J-A18008-19

                                 2019 PA Super 350

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 MICHALE J. ANDERSON                        :
                                            :
                     Appellant              :   No. 711 WDA 2018

            Appeal from the Judgment of Sentence April 9, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-2112299-1989


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

OPINION BY BOWES, J.:                             FILED NOVEMBER 27, 2019

      Michale J. Anderson appeals from the April 9, 2018 judgment of

sentence of fifty years to life imprisonment, following his resentencing for first-

degree murder committed as a juvenile, pursuant to Miller v. Alabama, 567

U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

After thorough review, we affirm.

      The facts underlying the conviction were summarized by this Court as

follows:

            In the early morning hours of October 27, 1989, [Appellant]
      took a taxicab to the home of the victim, Karen Hurwitz
      (“Hurwitz”). On his way to Hurwitz’s home, [Appellant] had the
      cab driver stop in the Highland Park area where he retrieved a bag
      containing various weapons.       After arriving at the Hurwitz
      residence, [Appellant] removed a Ninja sword and nun chucks
      from his bag and placed them at the side of the house. [Appellant]
      also placed another weapon inside his jacket. [Appellant] then
      went into the Hurwitz home. After speaking with Hurwitz for a
      few moments, [Appellant] and Hurwitz agreed to continue their
      conversation outside so as not to awaken Hurwitz’s parents. Once
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      outside, [Appellant] picked up the Ninja sword and walked with
      the victim to a gazebo in her yard. As the two conversed,
      [Appellant] struck the victim in the head with the Ninja sword and
      repeatedly stabbed her in the torso. When the victim stopped
      moving, [Appellant] went into the Hurwitz home, took the keys to
      the Hurwitz’s automobile, and drove away in the vehicle.

             The next morning, [Appellant] voluntarily accompanied
      police officers from his high school to police headquarters. Upon
      arriving at headquarters, [Appellant] confessed to the
      aforementioned crimes.

Commonwealth v. Anderson, 754 A.2d 14 (Pa.Super. 2000) (unpublished

memorandum at 1-2). Evidence was also adduced at trial that, prior to the

murder, Appellant had practiced with the weapons and represented to another

that he would soon have a car of a certain make and model that was the same

as the car he later stole from the victim’s parents.

      On June 21, 1990, Appellant was convicted at a jury trial of first-degree

murder and theft by unlawful taking, and sentenced to life imprisonment

without possibility of parole (“LWOP”) and a consecutive term of three and

one-half to seven years of imprisonment on the theft charge.         On direct

appeal, this Court vacated the judgment of sentence and remanded for a

hearing on an ineffective assistance of counsel claim. Following an evidentiary

hearing, the court determined that trial counsel had not been ineffective, and

reinstated Appellant’s sentence. Appellant filed a timely appeal to this Court

on June 15, 1995, and we vacated Appellant’s first-degree murder conviction

and remanded for a new trial. The Commonwealth’s petition for allocatur was




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initially granted by the Supreme Court, but subsequently dismissed as

improvidently granted.

      A second jury trial commenced on June 8, 1998, before the Honorable

Lawrence J. O’Toole and a jury. Appellant was found guilty, and the court

sentenced him on June 12, 1998, to life imprisonment without parole on the

first-degree murder conviction.    Again, Appellant timely appealed to this

Court, and we affirmed judgment of sentence on February 3, 2000.

Commonwealth v. Anderson, 754 A.2d 14 (Pa.Super. 2000) (unpublished

memorandum), allocatur den. 759 A.2d 919 (Pa. 2000).

      Appellant’s first PCRA petition was dismissed in 2008, after several

remands for additional hearings and determinations. The instant petition, his

second, was filed on July 24, 2012. Counsel filed an amended petition in light

of Miller and Montgomery on January 27, 2016, a resentencing hearing was

scheduled, and the Commonwealth filed its notice of intention to seek a LWOP

sentence.

      At the resentencing hearing on February 2, 2018, and April 5-9, 2018,

the court heard testimony offered on Appellant’s behalf from two corrections

officers, who described him as a model prisoner. In addition, representatives

from prisoner advocacy programs described his initiative and participation,

and a former inmate attributed much of his success upon release to inspiration

he received from Appellant. The victim’s parents described their only child’s

brutal death at Appellant’s hand, the devastating impact of her murder upon


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them, their extended family, and her high school friends. Two family friends

recounted how the murder continues to traumatize the entire community.

      The court heard extensive testimony from board-certified psychiatrist

Bruce Wright, M.D., who met with Appellant and reviewed records from the

police, school, and medical providers.      Noting that Appellant had been

diagnosed at various times with PTSD, Antisocial Personality Disorder,

Dissociative Disorder, and Personality Disorder, Dr. Wright maintained that an

accurate diagnosis could not be reached because of the inaccurate history

Appellant provided and his deceptiveness. N.T., 4/5/18, at 33. He opined

further that, although proper treatment could not be devised without a

diagnosis, Appellant had informed prison authorities that he would not

participate in additional psychological therapy.    He assessed Appellant’s

chances at a successful rehabilitation as “negligible at best[,]” but stopped

short of saying he was incorrigible. N.T., 4/5/18, at 51.

      Appellant offered the testimony from psychologist Alice Applegate, Ph.D.

She agreed with Dr. Wright that Appellant was very bright, but disagreed that

he was manipulative. She pointed to the absence of violent behavior during

Appellant’s twenty-eight year tenure in prison, the fact he obtained his GED,

tutored other prisoners, and participated in criminal justice reform, as proof

that he is rehabilitated.   Dr. Applegate stated Appellant had stabilized

mentally, no longer has mood swings, and feels remorse for the crime. She

opined that he is not a psychopath, nor antisocial, although she conceded that


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he demonstrated a moderate level of mental disorder.            She diagnosed

Appellant with Generalized Anxiety Disorder, PTSD in remission, and a history

of   Chronic   Adjustment    Disorder,   Unspecified    Dissociative    Disorder,

Compulsory     Personality   Disorder,   Developmental     Trauma      Syndrome,

homelessness, and adolescent antisocial behaviors, and opined that during

the murder, he had no control over his thoughts, behaviors, or emotions and

did not know he was dissociating.

      Finally, Appellant addressed the court at length, offering his contrary

version of the facts documented about his early life and numerous reasons

why he believed he should receive a lighter sentence. Following the hearing,

the sentencing court found that the Commonwealth had not sustained its

burden of proving that Appellant was incorrigible and that rehabilitation was

impossible, and refused to impose a LWOP sentence. Nonetheless, it rejected

the notion that Appellant was rehabilitated, and found him to be a danger to

the community.     After applying the various sentencing factors, the court

resentenced Appellant to a term of fifty years to life imprisonment on the first-

degree murder conviction.

      Appellant’s post-sentence motion was denied, and thereafter, he timely

filed this appeal, and both he and the sentencing court complied with Pa.R.A.P.

1925. Appellant presents two issues for our review:

      1.     Is it unconstitutional to impose a sentence of 50 years to
      life, a de facto sentence of life without the possibility of parole,
      where the trial court found that [Appellant] is not one of those


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      rare and uncommon juveniles who is permanently incorrigible,
      irreparably corrupt or irretrievably depraved?

      2.     Did the trial court err in imposing a sentence of 50 years to
      life, whether as a de facto life sentence or otherwise, without fully
      addressing all the pertinent criteria set forth in 18 [Pa.C.S.] §
      1102.1(a)?

Appellant’s brief at 2.

      Appellant’s first issue presents a challenge to the legality of his sentence

of fifty years’ imprisonment to life after Miller and Montgomery.              He

contends that the sentence was a de facto life sentence without possibility of

parole because he would not be eligible for parole until the age of sixty-seven.

Consequently, he maintains that it was unconstitutional as it was imposed

without the findings required by Miller, Montgomery, and Commonwealth

v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”), for imposition of a LWOP

sentence. Appellant’s brief at 27. In Batts II, our Supreme Court held that

a LWOP sentence is permitted for a juvenile convicted of first-degree murder

only if the circumstances of the crime indicate that the offender is permanently

incorrigible, and incapable of rehabilitation.

      In support of his contention that the minimum term of fifty years

imposed herein is a de facto LWOP sentence, Appellant directs our attention

to Commonwealth v. Foust, 180 A.3d 416 (Pa.Super. 2018) (upholding

sentence of two consecutive thirty-year terms to life imprisonment and

declining to aggregate the two terms for purposes of the Miller and Batts II

analysis). Specifically, Appellant points to language therein, cautioning courts


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against imposing lengthy minimum term sentences that constitute de facto

life imprisonment without parole in order to circumvent the prohibition against

LWOP sentences. Appellant also references Commonwealth v. Felder, 187

A.3d 909 (Pa. 2018), in which our Supreme Court granted allocatur to address

this Court’s holding in an unpublished memorandum that a sentence of fifty-

years-to-life imposed upon a juvenile did not constitute a de facto life sentence

without parole subject to the findings of permanent incorrigibility and

irreparable corruption articulated in Batts II. Appellant raises virtually the

same issue herein.

      Appellant argues that he has been incarcerated for thirty years; it will

be twenty more years before he is eligible for parole, at which time he will be

sixty-seven years old. He cites Commonwealth v. Bebout, 186 A.3d 462,

469-72 (Pa.Super. 2018), as defining the upper limit of a constitutional

sentence in this context as: “whether there is some meaningful opportunity

[for the defendant] to obtain release based on demonstrated maturity and

rehabilitation” while it is “at least plausible that one could survive until the

minimum release date” with some likelihood that a non-trivial amount of time

at liberty awaits. Appellant’s brief at 29. Appellant contends that the trial

court herein intended to deny him that opportunity because it believed him to

be “a seriously dangerous man” who has not been rehabilitated. Id. at 30

(citing Trial Court Opinion, 9/12/18, at unnumbered 10).




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      The Commonwealth argues that Appellant’s age of sixty-seven when he

is eligible for parole will likely permit him to have a meaningful life outside

prison if paroled.   Commonwealth’s brief at 15. Thus, it contends that his

sentence is not a de facto LWOP sentence, and no finding that Appellant was

“permanently incorrigible, irreparably corrupt, or irretrievably depraved” was

required before imposing it. Commonwealth’s brief at 16.

      This issue arises from the recognition by the United States Supreme

Court that evolving standards of decency mandate that juveniles receive

proportionate sentences that take into account their youthfulness and the

characteristics of youth.   In Roper v. Simmons, 543 U.S. 551, 569-70

(2005), the Court prohibited the execution of juveniles, recognizing that

juveniles engage in reckless and impulsive behavior due to their “lack of

maturity,” “underdeveloped sense of responsibility,” and vulnerability to peer

pressure. In Graham v. Florida, 560 U.S. 48, 68 (2010), the Court held that

a mandatory LWOP sentencing scheme for a juvenile convicted of a non-

homicide offense was cruel and unusual punishment barred by the Eighth

Amendment. It relied upon Roper, supra at 569-70, in finding that such a

scheme precluded consideration of a juvenile’s “lessened culpability” and

greater capacity for change, and hence, ran afoul of the requirement that

sentences be individualized.

      In Miller, the Court struck down as unconstitutional mandatory LWOP

for juveniles convicted of murder. It recognized that a lifetime in prison is a


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disproportionate sentence for most children, reserving it for those whose

crimes   reflected   irreparable   corruption   for   whom    rehabilitation   was

impossible.   The Montgomery Court adopted this rationale espoused in

Miller, and reasoned further that, for a sentence of life without parole to be

proportionate for a juvenile murderer, the sentencing court must find “that

there is no possibility that the offender could be rehabilitated at any point later

in his life, no matter how much time he spends in prison and regardless of the

amount of therapeutic interventions he receives, and that the crime

committed reflects the juvenile’s true and unchangeable personality and

character.” Montgomery, 136 S.Ct. at 733.         The Montgomery Court left it

up to the individual states, however, to establish a procedure for the proper

implementation of Miller.

      In the aftermath of Miller and Montgomery, our High Court decided

Batts II, wherein the Court recognized a presumption against the imposition

of a LWOP sentence for a juvenile offender.           In order to overcome that

presumption, the Batts II Court held that the Commonwealth would have to

prove that “the juvenile is constitutionally eligible for the sentence beyond a

reasonable doubt” by presenting evidence relating to the factors announced

in Miller, and our legislature’s response to Miller, codified at 18 Pa.C.S.

§ 1102.1. Batts II, supra at 455. Although the latter statute does not apply

to juveniles convicted prior to Miller, the Batts II Court reasoned that

§ 1102.1(a) would “help frame the exercise of judgment by the court in


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imposing a sentence and may provide an essential starting point . . . when

determining the appropriate minimum sentence for a juvenile convicted of

first-degree murder prior to the Miller decision.”         Id. at 481 (internal

quotations omitted). The Court noted, however, that,

      If, after a hearing and consideration of all of the evidence
      presented, the sentencing court finds that the Commonwealth has
      satisfied its burden of proving beyond a reasonable doubt that the
      juvenile is so permanently incorrigible that rehabilitation of the
      offender would be impossible, the bar against sentencing a
      juvenile offender to life without the possibility of parole is lifted.

Id. at 457. Nonetheless, the Court made it clear that, even in circumstances

where the Commonwealth adduced such proof, “the sentencing court still had

the discretion to impose a sentence that would permit consideration of parole.”

Id.

      In Batts II, our High Court found that Miller requires examination of

the following factors:

      At a minimum it should consider a juvenile’s age at the time of
      the offense, his diminished culpability and capacity for change, the
      circumstances of the crime, the extent of his participation in the
      crime, his family, home and neighborhood environment, his
      emotional maturity and development, the extent that familial
      and/or peer pressure may have affected him, his past exposure to
      violence, his drug and alcohol history, his ability to deal with the
      police, his capacity to assist his attorney, his mental health
      history, and his potential for rehabilitation.

Batts II at 421 (quoting Commonwealth v. Batts I, 66 A.3d 286, 297 (Pa.

2013) (“Batts I”), and Commonwealth v. Knox, 50 A.3d 732, 745

(Pa.Super. 2012)).

      Title 18 Pa.C.S. § 1102.1 provides in pertinent part:

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

18 Pa.C.S. § 1102.1(a)(1).

     In making a determination under § 1102.1, the court is required to

consider and make findings on the record related to the following factors:

     (1)   The impact of the offense on each victim, including oral and
           written victim impact statements made or submitted by
           family members of the victim detailing the physical,
           psychological and economic effects of the crime on the
           victim and the victim’s family. A victim impact statement
           may include comment on the sentence of the defendant.

     (2)   The impact of the offense on the community.

     (3)   The threat to the safety of the public or any individual posed
           by the defendant.

     (4)   The nature and circumstances of the offense committed by
           the defendant.

     (5)   The degree of the defendant’s culpability.

     (6)   Guidelines for sentencing and resentencing adopted by the
           Pennsylvania Commission on Sentencing.

     (7)   Age-related characteristics of the defendant, including:

           (i) Age.

           (ii) Mental capacity.

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             (iii) Maturity.

             (iv) The degree of criminal sophistication exhibited by the
             defendant.

             (v) The nature and extent of any prior delinquent or criminal
             history, including the success or failure of any previous
             attempts by the court to rehabilitate the defendant.

             (vi) Probation or institutional reports.

             (vii) Other relevant factors.

18 Pa.C.S. § 1102.1(d).

        Herein, the sentencing court held an evidentiary hearing that consumed

several days. In addition, the court had the benefit of sentencing memoranda,

Department of Corrections’ reports, psychiatric and psychological reports

spanning three decades, victim impact statements, Appellant’s extensive

allocution, and the testimony of numerous witnesses. The sentencing court

weighed the Miller factors, took note of 18 Pa.C.S. § 1102.1(a)(1) and (d),

and considered the general factors contained in § 9721(b) of the Sentencing

Code.     It made extensive findings of fact, credibility determinations, and

provided a lengthy explanation of its findings. Although the Commonwealth

asked the sentencing court to impose a LWOP sentence, the court refused to

do so, finding that the Commonwealth had not met its burden of proving

beyond a reasonable doubt that Appellant was incorrigible and not amenable

to rehabilitation. Based on the record, the sentencing court imposed a fifty

years to life imprisonment sentence.


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      Pennsylvania does not recognize a definitive term of imprisonment as a

de facto LWOP sentence. Nor have we determined that there is a particular

age at time of earliest release that is presumptively the equivalent of a life

sentence. In Foust, this Court examined whether either of the appellant’s

two thirty-years-to-life sentences constituted a de facto LWOP sentence. In

concluding that the sentences had to be viewed separately, and that neither

constituted a de facto life sentence, this Court refused to draw a bright line or

determine the relevancy of factors such as life expectancy generally, or of the

prison population in particular, or whether a non-LWOP sentence had to afford

the defendant the possibility of a “meaningful post-release life.” Id. at 438.

This Court had no trouble concluding therein that a 150-year-minimum term

sentence was a de facto LWOP sentence, but that a sentence of thirty years

to life imprisonment was not.

      In Bebout, supra, we cited language in Graham, supra at 75,

mandating that states “give defendants . . . some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation” as the key

factor in considering the upper limit of what constitutes a constitutional

sentence in this narrow context. We reasoned further that it was implicit in

such a standard that “it would not be meaningful to provide an opportunity

for release based solely on the most tenuous possibility of a defendant’s

surviving the minimum sentence imposed.” Bebout, supra at 468. “[T]o be

potentially meaningful, it must at least be plausible that one could survive


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. . . with some consequential likelihood that a non-trivial amount of time at

liberty awaits.” Id. (emphasis in original). Bebout argued that his forty-five

years to life sentence, which would make him eligible for parole at age sixty,

was a de facto life sentence because he was a member of a subset of

individuals sentenced to life imprisonment as juveniles in Michigan with a life

expectancy of 50.6 years. He also pointed to other government data that

indicated a life expectancy for American males of seventy-six years of age.

This Court rejected the statistical life-expectancy approach for determining

what constitutes a de facto LWOP sentence because it merely created new

questions “sending us down a rabbit hole . . . as more and more data arrives.”

Id. at 469. Instead, we looked to Foust, and ultimately concluded that the

forty-five-year minimum sentence was not so long as to make it virtually

certain that Bebout could not survive it, and it was plausible that he could live

many years beyond it.

      In Commonwealth v. Lekka, 210 A.3d 343 (Pa.Super. 2019), this

Court applied Bebout in affirming Appellant’s forty-five years to life sentence.

We found that Appellant had not demonstrated that he had no plausible

chance of survival until he completed his minimum sentence, nor meaningful

opportunity to enjoy his freedom at sixty-two years of age, only two years

longer than the defendant in Bebout.           See also Commonwealth v.

Hernandez, ___A.3d___, 2019 PA Super 255 (Pa.Super. August 21, 2019)

(unpublished memorandum) (affirming aggregate sentence of forty-five years


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to life imprisonment that would render the appellant eligible for parole at sixty-

two years of age).

      Admittedly, Appellant herein will be sixty-seven years old, five years

older than Lekka and Hernandez, when he is first eligible for parole. He argues

that his sentence must “provide an opportunity for release based solely on the

most tenuous possibility of a defendant surviving the minimum sentence

imposed.”    Appellant’s brief at 29 (quoting Bebout, supra at 468).            He

contends it must be “at least plausible that one would survive until to the

minimum release date with some consequential likelihood that a non-trivial

amount of time at liberty awaits.”       Id.    Nonetheless, he stops short of

demonstrating how the fifty-year minimum sentence imposed herein violates

those parameters. Appellant, while urging this Court to apply the reasoning

in Bebout, fails to establish that it is unlikely he will survive until his minimum

release date, or that there is no opportunity for release in such time as to

permit him to enjoy a period of liberty. We are not willing to presume, without

more, that a fifty-year minimum sentence in these circumstances affords him

no reasonable possibility of release or a meaningful life thereafter.

      Instead, Appellant makes bald claims accusing the sentencing court of

intentionally imposing a term-of-years sentence that was tantamount to a

LWOP sentence in order to evade Eighth Amendment law. Appellant’s brief at

29-30.   Not only is the allegation wholly unsupported by the record, it is

particularly baseless herein as LWOP was available to the sentencing court.


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On the record before us, Appellant has simply provided no basis for us to

conclude that his fifty-year to life sentence was an illegal de facto life sentence

without parole.

       Appellant’s second issue, that the sentencing court failed to address all

the appropriate criteria set forth in § 1102.1 prior to imposing sentence,

presents a challenge to the discretionary aspects of his sentence.             See

Commonwealth v. White, 193 A.3d 977, 984 (Pa.Super. 2018). It is well

established that challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right. Commonwealth v. Sierra, 752

A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue, we must first determine whether he has preserved it in a

post-sentence motion, filed a timely notice of appeal, included in his brief at

Pa.R.A.P. 2119(f) statement, and presented a substantial question for review.

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

       The appeal is timely.        Appellant’s brief contains the requisite Rule

2119(f) statement.        However, a fair reading of Appellant’s post-sentence

motion reveals that he did not raise this discretionary aspect of sentence issue

in the motion, nor did he assert it at resentencing.1 Thus, the issue is waived.

____________________________________________


1   In his post-sentence motion, Appellant pled the following:

       A. The sentence of fifty (50) to life is a de facto life sentence and
          therefore unconstitutional. See Commonwealth v. Foust,
          (Pa. Super. 2018), 218 Pa.Super. LEXIS 150 (February 21,



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See Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc)

(reaffirming that unless issue challenging discretionary aspects of a sentence

is raised in a post-sentence motion or during the sentencing proceeding, it is

waived); see also Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013)

(holding objections to discretionary aspects of sentence waived if not raised

at the sentencing hearing or in a timely filed post-sentence motion).

       Judgment of sentence affirmed.

       Judge Musmanno joins the opinion.

       Judge Nichols concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




____________________________________________


          2018) at pages 26-33. See also United States v. Grant,
          ___F.3d.__ (3d.Cir. 2018) No. 16-3820 (April 9, 2018).

       B. The sentencing court erred by allowing victim impact
          statements in violation of the statute when neighbors testified
          as to the impact of the crime upon the community.

       C. The sentencing court should reconsider the sentence.
          Defendant would present the attached documents for review
          by the court.

Post-Sentencing Motions, 4/17/18, at 1.

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Date: 11/27/2019




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