J-A12021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 ERIC D. HANCOCK,                          :
                                           :
                      Appellant            :    No. 851 WDA 2018

           Appeal from the Judgment of Sentence March 21, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0012895-2007


BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                 FILED JULY 09, 2019

      Appellant, Eric D. Hancock, appeals from the March 21, 2018 Judgment

of Sentence of 40 years to life imprisonment imposed upon resentencing after

the grant of post-conviction relief based on Miller v. Alabama, 567 U.S. 460

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

challenges the legality of his sentence, contending that the trial court failed to

impose an individualized sentence with consideration of relevant factors. After

careful review, we affirm.

      A detailed recitation of the procedural and factual history is unnecessary

to our disposition.    Briefly, in 2007, when Appellant was 16 years old, he

robbed the A&E Deli in Carrick Borough and shot the store clerk in the chest,

killing him.   A jury found him guilty of Second-Degree Murder, Robbery,
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Possession of a Firearm by a Minor, and Carrying a Firearm Without a License.1

On July 3, 2008, the trial court sentenced Appellant, in relevant part, to life

imprisonment without parole (“LWOP”) on the Second-Degree Murder

conviction. This Court affirmed the Judgment of Sentence, and the

Pennsylvania Supreme Court denied allowance of appeal. Commonwealth

v. Hancock, 984 A.2d 1013 (Pa. Super. 2009) (unpublished memorandum),

appeal denied, 996 A.2d 491 (Pa. 2010).

        On March 22, 2016, Appellant filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”) asserting that his LWOP sentence was

unconstitutional under Miller, supra and Montgomery, supra.2 The PCRA

court granted relief, vacated Appellant’s sentence, and scheduled the case for

resentencing.

        At the resentencing hearing, the court heard expert testimony from

psychologist Samuel K. Schachner, Ph.D., victim impact testimony, and

Appellant’s allocution. After reviewing Dr. Schachner’s report, the sentencing

court acknowledged, “that [Appellant], as he stands here, is a different man

than he was when he was sentenced, and perhaps a different man [than] he

was when he committed the crime.”              N.T. Resentencing, 3/21/18, at 23.
____________________________________________


1   18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 6110.1, and 6106(a)(1), respectively.

2 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic LWOP upon a homicide defendant for a murder
committed while the defendant was under eighteen years old. Miller, 567
U.S. at 479. In Montgomery, the U.S. Supreme Court held that its decision
in Miller, supra, applies retroactively. Montgomery, 136 S.Ct. at 732.


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Nevertheless, the court stated that it must also consider the severity of the

crime and the victim impact statement, and ultimately concluded that the

sentence of 40 years to life was required for the protection of the public.

Appellant filed a Post-Sentence Motion, which the trial court denied.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following two issues on appeal:

       1. Did the [s]entencing [c]ourt err by not articulating, on the
          record, how it considered each of the individualized factors set
          forth in 18 Pa.C.S. § 1102.1?[3]

       2. Did the [s]entencing [c]ourt demonstrate an intolerable
          hostility to controlling case law in the area of juvenile-lifer
          resentencing, whereby there can [be] no confidence that the
          resulting 40-to-life sentence is the product of an impartial
          judgment?

Appellant’s Br. at 4.

       In his first issue, Appellant avers that the trial court failed to impose an

individualized sentence with proper consideration and articulation of the

factors discussed in Miller, supra, and Batts II, supra. Appellant’s Br. at

27.        This   presents    a   challenge    to   the   legality   of   his   sentence.

Commonwealth v. Lekka, ___ A.3d ___, 2019 WL 2064541, at *8 (Pa.

Super. filed May 10, 2019).


____________________________________________


3 Appellant concedes that Section 1102.1(d) does not apply to his sentence.
Appellant’s Br. at 24 and n.81. His brief focuses on the application of the
sentencing factors set forth in Miller and Commonwealth v. Batts, 163 A.3d
410, 458 (Pa. 2017) (Batts II), which we address below.

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       “When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.”          Id. (citation omitted). “Where a

sentence is found to be illegal, it must be vacated.” Id. (citation omitted).

       In Batts II, the Pennsylvania Supreme Court recognized that, pursuant

to Miller, sentences for juveniles must be individualized, which requires courts

to consider various factors when imposing a LWOP sentence on a juvenile

offender.     Batts II, supra at 431.            These factors include immaturity,

impetuosity, and failure to appreciate risks and consequences (“Miller

factors”). Id. (citing Miller, supra at 474-78).

       However, this Court has held that a sentencing court must consider the

Miller factors only in cases where the Commonwealth is pursuing an LWOP

sentence. Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super. 2018).

“In cases where the Commonwealth does not seek a [LWOP] sentence, the

application of the Miller factors is not required.” Lekka, supra at *9 (citation

omitted).4


____________________________________________


4  In sentencing a juvenile to life with the possibility of parole, Batts II
concluded that a court should apply the “traditional sentencing considerations”
of Section 9721(b), such as the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant, and be guided by
the factors set forth in Section 1102.14, including age, mental capacity, and
maturity. See Batts II, supra at 457-58, 460; Lekka, supra, at *9. As
described in its 1925(a) Opinion and supported by the record, the sentencing
court in this case properly considered the protection of the public, the gravity
of the offense as it related to the impact on the victim and the community,
and the rehabilitative needs of Appellant in resentencing him to 40 years’ to
life imprisonment. Trial Ct. Op., filed 8/30/18, at 9.

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      Here, the Commonwealth did not seek an LWOP sentence at Appellant’s

resentencing hearing.      Instead, it requested that the court resentence

Appellant to 36 years’ to life imprisonment. Accordingly, there was no error

by the sentencing court in failing to consider the Miller factors.

      In his second issue, Appellant asserts that, upon resentencing, the judge

demonstrated partiality when he expressed his opinion that he was “less than

comfortable to consider the person that [Appellant] is today.”       Appellant’s

Brief at 28 (citation to Notes of Testimony omitted).       He avers that the

sentencing judge expressed his bias by stating his disagreement with the

holdings in Miller and Batts II that require, upon resentencing, that the court

consider the former juvenile’s current level of maturity as one factor in

fashioning the new sentence. Id. at 28-31.

      A defendant is entitled to sentencing by a judge who is fair and

unbiased.   Commonwealth v. Williams, 69 A.3d 735, 744 (Pa. Super.

2013). “This means, a jurist who assesses the case in an impartial manner,

free of personal bias or interest in the outcome.” Id. (citation and quotation

omitted).   “There is no need to find actual prejudice, but rather, the

appearance of prejudice is sufficient to warrant the grant of new proceedings.”

Id. (citation and quotation omitted).

      A sentencing court demonstrates the appearance of bias where it assails

a prior judge’s adjudications as “mistakes” for being too lenient; misuses

pseudo-medical terminology by describing a defendant as a “classic sociopath”

and “pathological liar” with no support from the record; improperly considers

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a defendant’s gender; excessively focuses on a defendant’s victimization of

the Catholic Church; or repeatedly calls a defendant an animal. Id. at 749;

Commonwealth v. Spencer, 496 A.2d 1156, 1165 (Pa. Super. 1985).

     Here,    the   sentencing   court’s   actions   did   not   demonstrate   the

appearance of impartiality or bias. Although the court shared its opinion of,

and disagreement with, precedential case law requiring consideration of

Appellant’s current maturation as a factor in fashioning a new sentence, the

court ultimately recognized that it must consider both the crime Appellant

committed and the person he is today. N.T., Resentencing, 3/21/18, at 15-

16, 22-23. Accordingly, we see no manifest abuse of discretion in the court’s

imposing a new sentence of 40 years to life for Appellant’s conviction of

Second-Degree Murder.

     Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2019




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