J-A10039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL EDWARD SMITH                        :
                                               :
                       Appellant               :   No. 3599 EDA 2016

            Appeal from the Judgment of Sentence October 31, 2016
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002130-1996


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                 FILED JUNE 27, 2018

        Appellant, Samuel E. Smith, appeals from the judgment of sentence of

life imprisonment without parole, imposed October 31, 2016, following a grant

of Appellant’s Post-Conviction Relief Act (PCRA) petition for resentencing

pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012), Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), and Commonwealth v. Batts, 66 A.3d

286 (Pa. 2013) (Batts I). We affirm.

        The procedural history and relevant facts are as follows:

        On October 10, 1996, Appellant pleaded guilty to first-degree murder,

robbery, and conspiracy.1 Appellant was sentenced to a mandatory term of

life imprisonment without the possibility of parole and an aggregate,

concurrent sentence of ten to twenty years of imprisonment on the remaining

____________________________________________


1   18 Pa. §§ 2502(a), 3701(a)(1)(i), and 903, respectively.


*    Retired Senior Judge assigned to the Superior Court.
J-A10039-18



charges.   Appellant was sixteen at the time he committed the murder.

Appellant did not file a direct appeal.

      During his incarceration, Appellant filed multiple, unsuccessful petitions

for writ of habeas corpus and PCRA relief.       However, on July 27, 2012,

Appellant pro se filed a PCRA petition alleging that he was entitled to relief

pursuant to the United States Supreme Court’s decision in Miller, where the

Court held that “mandatory life without parole for those under the age of 18

at the time of their crime violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishment.’” Miller, 132 S. Ct. at 2460. Appellant’s petition

was stayed pending the disposition of cases pending before the Pennsylvania

Supreme Court.      While Appellant’s case was on hold, the United States

Supreme    Court    decided   Montgomery,       holding   that   Miller   applied

retroactively. Montgomery, 136 S. Ct. at 736; see also Commonwealth

v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016) (recognizing “the Miller rule

of law … to be retroactive for purposes of collateral review as of the date of

the Miller decision on June 25, 2012.”).        In response to this decision,

Appellant’s case was scheduled for resentencing.

      On July 25, 2016, Appellant requested a stay of his sentencing hearing,

pending the decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)

(Batts II). Notes of Testimony (N.T.), 7/25/16, at 2. The sentencing court

denied Appellant’s motion but approved a stipulation that: (1) the

Commonwealth was required to prove beyond a reasonable doubt that

Appellant qualified for a sentence of life without the possibility of parole; and

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(2) there is a presumption against imposing a life sentence without the

possibility of parole on a juvenile offender.          Id. at 7-8.   Appellant also

presented a motion to continue the sentencing hearing in order to secure

expert witnesses to counter the Commonwealth’s expert witnesses. Id. at 8-

9.   While the sentencing court declined to postpone the Commonwealth’s

presentation of evidence, it nonetheless afforded Appellant extra time to

secure witnesses and prepare his case.2 Id. at 29.

       On July 26, 2016, the sentencing court commenced Appellant’s

resentencing hearing.       The Commonwealth presented extensive testimony

from numerous witnesses, including for example: the original police

investigators, victim impact statements, as well as expert testimony.

Appellant presented testimony from family and friends.               For appellate

purposes, we highlight the following relevant testimony:

       The Commonwealth called Lieutenant Michael Torres, a Pennsylvania

Department of Corrections Officer.             Notes of Testimony (N.T. Excerpt),

7/26/16, at 3.3 Lieutenant Torres was qualified as an expert in prison gangs.
____________________________________________


2 The court directed Appellant to advise it of the time he would require. N.T.,
7/25/16, at 29. The following day, Appellant requested sixty days to secure
his expert witnesses, and a date was set for September 7, 2016. N.T.
Continuance, at 4.      Following the Commonwealth’s presentation, the
sentencing hearing was in fact continued until October 18, 2016.

3 The sentencing court provided this Court with three volumes of transcripts
for July 26, 2016. The first volume contains the main records for the first half
of Appellant’s sentencing hearing and hereinafter will be labeled N.T.
Sentencing. The second volume includes excerpt testimony from three



                                           -3-
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Id. at 3-7. He testified that Appellant was the leader of prison gang known

as the State Prison Skinheads (SPS), a neo-Nazi white supremacist group. Id.

at 20.     Lieutenant Torres also related information regarding Appellant’s

attempted escape in 2004. According to Lieutenant Torres, Appellant planned

a detailed escape utilizing former and current inmates affiliated with SPS and

planned to secure a firearm. Id. at 15-16. A confidential informant, whom

Appellant threatened to kill once he established his identity, thwarted this

attempt. Id. at 18-19. As a result of this escape attempt, Appellant was

transferred to State Correctional Institute (SCI) Greene, a maximum-security

prison with a high-risk prisoner designation, where he is currently housed.

Id. at 19. Lieutenant Torres also reported that prior to Appellant’s appeal,

Appellant had received nineteen prison misconducts. Id. at 9.

       Finally, Lieutenant Torres also opined that, in his experience, Appellant

was a rare and uncommon inmate. Id. at 34-37. He based this assessment

on Appellant’s files, past escape attempt, membership in a prison gang, and

the number of misconducts. Id. According to Lieutenant Torres, Appellant’s

nineteen misconducts were excessive, as were his number of days in

restrictive housing. Id. at 9, 13-14. Lieutenant Torres conceded that there

was a period of time in which Appellant had received no misconducts but

____________________________________________


witnesses, and hereinafter will be labeled N.T. Excerpt. The last volume is an
excerpt of Appellant’s request for a continuance and will be labeled N.T.
Continuance.




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offered two explanations for Appellant’s good behavior: 1) he was eligible for

resentencing; and 2) he wanted to maintain his gang leadership. Id. at 34-

35.   Lieutenant Torres testified that his office had confiscated a document

from Appellant that was entitled the “Supreme Word.”           Id. at 26.4    The

document identified Appellant as the editor of the “Supreme Word” and a

member of SPS. Id. at 27. According to Lieutenant Torres, the document

contained images of skinheads, symbols, and articles espousing rhetoric

against Jews, “all colored races,” and the mafia, ending with a hidden salute

to Hitler. Id. at 28-33.

       Next, over Appellant’s objection, the Commonwealth called Special

Agent Michael Fitzgerald of the Federal Bureau of Investigations (FBI) to

testify as an expert in neo-Nazi groups.         N.T. Excerpt, at 73-76.5    Agent

Fitzgerald based his testimony on his almost twenty-six years in the FBI, his

fifteen years investigating domestic terrorism, and his review of Appellant’s

record prior to the sentencing hearing. N.T. Excerpt, at 70-72, 75, 94. Agent

____________________________________________


4 The “Supreme Word” newsletter was a compilation by Appellant containing
white supremacist rhetoric and skinhead illustrations by Appellant depicting
hanging race traitors (informants); an excerpt from a “martyr for the cause”
who died in a gun fight with the FBI; and articles from various neo-Nazi
fundamentalists. N.T. Excerpt, at 78-86.

5According to Appellant, Agent Fitzgerald was not an expert in Pennsylvania
prison gangs, was not qualified to discuss the philosophy espoused in
Appellant’s newsletter, and his testimony was cumulative to Lieutenant Torres’
earlier testimony. N.T. Excerpt, at 75-76.




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Fitzgerald testified that, in his expert opinion, should Appellant be released

from custody, he would be connected to a network that would make him a

danger to the general public and specifically, to Jews, minorities, and law

enforcement. N.T. Excerpt, at 94-96.

       The Commonwealth called Dr. John O’Brien, a psychiatrist, to testify.

N.T. Excerpt, at 99-100.         Dr. O’Brien had reviewed an earlier psychiatric

evaluation of Appellant but was unable to conduct his own evaluation. N.T.

Excerpt, at 100-01.6       Dr. O’Brien also reviewed Appellant’s record, which

included a history of fire setting, an incident where Appellant shot a dog, and

a history of substance abuse. Id. at 106. Based on Dr. O’Brien’s review of

Appellant’s records, he concluded, with a reasonable degree of medical

certainty, that Appellant has Anti-Social Personality Disorder (“ASPD”). Id.

at 101. While Dr. O’Brien noted that ASPD is not treatable, he stated that it

could attenuate with age. Id. at 113-14. Dr. O’Brien also testified that it is

rare to diagnose a person with ASPD and that the number of individuals with

ASPD involved in prison gangs is also similarly rare. Id. at 116, 119.

       Dr. O’Brien was not confident of Appellant’s rehabilitation because

Appellant merely presented a superficial sense that he can adjust, essentially

“flying under the radar” for the previous ten years. Id. at 118. Dr. O’Brien




____________________________________________


6The psychiatric evaluation was originally conducted by Dr. Sadoff on June
16, 1996, before Appellant had originally pleaded guilty. See N.T. Excerpt, at
100.

                                           -6-
J-A10039-18



also expressed concern that Appellant would rely on his connections with SPS

if released from prison. Id. at 119.

      Next, the Commonwealth called Appellant’s longtime friend, Sherry

Flick, to testify. Mrs. Flick testified that she originally connected with Appellant

through a mutual friend named Dwayne in 2002. N.T. Sentencing, at 117.

Dwayne was one of the men who attempted to aid Appellant in his 2004

escape attempt and was involved in the same prison gang, SPS. Id. at 124;

N.T. Excerpt, at 15.      Mrs. Flick testified that she had a past romantic

relationship with Appellant despite being married, although their relationship

is now platonic. N.T. Sentencing, at 117, 121. While Mrs. Flick testified that

she did not hold the same beliefs as Appellant, she nonetheless helped to copy

and distribute copies of Appellant’s newsletter, titled “Supreme Word.” Id. at

126-29.   She also testified that around the time of his filing of his PCRA

petition, Appellant told her that he no longer identified as a white supremacist

as he had become a Christian.         Id. at 119.     Additionally, evidence was

presented that, during the course of their fourteen-year relationship, Mrs. Flick

had deposited around $10,000 into Appellant’s prison account. Id. at 117;

N.T., 10/18/16, at 81. Following her testimony, the Commonwealth rested its

case, reserving the right to recall its experts or rebuttal witnesses.

      Three months later, Appellant presented his case. First, Appellant called

Dr. Carol Armstrong, a neuropsychologist. Dr. Armstrong acknowledged that

she had not reviewed any material on Appellant’s case or met with Appellant

prior to writing her report. N.T., 10/18/16, at 23. However, Dr. Armstrong

                                       -7-
J-A10039-18



explained the differences between adult and juvenile brains and opined that

juveniles are not capable of making future predictions or controlling

inappropriate behavior as well as adults.   Id. at 18-19.   Nonetheless, Dr.

Armstrong was impeached on cross-examination, and the sentencing court did

not find her testimony credible. Id. at 60-62; see also N.T., 10/19/16, at

64-65.

      Next, Appellant presented Dr. William Russell as an expert in forensic

psychology. Dr. Russell, in preparing for court, reviewed Dr. Sadoff’s report,

the sentencing memoranda, the notes of testimony, letters from Lieutenant

Michael Torres and the district attorney, and Dr. O’Brien’s report.      N.T.,

10/18/16, at 65, 120. He also met with Appellant twice. Id. Based on his

review of Appellant’s information, Dr. Russell agreed with Dr. O’Brien’s ASPD

diagnosis but considered Appellant at a low risk for recidivism based on his

improved behavior over the past eight years. Id. at 78-79, 91. Noting the

discrepancies in Appellant’s initial reports of the murder, Dr. Russell stated

that Appellant is still manipulative. Id. at 116-118. By way of example, Dr.

Russell referenced Appellant’s recent statements that he had embraced

Christianity and distanced himself from the prison gang.          Dr. Russell

contrasted this claim with a transcript of the phone conversation between

Appellant and his friend Mrs. Flick on December 26, 2015, during which they

discussed putting Jews in ovens. Id. at 97-98. Overall, Dr. Russell noted that

Appellant had not “lost the concept of race and white supremacy.” Id. at 96,

125. Dr. Russell also mentioned Appellant’s 2004 letter to Mrs. Flick where

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Appellant stated, “when I was real little, I wanted a pet monkey. I never

thought I would come to prison and have thousands of them, smiley face[.]”

Id. at 96-97.

       Following Dr. Russell’s testimony, the Commonwealth recalled Dr.

O’Brien, who also discussed transcripts from the 2015 conversation between

Appellant and Mrs. Flick.         Of significance to Dr. O’Brien was Appellant’s

comments about putting Mrs. Flick’s husband in a shallow grave, which

demonstrated that he had ongoing aggressive ideation. N.T., 10/18/16, at

143. Dr. O’Brien also commented on Appellant’s prior abuse of his sister,

Sherry Hume, when he was a juvenile.             N.T., 10/18/16, at 146-47.7    Dr.

O’Brien concluded that Appellant was a rare and uncommon individual who

had a poor chance of being rehabilitated. Id. at 151, 160-61.8

       The following day, Appellant exercised his right to allocution.         N.T.,

10/19/16, at 5-30.       Appellant apologized for the pain and loss his actions

caused both his and the victim’s families. Id. at 5, 16, 29. Appellant went

on to say that he was an “emotional mess” after the murder. Id. at 7. He

asserted that he had distanced himself from all gang activity and no longer

____________________________________________


7 At the time of Appellant’s arrest, his sister, Sherry Hume, reported that her
brother had choked her until she turned blue after she had informed him that
she was saving the milk he was drinking for another sibling. N.T. Sentencing,
at 109-13. Mrs. Hume also testified that Appellant abused his younger
siblings. Id. at 111.

8Prior to this hearing, on October 11, 2016, Dr. O’Brien was able to meet with
Appellant and conduct a psychiatric evaluation. N.T., 10/18/19, at 132-33;
see also Commonwealth’s Exhibit 23.

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wanted to have racist views. Id. at 11, 13. According to Appellant, religion

was helping, but he admitted that he still struggled with being a racist and

used racial slurs. Id. at 13, 15. Appellant stated that he maintained healthy

relationships with his family, although he admitted to a strained relationship

with his younger sister, who has a multiracial child. Id. at 14, 19. Appellant

noted positive prison activities in which he was involved, such as: recreational

painting and designs; going to the library; obtaining his GED; working two

jobs; and he indicated that he is on a waitlist for a peer inmate program. Id.

at 16, 19, 26.

       Appellant also sought to explain why he wanted a gun for his prison

escape. Id. at 23-25. According to Appellant, it was

       insurance that I would never be put in the hole for the rest of my
       life … I didn’t want a gun for any other reason than that. It’s one
       of them things. I’m glad it was stopped before it ever came to
       fruition beyond talking and minimal planning and like nobody --
       like I didn’t make a physical attempt[.]

Id. at 24. As a result of his escape attempt, Appellant stated that he rarely

sees his family and is restricted in what he can do and the jobs he can hold in

prison. Id. at 24-25.9 Appellant rested his case and incorporated again by




____________________________________________


9Appellant’s sister testified that the visits from his family are limited to once
or twice a year because of the distance Appellant’s family has to travel. See
N.T. Sentencing, at 87.




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reference his sentencing memorandum, which had been already admitted into

evidence. Id. at 4, 42.10

       At the conclusion of the hearing, the court stated that:

       We also believe that it is the Commonwealth that has the burden
       of proof beyond a reasonable doubt to establish that this
       defendant is uncommon and rare and an unusual juvenile who
       would likely kill in the future, and the public can only be protected
       by him being incarcerated for the rest of his natural life.

       We believe the Commonwealth has met that burden, and we
       believe that this defendant has earned and has continued to
       exhibit earning a sentence of life without the possibility of parole.

N.T., 10/19/18, at 67.

       After considering the evidence presented, the court sentenced Appellant

to life without parole. Id. at 67-68. Appellant timely filed a motion to modify

his sentence, which was denied. Appellant timely appealed and filed a court-

ordered Pa.R.A.P. 1925(b) statement.           The trial court issued a responsive

opinion.

       On appeal, Appellant raises the following issues:


____________________________________________


10 On appeal, during oral arguments, on May 3, 2018, this Court asked
Appellant to point out in the record, specifically, what conduct related to
Appellant’s rehabilitation over his twenty-year incarceration.       However,
Appellant could not adequately provide an answer. On May 17, 2018,
Appellant filed an Application for Post-Submission Communication explicitly
directing this Court’s attention to places in the record that indicated
Appellant’s rehabilitation. More specifically, Appellant directed this Court’s
attention to various letters of support from African-American inmates, proof
of achievements and certificates, and accommodations from various
employers at the prison. Thus, we grant Appellant’s application for Post-
Submission Communication.


                                          - 11 -
J-A10039-18


     1. Did the trial court violate the First and Fourteenth Amendments of
        the U.S. Constitution and Article 1 Section 7 of the Pennsylvania
        Constitutional in admitting evidence, over objection, regarding
        Appellant’s affiliation with the State Prison Skinheads and other
        references to Appellant’s White Supremacists beliefs when the
        Commonwealth presented no evidence of actions by Appellant that
        would make these beliefs or affiliations relevant to the matter before
        the court?

     2. Did the trial court err in allowing the expert testimony of Special
        Agent James Fitzgerald over objection of counsel?

     3. Does Appellant’s sentence violate the constitutional mandate
        articulated by the U.S. Supreme Court in Miller v. Alabama, 132 S.
        Ct. 2455 (2012)[,] and Montgomery v. Louisiana, 136 S. Ct. 718
        (2016)[,] that life without parole sentences should be “unusual” or
        “rare” and reserved only for those who are “permanently incorrigible,
        irreparably corrupt, or irretrievably depraved”?

           a. Is the instant case one of the “unusual” or “rare” cases
              permitting such a sentence?

           b. Did the trial court make a finding supported by competent
              evidence that appellant is “permanently incorrigible,
              irreparable corrupt or irretrievably depraved”?

     4. Did the Commonwealth meet its burden of proof beyond a reasonable
        doubt to justify a life without parole sentence?

     5. Did the trial court err in not giving appropriate consideration and
        weight to the Miller sentencing factors that counsel against imposing
        the harshest sentence on a juvenile

           a. Did the trial court improperly abuse its discretion in imposing
              an excessive or unreasonable sentence of life without parole by
              failing to adequately and appropriately consider Appellant’s
              ability to be rehabilitated as required by Miller and
              Montgomery?

     6. Did the trial court incorrectly rely upon the antisocial personality
        disorder diagnosis in concluding that Appellant’s approximately
        twenty year prison history supported a prediction of future
        dangerousness while the diagnosis itself includes a diminution of
        criminal behavior as an individual ages?

     7. Did the trial court err in denying Appellant’s continuance request of
        July 26, 2016 sentencing hearing when the defense did not have

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J-A10039-18


         adequate time to procure expert review of the Commonwealth’s
         proffered expert testimony?

See Appellant’s Brief at 6-7 (capitalization omitted; issues renumbered for
ease of disposition).

                             Evidentiary Issues


      We will begin by addressing Appellant’s evidentiary issues, as they lay

the foundation for Appellant’s argument challenging his resentencing to life

without parole as a juvenile.

      The standard for reviewing the admission of evidence is an abuse of

discretion. Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018).

In particular, it is well settled that a court has abused its discretion if “the

record disclosed that the judgment exercised was manifestly unreasonable, or

the result of partiality, prejudice, bias or ill-will.”   Id. at 454 (quoting

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)).

      Appellant contends that the trial court violated his First and Fourteenth

Amendment rights by admitting evidence of his affiliations with SPS and his

white supremacist beliefs. See Appellant’s Brief at 58 (citing to Delaware v.

Dawson, 503 U.S. 159 (1992)). According to Appellant, his affiliations were

not relevant to the sentencing court’s consideration. Id. Appellant argues

that the only evidence presented was of his ideology and there was no nexus

between Appellant’s ideology and violent criminal acts. Id. at 59. Appellant

asserts that the Commonwealth used his affiliation with SPS to make a

“speculative leap to projected future dangerousness.” Id. Thus, Appellant




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concludes that such irrelevant evidence was not a permissible sentencing

consideration and prejudiced him. Id. at 58.

      As mentioned supra, the admission of evidence during sentencing is in

the sound discretion of the court and will not be disturbed absent an abuse of

discretion. King, 182 A.3d at 454-55. The court can consider any evidence

it deems relevant, as it is “neither bound by the same rules of evidence nor

criminal procedure as it is in a criminal trial.” Id. at 455. This includes all

evidence relating to any aggravating or mitigating factor. Commonwealth

v. Young, 637 A.2d 1313, 1321-22 (Pa. 1993). Thus, reversal of the decision

requires a finding of an abuse of discretion and prejudice. Commonwealth

v. Franklin, 580 A.2d 25, 31 (1990).

      In Dawson, during sentencing, the prosecution and the defendant’s

attorney stipulated that Dawson was a member of the Aryan Brotherhood, a

white supremacist prison gang. Dawson, 112 S. Ct. at 1096. In return for

the stipulation, the prosecution agreed not to call any expert witnesses to

testify regarding the Aryan Brotherhood. Id. The Supreme Court held that

the stipulation was a constitutional error because the narrowness of the

stipulation lacked context and was “totally without relevance” to Dawson’s

sentencing. Id. at 1098. No evidence had been introduced regarding the

Aryan Brotherhood’s unlawful or violent acts, and the evidence was not

relevant to rebut any mitigating evidence offered by Dawson. Id. However,

the Supreme Court noted that if there was relevant evidence connecting the

Aryan Brotherhood’s violent acts to the defendant, such evidence may have

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been admissible; there is no per se barrier to the admission of evidence

concerning one’s beliefs and associations at sentencing merely because the

First Amendment protects such beliefs. Id. at 1097-98. The Dawson Court

provided examples of why a defendant’s gang affiliations would be relevant

admissible evidence, such as establishing a potential future dangerousness,

and rebut mitigation or character evidence. Id. at 1098.

      The instant case is easily distinguishable from Dawson, and Appellant’s

argument that his gang affiliations were not relevant to his sentencing

consideration is without merit. Here, the information regarding Appellant’s

affiliation with SPS was introduced at sentencing to establish Appellant’s

future dangerousness and potential for rehabilitation. N.T., 1/26/16, at 94-

96; see also TCO, 5/25/17, at 12-13. Agent Fitzgerald testified regarding

white supremacist gangs, their far reach, and their violent acts. N.T. Excerpt

7/26/16, at 70-99.     The Commonwealth presented evidence that: (1)

Appellant was still in contact with gang members and associates; (2) members

of the gang had plotted to acquire Appellant a gun for use in his escape

attempt; (3) Appellant had made threats against the lives of specific

individuals; and (4) the ideology of the gang particularly espouses a rhetoric

of violence against Jews, other minorities, and law enforcement. See N.T.

Sentencing, at 117; see also N.T Excerpt, at 15-19, 28-33. At Appellant’s

sentencing, he admitted he still holds racist beliefs. N.T., 10/19/16, at 13.

Thus, the information regarding SPS was appropriately considered to counter

Appellant’s claim that he was rehabilitated, and no longer presented a danger

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to the public, and was not a violation of his First or Fourteenth Amendment

rights. See e.g., Dawson, 112 S. Ct. at 1097. Therefore, the sentencing

court did not abuse its discretion in admitting this evidence. King, 182 A.3d

at 454-55; Young, 637 A.2d at 1321-22; Franklin, 580 A.2d at 25.

       Appellant also asserts that the court erred in allowing the expert

testimony of Special Agent Fitzgerald.             See Appellant’s Brief at 60.11

According to Appellant, Agent Fitzgerald has never: (1) testified “as an expert

in any courtroom”; (2) published any academic studies involving gangs; or

(3) been qualified as an expert in prison gangs or the Pennsylvania prison

system. Id. Thus, Appellant concludes that Agent Fitzgerald should not have

been permitted to testify as an expert in prison gangs in the Pennsylvania

Prison system. Id.

       Pennsylvania has long maintained a liberal standard for admitting expert

testimony:

       The qualification of an expert witness rests within the sound
       discretion of the trial judge, and absent an abuse of discretion,
       the decision of the trial judge should be upheld. “It is well
       established in this Commonwealth that the standard for
____________________________________________


11 In support of his argument, Appellant cites to Frye v. United States, 293
F. 1013 (D.C. Cir. 1923. The Frye court held that in order for scientific, expert
testimony to be admissible, the methodology relied upon must have gained
general acceptance in the field to which it belongs. Frye, 293 F. at 1013.
See Appellant’s Brief at 60. Frye is not relevant to this issue because the
expert testimony was not novel, and Appellant is not challenging Agent
Fitzgerald’s background as an FBI agent, which formed the basis of his expert
deductions. In fact, there was no argument made that Agent Fitzgerald’s
training and background was not widely accepted by those in law enforcement,
especially in the FBI.


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      qualification of an expert witness is a liberal one. The test to be
      applied when qualifying an expert witness is whether the witness
      has any reasonable pretension to specialized knowledge on the
      subject under investigation. If he does, he may testify and the
      weight to be given to such testimony is for the trier of fact to
      determine.” It is also well-established that a witness does not
      need formal education on the subject matter of the testimony, and
      may be qualified to render an expert opinion based on training
      and experience.

Commonwealth v. Wallace, 817 A.2d 485, 494 (Pa. Super. 2002) (quoting

Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa.1995)) (internal citations

omitted); see also Pa.R.E. 702 (stating testimony is allowed if “(a) the

expert's scientific, technical, or other specialized knowledge is beyond that

possessed by the average layperson; (b) the expert's scientific, technical, or

other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and (c) the expert's methodology is

generally accepted in the relevant field.”).

      Here, the sentencing court allowed Agent Fitzgerald to testify as an

expert in neo-Nazi groups. N.T Excerpt, at 73-74. Agent Fitzgerald had been

in the FBI for approximately twenty-six years, fifteen of which were spent

investigating domestic terrorism, including white supremacist groups. Id. at

70, 75. Agent Fitzgerald was a certified undercover agent and had gone under

cover in white supremacist and neo-Nazi groups. Id. at 71-72.

      Thus, because Agent Fitzgerald had specialized knowledge beyond the

average layperson and this knowledge would help the fact-finder understand

white supremacist gangs, the sentencing court did not abuse its discretion in

qualifying him as an expert. Wallace, 817 A.2d at 495; Pa.R.E. 702.

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                     Appropriate Constitutional Standard


       With these evidentiary issues resolved, we turn to Appellant’s

sentencing claims. Appellant contends that the sentencing court violated the

constitutional mandates articulated in Miller v. Alabama, 132 S. Ct. 2455

(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), namely, that

life without parole sentences for juveniles should be unusual, rare, and

reserved only for those who are permanently incorrigible, irreparably corrupt,

or irretrievably depraved. See Appellant’s Brief at 22.12 Appellant suggests

that he is capable of rehabilitation and specifically notes the sentencing court’s

recognition that he has learned “at least to some extent, to comport his

behavior in prison.”       Id. at 31 (quoting N.T., 10/19/16, at 61).       Thus,

Appellant concludes, his case is not one of the unusual or rare cases permitting

such a sentence, and the sentencing court did not make a finding supported

by competent evidence that Appellant is permanently incorrigible, irreparably

corrupt, or irretrievably depraved. Id.

       Under Miller and Montgomery[ v. Louisiana, ––– U.S. –––, 136
       S.Ct. 718, 193 L.Ed.2d 599 (2016)], a sentencing court has no
       discretion to sentence a juvenile offender to life without parole
       unless it finds that the defendant is one of the “rare” and
       “uncommon”       children    possessing     the     above-stated



____________________________________________


12In this section of Appellant’s brief, he summarizes all of his arguments on
appeal. As Appellant raises these same issues later in his brief, they will not
be addressed in Appellant’s first issue.




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       characteristics[13], permitting its imposition. Montgomery, 136
       S.Ct. at 726, 734; Miller, 567 U.S. at 479, 132 S. Ct. 2455; see
       Graham, 560 U.S. at 73, 130 S.Ct. 2011; Roper[ v. Simmons],
       543 U.S. [551,] 572–73, 125 S.Ct. 1183, 161 L.Ed.2d 1 [ (2005)
       ]. A sentence of life in prison without the possibility of parole for
       a murder committed when the defendant was a juvenile is
       otherwise disproportionate and unconstitutional under the Eighth
       Amendment. Montgomery, 136 S.Ct. at 734, 735.

       Thus, in the absence of the sentencing court reaching a
       conclusion, supported by competent evidence, that the defendant
       will forever be incorrigible, without any hope for rehabilitation, a
       life-without-parole sentence imposed on a juvenile is illegal, as it
       is beyond the court's power to impose. See [Commonwealth v.]
       Vasquez, 560 Pa. 381, 744 A.2d [1280,] 1282 [ (2000) ];
       [Commonwealth v.] Shiffler, 583 Pa. 478, 879 A.2d [185] 189
       [ (2005) ]; In re M.W., 555 Pa. 505, 725 A.2d [729,] 731 [
       (1999) ]. As stated by the Montgomery Court, “when a State
       enforces a proscription or penalty barred by the Constitution, the
       resulting conviction or sentence is, by definition, unlawful.”
       Montgomery, 136 S.Ct. at 729–30. As such, we must review the
       sentencing court's legal conclusion that Batts is eligible to receive
       a sentence of life without parole pursuant to a de novo standard
       and plenary scope of review. Commonwealth v. McClintic, 589
       Pa. 465, 909 A.2d 1241, 1245 (2006). Because this legal
       conclusion is premised upon the presentation of testimony and the
       sentencing court's credibility determinations, it presents a mixed
       question of fact and law. In such circumstances, we defer to the
       findings of fact made by the sentencing court as long as they are
       supported by competent evidence, but give no deference to that
       court's legal conclusions. Pennsylvania Nat. Mut. Cas. Ins. Co.
       v. St. John, 630 Pa. 1, 106 A.3d 1, 13 (2014); Commonwealth
       v. James, 620 Pa. 465, 69 A.3d 180, 186 (2013);
       Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011);
       In re Condemnation by Urban Redevelopment Auth. of
       Pittsburgh, 590 Pa. 431, 913 A.2d 178, 183 (2006).



____________________________________________


13 A sentence of life without parole for a juvenile is permissible only if the
“crime was not the result of the 'unfortunate yet transient immaturity’
endemic of all juveniles.” Commonwealth v. Batts, 163 A.3d 410, 435 (Pa.
2017).

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J-A10039-18



Commonwealth v. Coia, 168 A.3d 219, 222–23 (Pa. Super. 2017) (quoting

Batts II, 163 A.3d 410, 435-36 (Pa. 2017)).

       A faithful application of Miller and Montgomery “requires the creation

of a presumption against sentencing a juvenile offender to life in prison

without the possibility of parole.” Batts II, 163 A.3d at 452; see also Coia,

168 A.3d at 223.14 The burden of rebutting this presumption is placed upon

the Commonwealth.          Batts II, 163 A.3d at 459.      Finally, to rebut the

presumption, the Commonwealth must prove, “beyond a reasonable doubt,

that the juvenile offender is permanently incorrigible and thus is unable to be

rehabilitated.” Id.

       While the sentencing court did not use the specific language of Miller,

stating that Appellant was “irretrievab[ly] deprav[ed,]” it is clear that the court

was referring to Appellant’s lack of rehabilitation potential. Miller, 132 S. Ct.

at 2458. The court recognized the burden was on the Commonwealth. N.T.,

10/19/16, at 67. The sentencing court concluded that the Commonwealth had
____________________________________________


14 In Coia, the defendant was sentenced prior to the Pennsylvania Supreme
Court’s decision in Batts II. Coia, 168 A.3d at 224. Thus, our Court vacated
his sentence, remanded for reconsideration with the later-established
presumption against the imposition of a life without parole sentence for a
juvenile offender, and required the Commonwealth to rebut the presumption
with evidence establishing beyond a reasonable doubt that the defendant was
permanently incorrigible and unable to be rehabilitated. Id. In the instant
case, although Appellant was sentenced while Batts II was pending on
appeal, the parties stipulated, prior to resentencing, that there was a
presumption against life sentences without the possibility of parole and that
the Commonwealth must prove its case beyond a reasonable doubt. See N.T.
7/25/16, at 7-8. Accordingly, a remand is unnecessary.



                                          - 20 -
J-A10039-18



met its burden to establish that Appellant was a “rare and uncommon” child.

Id. During the sentencing, the court noted:

      We also believe that it is the Commonwealth that has the burden
      of proof beyond a reasonable doubt to establish that this
      defendant is uncommon and rare and an unusual juvenile who
      would likely kill in the future, and the public can only be protected
      by him being incarcerated for the rest of his natural life.

      We believe the Commonwealth has met that burden, and we
      believe that this defendant has earned and has continued to
      exhibit earning a sentence of life without the possibility of parole.

N.T., 10/19/18, at 67.         The court applied the correct standard.        Thus,

Appellant’s claim is specious and without merit, and Appellant is not entitled

to relief. Coia, 168 A.3d 219 at 222-23.

            The Sufficiency of the Commonwealth’s Evidence

      In a related claim, Appellant asserts that the Commonwealth failed to

meet its burden to prove beyond a reasonable doubt that a life sentence

without parole was justified.       See Appellant’s Brief at 47-50.     Specifically,

Appellant argues that the Commonwealth did not establish that he was beyond

rehabilitation.    Id.   According to Appellant, Dr. O’Brien’s testimony was

ambivalent. Appellant argues that Dr. O’Brien stated that Appellant had a

“documented       capability   of   performing   at   work   and   …   meeting   the

programmatic needs[,]” but that his “rehabilitative potential is in my opinion

hard to glean[.]” Id. at 48. Appellant further contends that Dr. O’Brien’s

conclusion was based on speculation rather that the “subjective state of

certitude” required by the reasonable doubt standard. Id. at 49. According



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J-A10039-18



to Appellant, there was evidence of Appellant’s ability to be rehabilitated. Id.

at 49-50. For example, Appellant states he could be rehabilitated because he

had met the qualifications for and was granted an incentive-based transfer.

Id.15    Thus, Appellant concludes that the Commonwealth did not present

competent evidence of Appellant’s lack of rehabilitative potential beyond a

reasonable doubt. Id.

        Essentially, Appellant challenges the sufficiency of the Commonwealth’s

evidence, which presents a question of law.

        A claim challenging the sufficiency of the evidence is a question of
        law. Evidence will be deemed sufficient to support the verdict
        when it establishes each material element of the crime charged
        and the commission thereof by the accused, beyond a reasonable
        doubt. Where the evidence offered to support the verdict is in
        contradiction to the physical facts, in contravention to human
        experience and the laws of nature, then the evidence is insufficient
        as a matter of law. When reviewing a sufficiency claim the court
        is required to view the evidence in the light most favorable to the
        verdict winner giving the prosecution the benefit of all reasonable
        inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).     Therefore, our standard of review is de novo, and the

____________________________________________


15 An incentive-based transfer allows an inmate to be transferred closer to his
home region. See Appellant’s Exhibit 1, tab 41; see also Appellant’s Brief at
49-50. In order for an inmate serving a life sentence to qualify for a transfer,
the inmates must have: (1) been compliant with their Correctional plan; (2)
maintained a Level 3 Custody Level; (3) have no Class 1 or Class 2
misconducts within the prescribed time period; (4) have completed ten years
of their sentence; and (5) have a period of ten years of overall positive
adjustment. Id. The requirements also state that if an inmate fails to
maintain the incentive-based requirements, he will be transferred away from
his home region. Id.

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J-A10039-18



scope of review is plenary. Commonwealth v. Delgros, 183 A.3d 352, 356

(Pa. 2018).

      Here, Appellant does not accurately represent the testimony of Dr.

O’Brien. In fact, Dr. O’Brien stated that from his review of Appellant’s record,

Appellant presented a “superficial sense” of rehabilitation which is why he

determined that Appellant’s rehabilitative potential was “hard to glean[.]”

N.T. Excerpt, at 118. Dr. O’Brien clarified that Appellant’s behavior had shifted

from individualized ASPD to institutionalized ASPD. See N.T. Excerpt, at 112-

13.   According to Dr. O’Brien, Appellant is better able to conceal and

manipulate his disability and “direct others to do his dirty work.” Id. at 113.

Dr. O’Brien opined that this was consistent with Appellant’s “intelligence and

Antisocial Personality Disorder diagnosis.” Id. at 112. Further, Dr. O’Brien

testified that with Appellant’s shift into organized antisocial behavior, he is

able to shift from acts of violence to other types of criminal activity. Id. at

117-18.

      After this initial testimony, Dr. O’Brien personally examined Appellant

on October 11, 2016. N.T., 10/18/16, at 132-33. Based on this examination,

Dr. O’Brien further clarified his original statements:

      [Appellant’s] profile predisposes him to interpersonal difficulty
      because it adversely influences rehabilitation efforts –
      interpersonal difficulties that could adversely influence
      rehabilitation efforts. He was also identified as an individual who
      would not be very receptive to suggestions from others and
      resistant to treatment, and indicated that if he were pressured
      into therapy by outside circumstances, his cooperation would tend
      to be minimal … personality disorders and antisocial disorders do
      attenuate to a certain degree with age, but there’s some variation

                                     - 23 -
J-A10039-18


      in that. But the bottom line is that [Appellant]’s testing reveals
      ongoing symptoms consistent with that diagnosis.

Id. at 150-51; see also Commonwealth’s Exhibit 23 and 24 (Dr. O’Brien’s

Report and results from Appellant’s tests respectively). Dr. O’Brien concluded

with a reasonable degree of medical certainty Appellant’s chances of being

rehabilitated is poor and that he was a rare and uncommon juvenile. Id. at

151, 160-61.      Thus, Appellant’s claim that Dr. O’Brien’s testimony did not

meet the required burden of proof is not persuasive, in light of the entire

record of Dr. O’Brien’s testimony. Widmer, 744 A.2d at 751. Therefore, as

a matter of law, Dr. O’Brien’s testimony was sufficient. Id.

      Further,    Appellant’s   main   argument     in   support    of   Appellant’s

rehabilitative potential was the grant of his incentive-based transfer request

on May 10, 2016. Appellant’s Brief at 49-50; see also Appellant’s Exhibit 1,

tab 43.   However, Appellant fails to mention that this transfer grant was

revoked due to Appellant’s misconduct on October 11, 2016, one week prior

to the second portion of his sentencing hearing. N.T., 10/18/16, at 166-67.

Additionally, even if Appellant’s argument was credible, this evidence goes to

an argument against the weight of the evidence and not to the sufficiency of

the evidence. See, e.g., Commonwealth v. Crosley, 180 A.3d 761, 768

n.2 (Pa. Super. 2018).

          The Discretionary Aspects of Appellant’s Sentence


      Appellant     raises   two,   interrelated   arguments       challenging   the

discretionary aspects of his sentence.      Accordingly, we shall address them


                                       - 24 -
J-A10039-18



together. Appellant claims that the trial court did not give the appropriate

consideration and weight to the Miller sentencing factors. See Appellant’s

Brief at 43.   According to Appellant, the sentencing court: (1) improperly

allowed the nature of the crime and past conduct to drive the sentence; (2)

did not consider Appellant’s upbringing; (3) failed to consider evidence of

Appellant’s rehabilitation; and (4) improperly relied on Appellant’s ASPD

diagnosis as a predictor for future dangerousness without considering the

possible attenuation of criminal behavior. Id. at 43-44, 51.

     In the instant case, 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.

Commonwealth. v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)

(quoting Commonwealth v. Marts, 889 A.2d 608, 610-11 (Pa. Super.

2005)).   In addition to filing these requirements, an appellant must have

timely appealed and preserved the issues on appeal. King, 182 A.2d at 453.


                                      - 25 -
J-A10039-18



Here, Appellant has timely appealed, preserved his issues on appeal through

a post-sentence motion to modify his sentence, and filed a proper 2119(f)

statement.   Thus, we must determine if Appellant has raised a substantial

question.    Seagraves, 103 A.3d at 841-42 ( stating “[i]n reviewing a

challenge to the discretionary aspects of sentencing, we evaluate the court's

decision under an abuse of discretion standard.”) (quoting Dodge, 77 A.3d at

1274).

      “We are, of course, mindful that it is apparent that this Court's

determination of whether an appellant has presented a substantial question

in various cases has been less than a model of clarity and consistency, even

in matters not involving excessive sentence claims.”        Commonwealth v.

Dodge, 77 A.3d 1263, 1272 n. 8 (Pa. Super. 2013). Nevertheless we have

recognized a distinction between a sentencing court’s failure to consider the

factors required by law, in this case as outlined by Miller, and allegations that

the court has failed to properly weigh these factors.        Id.   For example,

allegations that the sentencing court failed to consider the Miller factors raises

a substantial question. Seagraves, 103 A.3d at 842. However, an argument

that the court failed to “adequately” consider the mitigating evidence does not

raise a substantial question. Dodge, 77 A.3d at 1272.

      Here, Appellant states that

      [t]he sentencing court considered the nature of the crime and past
      conduct primarily in determining the sentence. Rather, Appellant
      asserts that the court erred in not adequately and appropriately
      considering Appellant’s ability to be rehabilitated as required by
      the Miller and Montgomery Supreme Court decisions.

                                     - 26 -
J-A10039-18



Appellant’s Brief at 19. Unlike in Seagraves, Appellant does not assert the

Miller factors were ignored, rather Appellant asserts that the court failed to

adequately consider those factors. Id. Thus, Appellant’s argument, that the

sentencing court did not adequately consider Appellant’s ability to be

rehabilitated, does not present a substantial question and does not warrant a

review on the merits of Appellant’s argument. Dodge, 77 A.3d at 1272 n. 8.

      Nevertheless, the record supports that the sentencing court properly

considered the Miller factors. N.T., 10/18/16, at 67; see also TCO 5/25/17,

at 6. The court had access to an extensive sentencing memorandum provided

by Appellant, which included significant mitigating factors and the court made

specific mention of his review of these on the record. N.T., 10/19/16, at 66.

Additionally, to the extent Appellant challenges the court’s reliance on

Appellant’s ASPD diagnosis, we note that the court is free to rely on evidence

of a defendant’s mental health. See e.g., Miller, 132 S. Ct. at 2467 (quoting

Eddings v. Oklahoma, 102 S. Ct. 869, 877 (2012) (stating that “just as the

chronological age of a minor is itself a relevant mitigating factor of great

weight, so must the background and mental and emotional development of a

youthful defendant be duly considered”)); Batts II, 163 A.3d at 422-24

(discussing   expert   testimony   concerning   defendant’s   mental   health);

Seagraves, 103 A.3d at 850 (referencing the relevance of a defendant’s

mental health history). Thus, even if we were to recognize that Appellant

presented a substantial question, we discern no abuse in the court’s discretion




                                    - 27 -
J-A10039-18



in sentencing Appellant. Dodge, 77 A.3d at 1274; Seagraves, 103 A.3d at

842.

                          Request for Continuance

       Finally, Appellant claims that the court erred in denying his request to

continue the July 26, 2016 sentencing hearing. See Appellant’s Brief at 62.

According to Appellant, the Commonwealth belatedly notified him of its

intention to introduce expert testimony. Id. Appellant suggests that the last

minute addition of expert testimony did not afford him adequate time to

prepare a response. Id. Appellant’s claim is without merit.

       Our Court has held that a sentencing court’s decision to deny a

continuance request will be overturned if “prejudice or a palpable and manifest

abuse of discretion is demonstrated.” Commonwealth v. Pries, 861 A.2d

951, 953 (Pa. Super. 2004) (citing Commonwealth v. Griffin, 804 A.2d 1,

12 (Pa. Super. 2002). Further,

       [a]n appellant must be able to show specifically in what manner
       he was unable to prepare his defense or how he would have
       prepared differently had he been given more time. We will not
       reverse a denial of a motion for continuance in the absence of
       prejudice.

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citing

Commonwealth v. Brown, 505 A.2d 295, 298 (Pa. Super. 1986).

       Here, the record does not support Appellant’s assertion. Essentially the

sentencing court did grant Appellant’s continuance request.               See N.T,

7/25/16,   at   29-30.    Although   the      court   declined   to   postpone   the



                                     - 28 -
J-A10039-18



Commonwealth’s presentation of its case, it gave Appellant three months to

acquire experts and prepare a response.      Appellant also conceded that he

would be amenable to having the Commonwealth present its case, if he could

receive “a very lengthy adjournment from tomorrow until the next time we

call experts.”   Id. at 10.   Further, Appellant was able to cross-examine

Commonwealth’s main expert, Dr. O’Brien, a second time during the October

portion of Appellant’s sentencing hearing.        N.T., 10/18/16, at 161.

Additionally, Appellant was able to secure Dr. Russell as an expert witness,

who met with Appellant twice in the interim, three-month period.

      Thus, we conclude that Appellant’s argument is devoid of merit.

Appellant has not shown that he was prejudiced by the continuance and is not

entitled to relief. Ross, 57 A.3d at 91.

      Application for Post-Submission Communication granted; judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/18




                                    - 29 -
