J. S29034/19
                                2019 PA Super 255



COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
JOSE E. HERNANDEZ,                         :         No. 2210 EDA 2018
                                           :
                          Appellant        :


         Appeal from the Judgment of Sentence Entered June 27, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0603151-1988


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


OPINION BY FORD ELLIOTT, P.J.E.:                     FILED AUGUST 21, 2019

        Jose E. Hernandez appeals from the June 27, 2018 judgment of

sentence of four concurrent terms of 45 years’ to life imprisonment imposed

after a jury found him guilty of four counts of first-degree murder and one

count of possessing instruments of crime (“PIC”).1 After careful review, we

affirm the judgment of sentence.

        A prior panel of this court summarized the relevant facts of this case as

follows:

              Appellant’s[2] next door neighbor, Jerome Moses,
              testified that on March 14, 1988, he heard loud
              scuffling noises between 4:00 and 6:00 a.m. in the
              Hernandez apartment. As these noises continued, he
              heard Carmen Hernandez, appellant’s stepmother,

1   18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.

2   Appellant was 17 years old at the time of this incident.
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          say three times, “I love you.” He then heard three or
          four popping noises that sounded like a cap gun.
          Subsequently, Mr. Moses did not hear any more
          voices, but he did hear dragging sounds and noises
          resembling objects being replaced. He then heard
          somebody leave the apartment. When he looked out
          of the window, he saw one man get into the
          Hernandez family van. Mr. Moses originally thought
          that the man was appellant’s father, since the
          individual was wearing Mr. Hernandez’s jacket and
          since only the father drove the van. Once he learned
          that the father was dead, the witness then concluded
          that the man must have been appellant.

          During the next week, friends, neighbors, and
          relatives became concerned about the Hernandez
          family since they had not been seen and since both of
          their vehicles were not in their normal parking places.
          Telephone calls to the apartment were not answered.
          Meanwhile, appellant decided to stay at his girlfriend’s
          house, and he told her mother that he was alone since
          his family suddenly left without telling him or taking
          him with them. However, the family had not told
          anyone about these travel plans. Appellant attended
          school regularly during the week, took his girlfriend
          on a shopping spree, and moved a VCR and other
          valuable items out of his family’s apartment and into
          his girlfriend’s house. His girlfriend commented on
          numerous deep scratches on appellant’s chest[,]
          which he explained had been inflicted during a recent
          robbery.

          Eventually, appellant was questioned in school by his
          parent[s’] friends and relatives concerning his family's
          whereabouts.      He escorted them back to the
          apartment and allowed them to enter. When asked
          about blood stains on the sofa, appellant replied that
          the stains were Carmen’s blood. When questioned
          about why the bathroom door was locked, the fan on,
          and a towel under the door, he had no explanation.
          Appellant fled when the bathroom door was broken
          down and the bodies of his father, stepmother, and
          two younger brothers were found in the bathtub. The
          bodies were encased in plastic bags and covered with


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             towels. It was determined that both parents had been
             shot in the back of the head, one brother had been
             asphyxiated with a plastic bag over his head, and
             another brother had his skull crushed.

             Appellant fled Pennsylvania in his father’s Honda. He
             reached Florida and then headed west through
             Tennessee. Tennessee State Troopers Richard Austin
             and Joel Deal observed appellant’s Honda parked in a
             rest stop. Several hours later, the officers observed
             appellant’s Honda parked in the same place at the rest
             stop. Trooper Austin watched appellant get out of his
             automobile, stretch, and put on a long coat. Since the
             weather was warm, Trooper Austin became
             suspicious. He ran a computer check on appellant’s
             license plate number which revealed that appellant
             was wanted in Pennsylvania in connection with
             multiple homicides, that the occupant of the Honda
             matched the description of the suspect, and that
             appellant was presumed armed and dangerous. The
             troopers returned to the rest stop, surprised appellant
             in the restaurant, and arrested him.

             The troopers then asked for appellant’s license and
             identification.   Police retrieved these items after
             appellant indicated that they were in his wallet in his
             back pocket. When the troopers requested the keys
             to the Honda, appellant indicated they were in his coat
             pocket. Trooper Deal reached in and took the keys
             and handed them to Trooper Austin. Trooper Austin
             inspected the car, unlocked it, and retrieved a letter
             sitting on the car seat in plain view. The letter was
             written by appellant, and in it, he informed his
             girlfriend that he had killed his family, was proud of it,
             and felt better. The troopers then locked the car,
             made arrangements to have it towed, read appellant
             his Miranda[3] rights, and transported him to the
             nearest police station.

             At trial, appellant alleged that he killed his father in
             self-defense and that his father continually abused
             him. He claimed his father was angry that appellant’s

3   Miranda v. Arizona, 384 U.S. 436 (1966).


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            stepmother again became pregnant and that his
            father frequently threatened to leave her or to kill the
            whole family. In fact, appellant alleged that his father
            was jealous and suspected him of impregnating his
            stepmother.      Appellant produced witnesses who
            substantiated that his father beat him, was having
            marital discord, and had been seen by one of them
            threatening appellant by putting a gun to his head.
            Appellant’s specific defense to the charges of
            first[-]degree murder was that his father had returned
            home in a drunken rage and forced appellant to kill
            the others. His father then made him clean the
            apartment.      Later, in the car, his father again
            threatened him, but appellant was able to shoot his
            father. Appellant argued that the evidence supported
            this version of events since the blood-stained seats in
            the car matched only his father’s blood type. The
            Commonwealth refuted this evidence by proving that
            the barrel of the murder weapon contained only the
            blood type[,] which matched his stepmother, but not
            his father. Thus, appellant’s stepmother[,] rather
            than his father[,] was the last one to be shot with that
            gun.

Commonwealth v. Hernandez, 590 A.2d 325, 326-328 (Pa.Super. 1991),

appeal denied, 600 A.2d 534 (Pa. 1991).

      The sentencing court summarized the relevant procedural history of this

case as follows:

            On January 25, 1990, after a jury trial before the
            Honorable Eugene H. Clarke, a jury convicted
            [appellant] of four counts of First-Degree Murder and
            [PIC]. On that same date, [the trial court] sentenced
            [appellant] to two consecutive and two concurrent
            terms of life imprisonment without the possibility of
            parole for the First-Degree Murder convictions, and a
            concurrent sentence of two and one-half to five years
            of imprisonment for PIC.

            On June 25, 2012, the Supreme Court of the United
            States issued its holding in Miller v. Alabama, 567


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          U.S. 460 (2012), which rendered all mandatory life
          imprisonment without parole sentences for juveniles
          unconstitutional. On January 27, 2016, the Supreme
          Court of the United States issued its holding in
          Montgomery v. Louisiana, --- U.S. ----, 136 S.Ct.
          718 (2016), which held that the Miller decision
          applied retroactively.

          In 2016, a three-judge en banc panel for the
          Philadelphia County Court of Common Pleas was
          established to decide all questions of law concerning
          the resentencing of juveniles previously sentenced to
          life without parole.[Footnote 2] On October 28, 2016,
          the en banc panel was presented with fifteen
          questions of law. On April 13, 2017, the en banc
          panel issued its opinion addressing each question of
          law.

               [Footnote 2] In 2016, the [Philadelphia
               County] Court of Common Pleas, adopted
               “General Court Regulation No. 1 of 2016.”
               The Regulation established procedures for
               juvenile lifers previously sentenced to life
               without parole to have an opportunity to
               show that their crimes did not reflect
               irreparable corruption and that they
               should be considered for release on
               parole. For further discussion on what
               necessitated the regulation, see Miller v.
               Alabama, [567 U.S. 460] (2012) and
               Montgomery v. Louisiana, 136 S.Ct.
               718 (2016).

          [Appellant filed a petition pursuant to the Post
          Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, on
          February 29, 2016.] On June 27, 2018, the [PCRA
          court] granted [appellant] post-conviction relief and
          vacated his January 25, 1990 sentence. On that same
          date [the trial court] imposed concurrent forty-five
          years to life sentences on each count of First-Degree
          Murder, and no further penalty on PIC. [Appellant]
          did not file a post-sentence motion.




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            On July 27, 2018, [appellant] filed a timely Notice of
            Appeal. On July 30, 2018, [the trial court] ordered
            [appellant] to file a Concise Statement of [Errors]
            Complained       of    on    Appeal     pursuant    to
            Pa.R.A.P. 1925(b). On August 3, 2018, [appellant]
            filed a timely 1925(b) Statement, and a motion for
            extension of time to file a supplemental Statement.
            On August 21, 2018, [the trial court] granted
            [appellant’s] request.     On September 14, 2018,
            [appellant] filed a timely supplemental Statement.

Trial court opinion, 9/25/18 at 1-2 (additional footnotes omitted).

      On March 22, 2019, the Commonwealth filed a motion to stay the

briefing schedule, based on the fact that it has taken the position in a case

currently pending before our supreme court, Commonwealth v. Felder,

2017 WL 6505643 (Pa.Super. 2017) (unpublished memorandum), appeal

granted, 187 A.3d 909 (Pa. June 19, 2018), “that a minimum sentence of

over 40 years for a resentenced juvenile is a de facto life sentence, and so

cannot be imposed unless the juvenile is proven to be incorrigible beyond a

reasonable doubt.” (Commonwealth’s brief at 2.) On April 8, 2019, this court

issued a per curiam order denying the Commonwealth’s motion to stay the

briefing schedule and permitting it to raise issues related to Felder in its brief.

      On appeal, appellant raises the following issues for our review:

            1.     Was not the [sentencing] court’s sentence of
                   45 years to life imprisonment a de facto life
                   sentence requiring proof beyond a reasonable
                   doubt that [appellant] was incapable of
                   rehabilitation?

            2.     Did not the [sentencing] court err in sentencing
                   [appellant] to a de facto sentence of life
                   imprisonment without the possibility of parole


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                   where [appellant] has, in fact, been successfully
                   rehabilitated over the course of his thirty years
                   of imprisonment?

            3.     Did not the [sentencing] court err in imposing a
                   mandatory lifetime parole tail on [appellant] in
                   violation of Amendment VIII of the United
                   States Constitution?

Appellant’s brief at 3.

      In its brief to this court, the Commonwealth avers that the trial court

did not find appellant to be “permanently incorrigible.”      (Commonwealth’s

brief at 9, referencing trial court opinion, 9/25/18 at 8.) The Commonwealth

agrees   with    appellant   “that   a   minimum   sentence   of   45   years   is

unconstitutional for a redeemable juvenile offender” and “his mandatory

lifetime parole tail is unconstitutional.” (Id.) In reaching these conclusions,

the Commonwealth concedes that this court is bound by precedent,4 but

requests that we hold this matter in abeyance until the Supreme Court of

Pennsylvania addresses the threshold de facto life sentence issue in Felder.

(Id. at 9-10.) We decline to do so.

      “It is axiomatic that this Court is bound by existing precedent under the

doctrine of stare decisis and continues to follow controlling precedent as long

as the decision has not been overturned by our                Supreme Court.”

Commonwealth v. Martin, 205 A.3d 1247, 1252 (Pa.Super. 2019).                   As




4 Specifically, Commonwealth v. Bebout, 186 A.3d 462 (Pa.Super. 2018),
and Commonwealth v. Blount, 207 A.3d 925 (Pa.Super. 2019), discussed
infra.


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discussed below, our decisions in Bebout and Blount are controlling in this

matter and render appellant’s claims meritless.

      Appellant first contends that his aggregate judgment of sentence of

45 years to life imprisonment “constituted a de facto life sentence requiring

that the Commonwealth establish beyond a reasonable doubt that [appellant]

is incapable of rehabilitation.” (Appellant’s brief at 18.) In a related claim,

appellant further avers that, “the Commonwealth failed to show that [he] was

incapable of being rehabilitated as required to support a de facto life sentence

because the record reflects that [appellant] has, in fact, been rehabilitated.”

(Id. at 28.)

      Appellant’s claims implicate the legality of his sentence.     “[A] claim

challenging a sentencing court’s legal authority to impose a particular

sentence presents a question of sentencing legality.”     Commonwealth v.

Batts, 163 A.3d 410, 434-435 (Pa. 2017) (citations omitted). “The

determination as to whether a trial court imposed an illegal sentence is a

question of law; an appellate court’s standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Crosley, 180 A.3d 761, 771

(Pa.Super. 2018) (citation omitted), appeal denied, 195 A.3d 166 (Pa.

2018).

      Here, appellant’s aggregate judgment of sentence of 45 years’ to life

imprisonment is consistent with this court’s recent holding in Bebout, 186

A.3d 462. Bebout involved a 15-year-old defendant who was resentenced to



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45 years’ to life imprisonment for second-degree murder and related offenses,

pursuant to Miller and Montgomery. Bebout, 186 A.3d at 468. The Bebout

court concluded that “[t]he key factor in considering the upper limit of what

constitutes a constitutional sentence,” as opposed to a de facto sentence of

life in prison without parole for a juvenile who was not deemed incapable of

rehabilitation, is whether there is “some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.”        Id. (citation

omitted). “To be meaningful or, at least, potentially meaningful, it must at

least be plausible that one could survive until the minimum release date with

some consequential likelihood that a non-trivial amount of time at liberty

awaits.” Id. In reaching this conclusion, the Bebout court reasoned that

although   the   45-years-to-life   sentence   “falls   between   the   ‘clearly’

constitutional and unconstitutional parameters suggested by the Foust5

Court[,]” the defendant failed to show that a sentence which authorized his

release at age 60 was the functional equivalent of a life-without-parole

sentence. Id. at 467.


5 Commonwealth v. Foust, 180 A.3d 416 (Pa.Super. 2018). In Foust, a
panel of this court held that “a trial court may not impose a term-of-years
sentence on a juvenile convicted of homicide if that term-of-years sentence
equates to a de facto [life-without-parole] sentence unless it finds, beyond a
reasonable doubt, that the juvenile is incapable of rehabilitation.” Id. at 433.
The Foust court determined that term-of-years sentence of 30 years’
imprisonment did not constitute a de facto sentence of life without parole
[“LWOP”]. Id. at 438. In reaching this conclusion, the Foust court explicitly
“decline[d] to draw a bright line in this case delineating what constitutes a
de facto LWOP sentence and what constitutes a constitutional term-of-years
sentence[,]” and instead limited itself to the facts of the case before it. Id.


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      Likewise, in the instant matter, appellant has failed to demonstrate that

he has no plausible chance of survival until his minimum release date. While

appellant will not be eligible for parole until age 62, albeit two years longer

than the defendant in Bebout, appellant has not shown any significant

difference between the ages at the earliest possible point of release that would

distinguish his case from Bebout.       Accordingly, we decline to find that

appellant’s sentence constituted a de facto life sentence, necessitating a

finding by the sentencing court that appellant is “incapable of rehabilitation.”

See Foust, 180 A.3d at 433.

      Appellant next argues that the sentencing court illegally sentenced him

to “a maximum sentence with a mandatory lifetime parole tail[,]” which he

avers does not comport with the holdings in Miller and Montgomery that

resentenced juveniles be given individualized sentences, and violates the

prohibition against “cruel and unusual punishments” contained in the Eighth

Amendment to the United States Constitution. (Appellant’s brief at 33, 37.)

In support of this contention, appellant avers that “there is no relevant statute

or appellate case law requiring the imposition of a lifetime parole tail.” (Id.

at 33.) We disagree.

      This issue was addressed by our supreme court in Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017), and more recently by this court in Foust and

Blount, which was decided April 8, 2019.        Specifically, the Blount court

stated as follows:



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            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 1102.1(a), accompanied by a
            minimum sentence determined by the common pleas
            court upon resentencing[.]

Blount, 207 A.3d at      , citing Commonwealth v. Seskey, 170 A.3d 1105,

1108 (Pa.Super. 2017), quoting Batts, 163 A.3d at 421 (brackets in original).

      As noted by the Foust court, in light of our supreme court’s decision in

Batts, “there was valid statutory authority to impose a maximum sentence of

life imprisonment for [a] first-degree murder conviction.” Foust, 180 A.3d at

430. Contrary to appellant’s contention, this court has explicitly held that

such mandatory maximums do not violate the Eighth Amendment’s ban on

cruel and unusual punishment or the mandates of individualized sentencing.

See Commonwealth v. Olds, 192 A.3d 1188, 1197-1198 (Pa.Super. 2018)

(holding that, the imposition of mandatory maximum sentence of life

imprisonment for a juvenile defendant convicted of second-degree murder

prior to Miller was constitutional and did not violate Eighth Amendment’s ban

on cruel and unusual punishment), appeal denied, 199 A.3d 334 (Pa. 2018);

Seskey, 170 A.3d at 1107-1108 (holding that, the trial court was required to

impose a mandatory maximum sentence of life imprisonment when it

resentenced a juvenile defendant convicted of first-degree murder prior to

Miller). Accordingly, appellant’s second claim fails.



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     For all the foregoing reasons, we affirm appellant’s June 27, 2018

judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2019




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