J-S42041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    FLOYD WILSON                               :
                                               :
                      Appellant                :   No. 2498 EDA 2018

         Appeal from the Judgment of Sentence Entered June 13, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002168-1975


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                           FILED SEPTEMBER 05, 2019

        Appellant, Floyd Wilson, pro se, appeals from the aggregate judgment

of sentence of 38 years to life imprisonment, with credit for time served

beginning on March 25, 1995, which was imposed at his resentencing on

June 13, 2018, for his jury trial convictions for murder of the first degree,

criminal attempt to commit robbery, and criminal conspiracy.1 We affirm.

        On March 25, 1975, Appellant shot and killed Glenolden Borough Police

Chief Robert Sparks. Appellant was 17 years old.2

        The additional relevant facts and procedural history of this case have

been previously, correctly, and fully set forth in:          Commonwealth v.

____________________________________________


1   18 Pa.C.S. §§ 2502(a), 901(a), and 903(a)(1), respectively.
2   Appellant’s birthdate is May 27, 1957.



*    Retired Senior Judge assigned to the Superior Court.
J-S42041-19


Wilson, 402 A.2d 1027, 1028 (Pa. 1979); Commonwealth v. Wilson, No.

400 Philadelphia 1981, unpublished memorandum at 1-4 (Pa. Super. filed

August 13, 1982); Commonwealth v. Wilson, No. 1628 Philadelphia 1994,

unpublished memorandum at 1-3 (Pa. Super. filed November 9, 1994);

Commonwealth v. Wilson, No. 1720 Philadelphia 1997, unpublished

memorandum at 1-2 (Pa. Super. filed December 4, 1997), aff’d, 719 A.2d

746 (Pa. 1998); Wilson v. Gaston, No. 2264 C.D. 2010, unpublished

memorandum at 1-2 (not paginated) (Pa. Cmwlth. filed January 28, 2011);

Wilson v. Wenerowicz, No. 12-CV-05162, 2014 WL 1757189, at *1–*3

(E.D. Pa. May 2, 2014) (unpublished order, report, and recommendation);

Commonwealth           v.    Wilson,      No.    2006   EDA   2014,   unpublished

memorandum at 2-3 (Pa. Super. filed April 6, 2015); and Resentencing

Court Opinion, filed January 25, 2019, at 1-16.           Therefore, we have no

reason to restate them at length herein, but, for the convenience of the

reader, we will provide a brief review.

       Appellant was arrested on March 26, 1975, the day after the murder.

He was charged pursuant to three separate dockets:            the current action,

Docket Number CP-23-CR-0002168-1975 (“No. 2168”), and two unrelated3




____________________________________________


3 The underlying facts of the robbery actions are unrelated both to the
current appeal and to each other.



                                           -2-
J-S42041-19


robbery cases, Docket Number CP-23-CR-0005121-1975 (“No. 5121”)4 and

Docket Number CP-23-CR-0005122-1975 (“No. 5122”)5 (hereinafter the two

robbery actions are collectively known as “Nos. 5121 & 5122”).

       In January 1976, Appellant was tried and found guilty of the above-

enumerated crimes at No. 2168.             On November 15, 1976, the trial court

sentenced Appellant to a then-mandatory term of life without the possibility

of parole (“LWOP”) for the murder conviction, with an additional aggregate,

consecutive 15 to 30 years of confinement for the other charges. Appellant

appealed.

       During the pendency of his direct appeal at No. 2168, Appellant was

convicted at Nos. 5121 & 5122.                 On August 10, 1976, Appellant was

sentenced at No. 5121 to 10 to 20 years of confinement. On June 3, 1977,
____________________________________________


4 For more detail about No. 5121, see Commonwealth v. Wilson, 392
A.2d 769 (Pa. Super. 1978). According to this decision, Appellant was
arrested at No. 5121 on April 8, 1975—13 days after his arrest for No. 2168.
Id. at 770. Nothing in the record indicates Appellant’s date of arrest for No.
5122, but, given the docket number, it was presumably the same day as or
after No. 5122.

Thus, Appellant should have received credit for 13 days of time served on
No. 2168 from March 26, 1975, to April 8, 1975. However, Appellant’s
sentence on No. 5121 was shortened by 13 days, ending in March 2015,
instead of April 2015. Therefore, the 13 days over at No. 2168 and the 13
days under at No. 5121 cancel out each other, and Appellant suffers no loss.
5 For more detail about No. 5122, see Commonwealth v. Wilson, 390
A.2d 847 (Pa. Super. 1978), Wilson v. Patton, 541 F.Supp. 818 (E.D. Pa.
1982) (memorandum), aff’d, 772 F.2d 736 (3d Cir. 1983), and
Commonwealth v. Wilson, No. 1388 Philadelphia 1985, unpublished
memorandum (Pa. Super. filed July 18, 1985).



                                           -3-
J-S42041-19


Appellant was sentenced at No. 5122 to 10 to 20 years of confinement “to

run   consecutively    with    any    sentence    he    was      then   serving.”

Commonwealth v. Wilson, No. 1388 Philadelphia 1985, unpublished

memorandum at 5 (Pa. Super. filed July 18, 1985).              Thus, for the two

robberies, Appellant was to serve an aggregate sentence of 20 to 40 years

of confinement.

      On July 6, 1979, at No. 2168, on direct appeal, Appellant’s conviction

and judgment of sentence were vacated in their entirety by the Supreme

Court of Pennsylvania, and Appellant was granted a new trial. Wilson, 402

A.2d at 1028-30 (reference in Commonwealth’s opening statement to

Appellant’s “incriminating [oral] statements following his arrest” and to his

“written statement[,]” neither of which were “introduced into evidence or

referred to again during trial” thereby denying Appellant “the opportunity of

making any inquiry as to the confession, its contents or circumstances[,]”

caused an unfair trial, requiring reversal and a new trial).

      A second jury trial commenced at No. 2168 on October 29, 1979. On

November 1, 1979, Appellant was again found guilty of the aforementioned

charges.    On February 2, 1981, he was again sentenced to a then-

mandatory term of LWOP for the murder conviction, with an additional

aggregate, consecutive 15 to 30 years of confinement for the other charges.

      Although it is clearly shown from a review of the February 2,
      1981, hearing transcript [Appellant] was sentenced to then
      mandatory life imprisonment, absent parole possibility,51
      followed in the aggregate by ten (10) through twenty (20) years

                                      -4-
J-S42041-19


       incarceration, these same case notes are wholly devoid as to the
       interplay between this past and now vacated52 at bar sentence
       (February 2, 1981) and those previously entered and then being
       served under the dockets, Commonwealth v. Wilson, Nos.
       5121[ &] 5122[]. N.T. 2/2/81. See also Commonwealth v.
       Wilson, No. 5121[] - N.T. 8/10/76, pp. 9-10 and
       Commonwealth v. Wilson, No. 5122[] - N.T. 6/3/77, pp. 4-5.
            51   18 Pa.C.S. §1102(a).
            52See Order and Supporting Memorandum dated May 23,
            2018.

Resentencing Court Opinion, filed January 25, 2019, at 28 & 78 nn.51-52.

Appellant filed a direct appeal, and this Court affirmed his judgment of

sentence. Wilson, No. 400 Philadelphia 1981.

       On March 18, 2016, at No. 2168, Appellant filed a petition pursuant to

the Post Conviction Relief Act (“PCRA”).6 On May 23, 2018, the PCRA court

granted Appellant’s petition and vacated his sentence at No. 2168 in its

entirety.

       On April 18, 2018, the Commonwealth filed a notice of intent to seek

imposition of an LWOP sentence. On May 23, May 30, and June 13, 2018,

resentencing hearings were held.               During these hearings, the chief

sentencing computation supervisor from the Pennsylvania Department of

Corrections testified that Appellant’s time served in confinement from

March 26, 1975, to March 26, 2015, should be attributed solely to his

sentences at Nos. 5121 & 5122 and that the calculation of Appellant’s credit
____________________________________________


6   42 Pa.C.S. §§ 9541–9546.




                                           -5-
J-S42041-19


for time served at No. 2168 should begin on March 27, 2015, a sum total of

approximately three years. N.T., 5/23/2018, at 20-22, 30-32.

     At the conclusion of the hearing on June 13, 2018, the resentencing

court made the following findings on the record:

     The age-related characteristics of [Appellant] at the time of Chief
     Sparks’ murder include among other things the mental capacity
     commensurate with his then age, 17 years, 9 months and 27
     days. . . . His maturity level and the evidence presented again
     appears to have been consistent with his then age of almost 18
     years. . . . There is no evidence he suffered from a traumatic
     childhood and/or familial dysfunction.

     Perhaps as a byproduct of his gang involvement, [Appellant]
     when a teen was a substance abuser including at the time he
     murdered Chief Sparks although there is no evidence he was
     then under the influence of any intoxicants. While his offenses
     do not suggest the height of criminal sophistication the murder
     of Chief Sparks did entail some measure of planning. . . .

     [Appellant] prior to the murder of Chief Sparks had modest
     Juvenile Court contact which resulted in a consent decree, a
     loose form of oversight and certainly not accompanied by any
     appreciable rehabilitative interventions. Within the weeks just
     prior to his killing of Chief Sparks, [Appellant] also perpetrated a
     home invasion armed robbery, as well as the armed robbery of
     another local pharmacy. However, these prosecutions did not
     commence until the time of the murder case and obviously as
     such did not allow for any material rehabilitative efforts. The
     proffered institutional reports largely from the Pennsylvania
     Department of Corrections presents circumstances both
     favorable to the prosecution and defense. By way of summary
     these records show [Appellant] at the outset of his incarceration
     was the subject of many disciplinary infractions including a
     number of appreciable if not notably significant institutional
     violations with such problematic behaviors continuing from the
     mid-1970’s through the early to mid-2000’s. He has been
     infraction-free for at least the past 13 years.

N.T., 6/13/2018, at 10-12.    The court then resentenced Appellant for the

murder conviction to 38 years to life imprisonment, with credit for time

                                    -6-
J-S42041-19


served commencing on March 25, 1995.                 Certificate of Imposition of

Judgment of Sentence, 6/13/2018.7

        On August 1, 2018, the resentencing court denied Appellant’s motion

for reconsideration of sentence.          On August 16, 2018, Appellant filed a

motion to proceed pro se. On August 17, 2018, Appellant’s counsel filed this

timely direct appeal.        On September 27, 2018, the resentencing court

conducted a Grazier8 hearing, and the court granted Appellant’s motion to

proceed pro se. Appellant pro se filed his statement of errors complained of

on appeal on October 12, 2018.9

        Appellant now presents the following issues for our review:

        1.    Did the [resentencing] court commit legal error by
        confiscating twenty (20) years of time credit that must be
        applied to [A]ppellant’s homicide sentence?

        2.    Did the [resentencing] court commit legal error by altering
        another sentencing court’s sentence from a separate and
        unrelated case?

           (a)       Coordinate jurisdiction rule violated.

           (b)       Commonwealth              v.   Goldhammer        not
           controlling.
____________________________________________


7 For the attempt and conspiracy convictions, Appellant received sentences
of 10 to 20 years of confinement each, to be served concurrently to his 38
years to life sentence and to each other. Certificate of Imposition of
Judgment of Sentence, 6/13/2018. As these sentences also commenced on
March 25, 1995, they were completed on March 25, 2015, and are not at
issue in this appeal.
8   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
9   The resentencing court entered its opinion on January 25, 2019.



                                           -7-
J-S42041-19


         (c)       PCRA statute violation.

         (d)       Commonwealth v. Foust distinguished.

      3.    Is the [resentencing] court’s aggregate sentence of fifty-
      eight (58) years to life contrary to [f]ederal law, because the
      court failed to apply United States Supreme Court holdings
      across the sentencing scheme?

      4.    Did the [resentencing] court impose an unconstitutional de
      facto [LWOP] sentence?

      5.    Did the [resentencing] court deny [A]ppellant due process
      of law resulting from an appearance of bias?

Appellant’s Brief at 3.

      Appellant contends in his first and second appellate claims that the

trial court “committed error by confiscating twenty (20) years of time credit

attributable to the sentence” and “altering another court’s sentence from a

separate and unrelated case.”        Appellant’s Brief at 8, 13.    Appellant

continues that “[t]he court’s resentence violates a sentencing norm and a

rule of law—coordinate jurisdiction rule--whereby judges of equal jurisdiction

sitting in the same case should not overrule each other’s decisions.” Id. at

14.

      Appellant thereby appears to argue that the sentence at No. 2168 that

he received upon resentencing in 2018 should have been calculated to run

concurrently to the entirety of his sentences at Nos. 5121 & 5122. Id. at

10. That is to say, Appellant seems to suggest that his 38-year minimum

should be computed from 1975, not 1995, and that he thus should have

been immediately paroled. Id. at 11.



                                     -8-
J-S42041-19


     “We have stated that the imposition of consecutive rather than

concurrent sentences lies within the sound discretion of the sentencing

court.” Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

     Our standard of review for challenges to the discretionary
     aspects of sentencing is as follows:

     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. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation

omitted) (some formatting).

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to an appeal as of right. Prior to reaching
     the merits of a discretionary sentencing issue[, w]e conduct a
     four-part analysis to determine: (1) whether 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 appellant’s brief has a fatal defect, Pa.R.A.P.
     2119(f); and (4) whether there is a substantial question that the
     sentence appealed from is not appropriate under the Sentencing
     Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018).

     In the current case, Appellant filed a timely notice of appeal and

preserved his issue in a post-sentence motion. However, Appellant’s brief to

this Court does not contain a separate section with a concise statement of

                                   -9-
J-S42041-19


the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.

2119(f); Appellant has thus waived his challenge to the discretionary aspects

of his sentence. See Manivannan, 186 A.3d at 489.

       Assuming Appellant had preserved this challenge, his claims are belied

by the record.      Appellant’s sentences at Nos. 5121 & 5122 were imposed

prior to his 1981 sentencing for No. 2168. Thus, the sentencing schemes

devised by the sentencing courts for Nos. 5121 & 5122 could not have been

affected by his sentence in No. 2186.10 Therefore, the sentencing schemes

____________________________________________


10This Court has previously rejected a similar argument by Appellant in
Wilson, No. 1388 Philadelphia 1985, unpublished memorandum at 5-6:

       At the time of sentencing [at No. 5122], [A]ppellant was serving
       a life term for homicide and an additional term for [robbery].
       Subsequently, [A]ppellant’s homicide conviction was overturned.
       He was retried and again convicted and sentenced to life
       imprisonment.

       Appellant first argues that his sentence for the current robbery
       [at No. 5122] was made to run consecutive to a sentence which
       had not yet been imposed. Clearly, error is committed when a
       defendant is sentenced to serve a term of imprisonment to run
       consecutive to a judgment of sentence which is yet to be
       imposed. Commonwealth v. Holz, 483 Pa. 405, 397 A.2d 407
       (1979). Here, however, a sentence of life imprisonment had
       already been imposed before the court entered the consecutive
       sentence.    Unlike the situation in Holz, supra, where one
       sentenced was to run consecutive with another sentence which
       was soon to be imposed upon a convicted defendant, here, the
       trial judge was not acting without knowledge of the precise
       sentence given for the other charges. There exists no concern
       that the judge’s determination was based on any “lack of
       knowledge.” Compare Holz, supra at 408, 397 A.2d at 408.
       The fact [A]ppellant’s sentence for life imprisonment was later
(Footnote Continued Next Page)


                                          - 10 -
J-S42041-19


of Nos. 5121 & 5122 could not have been “altered” by resentencing

Appellant at No. 2186. See Appellant’s Brief at 13. We further note that

Appellant had completed his sentences at Nos. 5121 & 5122 by 2015;

hence, by the time of his 2018 resentencing at No. 2168, the sentences at

Nos. 5121 & 5122 no longer existed to be “altered.”

      Additionally, the Supreme Court of Pennsylvania decision from 1979

reversed the sentence at No. 2168 from November 1976 in its entirety,

Wilson, 402 A.2d at 1030, and the order dated May 23, 2018, granting

PCRA relief vacated Appellant’s sentence at No. 2168 from February 1981 in

its entirety. Thus, it is as if Appellant’s sentencing in November 1976 and in

February 1981 had never occurred. See Commonwealth v. Serrano, 150

A.3d 470, 473 (Pa. Super. 2016)            (“When a sentence is vacated and the

case is remanded to the sentencing court for resentencing, the sentencing

judge should start afresh.” (citation omitted)).       We acknowledge that the

1981 sentencing at No. 2168 never specified whether Appellant’s sentence

was to run concurrently or consecutively to his sentence at Nos. 5121 &

5122. As the resentencing court noted:

      Such silence [as to the interplay between the sentences at No.
      2168 and Nos. 5121 & 5122] when this sentence [at No. 2168]
      (February 1981) was imposed is certainly not unexpected given
      that [Appellant] at the time had not only previously been
(Footnote Continued) _______________________

      vacated is now irrelevant. Thus, we conclude that the
      consecutive sentence imposed for [A]ppellant’s robbery
      conviction is lawful.



                                         - 11 -
J-S42041-19


     sentenced in the two (2) other matters (Nos. 5121[ &] 5122[])
     to two (2), consecutive terms of ten (10) to twenty (20) years
     incarceration, but he had just then been sentenced to a
     mandated period of life imprisonment,53 without parole
     possibility. Thus, at the time of his 1981 sentencing there was
     simply no good cause for that court to meaningfully consider
     whether the above-captioned matter’s (No. 2168[]) sentence
     was to run consecutively or concurrently to those of the other
     two (2), unrelated, armed robbery54 cases (Nos. 5121[ &]
     5122[]). See N.T. 2/2/81; Commonwealth v. Wilson, No.
     5121[] - N.T. 8/10/76, pp. 9-12. See also Commonwealth v.
     Wilson, No. 5121[] - N.T. 12/15/75; 12/16/75; and 12/17/75,
     pp. 209-13; Superior Court No. 2376 October Term 1976,
     Memorandum Opinion dated October 20, 1978, p. 2;
     Commonwealth v. Wilson, No. 5122[] - N.T. 6/3/77, pp. 4-5.
     See also Commonwealth v. Wilson, No. 5122[] - Trial Court
     Opinion dated June 27, 1985, p. 3.
        53   18 Pa.C.S. §1102(a).
        54   18 Pa.C.S. §3701.

Resentencing Court Opinion, filed January 25, 2019, at 28 & 78 nn.53-54.

We further recognize that, in the absence of such information, sentences

from different dockets are assumed to run concurrently.   Commonwealth

v. Fisher, 703 A.2d 714, 716 n.3 (Pa. Super. 1997) (citing 42 Pa.C.S.

§ 9757; then-Pa.R.Crim.P. 1406, now-Pa.R.Crim.P. 705; Commonwealth

ex. rel. Woods v. Howard, 378 A.2d 370 (Pa. Super. 1977)) (“if the

sentencing court does not indicate that a new sentence is consecutive to a

prior sentence, it is deemed to run concurrent”). However, this assumption

is now immaterial, because that 1981 judgment of sentence was thrown out,

leaving the sentencing court in 2018 a clean slate to fashion whatever

sentence it deemed appropriate, including whether credit for time served

sentence was to run concurrently or consecutively to Nos. 5121 & 5122.

                                    - 12 -
J-S42041-19


     In fact, the resentencing court could have chosen to run Appellant’s

sentence at No. 2168 entirely consecutively to his sentences at Nos. 5121 &

5122, meaning that his sentence at No. 2168 could have not begun running

until the full 40 years for Nos. 5121 & 5122 had finished. In other words,

Appellant was not automatically entitled to receive double credit. See, e.g.,

Commonwealth v. Richard, 150 A.3d 504, 521 (Pa. Super. 2016) (credit

is not given for a commitment by reason of a separate and distinct offense);

Commonwealth v. Clark, 885 A.2d 1030, 1034 (Pa. Super. 2005) (same;

crediting a sentence with time attributable to an unrelated charge was

generally prohibited); Commonwealth v. Schartner, 323 A.2d 237, 238

(Pa. Super. 1974) (“no credit is to be given a defendant for time spent in

custody on another offense”). The calculation of Appellant’s sentence of 38

years to life at No. 2168 theoretically could have begun in 2015, as the

Department of Corrections suggested, N.T., 5/23/2018, at 20-22, 30-32,

rather than in 1995. Instead, the resentencing court chose to be charitable

to Appellant and to allow a portion of his sentence at No. 2168 to coincide

with half of his time served at Nos. 5121 & 5122, like the overlapping

portions of a Venn diagram.

     Therefore, 20 years were not “confiscate[ed]” by the resentencing

court, as Appellant maintains, Appellant’s Brief at 8 – they were applied to

his appropriate sentence at Nos. 5121 & 5122.     Likewise, Appellant’s new

sentence in the instant action did not “alter[,]” “overrule[,]” or otherwise


                                   - 13 -
J-S42041-19


affect his sentence at Nos. 5121 & 5122.            See id. at 13-14.   Thus, had

Appellant’s first two challenges raised on appeal been properly preserved,

we would still conclude that they are meritless.11

       In his next two issue on appeal, Appellant challenges the legality of his

sentence.     “When reviewing the legality of a sentence, our standard of

review is de novo and our scope of review is plenary.” Lekka, 210 A.3d at

355 (citation omitted).

       Appellant states that the resentencing court’s “sentencing scheme

violates” Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) [hereinafter

Batts II]12 (citing Graham v. Florida, 560 U.S. 48 (2010)), Miller v.

Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct.

718 (2016).      Appellant’s Brief at 18, 20.      He continues that the courts at

____________________________________________


11  We do, however, agree with Appellant that Commonwealth v.
Goldhammer, 517 A.2d 1280 (Pa. 1986), is inapplicable, because that case
held that, when a disposition by an appellate court alters the sentencing
scheme, the entire sentence should be vacated, and the matter remanded
for resentencing. In the instant appeal, no appellate court altered his
sentencing scheme, and, as explained above, the resentencing court did not
alter Appellant’s sentences in Nos. 5121 & 5122.               See also
Commonwealth v. Deshong, 850 A.2d 712, 714 (Pa. Super. 2004);
Commonwealth v. Farone, 808 A.2d 580 (Pa. Super. 2002).

Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018), will be
discussed in more detail, below, pursuant to Appellant’s fourth claim raised
on appeal, as we believe that it is more applicable to that issue than
Appellant’s first two questions raised on appeal.
12 Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), is commonly referred
to as Batts I, and we prefer to maintain a consistent nomenclature.



                                          - 14 -
J-S42041-19


Nos. 5121 & 5122 “tempered th[ose] sentences with benign discretion . . .

The resentencing court overruled and rejected deference to those courts.”

Id. at 19.

      In Miller, the Supreme Court listed various factors that a court
      must consider when imposing a [LWOP] sentence on a juvenile
      offender including the “hallmark features” of youth, such as
      “immaturity, impetuosity, and failure to appreciate risks and
      consequences.” [567 U.S.] at 476-78, 132 S.Ct. 2455. This
      Court summarized the Miller factors in Commonwealth v.
      Knox, 50 A.3d 732 (Pa. Super. 2012), which were subsequently
      adopted by our Supreme Court in Commonwealth v. Batts,
      620 Pa. 115, 66 A.3d 286 (2013) (Batts I) . . .

      The [Supreme] Court [of Pennsylvania] stated that in cases
      where the Commonwealth requests a sentence of life
      imprisonment without parole for a juvenile offender, it . . . must
      prove beyond a reasonable doubt that the offender “exhibits
      such irretrievable depravity that rehabilitation is impossible.”
      Batts II, 163 A.3d at 455 (emphasis omitted) (quoting
      Montgomery, 136 S.Ct. at 733). As the Court explained, the
      Commonwealth may seek to meet its burden by producing
      evidence relevant to the Miller and Section 1102.1(d) factors,
      and the court must examine each of the Miller and Section
      1102.1(d) factors prior to weighing whether to sentence a
      juvenile offender to life without parole. Id. at 455 & n.23.

Lekka, 210 A.3d at 347, 355. Section 1102.1(d) of the Crimes Code, 18

Pa.C.S. § 1102.1(d), was enacted after the Miller decision to provide that

age-related factors be taken into account. Section 1102.1(d) provides:

      In determining whether to impose a sentence of life without
      parole . . ., the court shall consider and make findings on the
      record regarding the following:
      ...
      (7) Age-related characteristics of the defendant, including:

         (i)   Age.

         (ii) Mental capacity.

         (iii) Maturity.

                                    - 15 -
J-S42041-19


          (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).

        In the current action, the resentencing court considered and made

findings on the record regarding the Miller and Section 1102.1(d) factors.13

Specifically, the resentencing court stated on the record that it considered

Appellant’s age at the time of the crime – 17 years, 9 months, and 27 days

– and that his “mental capacity” and “maturity level” were “commensurate

with his then age[.]” N.T., 6/13/2018, at 10. Compare id., with Lekka,

210 A.3d at 347 (quoting Miller, 567 U.S. at 477) (“hallmark features” of

youth    include    “immaturity”),     and     18   Pa.C.S.   §   1102.1(d)(7)(i)-(iii).

Additionally, the resentencing court found that Appellant’s “offenses do not

suggest the height of criminal sophistication” but “did entail some measure

of planning.” N.T., 6/13/2018, at 11. Compare id., with Lekka, 210 A.3d
____________________________________________


13 Although the resentencing court did not impose a LWOP sentence, since
the Commonwealth sought such a sentence, as evidenced by its notice of
intent to seek imposition of LWOP sentence dated April 18, 2018, the
resentencing court had to consider the Miller and Section 1102.1(d) factors.
See Lekka, 210 A.3d at 357 (citing Commonwealth v. White, 193 A.3d
977, 983 (Pa. Super. 2018), appeal denied, No. 304 WAL 2018, 2019 WL
2498272 (Pa. June 17, 2019)).



                                          - 16 -
J-S42041-19


at 347 (quoting Miller, 567 U.S. at 477) (“hallmark features” of youth

include     “impetuosity”),     and   18      Pa.C.S.       §    1102.1(d)(7)(iv).      The

resentencing court also took into account that, prior to committing this

murder,      Appellant   had     never       had     “any       appreciable   rehabilitative

interventions” by the court system. N.T., 6/13/2018, at 11. Compare id.,

with 18 Pa.C.S. § 1102.1(d)(7)(v).                   The resentencing court further

deliberated upon “[t]he proffered institutional reports largely from the

Pennsylvania Department of Corrections present[ing] circumstances both

favorable to the prosecution and defense.”                      N.T., 6/13/2018, at 12.

Compare id., with 18 Pa.C.S. § 1102.1(d)(7)(vi). Finally, the resentencing

court     reflected   upon    Appellant’s     history   of      “gang   involvement”    and

“substance abuse[,]” as well as his family and home environment.                       N.T.,

6/13/2018, at 10-11.         Compare id., with 18 Pa.C.S. § 1102.1(d)(7)(vii)

(“Other relevant factors”).       Thus, since the resentencing court considered

and made findings on the record about the Miller and Section 1102.1(d)

factors, Appellant’s sentence did not violate the requirements of Batts II,

Miller, and Montgomery, and Appellant’s third appellate challenge is

meritless. See Appellant’s Brief at 18-20.

        Appellant next insists that the resentencing court “imposed an

unconstitutional de facto [LWOP] sentence.” Appellant’s Brief at 20.

        Appellant is correct that, pursuant to Miller and Montgomery, “a trial

court may not impose a term-of-years sentence on a juvenile convicted of


                                            - 17 -
J-S42041-19


homicide if that term-of-years sentence equates to a de facto [LWOP]

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

incapable of rehabilitation.” Lekka, 210 A.3d at 357 (citation and internal

brackets omitted).        In Lekka, we phrased the question of whether a

sentence constitutes a de facto LWOP sentence as whether a defendant has

a “meaningful chance of survival until he completes his . . . minimum

sentence to enjoy his time at liberty at parole, should he be granted

release.” Id. at 358.14

       An analogous claim of a de facto LWOP sentence was raised by the

appellant in Commonwealth v. Foust, 180 A.3d 416, 420, 441 (Pa. Super.

2018), wherein an appellant who was incarcerated at age 17 was sentenced

to a minimum of 60 years of confinement and would not be paroled until he

was 77 years old.       This Court concluded that this sentence was not a de

facto LWOP sentence, because “[a]lthough he may not live this long, he has

a chance of being released into society.” Id. at 441.

       When considering what would constitute a de facto LWOP sentence,

this Court wrote in Foust:           “There are certain term-of-years sentences


____________________________________________


14 In Lekka, 210 A.3d at 346-47, the appellant was 17 years old when he
committed murder of the first degree, as was Appellant. The appellant in
Lekka “argue[d] that his sentence of 45 years to life imprisonment, with
credit for time served from the date he originally entered the correctional
system, constitutes a de facto [LWOP] sentence.” Id. at 357. This Court
disagreed.



                                          - 18 -
J-S42041-19


which clearly constitute de facto LWOP sentences. For example, a 150–year

sentence is a de facto LWOP sentence.” Id. at 438.

     [T]hough it expressly declined to do so, the Foust Court seemed
     to suggest some sort of meaningful-opportunity-for-release
     standard by declaring that a 150–years–to–life sentence
     constitutes a de facto LWOP sentence. . . . There simply is no
     comparison between the opportunity to be paroled at 60 years of
     age and 100+ years of age. The difference is, quite literally, a
     lifetime.

Commonwealth v. White, 193 A.3d 977, 986 (Pa. Super. 2018) (citation

omitted), appeal denied, No. 304 WAL 2018, 2019 WL 2498272 (Pa. June

17, 2019). To wit, a sentence where no one has any possibility of living long

enough to complete the sentence is a de facto LWOP sentence.

     Appellant, who like the appellant in Foust, 180 A.3d at 420, 441, has

been incarcerated since he was 17 years old, will serve an aggregate

minimum of 58 years across his three actions, and, if he is paroled at that

time, he will be 75 years old. Both Appellant’s total time in confinement and

his age at the time of his release are less than the corresponding numbers of

the appellant in Foust – i.e., 58 years < 60 years; 75 years < 77 years. As

this Court did not find the sentence in Foust to be a de facto LWOP

sentence, we similarly conclude that Appellant’s lesser sentence cannot be

considered a de facto LWOP sentence. Id. at 441.

     Although there can be no assurance that Appellant will live to be 75

years old, it is still feasible that he may, unlike Foust’s hypothetical of a

150-year sentence.     Id. at 438.      Appellant thus has a meaningful



                                   - 19 -
J-S42041-19


opportunity for release, White, 193 A.3d at 986, and “meaningful chance of

survival until he completes his . . . minimum sentence to enjoy his time at

liberty at parole, should he be granted release.” Lekka, 210 A.3d at 358.

Hence,    Appellant’s    claim    that   his   term-of-years   minimum   sentences

constitute a de facto LWOP sentence is without merit.

       Appellant’s final appellate issue asserts that the resentencing court

was biased, because a deputy sheriff working in the courtroom during the

proceedings was a former chief of police of Glenolden Borough, just as the

victim had been. We find this claim to be waived, because Appellant failed

to raise this claim before the resentencing court.              See Pa.R.A.P. 302

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).15

       Based on the foregoing, Appellant is not entitled to relief. We affirm

the judgment of sentence imposed at his resentencing on June 13, 2018.

       Judgment of sentence affirmed.

____________________________________________


15 To the extent that Appellant alleges that this claim was raised in an
attachment to his “Motion for Modification of the Record” filed on August 16,
2018, no such attachment appears in the certified record.             “Ultimate
responsibility for a complete record rests with the party raising an issue that
requires appellate court access to record materials” – in this case, Appellant.
Note to Pa.R.A.P. 1921.

Assuming it were in the record, Appellant filed this motion more than 10
days after his resentencing, and it was thereby untimely. See Pa.R.Crim.P.
720(A)(1) (“a written post-sentence motion shall be filed no later than 10
days after imposition of sentence”).



                                          - 20 -
J-S42041-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/19




                          - 21 -
