J-A23001-19

                                2019 PA Super 352

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DEAUNTAY DONTAZ MOYE                     :
                                          :
                    Appellant             :   No. 120 WDA 2019


   Appeal from the Judgment of Sentence entered on December 20, 2018
             in the Court of Common Pleas of Bedford County,
           Criminal Division at No(s): CP-05-CR-0000486-2015.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.:                       FILED NOVEMBER 27, 2019

      Deauntay Dontaz Moye appeals from the judgment of sentence of life

imprisonment without the possibility of parole imposed following his

resentencing for a homicide he committed as a juvenile.         We vacate his

judgment of sentence and remand for resentencing.

      In January of 2015, two weeks before he turned seventeen, Moye and

another juvenile, Ryan Hardwick, arranged to purchase marijuana from a

dealer at a designated location. Although Moye and Hardwick expected to

meet the dealer, the dealer sent his girlfriend, Stephanie Walters, to carry out

the transaction.   Walters arrived at the designated location in her vehicle,

picked up Moye and Hardwick, and drove to a parking lot. After Moye and

Hardwick inspected the drugs, Moye, who was carrying a .22 revolver, shot

Walters twice in the head. Using the same gun, Hardwick then shot and killed
J-A23001-19


Walter’s dog, which was also in the car.     Moye and Hardwick then moved

Walters’s body to the back seat of her vehicle, and proceeded to drive the

vehicle around the Altoona area for some time while they got high on the

marijuana.      Walters was still alive for approximately twenty minutes.

Ultimately, they dropped the vehicle off near an abandoned house, and

Hardwick hid the car keys and the gun at his house. Hardwick told police that

he and Moye had been planning to rob someone for marijuana for several

weeks, and that Moye had been talking about wanting to shoot someone.

      On September 20, 2016, Moye entered a guilty plea to criminal

homicide-murder of the first degree, robbery, conspiracy, abuse of a corpse,

animal abuse, unauthorized use of a motor vehicle and firearms charges. On

the homicide count, the court sentenced Moye to life in prison without the

possibility of parole. On the remaining counts, the court sentenced Moye to

various prison terms ranging from a minimum of one month to a maximum of

20 years, all to run concurrently to the other counts. Moye timely appealed

his sentence.

      While his direct appeal was pending, the Pennsylvania Supreme Court

decided Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (hereinafter

“Batts II”), which relied on the United States Supreme Court decision in

Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012). In Miller, the High Court

recognized that juveniles have diminished culpability and greater prospects

for reform, and that due to their lack of maturity, juveniles are less deserving


                                     -2-
J-A23001-19


of the most severe punishments. The Batts II Court created a presumption

against the imposition of a sentence of life without the possibility of parole for

a defendant convicted of first-degree murder committed as a juvenile, and

further held that the Commonwealth bears the burden of rebutting this

presumption by establishing beyond a reasonable doubt that the juvenile

offender is “permanently incorrigible” and “unable to be rehabilitated.” Batts

II, 163 A.3d at 459.

       Following Batts II, this Court remanded Moye’s direct appeal to the trial

court for resentencing. The trial court conducted a resentencing hearing on

September 6, 2018.         In advocating that the court resentence Moye to life

imprisonment without parole, the only new evidence that the Commonwealth

presented at the resentencing hearing was a victim impact statement. Moye

presented the testimony and supplemental expert report of Bruce Wright,

M.D.,1 a forensic psychiatrist, who opined that it was possible that Moye could

be rehabilitated. Dr. Wright could not conclude that Moye was permanently

incorrigible or incapable of rehabilitation.

       Nevertheless, on December 20, 2018, the trial court found Moye

permanently incorrigible beyond a reasonable doubt, and thereafter re-

imposed a sentence of life imprisonment without the possibility of parole on

the homicide conviction. Moye filed a timely post-sentence motion, which the


____________________________________________


1 Dr. Wright prepared an expert report and provided expert testimony in
connection with Moye’s initial sentencing in 2016.

                                           -3-
J-A23001-19


trial court denied. Moye thereafter filed the instant timely appeal. Both Moye

and the trial court complied with Pa.R.A.P. 1925.

     Moye raises six issues for our review, all related to his resentencing:

     I. Whether the trial [court] erred when it found that the
     Commonwealth sustained its burden to prove beyond a
     reasonable doubt that [Moye] is permanently [incorrigible] and
     thus is unable to be rehabilitated?

     II. Whether the trial court erred by failing to provide [Moye] with
     any hope of parole or any hope of parole at a reasonable age and
     consideration for his [amenability] to rehabilitation fails to
     sufficiently take [Moye’s] age at the time of the offense into
     consideration as discussed in Miller v. Alabama and [Batts II]?

     III. Whether the trial court’s application of a sentence of life
     imprisonment without the possibility of parole as [Moye] was a
     juvenile at the time of the offenses violates the protections
     provided against cruel punishment pursuant to the [E]ighth
     [A]mendment of the United States Constitution and Article 1-7
     Section 13 of the Pennsylvania Constitution?

     IV. Whether the trial court erred when it imposed a sentence upon
     [Moye] that exhibited bias, ill will and prejudice that [was] also
     manifestly excessive and excessively punitive in nature?

     V. Whether the trial court abused its discretion in applying the
     required factors outlined in 18 Pa.C.S.A. § 1102.1(d) to find that
     factors weighed heavily against [Moye] thereby justifying the
     imposition of life without parole?

     VI. Whether the trial court abused its discretion in imposing a
     sentence of life imprisonment without parole when it failed to
     consider mitigating evidence and factors presented to [it]?

Moye’s Brief at 7-8 (issues renumbered for ease of disposition).

     Before we address Moye’s specific claims, we begin with a review of the

controlling decisional law regarding juvenile sentencing. In recent years, the

United States Supreme Court has recognized that juveniles are less mature,

                                    -4-
J-A23001-19


more vulnerable or susceptible to negative influences, and that only a

relatively small proportion of adolescents who experiment in risky or illegal

activities develop entrenched patterns of problem behavior that persist into

adulthood. See Roper v. Simmons, 543 U.S. 551 (2005); see also Graham

v. Florida, 556 U.S. 1220 (2010). In Miller, the High Court reiterated, “that

the distinctive attributes of youth diminish the penological justifications for

imposing the harshest sentences on juvenile offenders, even when they

commit terrible crimes.” Miller, 567 U.S. at 471-72. The High Court observed

that “none of what it said about children — about their distinctive (and

transitory) mental traits and environmental vulnerabilities — is crime-

specific.” Id. at 473. Rather, the Miller Court reasoned that “[d]eciding that

a ‘juvenile offender forever will be a danger to society’ would require ‘mak[ing]

a judgment that [he] is incorrigible’ — but ‘incorrigibility is inconsistent with

youth.’” Id. at 472-73 (quoting Graham, 560 U.S. at 72).

      Based on these considerations, the Miller Court held that a sentencing

scheme that mandates the imposition of a life-without-parole sentence for a

juvenile violates the Eighth Amendment to the United States Constitution.

While it did not foreclose the possibility that a child could be sentenced to life

imprisonment without parole in a homicide case, it concluded that sentencing

for juveniles must be individualized, and that this requires consideration of

the defendant’s age at the time of the offense, as well as the hallmark features

of youth, including:


                                      -5-
J-A23001-19


      immaturity, impetuosity, and failure to appreciate risks and
      consequences[;] . . . the family and home environment that
      surrounds him — and from which he cannot usually extricate
      himself — no matter how brutal or dysfunctional[;] . . . the
      circumstances of the homicide offense, including the extent of his
      participation in the conduct and the way familial and peer
      pressures may have affected him[;] . . . that he might have been
      charged and convicted of a lesser offense if not for
      incompetencies associated with youth — for example, his inability
      to deal with police officers or prosecutors (including on a plea
      agreement) or his incapacity to assist his own attorneys[;] . . .
      [and] the possibility of rehabilitation . . . when the circumstances
      [(the youthfulness of the offender)] most suggest it.

Id. at 474-78; see also id. at 476 (stating that, in addition to age, a court

must also give consideration to a juvenile offender’s background and mental

and emotional development in assessing his culpability).

      In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States

Supreme Court held that “Miller announced a substantive rule that is

retroactive in cases on collateral review.” Montgomery, 136 S. Ct. at 732.

The Montgomery Court clarified that Miller requires far more than mere

consideration of an offender’s age prior to imposing a life-without-parole

sentence, as such a sentence “still violates the Eighth Amendment for a child

whose crime reflects “unfortunate yet transient immaturity.’” Id. (quoting

Miller, 567 U.S. at 479). As explained by the Montgomery Court, life without

parole is a disproportionate sentence for all but the rarest of children, those

whose crimes reflect irreparable corruption, permanent incorrigibility, and

such irretrievable depravity that rehabilitation is impossible, thereby excluding




                                      -6-
J-A23001-19


the vast majority of juvenile offenders from facing a sentence of life in prison

without the possibility of parole. Id. at 726, 733, 734.

      In Batts II, the Supreme Court of Pennsylvania reviewed the controlling

United States Supreme Court decisions, and determined that in order to

impose upon a juvenile offender a life sentence without the possibility of

parole, the sentencing court must first determine that his or her rehabilitation

at any point in the future is impossible:

      [F]or a sentence of life without parole to be proportional as applied
      to a juvenile murderer, the sentencing court must first find, based
      on competent evidence, that the offender is entirely unable to
      change. It must find that there is no possibility that the
      offender could be rehabilitated at any point later in his life,
      no matter how much time he spends in prison and
      regardless of the amount of therapeutic interventions he
      receives, and that the crime committed reflects the juvenile’s true
      and unchangeable personality and character. Montgomery, 136
      S. Ct. at 733 (stating that pursuant to Miller, life without parole is
      only justified for “the rare juvenile offender who exhibits such
      irretrievable depravity that rehabilitation is impossible”).

Batts II, 163 A.3d at 435 (emphasis added).           The Batts II Court also

established the standard of review of a trial court’s order imposing a sentence

of life in prison without the possibility of parole upon a defendant who

committed murder of the first degree as a juvenile:

            Under Miller and Montgomery, 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
      characteristics, permitting its imposition. Montgomery, 136 S.
      Ct. at 726, 734; Miller, 567 U.S. at 479, 132 S. Ct. 2455. A
      sentence of life in prison without the possibility of parole for a
      murder committed when the defendant was a juvenile is otherwise


                                      -7-
J-A23001-19


      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.           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 [a defendant] is eligible to receive a sentence of
      life without parole pursuant to a de novo standard and plenary
      scope of review. 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.

Batts II, 163 A.3d at 435-36 (some citations omitted).

      The Batts II Court went on to rule that “in Pennsylvania, a faithful

application of the holding in Miller, as clarified in Montgomery, requires the

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

prison without the possibility of parole.” Id. at 452. It further ruled that, “to

overcome the presumption against the imposition of a sentence of life without

parole for a juvenile offender, the Commonwealth must prove that the juvenile

is constitutionally eligible for the sentence beyond a reasonable doubt. In an

effort to satisfy this burden, the Commonwealth may present evidence relating




                                      -8-
J-A23001-19


to the factors announced in Miller and the factors appearing in [the

sentencing code at 18 Pa.C.S.A. §] 1102.1(d).”2 Batts II, 163 A.3d at 455.

____________________________________________


2 Pennsylvania’s General Assembly responded to Miller by enacting a new
sentencing statute for juveniles convicted of first-degree murder after June
24, 2012. See 18 Pa.C.S.A. § 1102.1(a). When determining whether to
impose a sentence of life imprisonment without the possibility of parole on a
juvenile convicted of murder, § 1102.1 requires a court to consider and make
findings on the record regarding the following individual factors:

       (1) The impact of the offense on each victim, including oral and
       written victim impact statements made or submitted by family
       members of the victim detailing the physical, psychological and
       economic effect of the crime on the victim and the victim’s family.

       (2) The impact of the offense on the community.

       (3) The threat to the safety of the public or any individual posed
       by the defendant.

       (4) The nature and circumstances of the offense committed by the
       defendant.

       (5) The degree of the defendant’s culpability.

       (6) Guidelines for sentencing and resentencing adopted by the
       Pennsylvania Commission on Sentencing.

       (7) Age-related characteristics of the defendant, including:
             (i) Age.
             (ii) Mental capacity.
             (iii) Maturity.
             (iv) The degree of criminal sophistication exhibited by the
             defendant.
             (v) The nature and extent of any prior delinquent or criminal
             history, including the success or failure of any previous
             attempts by the court to rehabilitate the defendant.
             (vi) Probation or institutional reports.
             (vii) Other relevant factors.




                                           -9-
J-A23001-19


       In his first issue, Moye challenges the trial court’s finding that he is

permanently incorrigible beyond a reasonable doubt. He relies on the expert

testimony of Dr. Wright, who examined Moye for purposes of his initial

sentencing, and reexamined Moye for his resentencing.                     At Moye’s

resentencing hearing, Dr. Wright opined that, since his initial sentencing, Moye

had   participated     in   therapeutic    programming   (including   a   leadership

development program) and the therapeutic community, had begun to study

and practice the Muslim religion, and that Moye’s comments demonstrated

that he had gained insights and improvements since their prior contact.

Significantly, Dr. Wright testified that he could not provide an opinion that

Moye was irreparably corrupt, irretrievably depraved, permanently incurable,

or state with certainty that there is no chance of Moye’s rehabilitation.

Because Dr. Wright saw improvements in Moye, and was unable to state that




____________________________________________


18 Pa.C.S.A. § 1102.1(d). As noted by the Batts II Court, “some of the
Miller factors are noticeably absent from section 1102.1(d).” Batts II, 163
A.3d at 455 n.23. Indeed, in our view, § 1102.1(d) seems to focus more of
the crime itself, whereas Miller and Montgomery direct us to consider the
“possibility of rehabilitation,” which is not a consideration under § 1102.1(d).
However, we reiterate that, in addition to the § 1102.1(d) factors, all of the
Miller factors must be considered by a court prior to sentencing a juvenile to
life imprisonment without parole. Id. (holding that sentencing courts should
consider the Miller factors and the § 1102.1(d) factors prior to imposing a life
without parole sentence on a juvenile offender regardless of whether the
juvenile was convicted pre- or post-Miller).




                                          - 10 -
J-A23001-19


Moye is not amenable to treatment, Moye claims that the Commonwealth did

not prove he is permanently incorrigible.

       Moye further contends that the trial court was presented with several

factors mitigating against a life without parole sentence, including his age of

16 at the time of his offense, his lack of any significant criminal history, his

prior record score of zero,3 his long history of substance abuse, his chaotic

and unstable home life, his lack of a solid support system or role models, his

relocation to Bedford County, his involvement in dependency and delinquency

proceedings, and his placements outside the home. He claims that his contact

with the criminal justice system is not due to some innate incorrigibility, but

rather his unstable home life and introduction to drug use and drug dealing at

a young age.

       Here, the record reflects that the sentencing court considered both the

factors announced in Miller and the factors appearing in § 1102.1(d).              In

addressing     those    factors,   the    sentencing   court   noted   the   following

circumstances and events marking Moye’s life from childhood up through his

incarceration for his homicide conviction.

       Moye had a difficult and chaotic childhood.         See N.T. Resentencing,

12/20/18, at 24-25. His parents never married; he had limited contact with



____________________________________________


3 Although his prior record score was zero, Moye acknowledges that he had
two non-violent misdemeanor adjudications as a juvenile for receiving stolen
property and theft by unlawful taking.

                                          - 11 -
J-A23001-19


his father, and no stable father-figure. Id. at 14, 25. As a child, Moye moved

frequently due to his mother’s relationships with various boyfriends. Id. at

13. According to Moye, if there was a disagreement, his mother always picked

the boyfriend over him. Id. at 13-14. During elementary school, Moye was

involved in frequent fights, and was often suspended or given detention. Id.

at 13. In fifth grade, Moye began working as a “corner boy” exchanging drugs

(heroin) for money in Baltimore. Id. at 14. Moye told Dr. Wright that he

engaged in arson by burning down a couple of houses (one abandoned and

two occupied) because he and his friends were bored. Id. Moye also indicated

that he engaged in “gunplay” by shooting guns all through the city, and

participated in gang activity due to his poor relationship with his mother. Id.

at 14-15.

      In 2010, when Moye was twelve, his mother moved him to Bedford

County, Pennsylvania, due to his criminal activities in Baltimore. Id. at 15.

Moye’s behavioral issues continued after the move, and he was kicked out of

school in the sixth grade after he exposed himself. Id. at 15-16. Moye then

attended an alternative education program for one and one-half years, before

returning to school in the eighth grade. Id. at 16. Moye got into a fight and

failed to do any work, and was again kicked out of school and sent back to

alternative education program. Id.

      In 2011, when Moye was thirteen, he was placed in the Children’s Aid

Home because he got in a physical altercation with his mother at school. Id.


                                     - 12 -
J-A23001-19


Moye escaped from the home after thirty days, and remained at large until

police found him.4 Id. In 2013, when Moye was fifteen, he was re-admitted

to the Children’s Aid Home because he had pending delinquency and

dependency matters. Id. at 17. Moye admitted to breaking into and stealing

cars. Id. He also told to Dr. Wright that, while living in Bedford County, he

threatened people with weapons while attempting to steal from them,

intimidated people, and continued to sell drugs. Id. at 17-18. Dr. Wright also

found that Moye had a severe substance abuse problem, as he had consumed

marijuana, alcohol and opiods on a daily basis since pre-adolescence. Id. at

20.

       In 2014, Moye was placed at Outside In boot camp as part of the

delinquency action after he was caught stealing a car. Id. at 17. Moye did

very well in that program and was released after five months and placed on

probation. Id. However, less than two months after his release from Outside

In, Moye committed the offenses at issue. Id. at 55.

       In 2016, prior to his initial sentencing for the crimes in this matter, Dr.

Wright evaluated Moye and diagnosed him with conduct disorder-childhood

onset severe, cannibus use disorder, alcohol use disorder, and opioid use

disorder. Id. at 20. He also noted that Moye had a history of severe and, at




____________________________________________


4 The record does not reflect how long Moye was at large before police
apprehended him.

                                          - 13 -
J-A23001-19


times, very dangerous impulsivity, and very severe and dangerous recidivist

behavior. Id. at 21.

        In 2018, prior to his resentencing for the crimes in this matter, Dr.

Wright re-evaluated Moye and prepared a supplemental expert report. Dr.

Wright noted that Moye was briefly incarcerated at SCI Camp Hill, and had no

disciplinary or behavior problems at that facility.5 Id. at 22. However, since

his transfer to SCI Pine Grove in February 2017, he had experienced ups and

downs. Id. At SCI Pine Grove, Moye was involved in a physical altercation

with another inmate, and was re-assigned to the Restrictive Housing Unit for

three days. Id. at 23. He had another disciplinary problem when a verbal

altercation with an inmate became physical, and Moye “messed up” the other

inmate’s face. Id. at 23-24. Moye was reassigned to the Restrictive Housing

Unit for an additional period of time. Id. at 24.

        Notably, the sentencing court acknowledged that Dr. Wright identified

several positive prognostic indicators.        Id. at 26.   Specifically, Dr. Wright

indicated that Moye expressed a desire to improve, and was participating in

classes, leadership development programs, therapeutic communities, and

religious activities. Id. at 22-23, 26. Moye indicated that he understood that

he had done something wrong when he was a kid, but noted that he was now

20, and that he had grown so much, and wanted the world to see that he was



____________________________________________


5   The record does not reflect how long Moye was at SCI Camp Hill.

                                          - 14 -
J-A23001-19


a changed individual and can be in society again. Id. at 24. Moye further

indicated that he had things he wanted to accomplish; namely, finish school,

take rehabilitation programs, and do some things on his own. Id. Dr. Wright

observed that Moye is relatively young and will mature with time and

continued treatment and rehabilitation. Id. at 26.

     The sentencing court also considered the presentence investigation

report (“PSI”), which indicated Moye’s juvenile misdemeanor offenses of theft

by unlawful taking and receiving stolen property in 2013, and another theft

by unlawful taking in 2014, which was graded as a third-degree felony. Id.

at 31. While Moye was on supervision and probation for these offenses, he

violated the terms of such supervision and probation by testing positive for

marijuana, failing to report to the probation office and outpatient drug and

alcohol counseling for scheduled appointments, and failing to meet his

academic expectations and requirements. Id. at 33-34. The PSI also detailed

Moye’s delinquency and dependency actions, and placements with various

agencies. Id. at 36.

     The PSI further indicated that on December 29, 2014, a violation of

probation was filed against Moye for testing positive for marijuana on

December 19, 2014, and for failing to report to the probation office.      A

violation of probation hearing was scheduled for January 9, 2015. Id. at 34.

On the afternoon preceding the hearing, Moye and his mother met with Moye’s

probation officer, who advised them of the different outcomes that the court


                                   - 15 -
J-A23001-19


could impose the following day. Id. at 34-35. Moye left the probation office

at approximately 4:50 p.m. on January 8, 2015, and appeared in court the

next morning at 9:00 a.m. Id. at 35. In the intervening hours, he murdered

Walters. Id.

      After discussing Moye’s background in relation to the Miller factors and

the § 1102.1(d) factors, the sentencing court found “beyond a reasonable

doubt that [Moye] is permanently incorrigible, irretrievably depraved, and

incapable of being rehabilitated.   N.T. Resentencing, 12/20/ 18, at 89.      It

thereafter resentenced Moye to life in prison without the possibility of parole.

Id. at 90.

      Based on our review of the record, and mindful of the Commonwealth’s

burden of proof, we conclude that the sentencing court’s legal conclusion that

Moye is entirely incapable of being rehabilitated is not supported by the

record. Moye enjoyed a presumption against the imposition of a life without

parole sentence, and the Commonwealth bore the burden of proving beyond

a reasonable doubt that there is no possibility that Moye could be rehabilitated

at any point later in his life, no matter how much time he spends in prison and

regardless of the amount of therapeutic interventions he receives. See Batts

II, 163 A.3d at 435.       Indeed, the Batts II Court recognized that a

presumption operates as proof of the ultimate fact unless and until the

opposing party comes forward with evidence sufficient to rebut the

presumption. Id. at 453. Critically, the Commonwealth did not retain an


                                     - 16 -
J-A23001-19


expert, submit an expert report, or present expert testimony on this critical

issue.

         While the Batts II Court did not specifically require expert testimony

for a court to determine that a juvenile offender is permanently incorrigible,

it certainly highlighted the value of input from expert psychologists. Indeed,

Batts II acknowledged the difficulty “even for expert psychologists to

distinguish[] at this early age between the juvenile offender whose crime

reflects unfortunate yet transient immaturity, and the rare juvenile offender

whose crime reflects irreparable corruption.” Id. at 432 (quoting Miller, 567

U.S. at 479-80) (internal citations and quotation marks omitted). Batts II

further observed that:

         Given the presumption against life without parole and the
         Commonwealth’s burden beyond a reasonable doubt to rebut the
         presumption, it is difficult to conceive of a case where the
         Commonwealth would not proffer expert testimony and
         where the sentencer would not find expert testimony to be
         necessary.

Batts II, 163 A.3d at 456 (emphasis added); see also id. at 460-61 (Wecht,

J., concurring) (“Following today’s decision, the Commonwealth likely will (and

I believe should) retain and present an expert in the vast majority of [life

without parole] resentencing hearings, if not in all of them.”)

         We note that the only evidence that the Commonwealth presented at

the resentencing hearing was the impact statement of Walter’s mother. The

Commonwealth presented no evidence whatsoever regarding Moye’s inability

to be rehabilitated at the resentencing hearing.     Thus, the Commonwealth

                                      - 17 -
J-A23001-19


failed to rebut the presumption against life without parole as an appropriate

individualized sentence for Moye.

      Although the Commonwealth did not come forward with evidence to

rebut the presumption against a life without parole sentence, Moye

nevertheless offered credible testimony at the resentencing hearing regarding

his prospects for rehabilitation through the testimony and supplemental

expert report of Dr. Wright. As noted above, Dr. Wright specifically opined,

to a reasonable degree of medical certainty, that, in time and “with

maturation, structure and appropriate interventions,” it is possible that Moye

could be successfully rehabilitated. See Wright Supplemental Expert Report,

9/4/18 at 6; see also N.T. Resentencing Hearing, 9/6/18, at 46 (“It’s . . .

impossible for me to sit here to . . . say that’s there no chance of rehabilitation

several decades down the road. . . . I would say it’s possible.”)

      Importantly, the sentencing court found Dr. Wright’s findings and

opinions to be “credible,” “informative” and indicated that they provide “good

guidance.” See N.T. Resentencing, 12/20/18, at 77. As the record supports

the sentencing court’s determination that Dr. Wright offered credible expert

testimony, we accept this finding for purposes of our review. Batts II, 163

A.3d at 435-36 (holding that we defer to the credibility determinations and

findings of fact made by the sentencing court, as long as they are supported

by competent evidence). However, we give no deference to the court’s legal

conclusions. Id.


                                      - 18 -
J-A23001-19


      Here, in making its legal determination that Moye is permanently

incorrigible and incapable of rehabilitation, the sentencing court largely

ignored the positive prognostic indicators identified by Dr. Wright, and

repeatedly stated that the only factors suggesting that Moye could be

rehabilitated were his negative childhood environment, age and his positive

performance while in juvenile placement at Outside In. See id. at 79, 80.

This limited assessment fails to account for Moye’s efforts to improve himself

while in prison, and the credible expert opinion of Dr. Wright that, in time and

“with maturation, structure and appropriate interventions,” it is possible that

Moye could be successfully rehabilitated. See Wright Supplemental Expert

Report, 9/4/18 at 6.    Instead, the sentencing court overly focused on the

nature of the crimes Moye committed, repeatedly noting that the homicide

was cold-hearted, callous and premeditated.          See N.T. Resentencing,

12/20/18, at 57-62, 65-66, 74-75, 81-82, 84-85, 86-87. However, we must

be mindful of “Miller’s central intuition,” which is “that children who commit

even heinous crimes are capable of change.” Montgomery, 136 S. Ct. at 736

      As explained by the Batts II Court, pursuant to established United

States Supreme Court precedent, the ultimate issue here is not the nature of

the crime committed, but whether an offender is capable of rehabilitation.

Batts II, 163 A.3d at 452. Our review of the record finds positive support

relative to Moye’s potential for rehabilitation.   Hence, the sentence of life

imprisonment without parole was beyond the sentencing court’s power to


                                     - 19 -
J-A23001-19


impose, and therefore illegal. Accordingly, we conclude that the sentence of

life in prison without the possibility of parole for Moye is disproportionate

under Miller and Montgomery, and thus violates the Eighth Amendment to

the United States Constitution.6         As such, we vacate Moye’s judgment of

sentence and remand for resentencing.7

       This will be the third time that Moye, who is now 21 years old, will face

sentencing for his crimes. Upon resentencing, the court “must provide [Moye]

some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.”8 Miller, 567 U.S. at 479 (quoting Graham, 560

U.S. at 74).9



____________________________________________


6 As explained by the Batts II Court, given the interest at issue (here, a
juvenile’s loss of his or her fundamental right to liberty), “an erroneous
decision in favor of the offender (i.e., sentencing the offender to a term of life
with the possibility of parole), carries minimal risk; if the juvenile offender is
one of the very rare individuals who is incapable of rehabilitation, he or she
simply serves the rest of the life sentence without ever obtaining release on
parole.” Batts II, 163 A.3d 454.

7 Based on our disposition of Moye’s first issue, we need not address his
remaining issues.

8 Our decision here should not be interpreted as minimizing the seriousness
of the reprehensible crimes Moye committed. His senseless and needless acts
of violence took the life of a young woman, and her family is living with the
consequences. There is no question that Moye, as a sixteen-year-old
murderer, must be held accountable and serve a sentence commensurate with
his actions. Our decision merely reflects the distinction that the law now
recognizes between juveniles and adults who commit the crime of murder.

9This directive applies to the sentencing court’s overall sentencing scheme,
and not merely to the sentence imposed on Moye’s homicide conviction.

                                          - 20 -
J-A23001-19


      Judgment of sentence vacated, case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2019




                               - 21 -
