ascertain no abuse of discretion in the resentencing court’s

decision to preclude Appellant’s testimony.

       Next, Appellant contends that the court abused its discretion when it

asserted that there “does not seem to be any suggestion that [Appellant was]

____________________________________________


6 Appellant argues that “he wanted at least the opportunity to tell why he
acted the way he did, why he believed self-defense was at issue (rightly or
wrongly), and why he still believes that to be the case.” Appellant’s Brief at
31 (emphasis in original). However, Appellant does not detail those reasons
in his brief, nor how those specific reasons would have suggested that a lesser
sentence was appropriate. Appellant contends that in the absence of his
perspective, the court “was left with the Commonwealth’s singular viewpoint
as to why he continued to maintain self-defense,” that being that he was
ostensibly not rehabilitated and that he lacked accountability. Id. at 31-32.
Yet, Appellant provides no alternative in his brief but for the mere abstract
notion that he might have provided a different theory for the court to consider.

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unable to cooperate with [his] attorney or with the police.” N.T., 3/1/18, at

11.   Appellant argues that this “assertion was belied by Dr. Schachner’s

report….”   Appellant’s Brief at 32.   Appellant points to statements in Dr.

Schachner’s report that Appellant was exceptionally immature for a 17 year

old at the time of the murder, and the doctor’s opinion that he was skeptical

that Appellant truly comprehended the proceedings or the consequences of

his inculpatory statements. Id. at 32-33.

      The resentencing court responds:

      With respect to the claim that this court [glossed] over
      [Appellant]’s ability to cooperate with counsel or law enforcement
      at the time of trial, the issue before this court was not whether
      [he] deserved a new trial, but rather what sentence was
      appropriate for his crime. [Appellant] took the stand on his own
      behalf at trial and asserted his self-defense claim, which shows
      that he was able to adequately participate in his defense and trial
      strategy. In this court’s estimation, [Appellant]’s admissions
      regarding his actions on the day of the murder indicate a degree
      of criminal sophistication which substantially weakens [his]
      suggestion that he was unable to adequately cooperate with
      counsel or law enforcement. The court also notes that [Appellant]
      was accompanied by his mother when he voluntar[il]y …
      surrendered to police after the murder.

RSCO at 8-9.

      We do not agree that the record supports that Appellant was able to

participate in a meaningful way in his own defense merely because he took

the stand to express his self-defense.        Nevertheless, there is very little

indication in the record that Appellant’s immaturity undermined the fairness

of his trial or his participation therein in any significant way. Ultimately, the

facts that Appellant both waived his Miranda rights and confessed in the


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presence of his mother indicate that this particular Miller factor did not weigh

strongly in Appellant’s favor.

      Finally, Appellant argues that the resentencing court took Dr.

Schachner’s findings out of context, and effectively treated what should have

been mitigating factors as aggravating factors. We disagree. As accurately

noted by the Commonwealth, the resentencing court “was not obligated to

accept every statement made by [A]ppellant’s expert. ‘Furthermore, when

expert opinion evidence is admitted, the factfinder is free to reject it, accept

it, or give it some weight between the two.’ Commonwealth v. Stephens,

74 A.3d 1034, 1041 (Pa. Super. 2013).” Commonwealth’s Brief at 20.

      Appellant quibbles about specific statements made by the resentencing

court as they relate to Dr. Schachner’s findings, which incorrectly presumes

that the court was bound by those findings, although it was not. Moreover,

Appellant argues over minutiae, and in doing so misses the forest for the trees,

as we conclude that the resentencing court provided, overall, a detailed and

thoughtful analysis of the Miller factors as they related to Appellant’s

resentencing. See N.T., 3/1/18, at 8-16.

      Moreover, 18 Pa.C.S. § 1102.1(a) provides, in pertinent part, as follows:

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

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

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           imprisonment, the minimum of which shall be at least 35
           years to life.

18 Pa.C.S. § 1102.1(a).

     Unfortunately, our legislature has failed to provide explicit guidance for

situations where, as here, a defendant was originally convicted prior to June

24, 2012.     However, our Supreme Court has indicated that, despite this

legislative oversight, a “sentencing court should fashion the minimum term of

incarceration using, as guidance, Section 1102.1(a) of the Crimes Code.”

Batts, 163 A.3d at 460. Here, Appellant was sentenced to 40-life, only 5

years’ minimum incarceration more than the mandatory-minimum sentence

provided    by   Section   1102.1(a)(1).      Additionally,   as   noted    by   the

Commonwealth,

     [I]t is noted that with the changes that occurred to Pennsylvania’s
     Sentencing Code after Miller, a sentence … for a first[-]degree
     murder committed by a defendant such as [A]ppellant, would
     have an Offense Gravity Score of 15. With an Offense Gravity
     Score of 15, [and] if [A]ppellant’s prior record score was [zero],
     the sentencing guidelines would provide a standard range
     sentence of thirty-five years to life as a minimum sentence, plus
     or minus five years for aggravating or mitigating factors. 204
     Pa.Code [§§] 303.15 and 303.16(b).

Commonwealth’s Brief at 11.         Thus, under the sentencing guidelines,

Appellant’s sentence falls on the boundary between the standard and

aggravated range.

     Thus, we consider Appellant’s sentence as a small deviation upward

from the mandatory minimum sentence under Section 1102.1(a)(1), and a

top-of-the-standard-range     or   bottom-of-the-aggravated-range          sentence



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under the sentencing guidelines.          In light of this, it appears that the

resentencing court only afforded slightly more weight to aggravating factors

than   it   did   to   mitigating   factors,     and   we   ascertain   no   manifest

unreasonableness in such a determination. To the extent that Appellant is

merely complaining about the relative weight that the resentencing court

afforded to these various factors, such a claim does not present a substantial

question for our review. See Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa. Super. 2013) (holding that an “argument that the trial court failed to give

adequate weight to mitigating factors does not present a substantial question

appropriate for our review”).

       For all the aforementioned reasons, we conclude that Appellant is not

entitled to relief.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2019




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