J-S26045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICARDO L. NOBLE                           :
                                               :
                       Appellant               :   No. 204 WDA 2020

        Appeal from the Judgment of Sentence Entered January 29, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000318-1992


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JULY 21, 2020

        Ricardo L. Noble (Noble) appeals from the judgment of sentence1

entered on January 29, 2018, by the Court of Common Pleas of Erie County

(trial court) following resentencing pursuant to Miller v. Alabama, 576 U.S.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 After a previous direct appeal following resentencing, this court remanded
Noble’s case for the limited purpose of allowing him to file a post-sentence
motion preserving his challenges to the discretionary aspects of his sentence.
Following remand, Noble filed his post-sentence motion on December 16,
2019, and the Commonwealth filed a response on January 23, 2020. The trial
court denied the motion on January 27, 2020, and Noble filed his appeal from
the order denying his post-sentence motion. Noble’s appeal properly lies from
the judgment of sentence imposed on January 29, 2018, and we have
amended the caption accordingly. See Commonwealth v. Shamberger,
788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc).
J-S26045-20


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

(2016). After careful review, we affirm.

                                               I.

        We glean the following facts from the certified record and prior decisions

of this court. In 1992, Noble was found guilty following a jury trial of second-

degree murder, robbery and criminal conspiracy after he and two other

individuals robbed and killed a cab driver.2 Commonwealth v. Noble, 1770

Pittsburgh 1992, at *1 (Pa. Super. February 3, 1994) (unpublished

memorandum), allocatur denied, 647 A.2d 899 (Pa. 1994). Because there

was conflicting evidence regarding which of the three defendants actually shot

and killed the victim, Noble was convicted of second-degree murder because

the killing occurred during the course of a robbery. At the time of the murder,

Noble was 15 years old. Noble was sentenced to life in prison without the

possibility of parole, as was mandatory at the time, and this court affirmed

the judgment of sentence.

        By way of background, in Miller, the United States Supreme Court held

that it is unconstitutional for states to sentence juvenile homicide defendants

to mandatory sentences of life imprisonment without the possibility of parole.

See Miller, supra at 465. In Montgomery, the Court determined that the

Miller holding constituted a substantive rule of constitutional law that must


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2   18 Pa.C.S. §§ 2502(b), 3701, 903.


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be applied retroactively to cases on collateral review.         See Montgomery,

supra at 736. Following the decision in Montgomery, Noble filed a Post-

Conviction Relief Act (PCRA) petition alleging that his sentence was illegal.

The trial court granted relief, vacating his judgment of sentence and

scheduling    a    resentencing   hearing     in   accordance     with       Miller   and

Montgomery.

      Prior   to   the   resentencing   hearing,    counsel     filed    a    sentencing

memorandum requesting a sentence of time served or 20 to 60 years’

incarceration. The defense argued that the doctor who evaluated Noble in

1992 had opined that he had a strong possibility of rehabilitation with proper

counseling and treatment. Noble had struggled in school at the time, in part

because he had to care for his siblings due to his mother’s alcoholism, but he

did not suffer from addiction or mental illness himself.          He had one prior

juvenile adjudication for terroristic threats following an altercation with his

stepfather after Noble witnessed him abusing his mother. The defense argued

that Noble became very religious following his incarceration and sought parole

so that he could become a productive member of society.                      The defense

reiterated that Noble was not proven to be the shooter and argued that he did

not pose a danger to society if released. Finally, the memorandum argued

that because there was no constitutional sentencing scheme for second-

degree murder at the time of his 1992 sentencing, Noble should be sentenced

based on the sentencing statute for the most serious lesser-included offense


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of third-degree murder. Based on that statute, Noble would be sentenced to

a maximum of 20 years of incarceration or time served. The memorandum

requested in the alternative that Noble be sentenced to 20 to 60 years’

incarceration, as Noble’s co-defendant had been sentenced to 20 to 50 years

of incarceration following resentencing.

      The Commonwealth filed a sentencing memorandum requesting that the

trial court resentence Noble to 50 years to life imprisonment.           The

Commonwealth asserted that while Noble was convicted of second-degree

murder because the homicide occurred during the course of a robbery, it

believed Noble was the actual shooter. The Commonwealth’s memorandum

focused on Noble’s prison record, listing his numerous misconducts, mostly

for refusal to obey an order, which resulted in his placement in disciplinary

custody over the years. He incurred two misconducts for assault during his

incarceration, including one in 2014 for an assault on a staff member. Noble

also pled guilty in 2005 for Possessing Weapons or Implements for Escape and

was sentenced to 1 to 2 years of incarceration. The Commonwealth attached

prison records to its memorandum setting forth Noble’s misconducts and 2005

criminal conviction in more detail. The Commonwealth argued that a sentence

of 50 years to life imprisonment was necessary because Noble remained a

threat to the community and had not shown meaningful rehabilitation during

his incarceration.




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       At the beginning of the resentencing hearing, Noble spoke on his own

behalf and informed the trial court that he did not agree with counsel’s

requested 20 to 60 year sentence. Notes of Testimony, 1/29/18, at 2-3. He

maintained his innocence of the crimes and asserted that he would only agree

to a sentence of time served. The trial court instructed him that if he was

dissatisfied with his attorney’s performance, Noble could file a PCRA petition

raising an ineffective assistance of counsel claim after the resentencing

hearing.

       The first witness to testify on Noble’s behalf was Kaitlyn Dolak, a case

manager at GECAC.3         Dolak explained that she assists individuals who are

released from incarceration transition back into the community by helping

them find housing, employment, mental health services and drug and alcohol

services. The goal of GECAC’s services is to assist in reintegrating into the

community and provide support services that reduce the risk of recidivism.

       Dolak interviewed Noble while he was incarcerated but did not review

any of his institutional records. She reported that after an interview, GECAC

accepted Noble into the program for intensive case management services,

which would include direct services from the program for at least one year.

She reported that Noble was cooperative and receptive to services. Since he


____________________________________________


3While not defined in the record, we understand this to refer to the Greater
Erie Community Action Committee. See GECAC: Greater Erie Community
Action Committee, www.gecac.org, last visited 6/5/20.


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was interested in HVAC training, GECAC would assist him finding a training

program and providing transportation. Noble had reported that he would live

with family if released and Dolak would meet with him at least once a week to

provide services.

        Noble also presented testimony from Rahnay Ritchie, a friend who had

known Noble since middle school. Ritchie described Noble as outgoing and

bright and testified that Noble had never gotten into trouble or fights when

they knew each other.          He believed the robbery and murder was out of

character for Noble at the time. Emberly Noble,4 Noble’s sister, also testified

that she exchanged letters with Noble throughout his incarceration to give him

updates and information on their family.          Emberly testified that Noble

frequently offered her advice and support for issues in her personal life and

was a positive influence on her before and after his incarceration. She testified

that he had been a protective older brother before his incarceration.

        Shadara Feliciano, Noble’s cousin, testified that she also wrote to Noble

on a weekly basis during his incarceration. She frequently sought his advice,

thought of him as a father figure, and viewed him as a positive influence in

her life.   Feliciano testified that the family would support Noble if he was

released from incarceration and help him transition back into the home.

Carlajzah Mendez, Noble’s niece, also testified that she views Noble as a father


____________________________________________


4   For clarity, we refer to Emberly by her first name.


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figure and had sought his advice by writing him letters during his

incarceration. She testified that Noble provided her with support and was a

positive influence and encouraged her to pursue her education.

      Finally, Noble testified on his own behalf.    He began by denying all

involvement in the robbery and murder. The trial court reminded him that he

had been convicted and the hearing was for the purposes of resentencing only.

In addition, the trial court stated, “[n]o one is saying today, or at least I’m

not, that you are here as the shooter. That has not been proven in court, at

least not up to this point.” N.T. at 30. The trial court then directed Noble to

focus his comments on factors relevant to the resentencing, such as Noble’s

character, what he had accomplished in prison, and the ways in which he had

changed or stayed the same since his conviction.        Noble argued that his

actions during the crime were a relevant factor in resentencing pursuant to

Miller, as it directed courts to consider the extent of the defendant’s

participation in the crime when sentencing juveniles found guilty of murder.

Noble then attempted to make legal arguments regarding the proceedings at

his decertification hearing in 1992 and the alleged ex post facto application of

the sentencing statute to his second-degree murder conviction. The trial court

repeatedly directed him to speak to his own character and growth and to allow

his attorney to make any relevant legal arguments.

      Noble testified that despite being incarcerated in an adult prison since

he was 16 years old, he has tried to better himself, “not get caught up in a lot


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of negativity around [him], and also not become a hardened criminal.” N.T.

at 36.     He earned his GED and a degree in African American History and

Science.     He testified that he also attempted to educate himself outside of

the prison’s formal programs. He said that over the years he had attempted

to be an advocate for other prisoners who had been mistreated or wronged

while incarcerated, and he had written and published work regarding solitary

confinement. He acknowledged that he had “some violent altercations” over

the years, but said that he was not a violent person and understood that there

are better ways to handle problems.       He reiterated his innocence for the

crimes for which he was convicted and said he had tried over the years to

speak up against injustice in the court system. He again argued that he did

not belong in an adult prison and that he had been confused by the court

system for many years during and after his initial trial proceedings.

      The trial court again told Noble that he was convicted of the crimes

charged and should not make argument regarding his culpability. The trial

court also stated that it did not believe Noble did not understand the trial

proceedings and that Noble was an “intelligent young man” who had

understood the facts of the case and the witnesses against him.          Noble

responded that his confusion and frustration at his conviction had led to some

of his misconducts and violations while in prison, but that he understood right

and wrong and could not excuse his actions. He requested that the trial court

disregard his counsel’s sentencing recommendation and resentence him to


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time served. Finally, he acknowledged the victim’s family, saying “I’m very,

very sorry for your loss and your pain and suffering—the pain and suffering,

and I hope one day, you acknowledge the facts in this case have proven I’m

not the one who killed [the victim], and I’m deeply sorry and remorseful for

what happened.” N.T. at 43-44.

      The Commonwealth called William Niles, the defense expert who

authored a mitigation report. Niles testified that this case was the first time

he had written a mitigation report but he had worked with former prisoners in

the past. He opined in his report that Noble was a credit to his community in

prison despite some misconducts and assaults while incarcerated, including

an assault on a prison staff member. Based on interviews with Noble and his

family, Niles concluded that he had a low risk of reoffending if released. He

believed Noble was a credit to the community based on letters he wrote

advocating on behalf of other inmates. Niles noted that Noble had maintained

employment while incarcerated, though he was suspended from his jobs at

times and placed in restricted housing following various violations.

      The Commonwealth also presented testimony from Scott Cleaver, the

victim’s nephew. Cleaver testified that the victim had suffered polio as a child

and had health issues until his death as a result. The victim’s mother died

when he was a child and his father was an alcoholic, and the victim developed

alcoholism in his adulthood.   After retiring and becoming sober, he began

driving a cab because he “enjoyed people.” N.T. at 51. Cleaver said that his


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family had worried about the victim working as a cab driver because he was

incapable of protecting himself in the event of a robbery. Cleaver testified

that he was “positive” that Noble killed his uncle and requested that the court

impose a life sentence. N.T. at 52.

      Following the reception of the evidence, the trial court resentenced

Noble to 40 years to life imprisonment, as well as court costs and restitution

for funeral expenses, for the second-degree murder charge. The trial court

acknowledged that there was insufficient evidence to establish that Noble had

been the shooter and said that it did not consider Noble to be the shooter

when imposing the sentence. The trial court stated that while Noble was a

juvenile at the time of the offense, he was of at least average intelligence and

did not suffer from any mental illness or disability.      The trial court also

recognized that Noble had pursued his education and helped others while he

was in prison, but he nonetheless had a history of misconducts and one

criminal conviction while incarcerated.

      After his resentencing hearing, Noble filed a direct appeal raising various

challenges to the trial court’s evidentiary rulings regarding sentencing, his

counsel’s effectiveness at resentencing, the transcription of the proceedings,

and the discretionary aspects of his sentence. Noble, supra. Finding that

Noble had not been properly informed of his post-sentence rights, this court

remanded the case to allow Noble to file a post-sentence motion preserving

his challenge to the discretionary aspects of his sentence, but affirmed in all


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other respects.      Id. at *9.    Noble timely filed a post-sentence motion on

remand, and the Commonwealth filed a response. The trial court denied the

motion, and Noble timely appealed. Noble and the trial court have complied

with Pa.R.A.P. 1925.

                                               II.

       Noble’s    first   three   issues   on        appeal   concern   the   legality   and

discretionary aspects of his sentence.5               Noble argues that the trial court

abused its discretion in sentencing him to 40 years to life imprisonment as the

sentence is manifestly excessive, unreasonable and an ex post facto

imposition of the statute governing sentencing for juveniles convicted of

second-degree murder. He argues that the trial court improperly sentenced

him based on considerations of first-degree murder rather than second-degree

murder, and that the trial court disregarded his rehabilitative needs in

fashioning the sentence. Finally, he argues that the trial court relied on false

information when imposing the sentence.



____________________________________________


5 A challenge to the legality of a sentence presents a pure question of law,
over which 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).
We review a challenge to the discretionary aspects of a sentence for an abuse
of discretion. Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). “An abuse
of discretion is more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.” Id. (citations omitted).


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                                      A.

      We first address Noble’s challenges to the legality of his sentence. Noble

contends that his maximum sentence of life imprisonment violates the ex post

facto provisions of the state and federal constitutions. He argues that he may

only be sentenced to 10 to 20 years imprisonment, as “the only constitutional

sentence available at th[e] time of the crime and conviction was for the most

serious lesser included offense of third-degree murder.” Noble’s Brief at 26.

He also faults the trial court for failing to consider his individual level of

culpability and participation in the crime when fashioning the sentence, a

required factor for consideration under Miller, and he claims that the trial

court erred in sentencing him to pay restitution and costs of prosecution.

      Following the decision in Miller, our Legislature enacted 18 Pa.C.S.

§ 1102.1 setting mandatory minimum sentences for juveniles convicted of

murder after its effective date of June 24, 2012.      In Commonwealth v.

Batts, our Supreme Court concluded that for juveniles convicted before

Section 1102.1’s effective date, the sentencing court should be guided by the

minimum sentences set forth in Section 1102.1 when resentencing a juvenile

offender pursuant to Miller and Montgomery, though the minimum

sentences were not mandatory. Commonwealth v. Batts, 163 A.3d 410,

458 (Pa. 2017) (“Batts II”). Thus, the minimum sentences set forth in that

section are akin to “sentencing guidelines” when a trial court is sentencing a




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juvenile convicted of murder prior to the enactment of the statute.

Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018).

      Here, the trial court complied with our Supreme Court’s instruction to

consider the minimum sentences set forth in that section as advisory when

crafting a minimum term-of-years for a juvenile who committed homicide

before the effective date. See Trial Court Opinion, 4/6/18, at 1-2 (citing to

Batts II’s requirement that sentencing courts consider Section 1102.1 factors

on resentencing juveniles convicted prior to its enactment). The trial court

ultimately concluded that a sentence of 40 years to life imprisonment was

warranted. As this sentence was not based on a mandatory ex post facto

imposition of the sentences proscribed in Section 1102.1 but rather on

considering Section 1102.1 as a guideline as required by Batts II, Noble’s

claim is meritless.

      Similarly, Batts II rejected the claim that a juvenile convicted of first-

degree murder prior to June 24, 2012, must be sentenced as if he was

convicted of third-degree murder as a lesser-included offense.       Batts II,

supra, at 457. The Supreme Court held that the prior sentencing statute for

juveniles convicted of first- or second-degree murder was unconstitutional in

light of Miller and Montgomery, but that provisions of the sentencing code

rendering that statute unconstitutional were severable.        Specifically, the

statutory subsections prohibiting parole and requiring that a minimum

sentence be no more than half the maximum sentence were severable from


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the sentencing statute, and the juvenile may constitutionally be resentenced

to a minimum term-of-years.           Id. at 458.   The convictions for first- and

second-degree murder then remain in place, and the juvenile is not entitled

to have his conviction downgraded to the lesser-included offense of third-

degree murder. Id.; see also Commonwealth v. Lehman, 201 A.3d 1279,

1282-83 (Pa. Super. 2019).            Noble’s contention then that he should be

sentenced as if he was convicted of third-degree murder is meritless.

       Next, Noble claims that the trial court erred by failing to consider his

individual level of culpability and participation in the crime in crafting his

sentence, as this was a required factor enunciated in Miller for the trial court

to address when considering a sentence of life imprisonment without parole.

In Commonwealth v. Lekka, 210 A.3d 343, 356-57 (Pa. Super. 2019), this

court held that failure to consider the factors set forth in Miller renders a

sentence illegal only when the Commonwealth sought a sentence of life

imprisonment without parole at resentencing. Here, the Commonwealth did

not seek a sentence of life without parole but instead recommended a

sentence of 50 years to life imprisonment. As such, the trial court was not

required to consider any specific Miller factor making Noble’s claim meritless.6

____________________________________________


6We note that Noble argues that the trial court failed to consider this factor
primarily because the trial court discounted Noble’s repeated claims that he
was innocent of the murder and robbery. The trial court rightfully instructed
Noble that only his sentence was at issue in the hearing, and that he could
not attack the validity of his convictions. We do not view the trial court’s



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       Finally, Noble contends that the trial court erred in sentencing him to

pay costs of prosecution7 and restitution of one-third of the victim’s funeral

expenses.     In support of this assertion, Noble merely argues that he is

innocent of the murder and robbery and should not be required to pay costs

and restitution related to a crime he did not commit. See Noble’s Brief at 27-

30.   He argues that he did not knowingly and intelligently agree to pay

restitution at his 1992 sentencing hearing. Id. We have previously held that

trial courts may impose restitution for funeral expenses in murder cases. See,

e.g., Commonwealth v. Yanoff, 690 A.2d 260, 266-67 (Pa. Super. 1997).

Similarly, the trial court is authorized by statute to impose costs of prosecution

as a sentence. 16 P.S. § 4403. Noble’s bare assertions of innocence do not

overcome these authorizations, as he was duly convicted of the crimes

following his trial.




____________________________________________


response to Noble’s statements proclaiming his innocence as the trial court
failing to consider the extent of Noble’s participation in the crime, especially
when the trial court was unequivocal that it did not consider Noble to be the
shooter. See N.T. at 62.

7 We note that the sentencing order requires Noble to pay costs of prosecution
“previously imposed,” and does not unconstitutionally require Noble to pay
the costs of prosecution associated with his 2018 resentencing hearing.
Sentencing Order, 1/29/18; see Commonwealth v. Lehman, 201 A.3d
1279, 1286 (Pa. Super. 2019) (holding that defendant could not be sentenced
to pay costs of prosecution associated with resentencing following Miller and
Montgomery).

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                                         B.

      We next consider Noble’s challenges to the discretionary aspects of his

sentence.    “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018)

(citation omitted).    An appellant must preserve his claims at the time of

sentencing or in a post-sentence motion, file a timely notice of appeal, include

a statement of reasons for allowance of appeal pursuant to Rule of Appellate

Procedure 2119(f) in his brief, and raise a substantial question for review.

Here, Noble has complied with the first three requirements by filing a timely

post-sentence motion following the remand from this court, filing a timely

notice of appeal and concise statement, and including a statement pursuant

to Pa.R.A.P. 2119(f) in his brief. Thus, we turn to whether he has raised a

substantial question for our review.

      “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.”

Commonwealth v. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)

(citation omitted). Noble contends that the trial court imposed a manifestly

excessive   sentence     under    the   circumstances     without   considering   his

rehabilitative needs. This claim presents a substantial question for our review.


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Commonwealth v. DiClaudio, 210 A.3d 1070, 1075-76 (Pa. Super. 2019)

(citations omitted); Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.

Super. 2015) (holding that failure to consider rehabilitative needs and

mitigating factors raised a substantial question); 42 Pa.C.S. § 9721(b).

      Noble also argues that the trial court sentenced him as if he was

convicted of first-degree murder rather than second-degree murder, and that

the trial court relied on erroneous information regarding his prison record

when imposing its sentence. A claim that the court relied on improper factors

in imposing the sentence also raises a substantial question. Commonwealth

v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). As we conclude that Noble

has raised a substantial question for our review, we proceed to the merits of

his claims.

                                     C.

      As noted supra, when resentencing a juvenile convicted of homicide

before Section 1102.1’s effective date, the sentencing court should be guided

by the minimum sentences set forth in that section. Batts II, supra. Section

1102.1 requires that a juvenile who is convicted of second-degree murder for

an offense committed when he is at least 15 years old be sentenced to a

minimum of 30 years’ to life imprisonment.       18 Pa.C.S. § 1102.1(c)(1).

“Offenders convicted of first-or second-degree murder prior to Miller remain

subject to mandatory maximum sentences of life imprisonment pursuant to

Section 1102.” Lekka, supra, at 356 n.10.


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      A minimum term-of-years sentence for a juvenile convicted of murder

must ensure that the offender is afforded a “meaningful opportunity to obtain

release    based     on    demonstrated       maturity    and     rehabilitation.”

Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018) (quoting Graham

v. Florida, 560 U.S. 48, 75 (2010)); see also Commonwealth v. Foust,

180 A.3d 416, 431 (Pa. Super. 2018) (holding that a trial court may not

impose a minimum term-of-years sentence which constitutes a de facto life

without parole sentence on a juvenile convicted of homicide unless it finds

that the juvenile is incapable of rehabilitation).       In addition, when the

Commonwealth does not seek a sentence of life without parole for a juvenile

offender, the sentencing court should apply the traditional sentencing

considerations when resentencing the offender.        Batts II, supra, at 460

(citing 42 Pa.C.S. § 9721(b)).

      These standards provide in part that “the sentence imposed should call

for confinement that is consistent with the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.”           42 Pa.C.S.

§ 9721(b).     Pennsylvania’s    individualized   sentencing    scheme   requires

sentencing courts to examine these factors as they relate to the specific

defendant and crime before the court. Commonwealth v. Luketic, 162 A.3d

1149, 1160 (Pa. Super. 2017). When a sentencing court has ordered and

reviewed a pre-sentence investigation report, “we presume that the court was


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aware of all relevant sentencing factors.”    Commonwealth v. Knox, 219

A.3d 186, 199 (Pa. Super. 2019). Moreover, we recognize that the sentencing

court, which is present at the hearing and observes all witnesses and the

defendant firsthand, “is in a superior position to review the defendant’s

character, defiance or indifference, and the overall effect and nature of the

crime.” Lekka, supra, at 353.

      Here, Noble claims that the trial court abused its discretion by

disregarding his mitigating evidence and imposing a manifestly excessive

sentence under the circumstances.       He also contends that the trial court

resentenced him “based on consideration of first-degree murder” rather than

second-degree murder, even though there was insufficient evidence at trial to

establish that Noble was the shooter. Noble’s Brief at 13. The record of the

sentencing hearing belies these claims.

      The trial court in this case presided over Noble’s pre-trial, trial and

sentencing proceedings in 1992 and 1993 and was familiar with the history of

the case. Prior to the resentencing hearing, the trial court reviewed the pre-

sentence investigation report, the mitigation report, letters submitted on

behalf of Noble, victim impact statements and the sentencing memorandums

from the Commonwealth and the defense. After receiving testimony at the

sentencing hearing from character witnesses for Noble, Noble himself, Niles

and Scott Cleaver, the trial court made the following findings:

      The Court would note first of all, that he finds there’s insufficient
      evidence now, as there was back then as a matter of law, to

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     determine that the defendant was, in fact, the shooter, and
     therefore, he will not be sentenced with that as a factor.

     The Court notes that the defendant was 15 at the time of the
     crime, and as the Supreme Court has said of people his age, there
     is diminished mental capacity, and lack of culpability, and the
     Court has considered that as well.

     Although the defendant was 15, he was of, at least, average
     intelligence. He had no— or there was no evidence of any
     intellectual disability, and he did not suffer from any mental illness
     as a prior psychological report has indicated that was done at the
     time.

     The defendant indicates he has remorse for what happened, but
     not for his participation in what happened, and refuses to accept
     any responsibility for that, even though the verdict indicates
     otherwise.

     The Court has also considered the circumstances of the
     defendant’s childhood, the fact that he obtained a GED, and the
     fact that he has done some good things in prison to help others.
     The Court, however, cannot overlook his prison record and his
     misconducts, transfers and disciplinary problems that he has
     caused or been involved in in prison, as well as the fact that within
     the prison system, he was convicted of assault and related
     offenses in 2014, although not in the legal system. He does have
     a conviction from 2005, however, for having a weapon or
     implements, for which he received one to two years.

     The Court would note that the impact on the victim in this case
     cannot be diminished or understated. Obviously, the victim
     suffered the ultimate consequence. He was killed, and therefore,
     not only does he have no further life, but his family members did
     not have [an] opportunity to have a life with him, and by all
     accounts, he had accomplished a great deal over a number of
     handicaps, and being a fruitful and good citizen in the community,
     who was working to serve the community and better himself.

     And he was, in fact, helpless based on his physical disabilities, so
     the killing certainly is considered by the community, to be
     outrageous and something that no civilized society should
     tolerate.


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N.T. at 62-64. The trial court subsequently imposed the sentence of 40 years

to life imprisonment.

      Based on these findings, we conclude that the trial court considered all

required factors under Section 9721(b) in imposing its sentence, including

Noble’s rehabilitative needs based on his positive achievements in prison as

well as his record of misconducts and other violations. This court may not

reweigh the factors under Section 9721(b) if they were properly considered

by the sentencing court. Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa.

Super. 2012) (stating that “weighing of factors under 42 Pa.C.S. § 9721(b)

[is] exclusively for the sentencing court”). While the trial court must consider

the minimum sentences set forth in Section 1102.1 when imposing a sentence

on a juvenile convicted before its enactment, the court may exercise its

discretion to impose a higher sentence if warranted based on its weighing of

the 42 Pa.C.S. § 9721(b) factors. See Lekka, supra, at 353 (holding that

the trial court’s upward departure from the minimum suggested sentence for

a juvenile convicted of first-degree murder was not an abuse of discretion

when the juvenile acknowledged his guilt, but did not show any true insight

into his actions). The sentence renders Noble eligible for parole when he is

approximately 56 years old, granting him a meaningful opportunity to live a

portion of his life outside of prison. As the trial court here was aware of all

relevant factors based on the evidence at the sentencing hearing, the

sentencing memoranda, and the presentence investigation report, we


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presume it considered all mitigating evidence and find no abuse of discretion.

See Knox, supra.

     Noble also contends that his sentence is excessive because one of his

co-defendants was resentenced to 20 to 50 years in prison. This argument is

meritless in light of Pennsylvania’s individualized sentencing scheme.

Luketic, supra, at 1161 (holding that a trial court abuses its discretion in

sentencing “by failing to investigate and consider the character of the

defendant” or imposing a pre-determined sentence without consideration of

evidence at the sentencing hearing). Two co-defendants may be differently

situated on any of the factors enumerated in Section 9721(b), and

individualized consideration of the evidence at sentencing may lead the court

to determine that co-defendants warrant different sentences.      As the trial

court here considered all of the required factors pursuant to Section 9721(b)

in imposing Noble’s sentence, it is of no moment that his co-defendant

received a lesser sentence.

     Next, Noble argues that the information the trial court relied on

regarding his misconducts and disciplinary record while incarcerated was

inaccurate and that he is entitled to a new sentencing hearing as a result. We

have previously held:

        A sentence is invalid if the record discloses that the
        sentencing court may have relied in whole or in part upon an
        impermissible consideration. This is so because the court
        violates the defendant’s right to due process if, in deciding
        upon the sentence, it considers unreliable information, or


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        information affecting the court’s impartiality, or information
        that it is otherwise unfair to hold against the defendant.

      Commonwealth v. Karash, 452 A.2d 528, 528-29 (Pa. Super.
      1982) (citations omitted). Simply put, “the evidence upon which
      a sentencing court relies must be accurate,” Commonwealth v.
      Pfender, 540 A.2d 543, 548 (Pa. Super. 1988) (quotation and
      quotation marks omitted), and there must be evidentiary proof of
      the factor, upon which the court relied. See Commonwealth v.
      P.L.S., 894 A.2d 120 (Pa. Super. 2006).

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).

      Noble contends that the documentation that the Commonwealth

submitted to the trial court prior to sentencing did not accurately set forth his

record of misconducts while in prison, and the trial court abused its discretion

in relying on the information set forth in the records. He extensively sets forth

his own recollection of events leading to each misconduct, violation and

incident leading to his placement in restrictive housing. We find no evidence

in the record that the information regarding Noble’s prison record was

inaccurate. In his counseled sentencing memorandum, Noble acknowledged

that he had accrued misconducts during his incarceration, and he did not

challenge the validity of the prison records at the resentencing hearing. Noble

admitted at sentencing and in his pro se post-sentence motion that he earned

numerous misconducts and violations during his incarceration and has spent

much of his incarceration in restrictive housing as a result. Thus, we conclude

that trial court did not abuse its discretion in according weight to Noble’s

record of misconducts and violations while in prison rather than to Noble’s

own explanation of the events in his post-sentence motion.

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     Accordingly, we conclude that the trial court did not abuse its discretion

in sentencing Noble to 40 years to life imprisonment.

                                      III.

     Finally, Noble contends that the trial court abused its discretion by failing

to replace his court-appointed counsel prior to the resentencing hearing, as

he believes that his attorney “only worked against [him] to help prosecution.”

Noble’s Brief at 60. This question is outside the scope of our remand that was

limited to allowing Noble to file a post-sentence motion preserving his

challenges to the discretionary aspects of his sentence.      Noble, 420 WDA

2018, at *22. “[W]here a case is remanded to resolve a limited issue, only

matters related to the issue on remand may be appealed.” Commonwealth

v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001). Moreover, as we held

previously, any challenges based on ineffective assistance of counsel may not

be raised on direct appeal and are properly reserved for a petition pursuant

to the PCRA.   Noble, 420 WDA 2018, at *17 (citing Commonwealth v.

Rivera, 199 A.3d 365, 372 n.3 (Pa. 2018)). No relief is due.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2020

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