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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
JAMES B. CANADY,                          :             No. 2373 EDA 2015
                                          :
                         Appellant        :


            Appeal from the Judgment of Sentence, March 31, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0015102-2007


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED MAY 24, 2016

        James Canady appeals from the judgment of sentence entered by the

Court of Common Pleas of Philadelphia County on March 31, 2015, wherein

the sentencing court, on remand, resentenced appellant to 35 years to life

imprisonment for his first-degree murder1 conviction.

        The sentencing court set forth the following:

                    [Appellant] appeals from the judgment of
              sentence imposed by this Court on March 31, 2015,
              of thirty-five years to life imprisonment following
              remand by the Pennsylvania Supreme Court on
              July 9, 2013, which vacated [appellant’s] life without
              parole sentence and remanded the matter for
              re-sentencing in accordance with the holding of
              Commonwealth v. Batts, 66 [A.3d] 286 (Pa.
              2013). Commonwealth v. Canady, 71 A.3d 248
              (Pa. 2013).     [Appellant] had been convicted on


1
    18 Pa.C.S.A. § 2502(a).
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              March 31, 2009, of first-degree murder, robbery,[2]
              graded as a felony of the first degree, criminal
              conspiracy,[3] and possessing instruments of
              crime,[4] generally, following a jury trial before this
              Court and was sentenced March 31, 2009, to life
              imprisonment followed by a consecutive sentence of
              twenty-two and one half to forty-five years[‘]
              incarceration on the other charges.         [Appellant]
              thereafter filed a notice of appeal to the Superior
              Court, which on March 28, 2011, affirmed the
              judgment of sentence. (1192 EDA 2009). As noted
              above, the Supreme Court, on July 9, 2013, vacated
              the life sentence imposed in this matter.            It,
              however, did not vacate the sentences imposed on
              the other charges and at [appellant’s] sentencing
              hearing, this Court ordered that the aggregate
              sentence of twenty-two and one-half years’
              incarceration    previously   imposed     be    served
              consecutive to the sentence of thirty-five years to life
              imposed on the first degree murder conviction.

                     The charges herein arose out of an incident
              that occurred on August 9, 2007, during which
              [appellant], who was fifteen years old at the time,
              and Darrin White entered Lu’s Grocery Store at
              about 10:00 a.m. and announced a robbery. Both
              individuals were wearing masks that covered their
              faces and [appellant] was armed with a hand gun.
              The proprietor of the store, Jia Xing Lu, immediately
              secured himself behind bullet proof glass but White
              climbed over the enclosure and began struggling
              with Lu. Lu’s daughter, Li Lu, was in an apartment
              above the store and upon hearing Lu moaning went
              downstairs to investigate. Once downstairs, she saw
              her father struggling with White and [appellant]
              standing near them. [Appellant] pointed a gun at
              Li Lu and then tossed her to the ground after she
              pushed his gun away and kicked him.

2
    18 Pa.C.S.A. § 3701(a)(1)(ii).
3
    18 Pa.C.S.A. § 903(a)(1).
4
    18 Pa.C.S.A. § 907(a).


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                   As this was occurring, Lu’s wife, Yu Zheng
            Zhen, came downstairs and began assisting her
            daughter, Li Lu, as she struggled with [appellant].
            During the struggle, Li Lu pulled off [appellant’s]
            mask and both women managed to push [appellant]
            out of the store, at which time they locked the door
            to the store.       Li Lu immediately recognized
            [appellant] as someone who often patronized the
            store.

                  White, who was still struggling with Mr. Lu,
            managed to free himself from Mr. Lu’s grasp but not
            before Mr. Lu removed his mask. White then called
            out to [appellant] after which he managed to unlock
            the front door to the store. When White unlocked
            the door, [appellant] pushed the door open and shot
            Mr. Lu twice, killing him. Both assailants then fled.

                  After the police arrived, Li Lu told them that
            the shooter was the same person who had robbed
            the store some months before and pointed at his
            residence. Police immediately went to that location
            and secured the premises. They then obtained an
            arrest warrant for [appellant] who surrendered three
            days after the incident.

Trial court opinion, 8/24/15 at 1-3.

      Appellant raises the following issue for our review:

            Is the appellant entitled to a remand for
            resentencing since his sentence of 35 years to life is
            excessive, not reflective of his character, history and
            condition and, therefore, manifestly unreasonable?

Appellant’s brief at 4.

      Appellant challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether    to   affirm  the   sentencing     court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of


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            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment       exercised      was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of 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).


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Moury, 992 A.2d at 170 (citation omitted).

      Here, the record reveals that appellant filed a timely notice of appeal,

properly preserved his sentencing issue in his post-sentence motion, and

included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we must now

determine whether appellant raises a substantial question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.     Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).     “A substantial question exists only

when an appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Id. (citation omitted).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).

      Here, in his Pa.R.A.P. 2119(f) statement, appellant takes somewhat of

a kitchen-sink approach in an attempt to raise a substantial question of

excessiveness. For example, appellant claims, among other things, that the



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35-years-to-life sentence that the sentencing court imposed is excessive

because: it is not reflective of appellant’s character, history, and conditions;

the evidence at the re-sentencing hearing proved conclusively that appellant

has made substantial efforts to rehabilitate himself; the sentence was

impermissibly based on the nature and circumstances of the murder;

appellant is not the same person who murdered the victim; the sentencing

court failed to state sufficient reasons for imposing the sentence; the

sentencing court failed to satisfy the factors necessary to impose a sentence

of total confinement; the sentence is not consistent with public protection or

the gravity of the offense as it relates to the impact on the life of the victims

and the community and appellant’s rehabilitative needs. (Appellant’s brief at

19-20, Pa.R.A.P. 2119(f) statement). Appellant, however, fails to advance a

colorable     argument   that   the   sentencing   court   imposed   a   sentence

inconsistent with the Sentencing Code or contrary to the fundamental norms

that underlie the sentencing process. In fact, contrary to appellant’s claim

of excessiveness, at re-sentencing, the sentencing court imposed the

minimum sentence available to appellant on his first-degree murder

conviction.

      The record reflects that appellant committed first-degree murder in

2006 when he was 15 years old.           After being convicted by a jury, the

sentencing court imposed a mandatory life sentence without the possibility

of parole on March 31, 2009. On July 9, 2013, our supreme court vacated



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appellant’s mandatory life sentence and remanded to the sentencing court

for resentencing in a manner consistent with Commonwealth v. Batts, 66

A.3d 286 (Pa. 2013) (“Batts II”).5

      Our supreme court decided Batts II in response to the United States

Supreme Court’s June 25, 2012 decision in Miller v. Alabama,                 U.S.

    , 132 S.Ct. 2455 (2012). In Miller, the Supreme Court held “that the

Eighth Amendment forbids a sentencing scheme that mandates life in prison

without the possibility of parole for juvenile offenders.” Id.     U.S. at      ,

132 S.Ct. at 2469 (citation omitted). The Court declined to categorically ban

the sentence of life without parole for juveniles, but explained that it

believed that such a sentence would be “uncommon.”          Id.   As such, the

Court confirmed that its holding “d[id] not foreclose a sentencer’s ability to

make that judgment in homicide cases, [but required] it to take into account

how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” Id. (footnote omitted).

      On October 25, 2012, and in response to Miller, a new statutory

sentencing scheme took effect for juveniles convicted of murder. Under that

statute, a person at least 15 but under 18 years of age may receive “a term

of life imprisonment without parole, or a term of imprisonment, the


5
  Consistent with this court’s most recent opinion in Commonwealth v.
Batts, 125 A.3d 33 (Pa.Super. 2015), appeal granted, in part, 2016
Pa.LEXIS 823 (Pa. 2016) (see footnote 6 infra), our supreme court’s
opinion in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), will be
referred to as Batts II.


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minimum of which shall be at least 35 years to life.”               18 Pa.C.S.A.

§ 1102.1(a)(1).    In determining whether a life-without-parole sentence

should be imposed pursuant to this statute, however, the sentencing court

must consider various individualized factors regarding the nature and

circumstances of the offense; defendant’s age, mental capacity, maturity,

culpability, and degree of criminal sophistication; and the success or failure

of any prior rehabilitative attempts.    See 18 Pa.C.S.A. § 1102.1(d).       The

statute also permits the sentencing court to consider any other factors that it

deems relevant to its assessment. See 18 Pa.C.S.A. § 1102.1(d)(7)(vii).

      Here, although the sentencing court was directed to re-sentence

appellant in accordance with the Batts II factors for consideration, the

available sentences set forth in Section 1102.1(a)(1) did not apply to

appellant because appellant was convicted of first-degree murder in 2009,

before   the   October   12,   2012     effective   date   of   Section   1102.1.

Consequently, appellant was subject to the version of Section 1102 that was

in effect at the time of his March 31, 2009. Accordingly,

            [i]n Batts II, our Supreme Court explained that
            Miller’s holding is narrow, i.e., mandatory sentences
            of life imprisonment without the possibility of parole
            are not constitutional when imposed on juveniles
            convicted of murder. It accordingly rejected [the]
            argument that Miller rendered Section 1102
            unconstitutional in its entirety as applied to
            juveniles, reasoning as follows.

                  Section 1102, which mandates the
                  imposition of a life sentence upon
                  conviction for first-degree murder, see


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                18 Pa.C.S.[A.] § 1102(a), does not itself
                contradict Miller; it is only when that
                mandate       becomes      a    sentence    of
                life-without-parole as applied to a
                juvenile offender--which occurs as a
                result of the interaction between Section
                1102,      the      Parole      Code,     see
                61 Pa.C.S.[A.] § 6137(a)(1), and the
                Juvenile Act, see 42 Pa.C.S.[A.] § 6302
                --that Miller’s proscription squarely is
                triggered.         Miller    neither    barred
                imposition      of    a   life-without-parole
                sentence on a juvenile categorically nor
                indicated that a life sentence with the
                possibility of parole could never be
                mandatorily imposed on a juvenile.
                Rather, Miller requires only that there
                be     judicial    consideration     of    the
                appropriate age-related factors set forth
                in that decision prior to the imposition of
                a sentence of life imprisonment without
                the possibility of parole on a juvenile.

          Batts II, supra at 295-296 (some citations
          omitted). The Court also noted that it would not
          expand the holding of Miller absent a common law
          history or a legislative directive. Id. at 296 (citation
          omitted). Accordingly, our Supreme Court remanded
          to the trial court with instructions to consider the
          following age-related factors in resentencing [the
          Batts II] Appellant.

                [A]t a minimum [the trial court] should
                consider a juvenile’s age at the time of
                the offense, his diminished culpability
                and     capacity     for    change,    the
                circumstances of the crime, the extent of
                his participation in the crime, his family,
                home and neighborhood environment,
                his emotional maturity and development,
                the extent that familial and/or peer
                pressure may have affected him, his past
                exposure to violence, his drug and
                alcohol history, his ability to deal with


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                 the police, his capacity to assist his
                 attorney, his mental health history, and
                 his potential for rehabilitation.

Commonwealth v. Batts, 125 A.3d 33, 38-39 (Pa.Super. 2015), appeal

granted, in part, 2016 Pa.LEXIS 823 (Pa. 2016)6 (citations omitted).



6
 On April 19, 2016, our supreme court granted the petition for allowance of
appeal, limited to the following issues:

           1.    In Miller v. Alabama, the U.S. Supreme Court
                 outlawed mandatory life without parole for
                 juveniles (LWOP), and instructed that the
                 discretionary imposition of this sentence should
                 be “uncommon” and reserved for the “rare
                 juvenile   offender    whose     crime   reflects
                 irreparable corruption.”

                 i.    There is currently no procedural
                       mechanism to ensure that juvenile
                       LWOP will be “uncommon” in
                       Pennsylvania.    Should this Court
                       exercise its authority under the
                       Pennsylvania      Constitution   to
                       promulgate procedural safeguards
                       including (a) a presumption against
                       juvenile LWOP; (b) a requirement
                       for competent expert testimony;
                       and (c) a “beyond a reasonable
                       doubt” standard of proof?

                 ii.   The lower court reviewed the
                       Petitioner’s sentence under the
                       customary abuse of discretion
                       standard.      Should the Court
                       reverse     the    lower  court’s
                       application     of   this  highly
                       deferential standard in light of
                       Miller?

Commonwealth v. Batts, 2016 Pa.LEXIS 823 (Pa. April 19, 2016).


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     Here, the sentencing court held an extensive resentencing hearing.

(Notes of testimony, 3/31/15 at 1-90.)      During that hearing, in order to

support his rehabilitation contention, appellant presented expert testimony,

as well as testimony from his family members and individuals involved in

inmate rehabilitation programs who have worked with appellant. (See id.)

The sentencing court also acknowledged that it had read family court

records, appellant’s pre-sentence report, appellant’s mental evaluation, all

records from the Pennsylvania Department of Corrections, appellant’s

sentencing memo, appellant’s expert report, letters from individuals involved

in inmate rehabilitation programs who have worked with appellant, as well

as the Commonwealth’s sentencing memorandum. (Id. at 4-5.) During the

hearing, appellant also addressed the court. (Id. at 59-63.)

     At the conclusion of the hearing, and immediately prior to imposing

sentence, the sentencing court acknowledged that it had reviewed Batts II,

as well as the new sentencing statute enacted in response to Miller and

signed into law on October 25, 2012.    During the sentencing hearing, the

sentencing court correctly stated that because appellant committed his

crimes prior to Batts II, the sentences set forth in the October 25, 2012

sentencing statute did not apply to appellant, and the court, therefore, was

free to re-sentence appellant to a mandatory life sentence on the

first-degree murder conviction.    (Notes of testimony, 3/31/15 at 87.)

Nevertheless, the sentencing court sentenced appellant to the mandatory



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sentence under the sentencing scheme that became effective on October 25,

2012, which is 35 years to life.          Under the circumstances of this

re-sentencing, then, appellant’s excessiveness complaint is unfounded

because even though appellant was not entitled to receive the benefit of

being resentenced under the October 25, 2012 statute, he received the

mandatory sentence under that statute, which was the minimum sentence

that could have been imposed.       Therefore, appellant cannot set forth a

plausible argument that the mandatory minimum sentence imposed is

unreasonably excessive.

      In a final effort to raise a substantial question of excessiveness,

appellant claims that the trial court abused its discretion by ordering that the

sentences previously imposed on the robbery, criminal conspiracy, and

possessing instruments of crime convictions7 run consecutive to the

sentence imposed on the first-degree murder conviction.       Appellant claims

that because he will be required to serve 57½ years before he can be

considered for parole, the aggregate sentence violates Miller and Batts II

because it is essentially a life sentence.         (Appellant’s brief at 21,

Pa.R.A.P. 2119(f) statement.)      Appellant’s reliance on those cases is

misplaced, and the proposition he claims the cases stand for is misguided.

Neither case concerned the imposition of consecutive sentences for multiple


7
  The trial court is correct that any issue as to the imposition of these
separate sentences was resolved by this court’s affirmance of the sentences
in appellant’s first appeal to this court.


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crimes committed by a juvenile.        Both cases, however, concerned the

requisite considerations a sentencing court must take when a juvenile faces

a life sentence for murder.    Thus, neither case stands for the proposition

that a sentencing court is prohibited from sentencing a juvenile to life

imprisonment, as appellant would like us to believe. Contrary to appellant’s

contention, then, the sentence imposed does not violate Miller or Batts II.

      In summary, because appellant has advanced no plausible argument

as to why his sentencing is unreasonable considering the nature of his crime

and the length of his sentence, he has failed to raise a substantial question.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2016




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