Com. v. Kebede, E. ( 2020 )


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  • J-A30015-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                              :
    :
    :
    EMRU KEBEDE                                 :
    :
    Appellant                :     No. 301 MDA 2018
    Appeal from the Judgment of Sentence January 3, 2018
    In the Court of Common Pleas of Lancaster County Criminal Division at
    No(s): CP-36-CR-0003556-2007
    BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*
    MEMORANDUM BY DUBOW, J.:                                FILED FEBRUARY 26, 2020
    Appellant, Emru Kebede, appeals pro se from the January 3, 2018
    Judgment of Sentence of 30 years’ to life imprisonment imposed upon
    resentencing after the grant of post-conviction relief based on Miller v.
    Alabama,       
    567 U.S. 460
         (2012),       and Montgomery v.    Louisiana,
    ___U.S.___, 
    136 S.Ct. 718
     (2016).1 After careful review, we affirm.
    A detailed recitation of the procedural and factual history is unnecessary
    to our disposition. Briefly, in 2007, when Appellant was 16 years old, he
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
    courts to impose an automatic sentence of life without parole upon a homicide
    defendant for a murder committed while the defendant was under eighteen
    years old. Miller, 
    567 U.S. at 479
    . In Montgomery, the U.S. Supreme Court
    held that its decision in Miller, 
    supra,
     applies retroactively. Montgomery,
    136 S.Ct. at 732.
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    participated in events that led to the murder of the victim by another actor.
    On September 10, 2009, a jury found Appellant guilty of Second-Degree
    Murder, and on September 18, 2009, the court sentenced Appellant to a
    statutorily mandated sentence of life without parole (“LWOP”). This Court
    affirmed the Judgment of Sentence. Commonwealth v. Kebede, 
    23 A.3d 1080
     (Pa. Super. 2011) (table).
    On May 22, 2012, Appellant filed a Petition pursuant to the Post
    Conviction Relief Act (“PCRA”) invoking Miller. The PCRA court denied relief,
    and on February 20, 2015, this Court affirmed. Commonwealth v. Kebede,
    No. 1228 MDA 2004, 
    2015 WL 7575706
     (Pa. Super. Feb. 20, 2015). While his
    Petition for Allowance of Appeal was pending, the U.S. Supreme Court, in
    Montgomery, supra, held that Miller would be applied retroactively.
    Therefore, the Pennsylvania Supreme Court vacated this Court’s February 20,
    2015 Order, and remanded the case for proceedings consistent with
    Montgomery.2 Commonwealth v. Kebede, 
    132 A.3d 973
     (Pa. 2016).
    A resentencing hearing commenced on January 3, 2018. Appellant
    requested that the court sentence him to a minimum sentence of 15 years’
    imprisonment while the Commonwealth requested the court to impose a
    sentence of not less than 30 years’ to life imprisonment. After providing a
    thorough review of the applicable sentencing factors, the court resentenced
    ____________________________________________
    2 This Court then vacated the Judgment of sentence and remanded the case
    to the trial court for resentencing. Commonwealth v. Kebede, No. 1228
    MDA 2014, 
    2016 WL 1064951
     (Pa. Super. Mar. 16, 2016).
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    Appellant to a standard range sentence of 30 years’ to life imprisonment for
    his Second-Degree Murder conviction.
    Appellant filed a Post-Sentence Motion, which the trial court denied.
    This timely appeal followed. Both Appellant and the trial court complied
    with Pa.R.A.P. 1925.
    Issues Raised
    Appellant raises the following six issues on appeal, reordered for ease
    of disposition:
    1. Did the trial court violate Appellant’s constitutional right to due process
    and equal protection protected under the Fourteenth Amendment of the
    U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution by
    committing reversible error by failing to give an instruction/definition of
    the “reasonable man” standard as requested by the Appellant regarding
    the inference of malice as applied to the felony murder rule?
    2. Did the trial court violate Appellant’s constitutional right to due process
    and equal protection and commit reversible error by failing to give an
    instruction on involuntary manslaughter in conjunction with the first-
    degree/second-degree murder instruction.
    3. Did the resentencing court violate Appellant’s constitutional right to due
    process protected under the Fourteenth Amendment of the U.S.
    Constitution and Article 1 § 9 of the Pennsylvania Constitution by
    imposing an illegal sentence when it failed to perform an on the record
    consideration of the Miller/Knox factors as required pursuant to the
    Pennsylvania Supreme Court Decision in Commonwealth v. Machiote,
    14 WAP 2018 (Pa. 4/26/2019)?
    4. Did the resentencing court violate Appellant’s constitutional right to
    equal protection and due process protected under the fifth and
    fourteenth amendments of the U.S. Constitution by considering/relying
    upon Title 18 Pa. C.S.A. § 1102.1 as a guiding factor in imposing its
    sentence?[]
    a. § 1102 is unconstitutional as it violates the equal protection
    clause of both the state and federal constitutions. The statute
    differentiates punishment based solely upon a child offender’s
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    chronological age. This arbitrary divide of child offenders
    discriminates against similarly situated juveniles and does so
    by neither protecting any compelling state interest nor is it
    supported by any rational basis.
    5. Did the resentencing court violate Appellant’s due process rights and
    abuse its discretion by sentencing [Appellant] to a manifestly excessive
    period of incarceration for the following reasons?”
    a. The court failed to sufficiently consider the [Appellant’s] progress
    and rehabilitation while incarcerated, as evidenced by his prison
    record and the testimony of prison staff, [Appellant’s] expression
    of remorse during his testimony before the court, [and
    Appellant’s] amenability for rehabilitation.
    6. Did the resentencing court violate Appellant’s due process rights and
    abuse its discretion and impose a manifestly excessive sentence by
    improperly relying on impermissible factors?
    a. The court’s stated reasons for deviating from similarly situated
    defendant[]s were based upon improper factors.
    b. The court improperly relied on statements of the prosecutor about
    facts of the case which were not supported by the criminal trial
    record.
    Appellant’s Supplemental Br. at 10-14.
    Jury Instructions
    In his first two issues, Appellant asserts that the trial court erred by
    failing to give certain jury instructions. Id. at 62-80. These issues, however,
    warrant no review.
    An appellant is limited in the issues he can raise in an appeal challenging
    a disposition rendered after a remand for resentencing. Commonwealth v.
    Williams, 
    151 A.3d 621
    , 625 (Pa. Super. 2016). Where an appellant has
    already had the benefit of a direct appeal, which resulted in remand for
    resentencing, he is barred from raising any issues other than a challenge to
    the sentence imposed on remand. 
    Id.
     (citing Commonwealth v. Anderson,
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    801 A.2d 1264
    , 1266 (Pa. Super. 2002). Cf. Commonwealth v. Sepulveda,
    
    144 A.3d 1270
    , 1280 n.19 (Pa. 2016) (“[W]here a case is remanded for a
    specific and limited purpose, issues not encompassed within the remand order
    may not be decided on remand as a remand does not permit a litigant a
    proverbial second bite at the apple.”) (internal quotation marks and citation
    omitted)). A defendant waives any issues that a defendant should have raised
    in the initial direct appeal. Williams, 151 A.3d at 625.
    In his initial direct appeal, Appellant challenged only the sufficiency and
    weight of his Second-Degree Murder conviction. See Commonwealth v.
    Kebede, No. 838 EMDA 2010, unpublished memorandum at 2 (Pa. Super.
    filed January 11, 2011). After the Supreme Court’s decision in Montgomery,
    the case was remanded only for resentencing. See Kebede, 132 A.3d at 973;
    Kebede, 
    2016 WL 1064951
    , at *1.
    Therefore, in this appeal, Appellant can challenge only the sentence
    imposed on remand. Moreover, because Appellant could have challenged the
    jury instructions in his first appeal but did not do so, Appellant waived his
    claims   that   the   trial   court   erred   by   failing   to   give   certain   jury
    instructions. See Williams, 151 A.3d at 625; Anderson, 
    801 A.2d at 1266
    .
    Legality of Sentence
    In his third issue, Appellant challenges the legality of his sentence.
    “When reviewing the legality of a sentence, our standard of review is de novo
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    and our scope of review is plenary.” Commonwealth v. Lekka, 
    210 A.3d 343
    , 355 (Pa. Super. 2019).
    Appellant contends that the sentencing court imposed an illegal
    sentence because it failed to consider the factors set forth in Miller/Knox3 on
    the record in violation of Commonwealth v. Machiote, 
    206 A.3d 1110
     (Pa.
    2019). Appellant’s Supp. Br. at 57-61.
    In Batts II, the Supreme Court established a framework for the
    sentencing of juvenile offenders who are convicted of offenses for which the
    Commonwealth seeks a LWOP sentence. Commonwealth v. Clary, ___ A.3d
    ___, 
    2020 WL 21200
    , at *4 (Pa. Super. filed Jan. 2, 2020). In cases where
    the Commonwealth requests a sentence of LWOP, the sentencing court must
    consider the Miller and Section 1102.1(d) factors4 on the record before
    imposing a LWOP sentence. Commonwealth v. Machicote, 
    206 A.3d 1110
    ,
    1120 (Pa. 2019); Batts II, supra at 459-60.
    If, however, the Commonwealth does not request a LWOP sentence, the
    sentencing court shall apply traditional sentencing considerations. Batts II,
    ____________________________________________
    3   Commonwealth v. Knox, 
    50 A.3d 732
     (Pa. Super. 2012).
    4 Miller requires that a sentencing court examine certain factors related to
    youth and its attendant characteristics (“Miller factors”). Commonwealth v.
    Batts, 
    163 A.3d 410
    , 421 n.5 (Pa. 2017) (“Batts II”) (citation omitted).
    Knox summarized the Miller factors, which were subsequently adopted by
    our Supreme Court in Commonwealth v. Batts, 
    66 A.3d 286
     (2013) (“Batts
    I”). Additionally, Pennsylvania’s General Assembly responded to Miller by
    enacting a new sentencing statute, 18 Pa.C.S. § 1102.1, for juveniles
    convicted of murder after June 24, 2012. Batts II, supra at 419 n.4.
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    supra at 460. In such a case, the sentencing court should fashion a sentence
    “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.” 42 Pa.C.S § 9721(b); Clary, supra
    at *4; see Batts II, supra at 460.
    In this case, the Commonwealth did not request that the sentencing
    court impose a sentence of LWOP; therefore, the trial court was not required
    to consider the Miller factors in fashioning a sentence and did not err in failing
    to do so. Lekka, supra at 356-57 (concluding trial court did not err when it
    did not consider the Miller factors when resentencing defendant where the
    Commonwealth did not seek a LWOP sentence). Accordingly, this issue has no
    merit.
    Constitutionality of Section 1102.1(c)
    In his fourth issue, Appellant argues that Section 1102.1(c) violates the
    Equal Protection Clause because it differentiates punishment based solely
    upon a specific child offender’s chronological age, 15 years of age or older and
    14 years of age and younger, without protecting any compelling state interest
    nor having support from any rational basis.5 Appellant’s Br. at 21-38. We,
    ____________________________________________
    5 Section 1102.1(c) imposes a mandatory minimum sentence for juveniles
    convicted of second-degree murder after June 24, 2012. If the juvenile
    committed the murder when he was fifteen years old or older, the trial court
    must impose a mandatory minimum sentence of thirty years’ to life
    imprisonment. 18 Pa.C.S. § 1102.1(c). If the juvenile committed the murder
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    however, decline to address the merits of this claim because the sentencing
    court did not impose the mandatory minimum sentence set forth in Section
    1102.1(c). Therefore, Appellant was not harmed by the statute and lacks
    standing to challenge its constitutionality.
    It is a fundamental principle of constitutional law that a party
    challenging a statute may not raise the issue in the abstract, but must find its
    basis in an injury to the party seeking to have the enactment declared
    constitutionally infirm. Commonwealth v. Bell, 
    516 A.2d 1172
    , 1177
    (1986). “[O]ne who is unharmed by a particular feature of a statute will not
    be heard to complain of its alleged unconstitutionality.” Commonwealth v.
    Wildermuth,        
    501 A.2d 258
    ,       260   (Pa.   Super.   1985)   (quoting
    Commonwealth v. Bonadio, 
    415 A.2d 47
    , 49 n.2 (Pa. 1980).
    Section 1102.1 clearly and unambiguously only applies, inter alia, to
    juvenile defendants who are convicted of second-degree murder “after June
    24, 2012.” 18 Pa.C.S. § 1102.1. Since a jury convicted Appellant in 2009,
    Section 1102.1 does not apply to Appellant and the resentencing court did not
    and could not sentence Appellant pursuant to Section 1102.1. Because the
    sentencing court did not base its sentence on Section 1102.1, Section 1102.1
    ____________________________________________
    when he was younger than 15 years old, the trial court must impose a
    mandatory minimum sentence of twenty years’ to life imprisonment. Id.
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    did not cause Appellant any “harm,” and therefore, Appellant lacks standing
    to challenge its constitutionality.
    Discretionary Aspects of Sentencing
    Appellant’s remaining issues challenge the discretionary aspects of
    sentencing.   Challenges    to   the discretionary aspects of sentence are   not
    appealable as of right. Commonwealth v. Leatherby, 
    116 A.3d 73
    , 83 (Pa.
    Super. 2015). Rather, an appellant challenging the sentencing court's
    discretion must invoke this Court's jurisdiction by (1) filing a timely notice of
    appeal; (2) properly preserving the issue at sentencing or in a post-sentence
    motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate
    section of the brief setting forth a concise statement of the reasons relied upon
    for allowance of appeal with respect to the discretionary aspects of a
    sentence; and (4) presenting a substantial question that the sentence
    appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §
    9781(b). Id. The trial court determines on a case-by-case basis whether a
    substantial question has been raised regarding discretionary sentencing.
    Commonwealth v. Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010). A
    substantial question exists only when the appellant advances a colorable
    argument that the sentencing judge's actions were either: (1) inconsistent
    with a specific provision of the Sentencing Code; or (2) contrary to the
    fundamental norms which underlie the sentencing process. 
    Id.
     (citation and
    quotation omitted).
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    Here, Appellant satisfied the first three elements by filing a timely Notice
    of Appeal, preserving the issues in a Post-Sentence Motion, and including a
    Rule 2119(f) Statement in his Brief to this Court. Thus, we address whether
    Appellant raises a substantial question for each challenge.
    In his next issue, Appellant asserts that he raised a substantial question
    because the court abused its discretion in resentencing him when it failed to
    adequately consider his progress and rehabilitation while incarcerated as well
    as his remorse. Appellant’s Br. at 39. Specifically, he contends that the court
    failed to sufficiently consider the following mitigating factors: his parents’
    separation; his struggles with substance abuse; his relationship with his
    brother who was frequently in and out of prison; and his rehabilitation. Id. at
    40.
    It is well-established that claims that the sentencing court did not
    adequately consider mitigating factors generally do not raise a substantial
    question. Commonwealth v. Disalvo, 
    70 A.3d 900
    , 903 (Pa. Super. 2013).
    A specific claim that the court refused to weigh mitigating factors as an
    appellant wished, absent more, does not raise a substantial question. Moury,
    
    992 A.2d at 175
    ; Commonwealth v. Zirkle, 
    107 A.3d 127
    , 133 (Pa. Super.
    2014) (“[W]e have held that a claim that a court did not weigh the factors as
    an appellant wishes does not raise a substantial question”).
    Appellant’s claim amounts to no more than a bald allegation that the
    sentencing court abused its discretion in failing to consider mitigating factors.
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    J-A30015-19
    Pursuant to the above case law, Appellant has failed to raise a substantial
    question and this challenge to the discretionary aspects of his sentence, thus,
    fails.
    In his sixth issue, Appellant asserts that he raised a substantial question
    because the trial court improperly relied on impermissible factors. Specifically,
    Appellant contends that in fashioning his sentence, the sentencing court
    improperly considered “individuals who have been before [it] under similar
    circumstances[,]” and the fact that the resentencing judge remembers “being
    on the bench at the time [o]f the trial[.]” Appellant’s Supp. Br. at 48, 51
    (quoting N.T. Resentencing Hr’g, 1/3/18, at 96, 97, emphasis omitted).
    This Court has concluded that an allegation that a court relied on an
    impermissible factor constitutes a substantial question. Commonwealth v.
    Macias, 
    968 A.2d 773
    , 776 (Pa. Super. 2009). Thus, Appellant has raised a
    substantial question, and we consider the sentence itself.
    Sentencing is a matter vested in the sound discretion of the sentencing
    court, and a sentence will not be disturbed on appeal without a manifest abuse
    of that discretion. Commonwealth v. Mouzon, 
    828 A.2d 1126
    , 1128 (Pa.
    Super. 2003). To constitute an abuse of discretion, the sentence must either
    exceed the       statutory   limits   or   be   manifestly   excessive. 
    Id.
     “[W]here
    a sentence is within the standard range of the guidelines, Pennsylvania law
    views the sentence as appropriate under the Sentencing Code.” Moury, 
    992 A.2d at 171
    . A sentencing court will not have abused its discretion unless the
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    record discloses 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. Mouzon, 
    supra at 1128
    .
    After review of the parties’ arguments and the record, we conclude that
    this issue warrants no relief. The court imposed a standard-range sentence
    and detailed its consideration of the parties’ sentencing memorandums,6
    Appellant’s mitigation report and psychological evaluation, letters in support
    of Appellant, and Appellant’s Department of Corrections’ records in fashioning
    Appellant's sentence. Trial Ct. Op. at 3-4 (unpaginated); N.T. Resentencing
    Hr’g at 95-98. The sentencing court did not ignore or misapply the law,
    exercise its judgment for reasons of partiality, prejudice, bias or ill-will, or
    arrive at a manifestly unreasonable decision.
    Because there is no merit to Appellant’s claims, we affirm the judgment
    of sentence.
    ____________________________________________
    6 Appellant’s sentencing memorandum discussed the general sentencing
    factors, i.e., the protection of the public, the gravity of offense, and his
    rehabilitative needs.
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    Judgment of Sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/26/2020
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