J-S43045-14



                                  2014 PA Super 252



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

IAN THOMAS SEAGRAVES,

                            Appellant                 No. 2758 EDA 2013


    Appeal from the Judgment of Sentence entered September 20, 2013,
              in the Court of Common Pleas of Monroe County,
            Criminal Division, at No(s): CP-45-CR-0000298-2009


BEFORE: GANTMAN, P.J, ALLEN and FITZGERALD,* JJ.

OPINION BY ALLEN, J.:                            FILED NOVEMBER 06, 2014

       In this appeal, we address a challenge to the discretionary aspects of a

sentence imposed following a re-sentencing hearing in accordance with

Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed. 407 (2012),

and the Pennsylvania Supreme Court’s decision in Commonwealth v.

Batts, 66 A.3d 286 (Pa. 2013).1 We affirm.

____________________________________________


1
  Appellant filed his appeal from the order denying his post-sentence motion.
In a criminal case, “when timely post-sentence motions are filed, an appeal
properly lies from the judgment of sentence made final by the denial of the
post-sentence motions.” Commonwealth v. Bradley, 69 A.2d 253, 254
(Pa. Super. 2013).


*Former Justice specially assigned to the Superior Court.
J-S43045-14



     Ian Thomas Seagraves (“Appellant”), then seventeen, and his adult

co-defendant, Shawn Nicholas Freemore (“Freemore”), then nineteen,

planned to lure the victim to an obscure location under a bridge. Although

the victim believed he was meeting Freemore for a sexual encounter,

according to Freemore, “The plan was to meet him. Scare him. Kill him.”

See N.T., 9/16/11, at 79.       As planned, once the victim was present,

Appellant jumped the victim, stabbing him in his throat.   While the victim

ran and pled for mercy, Appellant and Freemore caught up to him and forced

him into the woods.       Appellant and Freemore then stabbed the victim

approximately forty-five times, and slashed him with a meat cleaver. They

then attempted to hide the victim’s body under the snow. After leaving the

scene, Freemore returned and rifled through the victim’s pockets, taking the

victim’s car keys, as well as a digital recorder on which the victim had

recorded choir music he performed for a local church.

     After the victim was reported missing, the local authorities found his

car, and their investigation led them to Freemore. At first Freemore denied

recently meeting with the victim.    He then informed them he killed the

victim and acted alone.    In his final version of events, Freemore told the

authorities that he planned and committed the murder with Appellant, and

that Appellant still possessed a DVD that he and Freemore had taken from

the victim’s car.   Following a search of Appellant’s home, the police

recovered the stolen DVD.      Authorities ultimately charged Appellant and

Freemore with criminal homicide and related crimes.

                                    -2-
J-S43045-14



       A joint jury trial began on September 13, 2011.         As part of the

evidence, the Commonwealth introduced notebooks and digital recordings

made by each defendant.           The Commonwealth first introduced notebooks

found in Freemore’s car in which each defendant “set his crime to verse.”

N.T., 9/13/11, at 38. The two later used the victim’s digital recorder to set

their words to music, and sing them as a rap song.2        The Commonwealth


____________________________________________


2
  A Pennsylvania State trooper read the following “lyrics” of Appellant’s rap
song at the resentencing hearing:

              It was cold, but I wasn’t alone trippin, waiting for the
          kid to commence with throat rippin. My heart skipping as
          I’m waiting under the dark bridge, my friend luring him
          down here, we gonna kill this kid. When they come under,
          I was sitting in the dark cover. He sat next to me, and I
          went and stabbed this mothafucka. Right into his neck,
          and I stabbed him in the head. He choked, but started
          running. His bitch ass wasn’t dead. My homie chased him
          down the street and ran towards the light, but nobody saw
          him. It was in the middle of the night. His fright was
          showing. The mothafucka started pleading. He was all
          light-headed because his throat was all bleeding. I’m
          seeing so much blood as we led him into the woods. We
          were killing some faggot in my own neighborhood. He
          wanted to fuck my friend, but instead we fucked him. I
          stuck him in the fuckin throat, so that said something.
          From all the running my lungs were starting to hurt. We
          stabbed him again, and we watched the blood squirt.
          Through his shirt, and I stabbed him in the face. He was
          still alive but dying at good pace. He was begging and
          begging. Please, man, let me go. I’ll never say nothing,
          and nobody will ever know. But Skippy said no, and so I
          left the blade in his neck, destroyed his radio, and the
          fucka had no respect. Trippin him out at something at first
          thought, scaring his dying ass with some reverse talk. I
(Footnote Continued Next Page)


                                           -3-
J-S43045-14



played these recordings for the jury. Finally, the Commonwealth introduced

evidence to demonstrate that, following the murder, Appellant changed his

name on a social media site to “Throwt Stabba.”

        On September 21, 2011, the jury convicted Appellant and Freemore of

first-degree   murder,       conspiracy,    and   tampering   with   evidence.   On

December 12, 2011, the trial court sentenced Appellant to the mandatory

term of life without the possibility of parole for his murder conviction, and a

consecutive term of eight and one-half to twenty years of incarceration for

the remaining convictions.3

        Following the denial of his post-sentence motions, Appellant filed a

timely appeal to this Court. In an unpublished memorandum filed on July

16, 2013, this Court, although rejecting Appellant’s substantive claims,

vacated Appellant’s mandatory life imprisonment sentence and remanded for

resentencing in accordance with the Miller and Batts decisions.

        On remand, the trial court appointed new counsel for Appellant, and

conducted a re-sentencing hearing on September 20, 2013.                     At the

conclusion of this hearing, the trial court re-imposed a sentence of life

                       _______________________
(Footnote Continued)

          was kicking him in the skull to make sure he was gone,
          stabbed him in the side and spine and in his throng [sic].

N.T., 9/20/13, at 20-21.

3
    The trial court imposed the same sentence upon Freemore.




                                            -4-
J-S43045-14



imprisonment without the possibility of parole for the murder conviction, and

the same consecutive term for the remaining convictions.             This appeal

followed.    Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        Appellant raises the following issue on appeal:

           I. Whether the [trial] court abused its discretion when it
              sentenced Appellant, who was a juvenile at the time of
              the crime, to life without parole without properly taking
              into consideration mitigating factors listed in Miller v.
              Alabama.

Appellant’s Brief at 6.

        As noted above, Appellant challenges the discretionary aspects of his

sentence. This Court has summarized:

          Appellant challenges the discretionary aspects of sentencing
          for which there is no automatic right to appeal. This appeal
          is, therefore, more appropriately considered a petition for
          allowance of appeal. Two requirements must be met before
          a challenge to the judgment of sentence will be heard on
          the merits. First, the appellant must set forth in his [or her]
          brief a concise statement of matters relied upon for
          allowance of appeal with respect to the discretionary
          aspects of his [or her] sentence.         Pa.R.A.P. 2119(f).
          Second, he or she must show that there is a substantial
          question that the sentence imposed is not appropriate under
          the Sentencing Code. 42 Pa.C.S.A. § 9781(b)[.]

              The determination of whether a particular case raises a
          substantial question is to be evaluated on a case-by-case
          basis. Generally, however, in order to establish that there
          is a substantial question, the appellant must show actions
          by the sentencing court inconsistent with the Sentencing
          Code or contrary to the fundamental norms underlying the
          sentencing process.



                                       -5-
J-S43045-14


Commonwealth v. Marts, 889 A.2d 608, 611-12 (Pa. Super. 2005)

(footnote and citations omitted).

       Appellant’s Pa.R.A.P. 2119(f) statement reads, in pertinent part, as

follows:

           In the instant case, the [trial] court abused its discretion
           by re-sentencing Appellant without properly considering
           mitigating factors due to Appellant’s status as a juvenile at
           the time of the commission of the offense. The U.S.
           Supreme Court outlined a number of factors that a
           sentencing court must consider prior to imposing a life
           sentence without the possibility of parole on a juvenile.
           The [trial] court improperly relied solely on factors derived
           from a decertification hearing, rather than conducting a
           searching inquiry into the factors it had to consider. As a
           result, the sentence imposed constituted a manifest abuse
           of discretion.

Appellant’s Brief at 11.

       As recognized by this Court in Commonwealth v. Dodge, 77 A.3d

1263 (Pa. Super. 2013), prior decisions from this Court involving whether a

substantial question has been raised by claims that the sentencing court

“failed to consider” or “failed to adequately consider” sentencing factors “has

been less than a model of clarity and consistency.” Dodge, 77 A.3d at 1272

n.8.   Nevertheless, we hold that Appellant’s claim that the trial court

improperly relied on factors derived from a prior decertification hearing,

when resentencing in accordance with the Miller and Batts decisions, raises

a substantial question. We will therefore proceed to address the merits of

Appellant’s claim.




                                       -6-
J-S43045-14



      “In reviewing a challenge to the discretionary aspects of sentencing,

we evaluate the court’s decision under an abuse of discretion standard.”

Dodge, 77 A.3d at 1274. When, as here, the trial court has the benefit of a

pre-sentence report, we presume that the court was aware of relevant

information   regarding   the   defendant’s   character   and   weighed   those

considerations along with any mitigating factors.         Commonwealth v.

Griffin, 65 A.3d 932, 937 (Pa. Super. 2013).

      In support of his claim on appeal, Appellant asserts that, while the trial

court “indicated that it had considered mitigating factors prior to re-imposing

[a life sentence without possibility of parole] on Appellant, . . . the factors

the court said it considered all came from the decertification hearing held

earlier in this matter.” Appellant’s Brief at 10. According to Appellant, the

trial court’s “relying solely on the factors derived from the decertification

hearing falls short of the mandate outlined in Miller v. Alabama, [supra],

and thus violates Appellant’s constitutional right to be free from cruel and

unusual punishment.” Id. Our review of the resentencing transcript refutes

Appellant’s claim.

      At the beginning of the re-sentencing hearing, the trial court

recognized that it had to consider more than just evidence from the

decertification hearing. The following exchange occurred between the trial

court and defense counsel:

           THE COURT: Well, we have two things. One of them
         was a decertification - -


                                     -7-
J-S43045-14


          [DEFENSE COUNSEL]: Right.

          THE COURT: - - hearing that was held before Judge
       Vican together with his findings that he made at that time,
       and that touches upon a lot of the same areas that you
       would look at under the new standard and under what [our
       Supreme Court] told us to look at essentially in Batts.

          [DEFENSE COUNSEL]: Yes.

           THE COURT: And so I’ve reviewed that. But I would
       like from your point of view rather than - - since this is a
       resentencing, I would like to hear from your point of view
       whether you have any testimony, any additional
       information for me that touches upon those very specific
       areas.

          [DEFENSE COUNSEL]: No, your Honor. All I have is
       the arguments that were given in the past. I don’t think
       anything else has changed. We discussed possibly having
       another evaluation done, but I’m not sure if that would be
       relevant at this point because things haven’t changed that
       much since the last time [Appellant] was sentenced.

          I do believe that you should take into consideration all
       of the things that were brought up at that hearing.
       Whether it was remanded to juvenile court or not, the
       issues that were presented at that hearing are still
       relevant, and I think you should take those into
       consideration for sentencing.

           I should point out that Miller also talks about the ability
       to deal with outside pressures, and I think that [Freemore]
       in this matter should be taken into consideration as well as
       his maturity and whether he led [Appellant] to do these
       sort of situations. [sic] And I think you should take into
       consideration the environment and the lack - - the ability
       of [Appellant] to get himself out of that sort of situation.

          There are other issues involved, or course. We’ll deal
       with those as the appeal process continues. Right now the
       main issue is whether [Appellant] is going to be the same
       50 years from now when we’re long gone and the world is
       much, much different. And I think that’s one of the
       reasons that the Supreme Court made that decision as
       well.

                                    -8-
J-S43045-14


           You know, someone who was sentenced in 1960 who is
         now in his 70s and still sitting in jail is not necessarily the
         same person he was when he was 17, and 50 years from
         now who knows what [Appellant] is going to be like.

             All we’re asking is for the possibility of parole. A future
         parole board might deny it, but then they might have
         much more information at their hand [sic]. I think that’s
         why Miller is such an important case because by then they
         will have the background information of how [Appellant’s]
         life has progressed in the next who knows how many years
         before they look at that.

            To block that off at this stage is to prevent future courts
         and future judges from looking at this with an eye on how
         [Appellant’s] life has changed, and I think that’s important,
         and I think that’s why Miller is such an important case.
         And I’m asking you to do that more than anything else, to
         leave the option open for the future.

            [Appellant] may never get parole. He may constantly
         spend the rest of his life in jail, and they may deny it over
         and over again. But to close that door on him I think is
         against what the constitution stands for based on what
         Miller said.

            And that’s pretty much my main argument. I’m just
         saying let’s leave the door open, Judge. This is a horrible
         incident. I’m not going to deny that. And the district
         attorney and all the witnesses are going to try to make it
         sound absolutely terrible, and I’m not going to deny it’s
         absolutely terrible.

             But he was a juvenile at the time. The standards are
         different, and I am asking you to look at [Appellant’s]
         background based on what’s already in the file, what’s
         already in the record, and use that to decide to keep the
         door open for him sometime in the future just in case.

N.T., 9/20/13, 4-8.

      Defense counsel then asked Appellant if he would like to address the

trial court, and Appellant did so:



                                      -9-
J-S43045-14


               [APPELLANT]: I mean, you can believe what you want.
            But the years that I’ve been in prison, even since juvenile
            since being a juvenile, you know, I’ve been through a lot
            of things in my life. You know, I’ve always had kind of the
            same thought process, but I’ve learned a lot of things.

               You know, I got my GED upstate. You know what I’m
            saying?   I had basically a lot of downtime to really
            evaluate my life and think it over a lot of, you know, bonds
            I made with people I probably shouldn’t have.

               And, you know, I pretty much guarantee that if I would
            be released right now I would never be in a situation like
            this, which I know is never going to happen. But, you
            know, it’s just for you to decide.

Id. at 8.

      Next, the trial court heard from several of the victim’s family

members.       The Commonwealth then presented its argument to the trial

court:

               Miller v. Alabama, as summarized in [the] Batts
            decision clearly indicates that you have the authority to
            sentence [Appellant] to life without parole. It says clearly
            in the Batts decision, “Miller neither barred imposition of
            a life-without-parole sentence on a juvenile categorically
            nor indicated that a life sentence with[out] the possibility
            of parole could never be . . . imposed on a juvenile.”
            “Rather, Miller requires only that there be judicial
            consideration of the appropriate age-related factors set
            forth in that decision prior to the imposition of sentence.”

                And then in Batts there’s actually 14 separate factors
            that are laid out. The [d]efendant’s age [at the time he or
            she committed the crime] is the first one. [In Miller and
            its companion case], you’re talking about kids on the lower
            end. You’re talking 14-year-olds, that sort of thing.

               [Appellant] was 17 years and some odd months with a
            birth date of January 22nd, 1992, so he was 17 years plus I
            think two or three months, if I remember correctly. His


                                       - 10 -
J-S43045-14


       co-Defendant had just turned 19, so they were close in
       age, [Freemore], so they were close in age.

          So when you look at those cases that talk about how
       children are different and all that, the focus on those - -
       what made those cases maybe more compelling factually
       was the younger age [of the defendant]. And then you got
       to look at the involvement of those juveniles. Many of
       them were more like murders in the second degree, felony
       murders that went awry, so there was a mandatory life
       sentence for that.

          [Appellant’s] conduct was totally out of the ballpark in
       terms of active participation, which is another factor that
       we’ll get to, so I don’t believe the age should be a factor
       that would militate in [Appellant’s case] of any kind of
       parole at 17 plus years.

          The capacity for change, this is time to establish that.
       This is the time - - that’s another factor in Batts, in
       Miller.    What’s [Appellant’s] capacity for change?      I
       haven’t heard any evidence that he had demonstrated a
       capacity for change.

          In fact, the argument of the Commonwealth would be
       [to] warehouse [Appellant] as long as you can because
       you’re going to [save] lives along the way by doing that as
       opposed to letting him see the light of day again, and we’ll
       get to that.

          The circumstances of his crime, the extent of his
       participation, and whether he was the subject of any peer
       pressure are all kind of related to the facts of the case.

          The facts of the case were summarized by Judge Vican
       when he did the original sentence on December 12th, 2011.
       On page 9 of that transcript, he said, “The horrendousness
       of this, the lack of compassion, the lack of human
       sympathy for another person I think is justified in allowing
       the [sentencing] recommendation to be imposed as it is
       given. We will issue the following Order.” It was a life
       plus sentence.

          He was struck, [Judge Vican] was, as the jury was, as
       anyone who has looked at the facts of this case was, by
       the fact that there was such a long period of planning that

                                  - 11 -
J-S43045-14


          went into this. This wasn’t a conglomeration of factors
          that brought [the victim] in his circle, in [Appellant’s]
          circle, and then something went awry, and it resulted in
          the death of [the victim].

              This was the plan, the plan that [Freemore] told
          Trooper Sebastianelli and Trooper Vanlouvender was to go
          ahead and get [the victim], scare him and kill him. I
          mean, that was part of it, and they wanted to do that.
          They were equal partners, and they wanted to write about
          it, and they wanted to sing a song to it.

N.T., 9/20/13, at 12-15.

        The Commonwealth then recounted the facts surrounding Appellant’s

and Freemore’s plan, and its execution, ultimately resulting in the victim’s

death.     Next, the Commonwealth referenced how, after the murder,

Appellant “composes a song commemorating what he did, his role in it[,]”

and how the “Commonwealth used each line of [Appellant’s] song and

[Freemore’s] song to match it up with the physical evidence at the scene. It

was flawless.” Id. at 17. A Pennsylvania state trooper then read the “lyrics”

of Appellant’s rap song into the record,4 and the recording was played for

the trial court.

        The Commonwealth concluded its argument as follows:

             But I think the Court has received the clear intent of
          [Appellant], his level of participation, the fact that he
          wasn’t subject to peer pressure. This was something that
          he strived for, and he accomplished his designs.


____________________________________________


4
    See n.2, supra.




                                          - 12 -
J-S43045-14


            And in light of the fact that there’s a paucity of any of
         the other factors such as capacity for change and his
         amenability for rehabilitation, I haven’t heard any of that
         established today. This was the chance for the Court to
         consider such things if they, in fact, happened.

            In fact, [Appellant’s] own statements [at sentencing]
         were all about him and not a shred of remorse expressed
         for what he did to [the victim], so to talk about change. I
         ask that you impose the sentence you can, which is life
         without the possibility of parole, and those other ancillary
         charges should also run consecutive. Thank you.

N.T., 9/20/13, at 22.

      In response, defense counsel stated:

            [DEFENSE COUNSEL]:         Only that to address the
         capacity for change, Your Honor, [Appellant] has talked
         about how he has done at the jail. He hasn’t had any
         problems at this time. He’s still young. There’s a lot of
         room for capacity for change, and to ask that we speculate
         over what might happen over the next 30, 40, 50 years is
         asking for a bit too much.

            He has not had any problems since his time in jail, and
         he talked about how he got his GED. He’s working to
         make his life better. Those to me show some signs of
         capacity to change. We won’t know for certain for a long
         time which is why I’m asking that you do not close the
         door.

Id., at 23.

      After considering the arguments of counsel, the trial court stated the

following:

            THE COURT: This is probably one of the most - - well,
         we have a lot of troubling cases. But whenever you have
         someone who is a juvenile who commits this kind of an
         offense, it becomes even more troubling because you have
         to look and think what the heck happened during those
         formative years that caused this to happen.

                                    - 13 -
J-S43045-14


           And I think that’s why we have decertification
       proceedings in part because it gives the Court and the
       [defendant] and the prosecution an opportunity to look at
       all those factors.

          And I looked through what had been heard by Judge
       Vican, and I thought it was interesting. I looked at an
       independent psychiatric evaluation that was done and
       admitted back then, and it struck me when I was looking
       at the Batts factors that the summary in the conclusions
       of this evaluation found [Appellant] to be relatively mature
       for someone his age and intelligent. It found him to not
       have a diminished mental capacity at the time of the
       evaluation. It found him to have a moderate degree of
       sophistication. It found that he would not be rehabilitable
       - - that’s a difficult word to say - - rehabilitable in a
       juvenile court jurisdiction at that point. And all of those
       are part and parcel of what I believe Batts wants you to
       look at when you are making these decisions under the
       Miller case.

           It’s clear from - - to me at least from a review of the
       file, and I had not seen the autopsy report, but I looked at
       it and saw actually the force of each of these wounds and
       what they would require and how it essentially pierced
       various organs of the [victim]. And I can only begin to
       imagine the horrific experience that [the victim] had on
       that evening and as illustrated in that song, the fear that
       he must have been feeling and the distress. It’s a crime
       that shows no compassion for life, none whatsoever, just a
       coldness and a calculation that is just beyond what you
       usually see.

          I do not believe, [Appellant], that you fall into these
       categories that I’m looking at under the Miller and Batts
       decisions that I need to consider and have considered by
       reviewing this file and listening to what was said today,
       that your age at the time of the commission of this
       horrible, horrible murder was almost adulthood. You were
       very close.

          And I agree with [the Commonwealth] because I looked
       at that, and I wondered what are the ages of these people
       in the other cases, and they were at the other end of the
       juvenile spectrum, not at the [sic] close to [the] adult end.


                                  - 14 -
J-S43045-14


            When I look at some of the other factors they talk
         about, emotional maturity and development, peer
         pressure, you know, ability to deal with police, capacity to
         assist attorney, by the evaluation, you’re very intelligent
         and more mature than your age level would have
         indicated. I see no reason based on all of these factors to
         sentence you to anything other than what you were
         sentenced to by Judge Vican.

             And although at this point in time I have the option of
         life with parole or life without parole, in my estimation, and
         after reviewing all of these factors and in addition the
         aggravating circumstance that was provided for in the PSI
         that at the time of this you were actually on juvenile
         probation when these offenses were committed, I see no
         reason to sentence you to anything other than life without
         the possibility of parole.

N.T., 9/20/13, at 23-26.

      The above comments at sentencing unequivocally establish that the

trial court did not base its decision to re-impose a life without the possibility

of parole sentence solely on information culled from the prior decertification

proceeding.   Moreover, the trial court gave Appellant the opportunity to

present any additional information regarding his “capacity to change,” his

amenability to treatment, and/or his potential for rehabilitation. Other than

informing the trial court that he obtained his GED, Appellant failed to do so.

Finally, because the trial court had the benefit of a presentence report, we

presume that the court was aware of relevant information regarding the

defendant’s character and weighed those considerations along with any

mitigating factors. Commonwealth v. Griffin, supra.

      Citing the pre-sentence report it possessed at resentencing, the trial

court further explained its reasoning in its Pa.R.A.P. 1925(a) opinion:

                                     - 15 -
J-S43045-14


          Because Appellant was seventeen [when he murdered
       the victim], we find that the “penological justifications for
       imposing the harshest sentences on juvenile offenders”
       [Miller, 132 S.Ct. at 2465,] were not as diminished in the
       case at bar as they are in cases where the minor
       defendant is younger.

           Relatedly, we consider Appellant’s prior criminal history
       as it relates to his potential for rehabilitation. Appellant
       has a lengthy juvenile record. His involvement in the
       juvenile system dates back to a residential structure fire
       occurring on July 12, 2005. On March 23, 2006, Appellant
       admitted guilt to one count of burglary and one count of
       arson in connection with this incident, both of which would
       have been graded as felonies of the second degree if
       Appellant were an adult at the time of their commission.
       One month prior, in February of 2006, Appellant admitted
       to possessing drug paraphernalia on school property in
       August of 2005, which would have been an ungraded
       misdemeanor if Appellant had been an adult.                In
       connection with these infractions, Appellant was placed at
       the Abraxas Youth Center, a residential treatment facility.
       Prior to this placement, Appellant had accumulated forty[-]
       five disciplinary infractions during the 2004-2005 school
       year.      After his placement, Appellant violated the
       conditions of a subsequent term of probation by returning
       positive urine screens on three tests and receiving a
       citation for disorderly conduct. At the time of the murder
       of [the victim], Appellant was facing prosecution for
       providing false urine, a charge which was dropped in light
       of the latter, more serious charges brought against
       Appellant in the case at bar. Based on Appellant’s status
       as a repeat juvenile offender, we find he possesses a
       limited, if any, capacity for change.

          The brutal circumstances of [the victim’s] death, the
       extent of Appellant’s participation therein, and the
       apparent lack of familial or peer pressure to participate
       also inform our Judgment of Sentence. The case against
       Appellant contained overwhelming evidence of planning
       and lying in wait for the victim. The victim died as a result
       of a willful, premeditated plan devised by Appellant and
       [Freemore]. As articulated by Freemore to Trooper Craig
       VanLouvender, the plan, in its entirety, was “to meet him,
       scare him, kill him.” This plan was brutally executed to the

                                  - 16 -
J-S43045-14


       point that the victim was savagely tortured to death by the
       two men.        And although both men participated in
       delivering the numerous and fatal knife wounds, Appellant
       was the individual who laid in wait for the victim and
       delivered the initial blow, stabbing the victim in his throat.
       In Miller, Justice Breyer authored a concurrence, opining
       that the only juveniles who may constitutionally be
       sentence[d] to life without parole are those convicted of
       homicide offenses who kill or intend to kill, differentiating
       such offenders from those who were convicted of murder
       as a result of participation in a felony. In the case at bar,
       there is no indication that Appellant was anything other
       than a knowing and willing participant in the senseless,
       premeditated and horrendous slaughter of [the victim].
       Accordingly, we find further support in ordering Appellant
       to serve a sentence of life imprisonment without the
       possibility of parole.

           Additionally, there is no indication that Appellant’s
       family, home or neighborhood life was so dysfunctional as
       to create an environment out of which Appellant could not
       extricate himself.     Although Appellant’s attorneys [sic]
       have made several allusions to Appellant’s less than ideal
       upbringing, no demonstrative facts were ever placed on
       the record. Further, these generalized assertions were
       largely negated by Appellant’s own statement in his [pre-
       sentence] report regarding his home life. “When asked to
       describe his childhood, [Appellant] responded ‘It definitely
       wasn’t bad,’ adding that ‘My parents went through their
       trials and tribulations but they got through it.” [Appellant]
       denied suffering any instances of abuse and indicated that
       all of his material and emotional needs were fulfilled.

          Relatedly, there is no evidence demonstrating that
       Appellant had any past exposure to violence, other than to
       the Jugalo subculture in which he voluntarily immersed
       himself. Appellant and Freemore were both self-described
       Jugalos.    At trial, Appellant described a Jugalo as an
       individual who is a fan of Psychopathic Records, a horror
       core or horror rap music label where the lyrics are based
       on murder, violence and sex. In connection with his
       identity as a Jugalo, Appellant would hang out with other
       Jugalos, listen to this music, emulate the music through
       writings of his own, and carry a butcher’s knife around in
       his back pocket. Due to the voluntary nature of these

                                   - 17 -
J-S43045-14


       activities, we do not find Appellant’s past exposure to
       violence to be a mitigating factor.

          Finally, there is no indication that Appellant was unable
       to deal with police or assist his attorneys. Under Miller, a
       sentencing court must consider these factors in order to
       determine whether Appellant “might have been charged
       and convicted of a lesser offense if not for incompetencies
       associated with youth . . .”        At trial, Trooper James
       Wheeler testified regarding the initial police interview of
       Appellant.     According to Trooper Wheeler, Appellant
       seemed calm, friendly and interested in speaking with the
       police. Trooper Wheeler assured that both Appellant and
       Appellant’s mother understood Appellant’s rights in
       speaking with him.        As a further assurance, Trooper
       Wheeler allowed Appellant to consult privately with his
       mother before he endeavored to question Appellant about
       [the victim].    At some point, the line of questioning
       became “a little more in depth than first originally
       intended” and Appellant and his mother indicated their
       desire to terminate the interview.        Based on Trooper
       Wheeler’s testimony regarding this exchange, and the lack
       of any other evidence demonstrating that Appellant’s youth
       may have rendered him vulnerable to the police or
       prosecutors or incapable of assisting his attorneys, we do
       not find these factors present mitigating circumstances.

           Not all of the Batts factors militate in favor of imposing
       a sentence [of] life without the possibility of parole. Under
       Miller this Court must “consider mitigating circumstances
       before imposing the harshest penalty.” Appellant’s mental
       health and drug and alcohol history are such
       circumstances. As to his mental health history, Appellant
       [claims to have been] diagnosed bipolar and at the time of
       trial was prescribed Seroquel and lithium in connection
       with this condition. Appellant is additionally diagnosed
       with Attention Deficit Hyperactivity Disorder and has been
       prescribed amphetamines since he was four years old. At
       trial, Appellant testified to crushing and snorting the
       amphetamines as opposed to ingesting the medicine
       according to the prescribed manner. The other illegal drug
       activity to which Appellant testified included the daily
       smoking of marijuana and the near daily use of
       hallucinogenic drugs such as lysergic acid diethylamide,
       psilocybin mushrooms, and dextromethorphan, an active

                                   - 18 -
J-S43045-14


        ingredient in cough suppressants.       Appellant’s mother
        testified to her concern over Appellant’s drug use. Due to
        this concern, Appellant’s mother enrolled Appellant in an
        impatient drug treatment program at the Lehigh Hospital
        in January of 2009. Upon discharge from this program,
        Appellant resumed his drug use. Although this Court is
        sympathetic to Appellant’s unfortunate history, it does
        very little in the way of persuading us to impose a
        sentence anything other than life without the possibility of
        parole. These mitigating circumstances do not outweigh
        the other Batts factors analyzed above.

           Because this Court gave adequate consideration to the
        relevant factors listed in Miller and thereafter in Batts, we
        disagree with Appellant’s contention that we abused our
        discretion in sentencing him to life without the possibility
        of parole.

Trial Court Opinion, 11/27/13, at 4-8 (footnotes and citations omitted).

After carefully reviewing the record, we concur with the trial court’s

assessment of Appellant’s claim on appeal.

     Neither the decision in Miller nor Batts categorically prohibits the re-

imposition of a life without the possibility of parole sentence. In Batts, our

Supreme Court explained:

        [The United States Supreme Court in Miller] did not
        entirely foreclose the imposition of a life-without-parole
        sentence on a juvenile offender; rather the majority stated
        the occasion for such a punishment would be “uncommon,”
        and, in any event, must first “take into account how
        children are different, and how those differences counsel
        against irrevocably sentencing them to a lifetime in
        prison.” [Miller], at ___, 132 S.Ct. 2469.

                                    ***

        Thus, the majority explained that its decision “mandates
        only that a sentence follow a certain process-considering
        an offender’s youth and attended characteristics–before


                                    - 19 -
J-S43045-14


          imposing a particular penalty. [Miller], at ___. 132 S.Ct.
          at 247.

              Justice Breyer, joined by Justice Sotomayor, filed a
          joining concurrence, opining that “[t]he only juveniles who
          may constitutionally be sentenced to life without parole are
          those convicted of homicide offenses who kill or intend to
          kill,” differentiating such offenders from those who were
          convicted of murder as a result of participation in a felony.
          Id. at ___, 132 S.Ct. at 2476.

Batts, 66 A.3d at 291 (footnote omitted).5

       Finally, when considering “appropriate age-related factors” upon re-

sentencing, our Supreme Court quoted with approval our discussion of

Miller in Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012):

          [A]t a minimum [the trial court] 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, 66 A.3d at 297.



____________________________________________


5
   Our Supreme Court further noted that a newly enacted statute, 18
Pa.C.S.A. section 1102.1, “applies only to minors convicted of murder on or
after the date Miller was issued (June 25, 2012).” Batts, 66 A.3d at 293.
Because Appellant was convicted of murder in 2011, the new statute is
inapplicable.




                                          - 20 -
J-S43045-14



      Because our review of the record readily reveals that the trial court

considered these factors before re-imposing the sentence, we affirm

Appellant’s life sentence without the possibility of parole.

      Judgment of sentence affirmed.

      President Judge Gantman joins the opinion.

      Justice Fitzgerald files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




                                     - 21 -
