Com. v. Coleman, K.

J-A22033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

KWILSON COLEMAN

Appellant No. 1415 MDA 2019

Appeal from the Judgment of Sentence entered April 4, 2019

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0000448-2009

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 19, 2020

Appellant, Kwilson Coleman, appeals from the judgment of sentence

imposed in the Court of Common Pleas of York County on April 4, 2019,

following Appellant’s conviction, upon retrial, of first-degree murder.

Appellant challenges the sufficiency of evidence, the weight of the evidence,

the legality of his sentence, and an evidentiary ruling. Upon review, we affirm.

This case stems from a murder that occurred in York City in the early

morning hours of Friday, November 27, 2008, when Appellant was 17 years

old. Although the facts will be discussed in greater detail herein, for context

we repeat here an abridged version included in the Commonwealth’s

memorandum of law in support of sentencing recommendations.

[Appellant] shot the victim, Greg Wright, multiple times after the

victim tried to rob a third person. Four bullets struck the victim,

shattering [] his arm and femur and penetrating through the

J-A22033-20

victim’s heart, lungs, diaphragm, and liver. Prior to his death, the

victim tried to flee from [Appellant], at one point “crab–walking”

away, pleading for [Appellant] not to shoot and asking for his

mother. [Appellant] continued to shoot at the victim, stalking the

victim from the top of the porch to the street.

Commonwealth’s Memorandum of Law in Support of Sentencing

Recommendations, 4/3/19, at 2.

When Appellant was initially tried and convicted of first-degree murder

in 2009, he was sentenced to life in prison without the possibility of parole

(“LWOP”). Following unsuccessful direct appeal efforts, he sought state post-

conviction collateral relief as well as federal habeas corpus relief. His

challenge filed in federal court centered on claims of an illegal sentence in light

of Miller v. Alabama, 567 U.S. 460 (2012), and issues relating to “alleged

vagaries in eyewitness identification [by Commonwealth witness Melanie Miller

and] questions regarding the disclosure of a photo array at trial[.]” Coleman

v. Glunt, No. 3:13-CV-1699 (M.D. Pa.), Report and Recommendation of the

Magistrate Judge, 2/1/18, at 2. “[I]n a commendable display of candor, the

Commonwealth [] notified the court that it agrees that it is in the best interests

of justice to grant Coleman’s petition for writ of habeas corpus and remand”

the case to York County for retrial. Id. By order entered on February 26,

2018, the United States District Court for the Middle District of Pennsylvania

adopted the magistrate judge’s Report and Recommendation in its entirety,

granted the writ of habeas corpus conditionally, vacated Appellant’s conviction

and sentence, and remanded to the Court of Common Pleas of York County

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for retrial. Coleman v. Glunt, 2018 WL 1129598 (M.D. Pa., February 26,

2018).

Appellant was retried in July 2018 and the jury convicted him of first-

degree murder and third-degree murder. A pre-sentence report was ordered.

At the conclusion of a sentencing hearing conducted on April 4, 2019, the

court imposed a sentence of 56 years to life in prison.1 This timely appeal

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

Appellant asks us to consider four issues, which we have reordered for ease

of discussion:

I. Whether the evidence was insufficient to support the jury’s

verdict as to [first-degree murder2] on the following

grounds: there being no other competent or compelling

evidence the testimony of Marshi Martin was so

contradictory and unreliable that, without any other

competent evidence, left the jury to decide the matter based

upon pure conjecture, speculation and assumption.

II. Whether as to [first-degree murder3], the verdict was

against the greater weight of the evidence so as to shock

one’s sense of justice on the following grounds: there being

____________________________________________

1 The court also imposed a concurrent sentence for third-degree murder. In

its Memorandum issued in response to Appellant’s post-sentence motion, the

trial court ordered that the sentence for third-degree murder be vacated,

acknowledging that the third-degree murder conviction should have merged

with the first-degree murder conviction for sentencing purposes. However,

because the sentence for third-degree murder was to run concurrently with

the first-degree murder sentence, the court suggested Appellant had not

suffered any prejudice. Trial Court Memorandum, 8/6/19, at 16-17.

2-3Although Appellant framed his sufficiency and weight issues in terms of

“Counts 1 and 2,” i.e., first-degree and third-degree murder, respectively, we

shall restrict our analysis to first-degree murder. See n. 1.

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no other competent or compelling evidence the testimony of

Marshi Martin was so contradictory and unreliable that,

without any other competent evidence, left the jury to

decide the matter based upon pure conjecture, speculation

and assumption.

III. Appellant submits this Honorable Court erred and abused its

discretion in sentencing the Appellant to 56 years to life

without the possibility of parole on the following grounds:

a. The court erred in applying the newly enacted

sentencing guidelines in that the guidelines de-

individualize the sentence to be imposed and results

[sic] in a de facto life sentence;

b. The newly enacted sentencing guidelines are

unconstitutional in that they de-individualize the

sentence to be imposed and results [sic] in a de facto

life sentence;

c. The newly enacted guidelines are not consistent with

the principles set forth in Miller v. Alabama and

Batts I and Batts II[4] in that they constrain the court

to enter a de facto life sentence;

d. The imposition of a lifetime parole tail on a juvenile

lifer is illegal in that a lifetime tail of parole is

unconstitutional and violates the mandates of Miller

v. Alabama and Montgomery v. Louisiana[5], in

that it is not an individualized sentence.

IV. Whether the trial court erred in admitting the hearsay

testimony of Gerard Kinard by admitting said testimony

under the excited utterance exception under the

Pennsylvania Rules of Evidence.

Appellant’s Brief at 4.

____________________________________________

4Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) and Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017), respectively.

5 Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016).

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In his first issue, Appellant asserts the evidence was insufficient to

support the jury’s verdict of guilty on the first-degree murder charge. As this

Court has explained:

Our standard of review regarding challenges to the sufficiency of

the Commonwealth’s case is well settled. “In reviewing the

sufficiency of the evidence, we consider whether the evidence

presented at trial, and all reasonable inferences drawn therefrom,

viewed in a light most favorable to the Commonwealth as the

verdict winner, support the jury’s verdict beyond a reasonable

doubt.” Commonwealth v. Patterson, [625 Pa. 104], 91 A.3d

55, 66 (2014) (citation omitted). “The Commonwealth can meet

its burden by wholly circumstantial evidence and any doubt about

the defendant’s guilt is to be resolved by the fact finder unless the

evidence is so weak and inconclusive that, as a matter of law, no

probability of fact can be drawn from the combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation

omitted), appeal denied, [95 A.3d 277 (Pa. 2014)]. As an

appellate court, we must review “the entire record . . . and all

evidence actually received[.]” Id. “[T]he trier of fact while

passing upon the credibility of witnesses and the weight of the

evidence produced is free to believe all, part or none of the

evidence.” Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.

Super. 2014) (citation omitted). “Because evidentiary sufficiency

is a question of law, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Diamond, [623

Pa. 475], 83 A.3d 119, 126 (2013) (citation omitted).

Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014).

With respect to murder, the relevant statute provides:

(a) Murder of the first degree.—A criminal homicide constitutes

murder of the first degree when it is committed by an intentional

killing.

....

(d) Definitions.—As used in this section the following words and

phrases shall have the meanings given to them in this subsection:

....

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“Intentional killing.” Killing by means of poison, or by lying in

wait, or by any other kind of willful, deliberate and premeditated

killing.

18 Pa.C.S.A. § 2502.

In Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014), our

Supreme Court explained the Commonwealth’s burden as follows:

In order to sustain a conviction for first-degree murder, the

Commonwealth must prove that: (1) a human being was

unlawfully killed; (2) the defendant was responsible for the killing;

and (3) the defendant acted with malice and a specific intent to

kill. Specific intent and malice may be established through

circumstantial evidence, such as the use of a deadly weapon on a

vital part of the victim’s body.

Id. at 840.

In challenging the sufficiency of the Commonwealth’s evidence, Appellant

argues the only evidence linking Appellant to the murder was testimony from

Commonwealth witness Marshi Martin that was “inherently unreliable”

because Mr. Martin recanted the testimony at a prior PCRA hearing and at

Appellant’s 2018 retrial. Appellant’s Brief at 18. Consequently, the verdict

was based on “mere speculation and assumptions [and] should be set aside.”

Id.

In its Memorandum issued in response to Appellant’s post-sentence

motion, the trial court provided a synopsis of Mr. Martin’s trial testimony in

the course of analyzing Appellant’s sufficiency challenge. The court noted:

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Commonwealth witness Marshi Martin admitted that he made a

recorded statement with Detective Spence[6] on December 3,

2008 (about a week after the incident). Mr. Martin also admitted

testifying at a “prior proceeding" under oath in 2009 ([Appellant’s]

first jury trial). At the interview with Detective Spence, Mr. Martin

admitted to being outside of Gerard Kinard’s residence on the

night in question, along with Corry Brooks, Gregory Wright (the

Victim), Gerard Kinard, and [Appellant]. Mr. Martin also identified

[Appellant] as the shooter of the Victim at both the interview with

Detective Spence and at the prior proceeding. Also from the prior

recorded statement with police, Mr. Martin referenced a phone call

between [Appellant] and Corry Brooks that he walked in on,

wherein he heard them talking about the incident and he heard

[Appellant] ask Corry if he was all right, and [Appellant] stated

that “it did not have to go down like that, but he was hitting you

with the gun;” “I'm not gonna let nobody just sit there, hit you

with no gun.” This implies an admission by [Appellant] that he

shot the Victim because the Victim was hitting Corry Brooks with

a gun. When [the prosecutor] read all of these prior statements

at trial and questioned Mr. Martin about those statements, he

admitted that [the prosecutor] had read them correctly from the

transcript.

At a later hearing in 2011 (PCRA hearing), and at [Appellant’s]

second jury trial (July 2018), Mr. Martin recanted his previous

statements by claiming he lied to police in 2008 and at the first

trial in 2009, and that [Appellant] wasn’t even there that evening.

At the July 2018 trial, the Commonwealth used Mr. Martin’s prior

statement to police and prior testimony from [Appellant’s] first

trial to impeach him and as substantive evidence. “[A] prior

inconsistent statement may be used as substantive evidence only

when the statement is given under oath at a formal legal

proceeding; or the statement has been reduced to a writing and

signed and adopted by the witness; or a statement that is a

contemporaneous verbatim recording of the witness’s

statements.” Com. v. Lively, 530 Pa. 464, 471, 610 A.2d 7, 10[-

11] (1992). In the instant case, Mr. Martin’s statement from a

“prior proceeding” was given under oath at [Appellant’s] first trial

(a formal legal proceeding). The prior statement given to

____________________________________________

6 At the time of the 2008 murder, Detective Spence was the Detective

Sergeant Supervisor for the York City Police Violent Crimes Unit. Notes of

Testimony (“N.T.”), Trial, at 182.

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Detective Spence on December 3, 2008 was a contemporaneous

verbatim recording of that statement, which had been transcribed.

As a result, both of these statements were admissible for

impeachment purposes as well as substantive evidence.

It was up to the jury, as the fact-finder, to decide which

statements by Mr. Martin, if any, were credible. At the July 2018

trial, Mr. Martin:

 Admitted making the statement to Detective Spence on

December 3, 2008; and

 Remembers testifying at another proceeding in 2009;

 Agreed that December 3, 2008 and 2009 are closer in time

to the shooting date than 2011 (the PCRA hearing where Mr.

Martin recanted);

 Agreed that what he told Detective Spence in 2008 was

similar to what he testified to in 2009.

Mr. Martin also claimed at trial that right before testifying at the

2009 proceeding, he told them he had lied back in 2008. He

further claimed that they threatened to put him in jail if he did not

go forward with his testimony. Upon further questioning, Mr.

Martin admitted that he did not tell the court he was lying in 2009,

but claimed that he told the detectives before he went into the

courtroom that he was lying and that he did not want to testify.

However, he claimed he could not remember which detective he

told prior to that proceeding that he was lying, and he further

admitted that after telling the unknown detective that he was lying

and did not want to testify:

 He then took the stand; and

 He then swore to tell the truth; and

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 He then gave testimony that was similar to the statement

he made in December 2008 wherein he identified

[Appellant] as the shooter.

Trial Court Memorandum, 8/6/19, at 2-5 (references to notes of testimony

and some capitalization omitted).

Appellant’s assertion that Mr. Martin’s 2008 statement and 2009

testimony were the only links to Appellant’s role in the homicide is

contradicted by the testimony of Detective Spence and other witnesses.

Despite Mr. Martin’s suggestion that Appellant was not present on the night

of the shooting, Detective Spence recounted Gerard Kinard’s statement that

Appellant and Mr. Martin attempted to get into Kinard’s house “right after the

shooting.” N.T., Trial, at 199.7 Moreover, Detective Spence stated that Mr.

Martin came to the police station on his own after the detective contacted Mr.

Martin’s mother. According to Detective Spence, Mr. Martin “was glad we

reached out to him. And near the end of it, he said he was scared. He didn’t

want to be put in the middle of this situation, so we offered to get him some

counseling and help. It was never confrontational at all.” Id. at 200.

Detective Spence explained that the situation was hard on Mr. Martin

because he and Appellant had been friends for a long time, “since school.” Id.

____________________________________________

7 Kinard testified that he an Appellant are cousins. N.T., Trial, at 126.

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Even so, Mr. Martin admitted to the detective that Appellant “was the one

shooting.” Id.

Jennifer Myers also testified. She explained that she lived across the

street from Gerard Kinard’s house. She heard voices outside and looked out

her window. She witnessed the shooting and heard at least five shots but did

not see the shooter’s face because his back was to her. She did provide a

description of the shooter’s clothing (a black hoody and dark pants) and his

height (around 5’ 7” to 5’ 9”) relative to the victim (a tall, thin Black male)

and a third individual (a white boy who was shorter than the victim). Id. at

175-77. Her testimony regarding the height of the persons involved was

consistent with the height of Appellant and of his victim, according to the

testimony of both Detective Spence and the forensic pathologist. Id. at 201,

111.

Viewed in a light most favorable to the Commonwealth as verdict

winner, we find the Commonwealth provided evidence—both direct and

circumstantial—proving that Greg Wright was unlawfully killed; that Appellant

was responsible for the killing; and that Appellant acted with malice and a

specific intent to kill. Contrary to Appellant’s assertion, the jury was not

constrained to reach a verdict based on conjecture, speculation, and

assumption. The evidence, along with all reasonable inferences drawn from

that evidence, supports the jury’s verdict of first-degree murder beyond a

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reasonable doubt. Appellant is not entitled to relief on his sufficiency of

evidence issue.

In his second issue, Appellant argues the guilty verdict on first-degree

murder charges was against the weight of the evidence. Our Supreme Court

has instructed:

A motion for a new trial based on a claim that the verdict is against

the weight of the evidence is addressed to the discretion of the

trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744

A.2d 745, 751–52 (2000); Commonwealth v. Brown, 538 Pa.

410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be

granted because of a mere conflict in the testimony or because

the judge on the same facts would have arrived at a different

conclusion. Widmer, 560 Pa. at 319–20, 744 A.2d at 752.

Rather, “the role of the trial judge is to determine that

‘notwithstanding all the facts, certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all

the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation

omitted).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). “A motion for

new trial on the grounds that the verdict is contrary to the weight of the

evidence, concedes that there is sufficient evidence to sustain the verdict.”

Widmer, 744 A.2d at 751.

This Court is not to step into the shoes of the trial court to revisit the

question of whether the verdict was against the evidence. Rather, our task is

to “analyze whether the trial court abused its discretion by reaching a

manifestly unreasonable judgment, misapplying the law, or basing its decision

on partiality, prejudice, bias, or ill-will.” Clay, 64 A.3d at 1056 (citing

Widmer, 744 A.2d at 753). As the trial court recognized, “Relief on a weight

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of the evidence claim is reserved for ‘extraordinary circumstances, when the

jury’s verdict is so contrary to the evidence as to shock one’s sense of justice

and the award of a new trial is imperative so that right may be given another

opportunity to prevail.’” Trial Court Memorandum, 8/6/19, at 10 (quoting

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011)).

Appellant suggests that Commonwealth witness Marshi Martin was the

only witness who identified Appellant as the shooter. He contends that Mr.

Martin’s testimony to that effect at Appellant’s original trial was refuted by Mr.

Martin at Appellant’s retrial. At retrial, Mr. Martin insisted he testified

“untruthfully” at the first trial and was untruthful in identifying Appellant as

the shooter when he was interviewed by detectives. Appellant’s Brief at 16.

Because Commonwealth witness Jennifer Myers was unable to identify the

shooter, “[t]he verdict could have only been based upon the testimony of

Marshi Martin.” Id. Under the circumstances, Appellant posits, “the jury was

left to decide the matter purely upon conjecture, speculation and assumption.”

Id.

The trial court rejected Appellant’s assertions, determining the verdict

“was not based on speculation, conjecture, and assumption, but on the direct

and circumstantial evidence that was presented.” Trial Court Memorandum

8/6/19, at 10. Based on our review, we find no abuse of discretion in the trial

court’s conclusion that “the jury’s verdict is not so contrary to the evidence as

to shock the conscience of the court.” Trial Court Memorandum, 8/6/19, at

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10 (some capitalization omitted). Appellant’s weight of the evidence claim

fails.

Appellant next raises four interrelated sub-issues in challenging the

legality of the sentence imposed, i.e., a term of imprisonment of 56 years to

life. He argues the court erred in applying the “newly enacted sentencing

guidelines” because they de-individualize the sentence and result in a de facto

life sentence, and he claims the guidelines are unconstitutional. He further

asserts the guidelines are inconsistent with case law (including Miller8),

constraining the court to enter a de facto life sentence, and contends the

imposition of a lifetime parole tail is unconstitutional because it is not

individualized.

As this Court reiterated in Commonwealth v. Clary, 226 A.3d 571 (Pa.

Super. 2020):

____________________________________________

8 Miller requires examination of the following factors when sentencing a

juvenile facing a potential LWOP sentence:

At 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.

Batts II, 163 A.3d at 421 n.5 (citations and alterations omitted).

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A claim challenging a sentencing court’s legal authority to impose

a particular sentence presents a question regarding the legality of

the sentence. Commonwealth v. Hernandez, 217 A.3d 873,

878 (Pa. Super. 2019). “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.” Id. (citation omitted).

Id. at 580-81.

Initially we note that, unlike many of the cases cited by the trial court

and the parties, this case does not involve a remand for resentencing in light

of Miller and/or Montgomery.9 Rather, the sentence at issue here is one

imposed following the 2018 retrial, which resulted in Appellant’s conviction.

The sentencing provisions applicable to Appellant’s 2018 conviction went into

effect on October 25, 2012, and provide in relevant part:

____________________________________________

9 In Miller, the United States Supreme Court in 2012 held that “mandatory

life-without-parole sentences for juveniles violate the Eighth Amendment.”

Miller, 132 S.Ct. at 2464. Four years later, in 2016, the Court determined

that “Miller announced a substantive rule that is retroactive in cases on

collateral review.” Montgomery, 136 S.Ct. at 732. While these decisions

formed the basis for vacating Appellant’s original sentence, Appellant’s case

was not remanded for sentencing. Rather, his case was remanded for a new

trial and is before this Court on direct appeal. Therefore, Montgomery is not

implicated.

Further, we note that “[o]ur Supreme Court has held that in fashioning a

minimum sentence [for juveniles who committed first-degree murder prior to

June 24, 2012], courts have discretion but ‘should be guided by the minimum

sentences contained in Section 1102.1(a)[.]’” Commonwealth v. Blount,

207 A.3d 925, 934 n.5 (Pa. Super. 2019) (quoting Batts II, 163 A3d at 458).

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(a) First degree murder.--A person who has been convicted

after June 24, 2012, of a murder of the first degree . . . and who

was under the age of 18 at the time of the commission of the

offense shall be sentenced as follows:

(1) A person who at the time of the commission of the

offense was 15 years of age or older shall be sentenced to

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

imprisonment, the minimum of which shall be at least 35

years to life.

....

(e) Minimum sentence.--Nothing under this section shall

prevent the sentencing court from imposing a minimum

sentence greater than that provided in this section.

Sentencing guidelines promulgated by the Pennsylvania

Commission on Sentencing may not supersede the

mandatory minimum sentences provided under this section.

18 Pa.C.S.A. § 1102.1.

The trial court examined each of the factors set forth in 18 Pa.C.S.A.

§ 1102.1(d), see N.T., Sentencing, at 77-84, and determined that a LWOP

sentence would be “inappropriate” for Appellant because “there was not proof

beyond a reasonable doubt that [Appellant] was irreparably corrupted.” Trial

Court Memorandum, 8/6/19, at 11-12. The court instead imposed a sentence

of 56 years to life, a sentence that was in the standard range for a person

older than 15 but younger than 18 with a Prior Record Score of five and an

Offense Gravity Score of 15. As the court explained:

This contemplates that after serving his minimum sentence (56

years), [Appellant] would be eligible for parole, but may, in fact,

end up serving a life sentence if the Parole Board determines that

he is not entitled to parole. . . . Despite [Appellant’s] repeated

contentions to the contrary, his sentence is neither “de facto” nor

is it “de-individualized.”

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Id.10

In Commonwealth v. Ligon, 206 A.3d 1196 (Pa. Super. 2019), this Court

clarified that

[Miller] did not hold that life sentences with parole eligibility are

unconstitutional, or that juvenile murderers must be released at

some point regardless of their fitness to rejoin society.

____________________________________________

10 We note that our Supreme Court granted a petition for allowance of appeal

in Commonwealth v. Felder, 18 EAP 2018, after this Court affirmed Felder’s

sentence imposed for first-degree murder. The Court agreed to consider the

following question:

Does not a sentence of 50 years to life imposed upon a juvenile

constitute a de facto life sentence requiring the sentencing court,

as mandated by this Court in Commonwealth v. Batts, 163 A.3d

410 (Pa. 2017) (“Batts II”), first find permanent incorrigibility,

irreparable corruption or irretrievable depravity beyond a

reasonable doubt?

However, while the sentencing court is to be guided by Section 1102.1 when

resentencing for a conviction predating June 24, 2012, see n. 9, Section

1102.1 itself does not apply to Felder, whose March 2012 conviction predated

enactment of the provisions. Appellant, by contrast, was convicted in 2018

and, as such, the sentencing provisions of Section 1102.1 apply to him. This

distinction is important because the sentencing guideline range for Appellant

starts at 56 years. See 204 Pa. Code § 303.16(b).

We further note that our Supreme Court entered a per curiam order on March

31, 2020, placing a hold on the Felder appeal pending Jones v. Mississippi,

285 So.3d 626 (Miss. Ct. App. 2017), cert. granted, 140 S.Ct. 1293 (2020).

As reflected in the Petitioner’s Brief in Jones, the question before the United

States Supreme Court is “[w]hether the Eighth Amendment requires the

sentencing authority to make a finding that a juvenile is permanently

incorrigible before imposing a sentence of life without parole.” Petitioner’s

Brief at i, 2020 WL 3106513. In Jones, the Petitioner contends the Mississippi

court refused to determine whether the “juvenile homicide offender is

permanently incorrigible” before imposing his sentence of life without parole,

as required by Montgomery and Miller. Id. at 1.

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Thus, a sentence with a term of years minimum and a maximum

sentence of life does not violate Miller’s individualized sentencing

requirement, because it properly leaves the ultimate decision of

when a defendant will be released to the parole board.

Id. at 1200. Further, as our Supreme Court stated in Batts II,

Section 1102.1(a) requires the imposition of a mandatory

minimum sentence for juveniles convicted of first-degree murder.

Subsection (e) makes clear that this is only the minimum sentence

required, stating, “Nothing under this section shall prevent the

sentencing court from imposing a minimum sentence greater than

that provided in this section.” 18 Pa.C.S. § 1102.1(e).

In determining the minimum sentence for a juvenile convicted of

first-degree murder prior to Miller, a sentencing court is to

exercise its discretion to find the appropriate, individualized

sentence in each case, just as it would when fashioning the

minimum sentence for any other defendant before it. See

Commonwealth v. Gordon, 596 Pa. 231, 942 A.2d 174, 182

(2007) (“Pennsylvania judges retain broad discretion to sentence

up to and including the maximum sentence authorized by statute;

the only line that a sentence may not cross is the statutory

maximum sentence.”); Commonwealth v. Walls, 592 Pa. 557,

926 A.2d 957, 966–67 (2007) (stating that sentencing in

Pennsylvania is individualized, requiring the sentencing court to

consider certain factors and to provide an explanation of its

reasoning prior to imposing a given sentence).

Batts II, 163 A.3d at 443 (footnote omitted).

In Clary, the trial court initially imposed the mandatory LWOP sentence

following Clary’s 2000 convictions for murder, attempted murder, and gun

violations. Upon resentencing in the wake of Miller and Montgomery, the

court imposed an aggregate sentence of 48 years to life. On appeal, Clary

asserted that while the court did not impose a LWOP sentence, his sentence

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constituted an impermissible de facto life sentence in violation of Miller.

Clary, 226 A.3d at 580. This Court rejected his claim, explaining:

A trial court may not impose a term-of-years sentence on a

juvenile convicted of homicide that equates to a de facto LWOP

sentence unless it finds, beyond a reasonable doubt, that the

juvenile is incapable of rehabilitation. Miller, 567 U.S. at 479,

132 S.Ct. 2455; Commonwealth v. Foust, 180 A.3d 416, 433

(Pa. Super. 2018).

....

This court has distinguished between individual term-of-years

sentences which constitute de facto LWOP sentences and those

that do not. Foust, supra at 438. In Foust, this Court concluded

that a 150-year sentence is a de facto LWOP sentence and a 30

years’ to life sentence does not constitute a de facto LWOP

sentence. Id.

For sentences that fall between the clearly constitutional and

unconstitutional parameters, we have concluded that a sentence

is not a de facto LWOP sentence where there is “some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.” Commonwealth v. Bebout, 186 A.3d 462, 467

(Pa. Super. 2018) (citation omitted). Thus, “it must at least be

plausible that one could survive to the minimum release date with

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

liberty awaits.” Id. at 468 (emphasis omitted). If there is no

meaningful opportunity for parole, the sentence constitutes a de

facto LWOP sentence. Id. We[] therefore consider the age the

appellant would be eligible for parole to determine whether the

new sentence is the functional equivalent of LWOP. Id.

In Commonwealth v. Anderson, 224 A.3d 40, 47-48 (Pa.

Super. 2019), a post-Miller case, the appellant received a

sentence of 50 years’ to life imprisonment upon resentencing.

[Id.] at 41-42. Because Anderson was 17 years old at the time

he began serving his sentence, he would, thus, be eligible for

parole at age 67. Id. at 46-47. We, therefore, concluded that his

sentence was not the functional equivalent of LWOP. Id. at 47-

48. See also Bebout, supra at 468 (concluding the appellant’s

45 years’ to life sentence in which he would be eligible for parole

at the age of 60 was not de facto LWOP); Commonwealth v.

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Lekka, 210 A.3d 343, 357-58 (Pa. Super. 2019) (concluding that

because the appellant’s term of 45 years’ to life imprisonment

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

facto LWOP sentence); Foust, supra at 438, 441 (concluding that

the appellant’s two consecutive 30 year to life sentences were not

a de facto LWOP sentence and noting that even considering

Appellant’s aggregate sentence, he had a chance of being released

into society in his 70s).

Id. at 581. Further, “our cases have concluded that even the chance of parole

when a defendant is in his or her eighties is not the equivalent of a life

sentence.” Commonwealth v. Brooker, 103 A.3d 325, 340 (Pa. Super.

2014) (citing Commonwealth v. Dodge, 77 A.3d 1263, 1275 (Pa. Super.

2013) (concluding a sentence allowing a defendant to be paroled in his early

eighties, while lengthy, is not the equivalent of a life sentence)).

The trial court considered whether a sentence of 56 years to life

constituted a de facto LWOP sentence and concluded it did not. As the court

observed:

In the instant case, [Appellant] will be approximately 72 years of

age when he becomes eligible for parole. As in Bebout,

[Appellant’s] opportunity for release is meaningful, especially in

light of the gravity of his crime. Moreover, for [Appellant] in this

case, despite being 12 years older than Bebout when he will be

eligible for parole, it is at least plausible that he could survive

until the minimum release date with some consequential likelihood

that a non-trivial amount of time at liberty awaits. And, similar to

the defendant in Bebout, at the age of 72, [Appellant] in this case

has the potential to live for several decades outside of prison if

paroled at his minimum. As a result the court’s sentence of 56

years to life is not a de facto LWOP sentence.

Trial Court Memorandum, 8/6/19, at 15 (emphasis in original; some

capitalization omitted). Moreover, just as in Bebout, Appellant “has failed to

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demonstrate that he has no plausible chance of survival until his minimum

release date.” Hernandez, 217 A.3d at 879. Therefore, we reject Appellant’s

contention that applying the sentencing guidelines in his case de-individualizes

his sentence or results in a de facto life sentence.

Moreover, as we recognized in Ligon,

The Miller Court did not call into question the ability of state

parole boards to make the decision as to whether a juvenile

murderer should be paroled and did not equate a sentence of

LWOP with one for life with the possibility of parole.

Montgomery, supra at 736. In fact, it did the opposite, merely

requiring the states to make the relevant inmates parole eligible,

thereby insuring that those prisoners who have shown the ability

to reform will receive a meaningful opportunity for release.

Ligon, 206 A.3d at 1200.

Again, Miller “did not hold that life sentences with parole eligibility are

unconstitutional[.]” Id. As we explained in Commonwealth v. Lawrence,

99 A.3d 116 (Pa. Super. 2014), “Section 1102.1 does not offend the Cruel and

Unusual Punishment Clause of the Eighth Amendment.” Id. at 121. See also

Brooker, 103 A.3d at 339. Moreover,

“[D]uly enacted legislation carries with it a strong presumption of

constitutionality.” Lawrence, 99 A.3d at 118. We will not find a

statute violative of the Eight Amendment’s prohibition on cruel

and unusual punishment unless it calls for a sentence so greatly

disproportionate to an offense as to offend evolving standards of

decency or a balanced sense of justice.

Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa. Super. 2019) (internal

citations and quotations omitted). Appellant’s assertions that the guidelines

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are inconsistent with case law, including Miller, or that they constrain the trial

court to enter a de facto life sentence are unfounded.

We also dismiss Appellant’s argument that imposition of a lifetime parole

tail is unconstitutional because it is not individualized. This Court rejected a

similar argument in Hernandez, holding that

[f]or 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.

Hernandez, 217 A.3d at 879 (quoting Commonwealth v. Blount, 207 A.3d

925, 938 (Pa. Super. 2019) (citing Commonwealth v. Seskey, 170 A.3d

1105, 1108 (Pa. Super. 2017) (additional citations and brackets omitted)).

The same rationale applies to the sentence imposed in accordance with

18 Pa.C.S.A. 1102.1 for Appellant’s 2018 conviction. Appellant’s sentencing

claims, including his claims of unconstitutionality, fail.

In his fourth and final claim, Appellant contends the trial court erred in

admitting testimony of Commonwealth witness Gerard Kinard under the

excited utterance exception to the hearsay rule. In his brief, he argues—

without citation to authority—that Kinard’s testimony does not qualify as an

excited utterance because Kinard was repeating the statements made by

others that Appellant and Martin were trying to get into the Kinard home.

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It is well-settled the “[a]n appellate court’s standard of review of a trial

court's evidentiary rulings, including rulings on the admission of hearsay . . .

is abuse of discretion.” Commonwealth v. Walter, 93 A.3d 442, 449 (Pa.

2014). We will not disturb an evidentiary ruling unless “the law is overridden

or misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill-will, as shown by evidence of record.”

Commonwealth v. Cooper, 941 A.2d 655, 667 (Pa. 2007) (citation omitted).

As the trial court recognized, to qualify as an excited utterance, a

statement must be

a spontaneous declaration by a person whose mind has been

suddenly made subject to an overpowering emotion caused by

some unexpected and shocking occurrence, which that person had

just participated in or closely witnessed, and made in reference to

some phase of that occurrence which he perceived, and this

declaration must be made so near the occurrence both in time and

place as to exclude the likelihood of its having emanated in whole

or in part from his reflective faculties. . . . Thus, it must be shown

first, that the declarant had witnessed an event sufficiently

startling and so close in point of time as to render [his] reflective

thought processes inoperable and, second, that [his] declarations

were a spontaneous reaction to that startling event.

Trial Court Rule 1925(a) Opinion, 10/25/19, at 3 (quoting Commonwealth

v. Stokes, 615 A.2d 704, 712 (Pa. 1992) (additional citation and alterations

omitted)). As this Court has explained:

An excited utterance, as an exception to the hearsay rule, is “[a]

statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event

or condition.” Pa.R.E., Rule 803(2), 42 PA. CONS. STAT. ANN.

The Comment to this exception states that “[t]his exception has a

more narrow base than the exception for a present sense

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impression, because it requires an event or condition that is

startling.” Id., Comment–1998 (emphasis in original).

Commonwealth v. Hood, 872 A.2d 175, 181 (Pa. Super. 2005).

At trial, Gerard Kinard testified that after hearing several shots fired,

“everybody in my house was scared. We didn’t know what was going on. We

didn’t know who was shooting or what was happening.” N.T., Trial, at 122.

The testimony permitted over the objection of defense counsel involved

Kinard’s statement “that people in his house were yelling that [Appellant] and

Marshi Martin were trying to get into Mr. Kinard’s house.” Trial Court Rule

1925(a) Opinion, 10/25/19 at 3 (citing N.T., Trial, at 123-26). The trial court

acknowledged the statement made by Kinard was, in fact, hearsay. However,

[a]t the time those declarations were uttered, [Appellant] had just

fired numerous shorts at the Victim directly outside of Mr. Kinard’s

house, and [Appellant] and Marshi Martin were trying to get into

the house. These circumstances clearly indicate an unexpected

and shocking occurrence to the people inside that house.

Moreover, the declarations were made by those individuals very

close in time and place to that shocking occurrence, so as to

render their reflective thought processes inoperable, and their

declarations were a spontaneous reaction to that startling event.

Id. at 3-4.

We find no abuse of discretion in the trial court’s allowance of Kinard’s

hearsay testimony under the excited utterance exception. A declarant may

testify to the excited utterance of a third party. See, e.g., Commonwealth

v. Murray, 83 A.3d 137, 156-58 (Pa. 2013); Commonwealth v. Sherwood,

902 A.2d 483, 495-96 (Pa. 2009) (recognizing witness testimony as to

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statement made by third party as an excited utterance and exception to the

hearsay rule). Appellant is not entitled to relief.

Appellant’s issues do not afford him any relief. Therefore, we affirm his

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2020

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