J-A28021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    ANTHONY JONES

                             Appellant                No. 592 EDA 2019


        Appeal from the Judgment of Sentence Entered August 22, 2018
               In the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0006642-1980


BEFORE: PANELLA, P.J., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.:                            FILED APRIL 06, 2020

        Appellant Anthony Jones appeals from the August 22, 2018 judgment of

sentence entered in the Court of Common Pleas of Delaware 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.

        In connection with the November 11, 1980 brutal killing of Emily Leo,

Appellant pleaded guilty to murder generally on April 30, 1981. At the time

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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-A28021-19



of the murder, Appellant was three weeks shy of his seventeenth birthday.

Following a degree of guilt hearing, the trial court found Appellant guilty of

first-degree murder and, on November 23, 1981, sentenced him to life

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

      On March 23, 2016, years after Appellant’s judgment of 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

and Montgomery.       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 Mrs. Leo’s murder. Following a hearing, the PCRA court agreed

and scheduled a resentencing hearing on the first-degree murder conviction.

      On June 13, 2018, the Commonwealth filed a notice of intent to seek

imposition of a life sentence pursuant to Commonwealth v. Batts, 163 A.3d

410 (Pa. 2017) and 18 Pa.C.S.A. § 1102.1.          The trial court conducted a

resentencing hearing over the course of three days, commencing on June 19,

2018 and ending on August 22, 2018. At the hearing, Appellant presented,

inter alia, the expert testimony of Dr. Kirk Heilbrun, who testified that he is a

clinical and forensic psychologist. N.T. Hearing, 6/19/18, at 5. Dr. Heilbrun

testified that it was his professional opinion that Appellant was capable of

rehabilitation and re-entry into society.    Id. at 28-29.    In response, the

Commonwealth did not offer any expert testimony.              Finding that the

Commonwealth failed to rebut the presumption against the imposition of a




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LWOP sentence, the trial court resentenced Appellant to fifty years to life in

prison. Specifically, the trial court stated:

      [T]he [c]ourt will acknowledge the statement made by
      [Appellant]. The [c]ourt, in fact, has prepared an eight-page
      written Order which I believe addresses most of the concerns
      raised in that matter. The [c]ourt wishes to state for the record
      that prior to today’s decision, I reviewed the entire transcript of
      the original trial which runs several hundred pages, all of the
      [e]xpert reports that have been submitted by [Appellant] along
      with the sentencing memos of the parties. I’ve listened carefully
      to the testimony presented by both sides as well as the arguments
      of [c]ounsel. I think the best place to start the discussion is at
      the very beginning with the actual murder of Mrs. Leo.
      By all accounts, this woman was a kind and gentle woman who
      never harmed a soul in her life. She was the sole support of her
      family as her husband was wheelchair-bound with muscular
      dystrophy. No one is quite sure what led Mr. [Leroy] Evans and
      [Appellant] to choose Mrs. Leo as their victim or what twist of logic
      led them to commit her murder. What, however, is quite clear is
      what is -- that it was an extremely brutal murder. The injuries
      included a fractured skull, hematomas of her face, scalp, neck,
      chest, forearms and elbows, four fractured ribs, a fractured
      jawbone.
      Her murder started with Mr. Evans trying to strangle the poor
      woman with a rope. At that point, the parties -- meaning Mr.
      Evans and [Appellant] -- believing her to be dead attempted to
      dispose of her body. [Appellant] transported the woman not
      knowing at this point in time that she was actually alive to a
      deserted field. When he discovered that she was in fact still alive,
      he basically beat her to a pulp with a brick leading to the injuries
      that were outlined above.
      During the incarceration that followed [Appellant’s] guilty plea, he
      amassed over 30 misconducts, the most severe of which involved
      a fellow prisoner that he stabbed and nearly killed in an altercation
      apparently over a romantic relationship with another man. He
      pled guilty to a charge of [a]ssault by a [p]risoner and received a
      life sentence running concurrent with the original sentence which
      was life without the possibility of parole. There was a conflict in
      the [e]xpert reports about Dr. [Heilbrun] and [Appellant] about
      what risk [Appellant] []posed to violently reoffend. [Appellant’s]

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      [e]xpert opined that it was a medium risk to reoffend while --
      whereas the Commonwealth felt that it was a high risk to reoffend.
      The [c]ourt has taken all this information into consideration. The
      [c]ourt believes that the Commonwealth has failed to establish
      beyond a reasonable doubt that [Appellant] was not capable of
      rehabilitation.
      During [Appellant’s] incarceration, particularly since 2012, the
      frequency and severity of his misconducts have declined
      evidencing his developing awareness of consequences and
      diminished impulsivity. [Appellant’s] turbulent family life, lack of
      positive adult supervision during his developing years, poor
      education and borderline intellectual capacity have led to the
      conclusion that he was cognitively immature on -- at the time of
      the murder of Mrs. Leo.
      Nevertheless, the fact that he fully participated in the planning
      and execution of robbery that led to her killing and then inflicted
      the -- inflicted the horrendous injuries that ended her life, his
      attempts to dispose of her body cannot be overlooked. In the
      same vain, the acts that led to his 1992 conviction for [a]ssault
      by a [l]ife [p]risoner and the sentence of life that was imposed as
      a result may not be ignored as they demonstrate that more than
      10 years later after the crime while incarcerated, he used a shears
      to inflict near fatal injuries when engaged in an altercation with
      another inmate.
      The Commonwealth has not met the burden of proving that
      [Appellant] would be [in]capable of rehabilitation.           Having
      considered all the foregoing, the [c]ourt imposes a sentence of 50
      years to life. The [c]ourt believes that this is consistent with the
      principles set forth in Miller and Batts, Section 1102 of the
      Crimes Code. The [c]ourt has considered the nature of the crime,
      the necessity of protection of the public, the gravity of the original
      offense. And for this reason, the sentence has been imposed as
      just stated.

N.T. Resentencing, 8/22/18, at 5-8 (emphasis added) (sic). On the same day,

following the resentencing hearing, the trial court, as it had indicated on the

record, filed a detailed order outlining its reasons for the new sentence of fifty

years to life in prison. The court explained:



                                      -4-
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     5) In determining sentence the [c]ourt has considered the factors
     set forth in Miller, supra, Section 1102.1, Sentence of persons
     under the age of 18 for murders murder of an unborn child and
     murder of a law enforcement officer, and the principles generally
     applicable in imposing sentence. See 42 Pa.C.S.A. § 9721 (“the
     court shall follow the general principle that the sentence imposed
     should call for confinement that is consistent with the protection
     of the public, the gravity of the offense as it relates to the impact
     on the life of the victim and on the community, and the
     rehabilitative needs of the defendant”).

     6) The nature and circumstances of the offense committed by the
     defendant. Under the pretext of engaging in a purchase, on
     November 11, 1980 the [Appellant] and Leroy Evans lured [Mrs.]
     Leo, an “Avon Lady” to [Appellant’s] family’s apartment. In fact
     [Appellant] and Evans intended to rob her. In the course of the
     robbery Mrs. Leo was beaten until she lost consciousness.
     [Appellant] believed that Mrs. Leo was dead and in an effort to
     dispose of her body he put her in a trashcan and dragged the
     trashcan to a lot not far from the apartment. At the lot Mrs. Leo
     showed signs of life and [Appellant] attacked her further by
     throwing bricks at her head. A witness saw [Appellant] throwing
     bricks towards the ground and soon realized that he was
     assaulting a living being. The witness reported his observations
     and soon police arrived at the scene. [Appellant] took flight. After
     a chase and a standoff [Appellant] was taken into custody at his
     apartment.

     7) Mrs. Leo was attended to by EMT personnel. When they arrived
     she was severely bruised, bloody and had fallen into a coma. A
     piece of rope was tied around her neck. She was resuscitated and
     taken to the hospital where she ultimately died of her injuries. A
     medical examiner testified regarding the victim’s extensive
     injuries. She suffered severe and numerous blunt force injuries
     including cuts and bruises to her head, face, chest, forearms and
     elbows. There were indications that these injuries may have been
     sustained as she attempted to fend off her attackers. There was
     extensive bruising to her scalp, her face and her brain. Her skull
     was fractured. There was subdural and subarachnoid bleeding
     into her skull. Her neck and thyroid cartilage were severely
     bruised. She suffered four fractured ribs, a fractured sternum, a
     fractured skull, extreme cerebral contusions, a fractured jawbone
     and injuries to her neck & Adam’s apple from strangulation. Mrs.
     Leo was forty-eight years old.


                                     -5-
J-A28021-19


     8) [Appellant] pled guilty to murder generally and in exchange the
     Commonwealth agreed to forego its pursuit of a death sentence.
     [Appellant] agreed to testify against his coconspirator at Evans’s
     trial.

     9) Degree of culpability. Leroy Evans was seven years older than
     [Appellant].    Together they committed robberies on prior
     occasions with [Appellant] acting as a “lookout.” On this occasion
     however, the two men planned the robbery together, lured Mrs.
     Leo, and together brutally assaulted her.         Evans left the
     [Appellant’s] home after beating Mrs. Leo. [Appellant] attempted
     to remove “the body.” When he saw that she was still alive he
     ensured her eventual death by using bricks to inflict fatal damage
     to her head. [Appellant] acted with Evans and then went further,
     acting alone to ensure that she was dead and to dispose of her
     body.

     10) The impact of the offense on the victim, her family and the
     community. John Kaisner, a retired City of Chester police officer
     and a nephew-in-law to Mrs. Leo testified at [Appellant’s]
     resentencing hearing on June 20, 2018. Mr. Kaisner was called to
     the hospital back in 1980 to identify Mrs. Leo. He testified that he
     had never in his career seen a person so badly beaten about the
     head.

     11) Mr. Kaisner describes Mrs. Leo as a petite, kind, friendly and
     gentle woman. She was the sole provider and caretaker for her
     husband who suffered from muscular dystrophy and was
     wheelchair bound. She had one son, a gifted guitar player. After
     his mother’s death he never played his guitar again. Her son had
     no apparent alcohol abuse issues before his mother’s death but
     eventually he died of alcohol poisoning. In Mr. Kaisner’s words,
     he “drank himself to death.” His father, Frank Leo, Sr., died
     several years after his wife’s murder. The impact of Mrs. Leo’s
     death on her remaining family members was devastating: “It
     killed that family.”

     12) Mrs. Leo’s home was in the McCaffrey housing project in the
     City of Chester and she was a well-respected member of that
     community. The community came together and said their “good
     byes” to support the family at the time of this “horrible” killing.

     13) Age. [Appellant] was sixteen years old when he and Leroy
     Evans robbed and murdered Mrs. Leo.


                                    -6-
J-A28021-19


     14) Family history. Through the testimony from Dr. Kirk Heilburn,
     a well-qualified clinical & forensic psychologist and Julie Smythe,
     a mitigation specialist and licensed social worker, the defense
     offered a description of [Appellant’s] psychologically, emotionally
     and economically impoverished childhood. He was born to a
     seventeen year-old mother and was the oldest of her children.
     She went on to have a total of seven children with five different
     fathers. His mother worked several jobs but struggled to provide
     for her family. The family income was about $500 a month.
     [Appellant’s] father was not a part of his life.         During his
     upbringing he witnessed physical abuse suffered by his mother at
     the hands of her paramours. [Appellant’s] sister, Monica Jones
     testified that she too watched as her mother was beaten by men.
     On one occasion her mother jumped out of a second-story window
     and broke her leg in an effort to escape an abuser. At the age of
     ten, after this incident, Monica Jones permanently left the home
     and lived with a relative.

     15) As the oldest child [Appellant] took on a self-imposed role as
     his mother’s protector and his siblings’ provider. He intervened
     when his mother was beaten and he stole money and shoplifted
     to provide foods for the children.

     16) [Appellant’s] family lived in two different housing projects in
     the City of Chester where they were subject to animus and
     hostility due to their race. Their apartment was firebombed and
     they were forced to relocate to a mainly white project where
     family members were verbally and physically assaulted.

     17) [Appellant] struggled in school. Beginning in sixth grade, a
     grade that he repeated, he received failing grades. He received
     special education. Eventually in tenth grade he dropped out of
     school. Later he earned a GED while he was incarcerated:

     18) Juvenile history. [Appellant] was arrested three times as a
     juvenile. He reported that he was involved in other criminal
     activity which went undiscovered including robberies with []
     Evans.

     19) He was in juvenile placement for six months between October
     1979 and April 1980. It was the opinion of staff at the Sleighton
     Farms residential program that [Appellant] was not prepared to
     be released after six months but nevertheless he was returned to
     his mother’s care and placed on probation at that time.


                                    -7-
J-A28021-19


     20) Maturity. Dr. Heilbrun testified that the field[s] of psychology
     and psychiatry recognize that at the age of sixteen adolescent
     psychosocial immaturity affects judgement, emotions and
     decision-making. Immaturity in this sphere makes adolescents
     more likely to discount risks. They are less likely to recognize the
     consequences of their behavior. They are more likely to be
     susceptible to peer influences and a traumatic family life, poor
     education and low level of intellectual functioning will affect
     psychosocial maturity.      The [c]ourt accepts Dr. Heilbrun’s
     testimony and in light of these factors finds that [Appellant’s]
     cognitive maturity was not fully developed at the age of sixteen.

     21) Mental Capacity.         Dr. Heilbrun administered various
     psychological and intelligence tests.        [Appellant] “functions
     intellectually in the Borderline range.” He has a full scale IQ of
     71. He reads at a fourth grade level, spells at a third grade level
     and performs at a fourth or fifth grade level in [m]ath. His reading
     comprehension is at a fifth grade level. His verbal skills tested
     slightly higher but in Dr. Heilbrun’s opinion he is “still borderline.”
     The MMPI-2 which measures “current psychological and
     personality function” was administered. [Appellant’s] clinical
     score on the paranoia and psychopathic deviate subscores was
     high. Individuals with this profile are generally predisposed to
     psychological and interpersonal problems.

     22) Incarceration. [Appellant’s] has been imprisoned for thirty-
     eight years and over that time he has accumulated over thirty
     misconducts. Some these “misconducts” were relatively minor
     but many involved aggressive assaults and behaviors. Three of
     the aforesaid misconducts have occurred in the past ten years.
     [Appellant] has attributed many of his misconducts to the fact that
     fellow inmates knew that he was a Commonwealth witness and
     threatened him for that reason.

     23) [Appellant] testified against Leroy Evans in 1981 and he has
     been subject to threats from other inmates associated with his
     role as a Commonwealth witness. In 1982 while housed at SCI
     Graterford he received severe threats. He committed arson in his
     own cell in an effort to be removed from the general population
     when his requests for a transfer were denied. A 2012 misconduct
     arose after Miller was decided and [Appellant] was threatened by
     a fellow inmate for failing to offer testimony on behalf of Leroy
     Evans.



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J-A28021-19


     24) In 1992 when [Appellant] was about 29 years old and housed
     at SCI Graterford he stabbed a fellow inmate. [Appellant] entered
     a negotiated guilty plea to [a]ssault by a [l]ife [p]risoner (18
     Pa.C.S.A. § 2704) on December 1, 1994 and a [l]ife sentence was
     imposed to be served concurrently with the sentence imposed in
     this case.

     25) Investigative reports state that [Appellant] and the victim
     worked in the Institution Clothing Plant. An employee supervisor
     came upon [Appellant] and Willie Baker and Baker in the midst of
     a fight where [Appellant] was thrusting his assigned shears into
     Baker’s upper body. Inmates, the supervisor and eventually
     correctional officers struggled with [Appellant] trying to get the
     shears and pull him off of Baker but to no avail. He was eventually
     pulled to the floor and the shears were removed from his hands.
     [Appellant] stabbed Baker in the chest, shoulder and stomach.
     DOC reports suggest that the stabbing occurred during a dispute
     concerning a romantic relationship with a third man.

     26) Since 2012 [Appellant] has participated in positive prison
     programs.           His     job      performance/attitude       and
     relationships/personal characteristics overall rating is “average.”

     27) Current family support.         Family members, particular
     [Appellant’s] sisters have demonstrated their support for him
     during his incarceration. A home with a sister living in in New
     Castle, Delaware is available to him should he be granted parole.

     28) Risk of Re-offending. Testing and analysis conducted by Dr.
     Heilbrun led him to conclude that [Appellant] is at “medium” risk
     of re-offending based on results of the Level Service /Case
     Management Inventory. He has matured in prison. He is no
     longer cognitively immature and therefore would not be subject
     to the impulsivity and cognitive immaturity the, at the age of
     sixteen, would have made him unable to recognize and appreciate
     the consequences of his behavior. However, DOC reports indicate
     [Appellant] falls in the Offender Violence Risk Typology (OVRT)
     “Category 3 indicating a high likelihood of re-offending violently.”

     29) Substance Abuse. [Appellant] has no significant history of
     substance abuse although he was subject to five disciplinary
     proceedings for possession of controlled substances, fermented
     beverages and drug paraphernalia in the 1980s.



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J-A28021-19


      30) Defendant’s remorse.       During his re-sentencing hearing
      [Appellant] expressed his remorse for taking part in what he
      described as Mrs. Leo’s “brutal killing.” He acknowledged the pain
      that he has caused the Leo family and stated that he accepts “full
      responsibility” for the part he played in her death.           He
      acknowledged mistakes he has made inside of prison and pledged
      to do better if given the opportunity.

      31) Subsequent to his co-defendant’s trial [Appellant] recanted
      his testimony on several occasions. Most recently, on July 29,
      2016 [Appellant] gave a sworn statement to Leroy Evans’s current
      attorney. At the time he gave the statement [Appellant] was
      represented by the Delaware County Office of the Public Defender
      which had filed the instant petition seeking resentencing.
      However, without notifying the Defender’s Office Evans’s attorney
      took the sworn statement without counsel for [Appellant] present.
      [Appellant] was not advised of his Fifth Amendment rights,
      although Evans’s attorney did tell him that he could have an
      attorney present if he wanted one. Following each recantation,
      including this latest, [Appellant] indicated that these recantations
      were made under duress and that he had been threatened by
      friends and family of Mr. Evans.

Trial Court Order, 8/22/18, at ¶¶ 5-31 (record citations omitted).

      On August 24, 2018, Appellant filed post-sentence motions, challenging

his new sentence of fifty years to life in prison. Following a hearing, the trial

court denied the motion. Appellant timely appealed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents two issues for our review.

      I. Whether the lower court imposed an illegal sentence of 50 years
      to life confinement for an offense [Appellant] committed when he
      was 16 years old - because the commonwealth sought the re-
      imposition of life confinement without the possibility of parole and
      the lower court failed to consider, on the record prior to
      sentencing, the attendant characteristics of youth that mitigate
      against the most severe punishment for juvenile offenders, in
      violation of Commonwealth v. Machicote, 206 A.3d 1110 (Pa.
      2019).


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J-A28021-19


      II Whether the lower court imposed an illegal sentence of 50 years
      to life confinement for an offense [Appellant] committed when he
      was 16 years old - where such sentence amounts to a de facto life
      sentence without the possibility of parole and the commonwealth
      failed to prove beyond a reasonable doubt that [Appellant] is
      permanently incorrigible, irreparably corrupt or irretrievably
      depraved[.]

Appellant’s Brief at 5.

      Appellant first argues that, because the Commonwealth sought a LWOP

sentence, the trial court erred in failing to consider on the record the factors

outlined in Miller and Section 1102.1, as required by Machicote.

      A claim that a sentencing court failed to comply with the requirements

in Miller is a challenge to the legality of the sentence. Machicote, 206 A.3d

at 1119. When reviewing the legality of a sentence, our standard of review is

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

A.3d 1105, 1107 (Pa. Super. 2017). A sentence must be vacated if it is found

to be illegal.   Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.

2014).

      In Commonwealth v. Knox, 50 A.3d 372 (Pa. 2012), we explained:

      [A]lthough Miller did not delineate specifically what factors a
      sentencing court must consider, at a minimum it 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.



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J-A28021-19



Knox, 50 A.3d at 745.

     Section 1102.1 provides in pertinent part:

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

     (1) The impact of the offense on each victim, including oral and
     written victim impact statements made or submitted by family
     members of the victim detailing the physical, psychological and
     economic effects of the crime on the victim and the victim's family.
     A victim impact statement may include comment on the sentence
     of the defendant.

     (2) The impact of the offense on the community.

     (3) The threat to the safety of the public or any individual posed
     by the defendant.

     (4) The nature and circumstances of the offense committed by the
     defendant.

     (5) The degree of the defendant’s culpability.

     (6) Guidelines for sentencing and resentencing adopted by the
     Pennsylvania Commission on Sentencing.

     (7) Age-related characteristics of the defendant, including:

           (i) Age.

           (ii) Mental capacity.

           (iii) Maturity.

           (iv) The degree of criminal sophistication exhibited by
           the defendant.

           (v) The nature and extent of any prior delinquent or
           criminal history, including the success or failure of any
           previous attempts by the court to rehabilitate the
           defendant.

           (vi) Probation or institutional reports.


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J-A28021-19


            (vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1(d).

      Preliminarily, we note that our Supreme Court decided Machicote on

April 26, 2019, after Appellant was resentenced on August 22, 2018. The

trial court, therefore, did not have the benefit of Machicote.

      In [Machicote] our Supreme Court revisited the circumstances in
      which a sentencing court must consider the Miller factors when
      resentencing a juvenile offender. In that case, the appellant was
      originally convicted of second-degree murder in 2004 for a crime
      committed when he was 17 and received a life-without-parole
      sentence as required by Section 1102 of the Crimes Code. At the
      appellant’s resentencing hearing pursuant to Miller and
      Montgomery, the Commonwealth requested a life-without-
      parole sentence, but the sentencing court ultimately imposed a
      sentence of 30 years to life imprisonment. The court, however,
      did not consider the Miller factors as they pertained to the
      appellant on the record at the resentencing hearing, and the
      appellant argued on appeal that the failure to consider the Miller
      factors rendered his new sentence unconstitutional. The Supreme
      Court agreed, holding that a court that performs a resentencing
      pursuant to Miller and Montgomery of a juvenile offender exposed
      to a potential life-without-parole sentence must conduct an
      individualized sentencing with reference to the Miller factors, as
      well as the criteria listed in Section 1102.1(d), even where the
      sentencing court ultimately does not impose a life-without-parole
      sentence.

Commonwealth v. Lekka, 210 A.3d 343, 356 (Pa. Super. 2019) (footnote

and citations omitted).

      The instant case is distinguishable from Machicote. As detailed above,

even though the trial court here did not have the benefit of the Machicote

decision, it nonetheless considered the Miller and Section 1102.1(d) factors

in an order referenced at the resentencing hearing and filed after the same.



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J-A28021-19



Indeed, in its August 22, 2018 order, the court thoroughly analyzed

Appellant’s specific characteristics and circumstances, and based upon those,

imposed a sentence of fifty years to life in prison. Accordingly, we conclude

that the trial court complied with the procedural requirement of Machicote.

      Appellant next argues that his sentence of fifty years to life

imprisonment constitutes a de facto life sentence without the possibility of

parole because he would not be eligible for parole until the age of sixty-six.

Appellant’s Brief at 39. We disagree.

      We recently decided Commonwealth v. Anderson, __ A.3d __, 2020

PA Super 1, 2019 WL 6335390, at *7-8 (Pa. Super. filed November 27, 2019),

a post-Miller case, where, as here, the defendant was resentenced to fifty

years to life imprisonment. Anderson, 2019 WL 6335390, at *2. There, we

held that a sentence of fifty years to life in prison is not the functional

equivalent of LWOP.    Anderson, 2019 WL 6335390, at *6 (“Pennsylvania

does not recognize a definitive term of imprisonment as a de facto LWOP

sentence.”). Accordingly, like the defendant in Anderson, Appellant too does

not obtain relief on his de facto LWOP sentence claim. See Commonwealth

v. Bebout, 186 A.3d 462, 468 (Pa. Super. 2018) (concluding the appellant’s

forty-five years to life sentence in which he would be eligible for parole at the

age of 60 was not de facto LWOP); Lekka, 210 A.3d at 357-58 (concluding

that because the appellant’s term of forty-five years to life imprisonment

rendered him eligible for parole at the age of 62, it was not a de facto LWOP

sentence); Commonwealth v. Foust, 180 A.3d 416, 438, 441 (Pa. Super.

                                     - 14 -
J-A28021-19



2018) (concluding that the appellant’s two consecutive thirty year to life

sentences were not a de facto LWOP sentence and noting that even

considering the appellant’s aggregate sentence, he had a chance of being

released into society in his 70s).

      In sum, under the circumstances of this case where Appellant was

resentenced prior to our Supreme Court’s issuance of Machicote, we cannot

conclude that the trial court failed to place on the record its reasons for

Appellant’s new sentence. As stated, the trial court considered the Miller and

Section 1102.1(d) factors in an order referenced on the record at the

resentencing hearing and filed after the same. We likewise cannot conclude

that the trial court imposed an illegal de facto life sentence when it sentenced

Appellant to fifty years to life. Accordingly, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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