J. S57009/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                    v.                  :
                                        :
LAMON STREET,                           :           No. 952 WDA 2015
                                        :
                         Appellant      :


         Appeal from the Judgment of Sentence, January 21, 2015,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0011095-2009


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


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

      Lamon Street appeals from the judgment of sentence of January 21,

2015, following imposition of a sentence of life imprisonment without the

possibility of parole (“LWOP”) in this first-degree murder case.       Appellant

was a juvenile at the time of the murder, bringing his case within the

purview of Miller v. Alabama,         U.S.     , 132 S.Ct. 2455, 183 L.Ed.2d

407 (2012), and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013)

(“Batts II”)    (invalidating   mandatory    LWOP    sentences   for    juvenile

offenders). After careful review, we affirm.

      On a prior direct appeal, this court summarized the facts of this case

as follows:

                    On May 22, 2009, roughly eight to eleven
              persons congregated near the outside of a certain
              residence on Alpine Street in Pittsburgh.  Those


* Retired Senior Judge assigned to the Superior Court.
J. S57009/16


          persons included Sofion Moore and his girlfriend,
          Shavaughn Wallace. Some thirteen gunshots were
          fired toward the group. When the shooting started,
          Wallace was inside a car. Moore warned her to lie
          down. While it is not clear to us if Wallace did so or
          if she tried to exit the vehicle, she was hit by gunfire.
          As a result, she and her unborn child died.

                Shortly after the incident, Moore told police
          that he did not know who the shooter was. Later,
          however, he identified Appellant as the gunman
          based on a photo array shown to him by police. At
          Appellant’s eventual trial, Moore first indicated he
          had not seen the shooter.           After additional
          examination, Moore testified that he had seen
          Appellant firing the gun.        Moore’s testimony
          indicated Appellant approached from behind Moore
          and Moore then turned and saw him.

                Some of the persons who had congregated on
          Alpine Street were members of a gang known as the
          Hoodtown Mafia. Appellant was associated with the
          Brighton Place Crips (“the Crips”), a rival gang.
          There had been various shootings between members
          of the two gangs leading up to May 22, 2009.

                The day after the shooting, Appellant spoke
          with Dwayne Johnson who was associated with the
          Crips. Appellant told Johnson, “I did that shit around
          Hoodtown.” N.T., 02/27/12, at 97. Johnson testified
          that he interpreted Appellant’s statement to mean
          that Appellant had shot Wallace. Appellant also told
          Johnson words to the effect that Appellant had been
          “off on pills and he didn’t care.” Id. at 98. The
          context of the testimony suggested that Appellant
          meant he was using pills at the time of the shooting.
          Johnson also testified that, based on his friendship
          with Appellant, Johnson knew that Appellant had, at
          times, used the drug Ecstasy.

                In or around March 2010, Johnson and
          Appellant came into contact while they were in a
          federal correctional facility, both of them having
          been indicted in a federal case as members of the


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          Crips.    By that time, Appellant had also been
          charged with homicide in the instant case. The two
          of them discussed Appellant’s homicide case. While
          they did so, Appellant indicated that, on the date of
          the shooting, he had been driven to the scene by
          another member of the Crips named Fifty. Appellant
          stated that he walked a certain distance, saw a
          group of people and started shooting. Appellant also
          explained that he had seen Moore in the group.
          Moreover, Appellant claimed that Moore could not
          have seen Appellant shooting because Moore had his
          back turned toward Appellant.         Appellant also
          explained to Johnson that Wallace did not run during
          the incident but, instead, was beside a vehicle when
          Appellant shot her.

                Johnson eventually pled guilty to federal
          charges. At some point, he agreed to testify in the
          present case. In return for his cooperation, the
          U.S. Attorney’s Office moved to reduce his sentence
          and the assistant district attorney prosecuting
          Appellant’s case agreed to testify for Moore in federal
          court with respect to his sentence. Additionally, his
          family received witness-relocation funds to move
          from Allegheny County.

                 Appellant presented alibi testimony from his
          former girlfriend, Dominique Benton. She claimed
          Appellant had been with her on the day of the
          shooting while they watched movies.              On
          cross-examination, the Commonwealth asked Benton
          if, at some previous time, she had planned to be an
          alibi witness for another former boyfriend,
          apparently in an unrelated murder case. Appellant
          objected to the Commonwealth’s question on
          relevance grounds; the court overruled the objection
          on the basis that the question was relevant to
          Benton’s credibility.

                Appellant was convicted of first-degree murder
          and related offenses after a non-jury trial. The court
          sentenced him to life imprisonment without the
          possibility of parole.        Appellant later filed
          post-sentence motions claiming, inter alia, that he


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              should receive a new trial because the verdict was
              against the weight of the evidence. The court denied
              his motions. Appellant filed this timely appeal.

Commonwealth v. Street, 69 A.3d 628, 630-631 (Pa.Super. 2013). In a

published opinion, this court affirmed appellant’s convictions but vacated the

judgment of sentence and remanded for re-sentencing in accordance with

Batts II.      See Street, 69 A.3d at 634 (“In Batts, the Pennsylvania

Supreme Court indicated that the appellate remedy for the unconstitutional

imposition of a mandatory life-without-parole sentence upon a juvenile

situated similarly to Appellant is a remand for resentencing at which the

court must consider the sentencing factors set forth in Miller and then

resentence the appellant accordingly.”).

      Prior to re-sentencing, however, appellant filed a motion for a new trial

based on after-discovered evidence in the form of a new witness,

Sir John Withrow (“Withrow”).     The trial court scheduled a hearing on that

motion immediately prior to re-sentencing on January 21, 2015.            After

hearing Withrow’s testimony, the trial court denied appellant’s motion for a

new   trial   and   proceeded   to   re-sentencing.     Dr.   Alice   Applegate

(“Dr. Applegate”), a forensic psychologist, testified on behalf of appellant,

and Dr. Bruce Wright, M.D. (“Dr. Wright”), a psychiatrist, testified for the

Commonwealth.       The trial court also heard testimony from the victim’s

mother, Carla Gaines-Robinson (“Gaines-Robinson”). After consideration of

all the testimony, together with the experts’ reports and other material, the



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trial court re-imposed a sentence of LWOP.              Post-sentence motions were

denied,   and      this   timely   appeal   followed.     Appellant   complied   with

Pa.R.A.P. 1925(b), and the trial court has filed a Rule 1925(a) opinion.

      Appellant has raised the following issues for this court’s review:

            I.       Did the lower court impose an unconstitutional
                     and illegal sentence by sentencing [appellant]
                     to [LWOP]?

            II.      Did the lower court abuse its discretion by
                     giving undue weight to the serious nature of
                     the offense itself when sentencing [appellant]
                     to [LWOP] despite the abundance of mitigating
                     Miller factors established at the resentencing?

            III.     Did the lower court abuse its discretion in
                     denying [appellant]’s motion for a new trial
                     where a new witness whose identity could not
                     have been discerned prior to trial came
                     forward after [appellant]’s conviction and
                     identified another person as the shooter?

Appellant’s brief at 5 (capitalization omitted).

      In his first issue on appeal, appellant claims that the trial court

imposed an illegal sentence when it re-sentenced him to LWOP. According

to appellant, because his first direct appeal was still pending when Miller

was handed down, the trial court was required to impose a minimum

sentence. (Appellant’s brief at 26-27.)

      Our standard of review for examining the legality of a sentence on

appeal is as follows.

            A challenge to the legality of a sentence . . . may be
            entertained as long as the reviewing court has
            jurisdiction. It is also well-established that if no


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             statutory authorization exists for a particular
             sentence, that sentence is illegal and subject to
             correction. An illegal sentence must be vacated.
             Issues relating to the legality of a sentence are
             questions of law[.] . . . Our standard of review over
             such questions is de novo and our scope of review is
             plenary.

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014),

appeal denied, 121 A.3d 494 (Pa. 2015) (citations and quotation marks

omitted).

        Appellant relies on the following language from Batts II:

             We recognize the difference in treatment accorded to
             those subject to non-final judgments of sentence for
             murder as of Miller’s issuance and those convicted
             on or after the date of the High Court’s decision. As
             to the former, it is our determination here that they
             are subject to a mandatory maximum sentence of
             life imprisonment as required by Section 1102(a),[1]
             accompanied by a minimum sentence determined by
             the common pleas court upon resentencing.

Batts II, 66 A.3d at 297.

        Recently, in Commonwealth v. Batts (“Batts III”), 125 A.3d 33

(Pa.Super. 2015), appeal granted in part, 135 A.3d 176 (Pa. 2016), this

court    addressed    the     identical   claim   and   rejected   the   appellant’s

interpretation of Batts II as requiring a minimum sentence:

             In arguing that the trial court is required to impose a
             minimum sentence (i.e., a sentence of life with
             parole), Appellant reads one sentence of our
             Supreme Court’s opinion in Batts II in isolation and
             contends that it required the trial court to impose a
             minimum sentence (i.e., a sentence of life with

1
    18 Pa.C.S.A. § 1102(a).


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           parole). We decline to read Batts II as categorically
           prohibiting a sentence of life without parole for
           juveniles sentenced before Miller, which would
           afford those juveniles a greater protection than the
           United      States   Supreme     Court     held    was
           constitutionally necessary in Miller, a result that our
           Supreme Court specifically condemned.          Id.   It
           would also subject the juveniles convicted before
           Miller was decided and Section 1102.1 was effective
           to a lesser sentence than those convicted after
           Miller and subject to Section 1102.1.[2] We decline
           to interpret Miller and Batts II as categorically
           prohibiting a sentence of life without parole for
           juveniles, such as Appellant, convicted of murder
           before Miller was issued. See Batts II, supra at
           296; see also id. at 300 (Baer, J., concurring)
           (stating that the Court’s decision was to “remand[ ]
           the case to the trial court for it to resentence
           Appellant based upon his individual circumstances to
           a sentence of life imprisonment either with the
           possibility of parole or without the possibility of
           parole . . . [ ]”).

Batts III, 125 A.3d at 46.3

     In his second issue on appeal, appellant challenges the discretionary

aspects of his sentence. Appellant alleges that the trial court’s sentence of


2
           On October 25, 2012, while Batts II was awaiting
           decision, a new statutory sentencing scheme for
           juveniles convicted of murder, Section 1102.1, took
           effect. See 18 Pa.C.S.A. § 1102.1. Section 1102.1
           is our legislature’s response to Miller, but applies
           only to juveniles who were convicted of murder on or
           after June 25, 2012, the date Miller was issued. Id.
           § 1102.1(a).

Batts III, 125 A.3d at 38.
3
   On April 19, 2016, the Pennsylvania Supreme Court granted partial
allowance of appeal in Batts III. However, the court denied the petition for
allowance of appeal with regard to this particular issue.


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LWOP was manifestly excessive and unreasonable and that the trial court

failed to properly consider mitigating evidence, including all of the

age-related Miller factors.

                  Accordingly, we review Appellant’s challenge to
            the trial court’s weighing of sentencing factors,
            including those age-related ones, as a challenge to
            the discretionary aspects of his sentence.        See
            [Commonwealth v. Seagraves, 103 A.3d 839, 842
            (Pa.Super. 2014), appeal denied, 116 A.3d 604
            (Pa. 2015)] (reviewing a juvenile appellant’s
            challenge to a life without parole sentence reimposed
            on remand following Miller and Batts II for an
            abuse of discretion); see also Commonwealth v.
            Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015)
            (noting a discretionary aspects challenge based on a
            claim of an excessive sentence along with an
            assertion that the trial court did not consider a
            mitigating factor may present a substantial
            question); Commonwealth v. Zirkle, 107 A.3d
            127, 133 (Pa.Super. 2014) (treating a claim
            challenging the weight the trial court gave to various
            sentencing factors as one going to the discretionary
            aspects of the sentence). A challenge to the
            discretionary aspects of a sentence is not appealable
            as of right; instead, an appellant must petition for
            permission to appeal. Commonwealth v. Colon,
            102 A.3d 1033, 1042 (Pa.Super. 2014), appeal
            denied,        Pa.      , 109 A.3d 678 (2015). We
            evaluate the following factors to determine whether
            to grant permission to appeal a discretionary aspect
            of sentencing.

                  Before we reach the merits of this issue,
                  we must engage in a four part analysis
                  to determine: (1) whether the appeal is
                  timely; (2) whether Appellant preserved
                  his issue [at sentencing or in a motion to
                  reconsider     and   modify     sentence];
                  (3) whether Appellant’s brief includes a
                  concise statement of the reasons relied
                  upon for allowance of appeal with respect


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                  to the discretionary aspects of sentence
                  [as required by Pennsylvania Rule of
                  Appellate    Procedure   2119(f)];    and
                  (4) whether the concise statement raises
                  a substantial question that the sentence
                  is appropriate under the sentencing
                  code.    The third and fourth of these
                  requirements arise because Appellant’s
                  attack on his sentence is not an appeal
                  as of right. Rather, he must petition this
                  Court, in his [Rule 2119(f)] concise
                  statement     of   reasons,   to    grant
                  consideration of his appeal on the
                  grounds that there is a substantial
                  question. [I]f the appeal satisfies each
                  of these four requirements, we will then
                  proceed to decide the substantive merits
                  of the case.

             Commonwealth v. Edwards, 71 A.3d 323, 329-
             330 (Pa.Super. 2013) (citations omitted), appeal
             denied, 622 Pa. 765, 81 A.3d 75 (2013).

Batts III, 125 A.3d at 43-44.

     Instantly, appellant filed a timely notice of appeal and preserved his

claims in his timely post-sentence motion. Appellant has also included the

requisite Rule 2119(f) statement in his brief, in which he argues that the

trial court gave undue weight to the seriousness of the offense and ignored

mitigating   Miller   factors   that   were   established   at   re-sentencing.

(Appellant’s brief at 29-30.)   These included appellant’s early exposure to

violence as a juvenile and the poor environment in which he was raised.

(Id. at 30.)    According to appellant, even Dr. Wright testified that he

demonstrated some potential for rehabilitation. (Id.) Therefore, appellant

contends that the trial court’s sentence of LWOP was a de facto death


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sentence and was unnecessary and excessive.          (Id.)   We determine that

these allegations raise a substantial question for our review, and we will

address appellant’s sentencing claim on the merits.               Zeigler, supra;

Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.Super. 2012) (en banc)

(an allegation that the sentencing court focused exclusively on the

seriousness of the crime raises a substantial question); Commonwealth v.

Macias, 968 A.2d 773, 776 (Pa.Super. 2009) (“an averment that the court

sentenced based solely on the seriousness of the offense and failed to

consider all relevant factors raises a substantial question.” (citations

omitted)).

                   Sentencing is a matter vested in the
                   sound discretion of the sentencing judge,
                   and a sentence will not be disturbed on
                   appeal absent a manifest abuse of
                   discretion. In this context, an abuse of
                   discretion is not shown merely by an
                   error in judgment. Rather, the appellant
                   must establish, by reference to the
                   record, that the sentencing court ignored
                   or misapplied the law, exercised its
                   judgment for reasons of partiality,
                   prejudice, bias or ill will, or arrived at a
                   manifestly unreasonable decision.

             Commonwealth v. Rodda, 723 A.2d 212, 214
             (Pa.Super. 1999) (en banc) (quotations marks and
             citations omitted). See also Commonwealth v.
             Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007)
             (citation omitted) (“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 a lack of support as
             to be clearly erroneous.”).


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                 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. Ward,
                 524 Pa. 48, 568 A.2d 1242, 1243 (1990);
                 see also Commonwealth v. Jones, 418
                 Pa.Super. 93, 613 A.2d 587, 591 (1992)
                 (en banc) (offering that the sentencing
                 court is in a superior position to “view the
                 defendant’s      character,    displays   of
                 remorse, defiance or indifference and the
                 overall effect and nature of the crime.”).
                 Simply stated, the sentencing court
                 sentences flesh-and-blood defendants and
                 the nuances of sentencing decisions are
                 difficult to gauge from the cold transcript
                 used upon appellate review.

           Id. Nevertheless, the trial court’s discretion is not
           unfettered.     “When imposing a sentence, the
           sentencing court must consider the factors set out in
           42 Pa.C.S. § 9721(b), that is, the protection of the
           public, gravity of offense in relation to impact on
           victim and community, and rehabilitative needs of
           the defendant . . . . [A]nd, of course, the court must
           consider       the        sentencing       guidelines.”
           [Commonwealth v.] Fullin, 892 A.2d [843,]
           847-48 [Pa.Super. 2006].

Commonwealth v. Coulverson, 34 A.3d 135, 143-144 (Pa.Super. 2011).4


4
  We note that one of the issues the Pennsylvania Supreme Court agreed to
consider on appeal from Batts III is whether a heightened standard of
review should apply to juvenile LWOP sentences, rather than the customary
abuse of discretion standard. Until our supreme court holds otherwise, we
will continue to employ a deferential standard of appellate review. See
Batts III, 125 A.3d at 43 (rejecting the appellant’s argument that a
heightened burden of proof, and correspondingly more stringent standard of


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      In addition, before imposing an LWOP sentence upon a juvenile

offender, such as appellant, the trial court must consider certain age-related

factors, including his age at the time of the offense, the circumstances of the

crime, his past exposure to violence, his family environment, and his

rehabilitative potential:

                   In 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
            Appellant’s    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
                   18 Pa.C.S. § 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.
                   § 6137(a)(1), and the Juvenile Act, see
                   42    Pa.C.S.   §    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



appellate review, should apply in juvenile LWOP cases, similar to death
penalty cases). Moreover, we reject the Commonwealth’s suggestion that
we should postpone a decision in this case pending our supreme court’s
resolution of the appeal in Batts III.


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

               [Commonwealth v.] Knox, 50 A.3d [732,]
               745 [(Pa.Super. 2012)] (citing Miller, 132
               S.Ct. at 2455) [(remanding for resentencing
               a juvenile who had previously received a
               mandatory life without parole sentence in
               violation of Miller, and instructing trial
               court to resentence juvenile to either life
               with parole or life without parole), appeal
               denied, 620 Pa. 721, 69 A.3d 601 (2013)].
               We agree with the Commonwealth that the


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                imposition of a minimum sentence taking
                such factors into account is the most
                appropriate    remedy      for   the   federal
                constitutional violation that occurred when a
                life-without-parole        sentence       was
                mandatorily applied to Appellant.

            Batts II, supra at 297 (first brackets in original).

Batts III, 125 A.3d at 38-39.

      We now turn to the evidence adduced at appellant’s re-sentencing.

Appellant was just shy of his 18th birthday at the time of the offense,

17 years, 11 months and 3 days old. (Notes of testimony, 1/21/15 at 83.)

Dr. Applegate, testifying for appellant, noted that he had no history of

animal cruelty, fire-setting, or bed-wetting. (Id. at 52.) Appellant had no

history of involvement with Children, Youth and Families. (Id.) His IQ was

94, which is considered average. (Id.)

      Dr. Applegate testified that appellant’s mother was 15 years old at the

time of his birth. (Id. at 62.) As such, his mother was still developing when

appellant was born.    (Id.)    Appellant had to compete with his mother’s

paramours for affection.       (Id.)     Appellant’s father was absent from

appellant’s life and was also involved with gangs. (Id. at 63.)

      When he was 7 or 8 years old, appellant experienced a traumatic

event when his uncle was shot. (Id.) At the time of the shooting, appellant

was riding on his uncle’s back.         (Id.)   Appellant related that he was

“in shock.” (Id.) When he was a teenager, a father-figure of appellant’s,

Michael Gafore, was shot to death. (Id. at 53.) Dr. Applegate testified that


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this event had the effect of “catapulting him into a 26-month period of

juvenile conduct problems and adjustment disorders.” (Id. at 52-53.) Dr.

Applegate diagnosed appellant with, inter alia, anxiety disorder NOS (not

otherwise    specified)   including   generalized   anxiety,   social   anxiety,

obsessive/compulsive disorder, phobias, mood disorder NOS, and a history

of conduct disorder (adolescent onset -- moderate). (Id. at 51-52.)

      Dr. Applegate acknowledged that appellant’s prison record was not

exemplary; however, she testified that appellant did not have a documented

history of violence prior to the murder of Shavaughn Wallace.           (Id. at

58-61.) Dr. Applegate testified that in her opinion, appellant is amenable to

treatment and could become a productive member of society. (Id. at 67.)

Dr. Applegate testified that appellant is beginning to show some signs of

maturation, including insight into his criminal conduct. (Id. at 57-58.)

      Dr. Wright testified for the Commonwealth. Dr. Wright noted a history

of behavioral problems going back to elementary school. (Id. at 103.) In

9th grade, appellant was expelled for possession of marijuana.          (Id. at

103-104.)    Appellant was also charged with drug and gun offenses as a

juvenile.   (Id. at 104.)   During his interview with Dr. Wright, appellant

acknowledged his participation in the Brighton Place Crips but stated, “We

weren’t really Crips, we were just a bunch of people. We got labeled Crips.”

(Id. at 106.)    Appellant did admit that he carried firearms and earned

$6,000-7,000 per week selling drugs. (Id.)



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        Dr. Wright diagnosed appellant with an adjustment disorder with

anxiety.    (Id. at 107.)    Dr. Wright noted persistent behavioral problems

following    incarceration   at   Allegheny    County    Jail,   as    well   as   at

SCI Pine Grove. (Id. at 108.) Dr. Wright also noted that appellant’s mother

tried to smuggle him drugs into state prison, which was evidence of

continuing behavioral problems.       (Id. at 109.)     Dr. Wright observed that

after the shooting of Wallace, appellant fled and was able to elude arrest for

some time, which reflects relatively sophisticated criminal conduct. (Id. at

110.)

        Dr. Wright testified that appellant has limited insight into the

magnitude of his persistent criminal behavior, and cannot be rehabilitated

until he accepts responsibility for his actions.      (Id. at 111.)      Dr. Wright

acknowledged that appellant obtained an HVAC certificate while incarcerated

and that he has “some rehabilitative potential.”         (Id. at 111-112, 118.)

However, Dr. Wright testified that previous attempts at rehabilitation have

been overwhelmingly unsuccessful. (Id. at 112.)

        The victim’s mother, Gaines-Robinson, also testified regarding the

impact appellant’s crime has had on her and her family.            Gaines-Robinson

testified that she and her mother have received grief counseling.             (Id. at

130.)    Since her daughter’s murder, Gaines-Robinson was diagnosed with

hypertension and is on blood pressure medication.          (Id.)      She no longer

feels safe among crowds.      (Id.)   Gaines-Robinson testified to the victim’s



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outstanding character, intellect, and personality.    (Id. at 129.)   In her

opinion, appellant has shown no remorse for his actions. (Id. at 133.)

     After hearing the testimony and arguments of counsel and reviewing

the reports, the trial court determined that a sentence of LWOP was

appropriate:

                 Okay. Mr. Street, I’ve listened all day to the
           pros and cons. The things that you have done right
           apparently in life is [sic] that you haven’t killed any
           animals when you were less than ten and you’ve
           gotten a degree in HVAC. However on the other side
           I have to weigh in to the fact that you were almost
           18 years of age. Your criminal history is extensive
           beginning when you were a very young man. You
           were a member of a gang. You admitted to making
           about $6,000 a week selling heroin. I can’t imagine
           how many people were hurt through those activities
           as well as being the enforcer of the gang. You did do
           well when you were in placement but however the
           minute that you were released you went back to
           your criminal activity including misconduct in jail.
           But the thing that weighs the heaviest against you is
           you did shoot a young woman in the back and killed
           her unborn child. Those people are never getting
           another chance. I feel that criminal behavior is all
           you know and I feel you are an accomplished
           criminal.

Id. at 140-141.

     Overall, we cannot say that the trial judge here, the Honorable

Donna Jo McDaniel, abused her discretion in re-imposing an LWOP sentence.

Appellant was one month shy of his 18th birthday at the time of the crime.

He had an extensive juvenile record. He admitted to participating in drug

and gang activity.    While his childhood is, in many ways, tragic, the



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circumstances of this crime were particularly heinous.       Appellant shot a

pregnant woman in the back, killing her and her unborn child. He then fled

the area and evaded law enforcement.         Judge McDaniel considered all the

Miller age-related factors, but ultimately found that an LWOP sentence was

appropriate. (Trial court opinion, 11/13/15 at 7.)

      Finally, appellant challenges the denial of his motion for a new trial

based on Withrow’s proffered testimony that appellant was not the gunman.

            To obtain relief based on after-discovered evidence,
            appellant must demonstrate that the evidence:
            (1) could not have been obtained prior to the
            conclusion of the trial by the exercise of reasonable
            diligence; (2) is not merely corroborative or
            cumulative; (3) will not be used solely to impeach
            the credibility of a witness; and (4) would likely
            result in a different verdict if a new trial were
            granted.

Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009), quoting

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). “Unless the trial

court has clearly abused its discretion in denying a new trial on the basis of

after-discovered evidence, its order will not be disturbed on appeal.”

Commonwealth v. Cull, 688 A.2d 1191, 1198 (Pa.Super. 1997), appeal

denied, 698 A.2d 64 (Pa. 1997) (citation omitted).

      Withrow testified that he was incarcerated at SCI Forest when he

learned that appellant was serving a life sentence for Wallace’s murder.

(Notes of testimony, 1/21/15 at 8-9.) According to Withrow, he was walking

around the area of Alpine Avenue the evening of May 22, 2009, and



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witnessed the shooting. (Id. at 9-11.) Withrow testified that he was in a

position to see the shooter’s face and it was not appellant. (Id. at 11-13.)

Withrow knows appellant from the neighborhood.          (Id. at 13.)       Withrow

testified that he came forward to clear his conscience. (Id. at 20.) Withrow

recently converted to Islam and is a “new person.” (Id.)

      Judge McDaniel, who also presided over appellant’s non-jury trial, did

not find Withrow to be a credible witness. (Id. at 46-47.) It is well settled

that credibility determinations cannot be disturbed on appeal.                  See

Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (“[T]here is no

justification for an appellate court, relying solely upon a cold record, to

review    the    fact-finder's   first-hand   credibility       determinations.”).

Furthermore,    as   Judge   McDaniel   observes,   Terrchell    Little   (“Little”),

appellant’s first cousin, offered substantially similar testimony. (Trial court

opinion, 11/13/15 at 5.) Little testified that she saw the gunman and it was

not appellant. (Notes of testimony, 2/27-29/12 at 144, 148.) She could not

identify the shooter, but it was not appellant. (Id.) Therefore, Withrow’s

testimony would have been merely corroborative of Little’s testimony.

      In addition, as recounted above, Moore identified appellant as the

gunman in a photo array and at trial. Johnson also testified that appellant

admitted to shooting Wallace.      Judge McDaniel, sitting as finder-of-fact,

obviously credited this testimony.      Therefore, it is highly unlikely that

Withrow’s testimony would change the verdict. The trial court did not abuse



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its discretion in denying appellant’s motion for a new trial based on

after-discovered evidence.

     Judgment of sentence affirmed.



     Shogan, J. joins the Memorandum.

     Strassburger, J. files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/24/2016




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