J-A25001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                             Appellee

                        v.

    BERNARD WILLIAMS

                             Appellant                  No. 166 MDA 2019


         Appeal from the Judgment of Sentence Entered July 24, 2018
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No.: CP-22-MD-0001715-1988


BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED DECEMBER 20, 2019

       Appellant Bernard Williams appeals nunc pro tunc from the July 24, 2018

judgment of sentence entered in the Court of Common Pleas of Dauphin

County (“trial court”) following a resentencing hearing held pursuant to Miller

v. Alabama, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S.

Ct. 718 (2016).1 Upon review, we affirm.

       The facts and procedural history of this case are uncontested and fully

recounted by the trial court.         See Trial Court Opinion, 3/29/19 at 1-18;

Commonwealth v. Williams, No. 514 Harrisburg 1989, unpublished
____________________________________________


1 In Miller, the U.S. Supreme Court determined that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller,
132 S.Ct. at 2460. In Montgomery, the U.S. Supreme Court held that Miller
was a new substantive rule that, under the United States Constitution, must
be retroactive in cases on state collateral review. Montgomery, 136 S.Ct. at
736.
J-A25001-19



memorandum, at 1-5 (Pa. Super. filed July 3, 1990) (citation omitted).

Briefly, in connection with the bludgeoning death of State Representative

William Telek, Appellant was charged and convicted, among other things, of

first-degree murder. The trial court sentenced Appellant, who was seventeen

years and seven months old at the time of Representative Telek’s murder, to

life imprisonment without the possibility of parole (“LWOP”).

       On August 23, 2012, years after Appellant’s judgment sentence became

final, he filed a petition for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46, requesting relief under Miller. Appellant

argued that his sentence of LWOP for first-degree murder was unconstitutional

because he was under the age of eighteen at the time of Representative

Telek’s murder. On March 22, 2016, Appellant amended his PCRA petition to

note that Miller applied retroactively on collateral review consistent with

Montgomery. The PCRA court agreed, and scheduled a resentencing hearing

on the first-degree murder conviction.2          On August 7, 2017, Appellant’s

counsel, Andrea Haynes, filed a detailed sentencing memorandum, wherein

she noted:

       [i]t wasn’t until he was able to see the rehabilitation side of jail
       that things truly changed for him. After years of being denied
       programming as a lifer, [Appellant] has taken advantage of
       programs and classes and has hope for the first time that his life
       could be something more than his past.

____________________________________________


2Moreover, on May 25, 2016, the United States District Court for the Middle
District of Pennsylvania granted Appellant’s petition for writ of habeas corpus
and, in so doing, vacated his mandatory life sentence under Miller and
Montgomery.

                                           -2-
J-A25001-19



Sentencing Memorandum, 8/7/17 at 5. On this basis, counsel argued against

the re-imposition of a LWOP sentence. Specifically, she argued that Appellant

is not “one of the rarest of juvenile offenders whose crime reflects permanent

incorrigibility, irreparable corruption, or irretrievable depravity.” Id. at 8. In

support, she pointed out that Appellant “focused on changing his life for the

better by participating in therapeutic communities and victim awareness

classes.    He has devoted significant time to Bible study since 2012 and

completed multiple courses with the Crossroad Bible Institute.” Id. Attached

to Appellant’s sentencing memorandum were nine certificates, indicating his

participation in therapeutic support groups, victim’s awareness class, and

Bible study.3

       On December 5, 2017, the Commonwealth filed a “Motion for a Mental

Health Examination of [Appellant],” requesting that the trial court direct

Appellant to submit to an examination by the Commonwealth’s expert.

Appellant filed an answer to the motion, noting that “he does not intend at

this time to subject himself to ay psychiatric or psychological evaluation by a

defense retained expert.” On December 19, 2017, the trial court denied the

Commonwealth’s motion.

       On July 24, 2018, the trial court conducted a resentencing hearing, at

which the Commonwealth first presented the testimony of Dr. John O’Brien,
____________________________________________


3We observe that with the exception of the May 13, 2013, and September 17,
2014 certificates for his participation in Bible study, all of Appellant’s other
certificates post-dated the Supreme Court’s January 25, 2016 issuance of
Montgomery.

                                           -3-
J-A25001-19



board certified in general psychiatry and forensic psychiatry.                N.T.

Resentencing, 7/24/18, at 4-6.      Despite being unable to conduct a direct

examination of Appellant, Dr. O’Brien reviewed “over [one] thousand pages”

of Appellant’s records to determine whether Appellant was “permanently

incorrigible.” Id. at 13-16. Dr. O’Brien in particular testified that Appellant

had used a weapon in the murder of Representative Telek, his subsequent

assaults of correctional officers in 1993 and 1999 and his aggravated assault

of a prison inmate in 2015. Id. at 17-20. Dr. O’Brien opined to a reasonable

degree of medical certainty that Appellant suffers from “antisocial personality

disorder.” Id. at 14, 23. Dr. O’Brien explained that “sometimes individuals

with antisocial disorder and other personality disorders can exhibit a

mollification of their personality disorder symptoms with age, and I do not see

that in [Appellant’s] case in terms of my review of his records.” Id. at 23-24.

Dr. O’Brien added that Appellant

      has an untreatable and unchanging condition. It’s my opinion that
      he is not amenable to treatment and rehabilitation in the
      correctional system, and that from a legal perspective in my
      opinion, he does exhibit and his crimes reflect and that includes
      the offense and crimes since his entry into custody permanent
      incorrigibility, irreparable corruption, and irretrievable depravity.

Id. at 24-25. The trial court next heard statements by Representative Telek’s

daughters.    Appellant declined his right to allocution or offer any expert

testimony in counter Dr. O’Brien’s opinion.       The trial court resentenced

Appellant to LWOP. In so doing, the trial court explained that its decision was

based specifically on:



                                      -4-
J-A25001-19


      the 36 assaults just from 1997 to 2017, plus all of those that
      occurred in the first nine years of which we don’t have a record of
      other than the August 1993 shank assault of a corrections officer.
      Also based on the subsequent crimes of violence from ’93 to ’99
      and as recently as just a few years ago in April 2015. So his
      extreme assaultive history has been established beyond a
      reasonable doubt.

Id. at 65. Appellant filed post-sentence motions, which the trial court denied

on August 7, 2018. On September 7, 2018, the thirty-first day after the denial

of his post-sentence motion, Appellant filed a notice of appeal. On October

15, 2018, we sua sponte quashed as untimely Appellant’s appeal at docket

number 1510 MDA 2018.        On December 26, 2018, Appellant filed a PCRA

petition requesting nunc pro tunc reinstatement for his direct appeal rights.

The PCRA court granted relief and Appellant timely filed the instant appeal.

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

      On appeal, Appellant raises two issues for our review:

      I.    Was not the evidence insufficient to prove beyond a
            reasonable doubt that the factual/legal predicates for
            imposing a [LWOP] sentence on a person who was a juvenile
            at the time of the commission of the offense?

      II.   Was not the reimposition of a [LWOP] sentence clearly
            unreasonable, so manifestly excessive as to constitute an
            abuse of discretion, and inconsistent with the protection of
            the public, the gravity of the offense, and [Appellant’s]
            rehabilitative needs?

Appellant’s Brief at 6 (unnecessary capitalization omitted). In support of his

first issue, Appellant argues that, contrary to the trial court’s conclusion, the

Commonwealth did not prove beyond a reasonable doubt that he is one of

those exceedingly rare and uncommon juveniles who are permanently




                                      -5-
J-A25001-19



incorrigible.4 With respect to his second issue, Appellant argues that the trial

court abused its discretion in failing to consider mitigating factors when

fashioning his LWOP sentence. Specifically, Appellant claims that the LWOP

sentence is excessive because the trial court did not account for his successful

participation in various programs.5
____________________________________________


4 To the extent Appellant argues that Dr. O’Brien failed to consider certain
documents evidencing his participation in various programs, such argument is
waived because Appellant failed to include it in his Rule 1925(b) statement or
question presented. See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”); Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); see also Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).

5  We have “held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.
2010)); see Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.
Super. 1995) (“[a]n allegation that a sentencing [judge] ‘failed to consider’ or
‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate,”), appeal denied, 676 A.2d
1195 (Pa. 1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.
Super. 1997) (finding absence of substantial question where appellant argued
the trial court failed to adequately consider mitigating factors and to impose
an individualized sentence). Thus, consistent with the foregoing cases,
Appellant’s claim does not raise a substantial question for our review. Even if
we were to review the merits of Appellant’s sentencing claim, he still would
not be entitled to relief. It is well-settled that “[w]here the sentencing court
had the benefit of a presentence investigation (‘PSI’), we can assume the
sentencing court ‘was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.’” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Here, as explained in its Rule 1925(a) opinion, the trial court not only reviewed
Appellant’s PSI, but also examined his sentencing memorandum which



                                           -6-
J-A25001-19



       After careful review of the record and relevant case law, we conclude

that the trial court accurately and thoroughly addressed the merits of

Appellant’s issues in this appeal. See Trial Court Opinion, 3/29/19 at 18-23.

With respect to Appellant’s sufficiency argument,6 the trial court determined

that Appellant was not amenable to rehabilitation because of his permanent
____________________________________________


detailed his efforts at rehabilitation. Additionally, the trial court’s finding that
Appellant simply is not amenable to rehabilitation irrespective of the steps
that he may take toward that goal is supported by the record. See Trial Court
Opinion, 3/29/19 at 23 (finding that “that there is no possibility that
[Appellant] can 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.”).

6“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

       The standard we apply in reviewing the sufficiency of the evidence
       is whether viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our judgment for the fact-finder. In
       addition, we note that the facts and circumstances established by
       the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
       drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the finder of fact while passing upon the
       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).

                                           -7-
J-A25001-19



incorrigibility which was established beyond a reasonable doubt at the

resentencing hearing. The trial court reasoned:

      [Appellant] has an extreme violent assaultive history, and over
      thirty prison misconducts between 1997 and 2017. The credible
      and unrebutted evidence established that [Appellant] suffers from
      antisocial personality disorder. Furthermore, it is well-established
      that this disorder is untreatable or as Dr. O’Brien described, “is a
      permanent part of an individual’s behavior—characterological
      fabric.” While such a disorder is potentially subject to mollification
      in later years, the evidence presented showed absolutely no
      indication [Appellant] is currently less prone to violence than he
      was when he was younger. Notably, a few years ago he attacked
      and stabbed a prisoner with a bolt, unprovoked, and expressed no
      compunction against killing him.

Id. at 22. With respect to Appellant’s second issue, the trial court concluded

that it did not abuse its discretion in resentencing him to LWOP “because the

record clearly established that [Appellant’s] threat to public safety is serious.”

Id. at 23. Appellant “is incapable of change and should never be afforded the

chance of leaving prison.” Id. The trial court determined that “rehabilitation

is impossible.”   Id.   Accordingly, we affirm the trial court’s July 24, 2018

judgment of sentence. We further direct that a copy of the trial court’s March

29, 2019 opinion be attached to any future filings in this case.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019


                                      -8-
