J-S44002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES MILLER                               :
                                               :
                       Appellant               :   No. 208 WDA 2018

        Appeal from the Judgment of Sentence Entered October 11, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0001854-1981


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED OCTOBER 29, 2019

       Appellant, James Miller, appeals from the judgment of sentence entered

on October 11, 2017,1 following resentencing pursuant to Miller v. Alabama,

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

S.Ct. 718 (2016). After review, we affirm.2


____________________________________________


1 Appellant purports to appeal from the January 8, 2018 order denying his
post-sentence motions. However, his appeal properly lies from the October
11, 2017 judgment of sentence. Commonwealth v. Lawrence, 99 A.3d
116, 117 n.1 (Pa. Super. 2014). We have corrected the appeal paragraph
accordingly.

2 In Miller v. Alabama, the Supreme Court of the United States ruled that a
mandatory sentence of life imprisonment without the possibility of parole for
a juvenile offender is unconstitutional. Miller v. Alabama, 567 U.S. at 465.
In Montgomery, the Supreme Court of the United States concluded that
Miller v. Alabama announced a substantive rule of constitutional law, and as
such, the holding in Miller v. Alabama applied retroactively to juvenile
J-S44002-19


       The relevant facts and procedural history were set forth by the trial court

as follows:

             [On February 18, 1981,] Appellant, James Miller, was
       charged by criminal information (198101854) with one count of
       criminal homicide.1

              1   18 Pa. C.S. § 2501(a).

             On August 20, 1981, Appellant was found guilty of second
       degree murder2 after a non-jury trial before Judge Lewis.
       Appellant was sentenced by the Honorable Loran L. Lewis on
       February 5, 1982 to life without the possibility of parole.

              2   18 Pa. C.S. §2502(b).

             Appellant filed a timely appeal to the Superior Court. The
       Superior Court affirmed the judgment of sentence on February 10,
       1984. [Commonwealth v. Miller, 472 A.2d 249, 195 Pittsburgh
       1982 (Pa. Super. filed February 10, 1984) (unpublished
       memorandum).] Appellant filed a Petition for Allowance of Appeal
       to the Pennsylvania Supreme Court, which was denied on May 11,
       1984. [Commonwealth v. Miller, No. 68 W.D. Allocatur Docket
       1984 (denied May 11, 1984)].

            Appellant filed a pro se [Post Conviction Hearing Act
       (“PCHA”)] Petition[3] on December 31, 1986, which was
       subsequently denied on May 6, 1988.

              Appellant filed a [Post Conviction Relief Act (“PCRA”)]
       Petition on February 11, 1998, which was denied on August 20,
       1998. Appellant filed a timely notice of appeal to the Superior
       Court. The Superior Court, again, affirmed the judgment of

____________________________________________


convictions and sentences that were final when Miller v. Alabama was
decided.

3The PCHA was the precursor to the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-9546. Commonwealth v. Davis, 86 A.3d 883, 886 (Pa. Super. 2014).




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       sentence. [Commonwealth v. Miller, 1727 Pittsburgh 1998 (Pa.
       Super. filed March 29, 1999) (judgment).]

             On July 30, 2012, Appellant filed a pro se PCRA pursuant to
       the holding [in] Miller v. Alabama,[4] which was later dismissed on
       December 4, 2013.

             Appellant filed a timely notice of appeal on January 6, 2014,
       [and the PCRA court’s order] was affirmed by the Superior Court.
       [Commonwealth v. Miller, 108 A.3d 121, 31 WDA 2014 (Pa.
       Super. filed October 22, 2014) (unpublished memorandum).] On
       January 26, 2015, Appellant filed a petition for allowance of
       appeal. On March 18, 2016, the Pennsylvania Supreme Court
       vacated the Superior Court’s decision and remanded the matter
       for resentencing.[5] [Commonwealth v. Miller, 133 A.3d 1 (Pa.
       2016) (remanding to Superior Court); Commonwealth v. Miller,
       145 A.3d 775, 31 WDA 2014 (Pa. Super. filed April 8, 2016)
       (unpublished memorandum) (remanding to the trial court for
       resentencing)].

             On October 11, 2017, Appellant was resentenced at the
       count of second degree murder to a term of imprisonment of forty-
       three years to life.

            Appellant filed a post-sentence motion on October 23, 2017,
       which was denied … on January 8, 2018.

Trial Court Opinion, 10/4/18, at 2-3. Appellant filed a timely appeal, and both

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

       On appeal, Appellant raises the following issues for this Court’s

consideration:




____________________________________________


4The appellant in Miller v. Alabama, 567 U.S. 460 (2012), is not related to
Appellant in the case at bar.

5 Appellant was born on April 3, 1965, and was fifteen years old at the time of
the offense. Criminal Information, 2/18/81.

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      1. Whether Appellant received an illegal sentence because there
      is no valid sentencing scheme in Pennsylvania as Miller invalidated
      the only existing sentencing scheme in Pennsylvania for juveniles
      convicted of first or second degree murder prior to 2012?

      2. Whether the trial court unconstitutionally relied on the facts of
      the crime to outweigh the evidence of rehabilitation and
      improperly relied on the impact statements of the victim’s family
      as an aggravating factor?

      3. Whether the trial court erred or abused its discretion in denying
      Appellant’s request, as an indigent defendant, for a mitigation
      expert and that denial severely hindered counsel’s ability to
      present evidence regarding the Miller factors and to assess the
      need for expert testimony that would be a necessary factor for the
      Court’s consideration at resentencing?

Appellant’s Brief at 5.

      In Appellant’s first issue, he asserts that his sentence is illegal because

the holding in Miller v. Alabama invalidated the sentencing scheme for

juveniles convicted of first or second-degree murder prior to 2012. Appellant’s

Brief at 14.   Appellant begins his argument assailing the legality of the

sentence imposed, but he then asserts that the trial court also abused its

discretion when it imposed his sentence and refers to the discretionary aspects

of his sentence. Id. The legality of a sentence and the discretionary aspects

of a sentence are distinct concepts. See Commonwealth v. Barnes, 151

A.3d 121 (Pa. 2016) (discussing the differences between challenges to the

discretionary aspects of a sentence and the legality of the sentence). After

review, we conclude that despite Appellant’s reference to the discretionary




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aspects of his sentence, Appellant’s first issue focuses exclusively on the

legality of his sentence.6

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

novo and our scope of review is plenary.” Commonwealth v. Seskey, 170

A.3d 1105, 1107 (Pa. Super. 2017) (citation omitted). As noted above, the

Supreme Court of the United States held that mandatory sentences of life

without the possibility of parole for juvenile offenders violate the Eighth

Amendment’s prohibition against cruel and unusual punishment.            Miller v.

Alabama, 567 U.S. at 469-489.             In response to the decision in Miller v.

Alabama, our General Assembly enacted 18 Pa.C.S. § 1102.1. The statute

provides, inter alia, that juveniles who are fifteen years of age or older, but

younger than eighteen years of age, who are convicted of second-degree

murder after June 24, 2012, must be sentenced to a minimum term of

imprisonment of at least thirty years to life, and a mandatory maximum

sentence of life in prison. 18 Pa.C.S. § 1102.1(c)(1); 18 Pa.C.S. § 1102.

       Additionally, Section 1102.1 provides:

       (d) Findings.--In determining whether to impose a sentence of
       life without parole under subsection (a), the court shall consider
       and make findings on the record regarding the following:


____________________________________________


6 To the extent that Appellant intended to raise a challenge to the discretionary
aspects of his sentence in his first issue, we deem that claim waived for failing
to develop any meaningful argument. See Commonwealth v. Green, 204
A.3d 469, 489 (Pa. Super. 2019) (stating that where an appellant fails to
develop an issue, that claim is waived).


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       (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 effects of the crime on the
       victim and the victim’s family. A victim impact statement
       may include comment on the sentence of the defendant.

       (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.

     (e) Minimum sentence.--Nothing under this section shall
     prevent the sentencing court from imposing a minimum sentence
     greater than that provided in this section. Sentencing guidelines
     promulgated by the Pennsylvania Commission on Sentencing may

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     not supersede the mandatory minimum sentences provided under
     this section.

18 Pa.C.S. § 1102.1(d), (e).

     However, our Supreme Court held that Section 1102.1 is not mandated

to apply to juveniles who were convicted of first or second-degree murder

prior to June 25, 2012. Commonwealth v. Seskey, 170 A.3d 1105, 1108

(Pa. Super. 2017) (citing Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013)

(“Batts I”). In Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts

II), our Supreme Court reaffirmed Batts I, and it left undisturbed the

mandatory maximum term of life imprisonment under 18 Pa.C.S. § 1102.

Batts II, 163 A.3d at 421, 444. Additionally, in Batts II, the Supreme Court

of Pennsylvania explained the individualized sentencing factors from Miller v.

Alabama as follows:

     It requires consideration of the defendant’s age at the time of the
     offense, as well as “its hallmark features,” including:

           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.

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      [Miller v. Alabama, 567 U.S.] at 477-78, 132 S.Ct. 2455. See
      also id. at 476, 132 S.Ct. 2455 (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”) (quoting Eddings[ v. Oklahoma,] 455
      U.S. [104,] 116, 102 S.Ct. 869).

Batts II, 163 A.3d at 431-432.

       In the instant appeal, Appellant contends that Miller v. Alabama

eliminated the framework for sentencing offenders who are similarly situated,

i.e., juveniles who were convicted of second-degree murder prior to June 25,

2012. Appellant’s Brief at 21. Appellant alleges that because there is no “valid

sentencing scheme,” his sentence of forty-three years to life is illegal. Id.

We disagree.    Under Appellant’s interpretation, an individual who was a

juvenile convicted of first or second-degree murder prior to June 25, 2012,

apparently would not be subject to any minimum sentence. We conclude such

a construction is meritless.

      As noted, Appellant argues that Miller v. Alabama removed the

mandatory sentence of life without the possibility of parole for juveniles, and

the more recent sentencing statute, 18 Pa.C.S. § 1102.1, does not apply to

juveniles who were convicted of first or second-degree murder prior to June

25, 2012. Appellant’s Brief at 16-18. However, Appellant concedes as follows:

      Appellant understands that precedent … state[s] that 18 Pa.C.S.
      1102.1 is to be a guiding statute when resentencing such
      juveniles. See Batts [(II), 163 A.3d at 443]. However, there is no
      clear way to determine a minimum sentence. The trial judge is
      given an illustrative, not an exhaustive list of factors to consider


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       for a minimum sentence. See [Commonwealth v.] Knox[, 50 A.3d
       749, 765 (Pa. Super. 2012)].

Appellant’s Brief at 20-21 (emphasis added). After review, we find that case

law interpreting and applying Miller v. Alabama and Section 1102.1 for the

resentencing of juveniles convicted of first or second-degree murder prior to

June 25, 2012, supports our conclusion that Appellant’s sentence is legal.

       This Court recently held:

              For those defendants convicted of first or second-
              degree murder prior to June 25, 2012, for whom the
              sentencing court determines a life without parole
              sentence is inappropriate, … it is our determination
              here that they are subject to a mandatory maximum
              sentence of life imprisonment as required by Section
              1102[a], accompanied by a minimum sentence
              determined by the common pleas court upon
              resentencing.

       Seskey, 170 A.3d at 1108 (citing to Batts II, 163 A.3d at 421)
       (citation omitted) ….

Commonwealth v. Blount, 207 A.3d 925, 938 (Pa. Super. 2019) (footnote

omitted).7 Nothing prohibits the trial court from relying on Section 1102.1 as

guidance in resentencing a juvenile defendant convicted prior to June 25,

2012, to a minimum sentence of a term of years and a maximum sentence of


____________________________________________


7 This Court in Blount noted that Miller v. Alabama did not preclude
sentencing courts from ever imposing terms of life without parole upon
juvenile offenders. Blount, 207 A.3d at 938, n.9. Rather, Miller v. Alabama
required sentencing courts to consider a juvenile’s immaturity and capacity
for change, and to refrain from imposing a term of life without parole except
in extreme cases where the sentencing court determines that the juvenile is
incapable of rehabilitation. Id.


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life in prison. Rather, in the decisions filed after Miller v. Alabama and the

enactment of Section 1102.1, the courts of this Commonwealth announced

that “[t]he sentencing court should fashion the minimum term of incarceration

using, as guidance, section 1102.1(a) of the Crimes Code.” Batts II, 163

A.3d at 460 (emphasis added). Although Section 1102.1 applies specifically

to convictions occurring after June 24, 2012, the holding in Batts II directs

trial courts to consider Section 1102.1 when fashioning a sentence for

juveniles convicted prior to June 25, 2012.      Batts II, 163 A.3d at 460.

Additionally, the Supreme Court of Pennsylvania stated: “Trial courts must

consider, on the record, the Miller[v. Alabama] factors and Section 1102.1

criteria, in all cases where a juvenile is exposed to a sentence of life without

parole.” Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019).

      In the case at bar, Appellant was “exposed” to a sentence of life without

the possibility of parole because a minimum sentence of life in prison would

have been a legal sentence. Batts II, 163 A.3d at 422. The record reflects

that the trial court specifically considered Miller v. Alabama and Section

1102.1 when it resentenced Appellant. N.T., Sentencing Hearing, 10/11/17,

at 7, 14. Section 1102.1(c)(1) permits a minimum sentence of at least thirty

years to life, with a maximum sentence of life, for a juvenile who was at least

fifteen years of age when he was convicted of second-degree murder. Thus,

in the case at bar, the trial court was guided by Section 1102.1 and authorized

by case law to impose a minimum sentence of forty-three years and a


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maximum sentence of life pursuant to Miller v. Alabama. Thus, Appellant’s

sentence was legal. Batts II, 163 A.3d at 421. Accordingly, Appellant is

entitled to no relief on his challenge to the legality of his sentence.

      In his next issue, Appellant avers that the trial court focused on the

severity and facts of the crime, and it did not adequately consider mitigating

factors, such as evidence of Appellant’s rehabilitation, when it imposed

sentence. Appellant’s Brief at 22. Appellant’s issue presents a challenge to

the discretionary aspects of his sentence.     See Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) (a claim that the sentencing

court failed to consider certain factors implicates the discretionary aspects of

a sentence).

      We note that “[t]he right to appellate review of the discretionary aspects

of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127,

132 (Pa. Super. 2014).         Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a petition

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

                 We conduct a four-part analysis to determine:
            (1) whether appellant has filed a timely notice of

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             appeal, see Pa.R.A.P. 902 and 903; (2) whether the
             issue was properly preserved at sentencing or in a
             motion to reconsider and modify sentence, see
             Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
             fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
             is a substantial question that the sentence appealed
             from is not appropriate under the Sentencing Code,
             42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

       Here, the first two requirements of the four-part test are met: Appellant

filed a timely appeal, and Appellant preserved the sentencing issue in his post-

sentence motion. However, we are constrained to point out Appellant has

fallen short of the requirements for a Pa.R.A.P. 2119(f) statement.

       “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”         Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted

only when the appellate court determines that there is a substantial question

that   the   sentence   is   not   appropriate   under   the   Sentencing   Code.

Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006).                   A

substantial question exists where an appellant sets forth a plausible argument

that the sentence violates a particular provision of the Sentencing Code or is

contrary to the fundamental norms underlying the sentencing process. Id.

       In what appears to be his Pa.R.A.P. 2119(f) statement, Appellant

provides as follows:

                 DISCRETIONARY ASPECTS OF SENTENCING

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             Appellant relies upon the reasons set forth for allowance of
       appeal regarding discretionary aspects of sentencing. The
       sentencing court improperly relied upon the facts of the crime to
       outweigh the mitigating evidence and improperly relied upon the
       statements of the victim’s family as aggravating factors at
       resentencing; had no authority in the law to guide the sentencing
       and denied the necessity [of] a mitigation expert analysis, review
       and testimony.

Appellant’s Brief at 1. We state that this “appears” to be Appellant’s Rule

2119(f) statement because it is labeled with the heading “DISCRETIONARY

ASPECTS OF SENTENCING.” Id. However, this single paragraph is merely a

summation of Appellant’s three issues on appeal.        Id.   Nowhere in this

paragraph does Appellant set forth any plausible argument that the sentence

violates a particular provision of the Sentencing Code or is contrary to the

fundamental norms underlying the sentencing process as required by Hartle.

This paragraph fails to provide any argument or cite to any case law or

statutory authority.      To the extent that this paragraph is intended to be

Appellant’s 2119(f) statement, we conclude that Appellant’s bald assertion

concerning sentencing factors fails to present a substantial question.      See

Cruz-Centeno, 668 A.2d at 545 (stating that an assertion that the trial court

failed to consider certain factors does not present a substantial question).8


____________________________________________


8 In the argument portion of Appellant’s brief on this issue, he merely
continues his claim that the trial court failed to weigh properly certain
mitigating factors. Appellant’s Brief at 22-26. Thus, even if we were we to
consider Appellant’s argument an extension of his purported Pa.R.A.P. 2119(f)



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Accordingly, Appellant is entitled to no relief in his purported challenge to the

discretionary aspects of his sentence.

       In his final issue on appeal, Appellant asserts that the trial court abused

its discretion in denying Appellant’s request for an expert, which hindered his

ability to present evidence regarding mitigating factors under Miller v.

Alabama for the trial court’s consideration at resentencing.9 Appellant’s Brief

at 27. After review, we conclude that Appellant is entitled to no relief.

             It is well established that indigent defendants have a right
       to access the same resources as non-indigent defendants in
       criminal proceedings. The state has an affirmative duty to furnish
       indigent defendants the same protections accorded those
       financially able to obtain them. Procedural due process guarantees
       that a defendant has the right to present competent evidence in
       his defense, and the state must ensure that an indigent defendant
       has fair opportunity to present his defense.

Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016) (internal

citations and quotation marks omitted).            “However, the provision of public

funds to hire experts to assist in the defense against criminal charges is a

decision vested in the sound discretion of the court and a denial thereof will



____________________________________________


statement, we would conclude that he has failed to raise a substantial
question.

9 A claim that the trial court abused its discretion in failing to appoint a
mitigation-evidence expert does not present a challenge to the discretionary
aspects of Appellant’s sentence. See Commonwealth v. Melvin, 172 A.3d
14, 24 (Pa. Super. 2017) (noting that a challenge to the trial court’s failure to
provide funds for an expert is not a challenge to the discretionary aspects of
a sentence). Thus, Appellant’s deficient Pa.R.A.P. 2119(f) statement does not
prevent our Court from addressing this issue.

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not be reversed absent an abuse of that discretion.” Id. (internal citations

and quotation marks omitted).

     The trial court addressed this issue as follows:

           Here the [c]ourt received and granted Appellant’s Motion for
     a Psychiatric Expert, thus appointing Dr. Alice Applegate.
     Subsequently, Appellant filed a motion requesting that Appellant’s
     argument for an additional expert witness be conducted ex parte.
     Thereafter, a hearing was held on the motion, at which time the
     Commonwealth objected to the ex parte nature of the request.
     The [c]ourt stated that it did not see the danger in conducting an
     on record discussion regarding the appointment of an additional
     expert with the Commonwealth present because the [c]ourt
     believed the discussion would only be addressing the Miller [v.
     Alabama] factors. However, the [c]ourt ultimately ruled, out of an
     abundance of caution, to hold the discussion ex parte, further
     ruling that the Commonwealth would not be prejudiced by the ex
     parte nature of said discussion. (Motion Hearing Transcript,
     9/11/17, pp. 2-4). Subsequently, the [c]ourt conducted the ex
     parte discussion and ultimately denied the request for an
     additional expert believing the expert’s testimony would be
     cumulative to the testimony to be presented by Dr. Applegate.

           It should be noted that by virtue of her appointment as a
     psychiatric expert, Dr. Applegate obtained various pertinent
     records with respect to Appellant and performed a forensic
     psychological evaluation on Appellant. Subsequently, Dr.
     Applegate prepared an expert report and testified at the
     resentencing hearing presenting various pieces of mitigating
     evidence in accordance with the Miller[v. Alabama] factors.
     Further, Appellant submitted a multitude of additional pieces of
     documentary and testimonial mitigation evidence, as well as a
     comprehensive Memorandum in Aid of Sentencing. As such, an
     additional expert was simply not warranted in the matter as such
     an expert would only have provided cumulative evidence from that
     already being presented by Appellant. See Commonwealth v.
     Vandivner, 962 A.2d 1170, 1188 (Pa. 2009) (holding in a first-
     degree murder case that the trial [c]ourt did not abuse its
     discretion when it denied the defense’s request for appointment
     of an additional expert finding that any additional expert
     testimony would be merely cumulative.) As such, the [c]ourt did


                                   - 15 -
J-S44002-19


      not err in denying Appellant’s request for an additional appointed
      expert, and this claim is without merit.

Trial Court Opinion, 10/4/18, at 14-16.

      After review, we discern no abuse of discretion. The Psychiatric expert,

Dr. Alice Applegate, had access to Appellant’s mental health records, school

records, special education records, juvenile placement records, juvenile court

records, medical records, and “any and all other information deemed

necessary by Dr. Applegate[.]” Order, 8/19/16. As the trial court noted, Dr.

Applegate prepared an expert report and testified at the resentencing hearing

concerning mitigation evidence pursuant to the Miller v. Alabama factors.

Trial Court Opinion, 10/4/18, at 15. Moreover, we are constrained to point

out that in his brief, Appellant fails to provide any indication regarding what

evidence an additional expert would have added.

      We conclude that Dr. Applegate’s report informed the trial court

concerning mitigating factors.    The trial court specifically refers to Dr.

Applegate’s report concerning mitigation evidence including Appellant’s

chaotic childhood, the unstructured nature of his home life, his alcohol and

drug abuse, and being forced out of his home at a young age. N.T., 10/11/17,

at 9-10. The trial court also noted that Dr. Applegate’s report illustrated the

progress Appellant has made, the positive way Appellant has matured in

prison, together with Appellant’s accomplishments in prison and contributions

to the prison community. Id. We discern no abuse of discretion in the trial

court’s denial of funds for an additional expert where that expert’s testimony

                                    - 16 -
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would have been cumulative of evidence already before the court.          See

Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014) (finding no abuse of

discretion in the denial of an application for funds to secure expert testimony

where the expert’s testimony would be cumulative of evidence already before

the court).

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




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