Com. v. Dejesus, J. ( 2020 )


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  • J-A07009-19
    
    2020 PA Super 158
    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    JOSE JAVIER DEJESUS                     :
    :
    Appellant             :   No. 883 EDA 2018
    Appeal from the Judgment of Sentence January 5, 2018
    In the Court of Common Pleas of Delaware County Criminal Division at
    No(s): CP-23-CR-0001277-1997
    BEFORE:    OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
    DISSENTING OPINION BY OLSON, J.:                      FILED JULY 06, 2020
    I must respectfully dissent from my learned colleagues. I believe that
    the evidence is insufficient to rebut the presumption against imposing a
    life-without-parole sentence and that Appellant’s sentence is illegal. Thus, I
    would vacate Appellant’s judgment of sentence and remand for resentencing.
    In Miller v. Alabama, the United States Supreme Court held “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, 567 U.S. at 465. In arriving at this conclusion, the
    Supreme Court relied upon its past precedents in Graham v. Florida and
    Roper v. Simmons. See Graham v. Florida, 
    560 U.S. 48
     (2010); see also
    Roper v. Simmons, 
    543 U.S. 551
     (2005). The Miller Court explained that
    Graham and Roper “establish[ed] that children are constitutionally different
    from adults for purposes of sentencing” because:
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-A07009-19
    [1)] children have a lack of maturity and an underdeveloped
    sense of responsibility, leading to recklessness, impulsivity,
    and heedless risk-taking[; 2)] children are more vulnerable
    to negative influences and outside pressures, including from
    their family and peers; they have limited control over their
    own environment and lack the ability to extricate themselves
    from horrific, crime-producing settings[; and, 3)] a child's
    character is not as well formed as an adult's; his traits are
    less fixed and his actions less likely to be evidence of
    irretrievable depravity.
    Id. at 471 (quotations, citations, and corrections omitted), quoting Graham,
    560 U.S. at 68 and Roper, 
    543 U.S. at
    569 and 570.
    The Miller Court held that, “[b]ecause juveniles have diminished
    culpability and greater prospects for reform [than adults] . . . they are less
    deserving of the most severe punishments” and, as a class, “the distinctive
    attributes of youth diminish the penological justifications” for imposing upon
    juveniles life without parole. Miller, 567 U.S. at 471 and 472 (quotations
    omitted).     Further,   the   Miller   Court   echoed   Graham    by   “likening
    life-without-parole sentences imposed on juveniles to the death penalty
    itself.” Id. at 474. The Miller Court explained:
    Life-without-parole terms . . . share some characteristics with
    death sentences that are shared by no other sentences.
    Imprisoning an offender until he dies alters the remainder of
    his life by a forfeiture that is irrevocable. And this lengthiest
    possible incarceration is an especially harsh punishment for
    a juvenile, because he will almost inevitably serve more years
    and a greater percentage of his life in prison than an adult
    offender. The penalty when imposed on a teenager, as
    compared with an older person, is therefore the same in
    name only.
    Id. at 474-475 (quotations, citations, and corrections omitted).
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    In Miller, however, the State sought to impose the “ultimate penalty
    for juveniles” – a term of life in prison without the possibility of parole – as a
    mandatory penalty for a juvenile convicted of murder.          Id. at 475.    The
    mandatory nature of this penalty precluded the sentencer from considering
    mitigating factors, such as “the distinctive attributes of youth,” before
    imposing the State’s most severe punishment upon the juvenile. As the Miller
    Court held, this was unconstitutional:
    By removing youth from the balance – by subjecting a
    juvenile to the same life-without-parole sentence applicable
    to an adult – these laws prohibit a sentencing authority from
    assessing whether the law's harshest term of imprisonment
    proportionately punishes a juvenile offender.            That
    contravenes Graham's (and also Roper's) foundational
    principle: that imposition of a State's most severe penalties
    on juvenile offenders cannot proceed as though they were
    not children.
    ...
    Mandatory life without parole for a juvenile precludes
    consideration of his chronological age and its hallmark
    features – among them, immaturity, impetuosity, and failure
    to appreciate risks and consequences. It prevents taking into
    account the family and home environment that surrounds
    him – and from which he cannot usually extricate himself –
    no matter how brutal or dysfunctional. It neglects the
    circumstances of the homicide offense, including the extent
    of his participation in the conduct and the way familial and
    peer pressures may have affected him. Indeed, it ignores
    that he might have been charged and convicted of a lesser
    offense if not for incompetencies associated with youth – for
    example, his inability to deal with police officers or
    prosecutors (including on a plea agreement) or his incapacity
    to assist his own attorneys. And finally, this mandatory
    punishment disregards the possibility of rehabilitation even
    when the circumstances most suggest it.
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    Id. at 474 and 477-478.
    Although the Miller Court did not absolutely preclude a sentence of life
    in prison without the possibility of parole upon a juvenile, the High Court
    explained:
    given all we have said in Roper, Graham, and this decision
    about children's diminished culpability and heightened
    capacity for change, we think appropriate occasions for
    sentencing juveniles to this harshest possible penalty will be
    uncommon. That is especially so because of the great
    difficulty we noted in Roper and Graham of distinguishing
    at this early age between the juvenile offender whose crime
    reflects unfortunate yet transient immaturity, and the rare
    juvenile offender whose crime reflects irreparable corruption.
    Although we do not foreclose a sentencer's ability to make
    that judgment in homicide cases, we require it to take into
    account how children are different, and how those differences
    counsel against irrevocably sentencing them to a lifetime in
    prison.
    Id. at 479-480 (quotations and citations omitted).
    The Supreme Court expounded upon Miller in Montgomery v.
    Louisiana. In Montgomery, the Supreme Court held that Miller announced
    a new, substantive rule of constitutional law that states must apply
    retroactively to juvenile offenders on collateral review. Montgomery, 136
    S.Ct. at 726 and 732. In concluding that Miller announced a substantive rule
    – and, thus, a rule that “prohibits a certain category of punishment for a class
    of defendants because of their status” – the Montgomery Court held:
    Miller requires that before sentencing a juvenile to life
    without parole, the sentencing judge take into account “how
    children are different, and how those differences counsel
    against irrevocably sentencing them to a lifetime in prison.”
    [Miller, 567 U.S. at 480]. The Court recognized that a
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    sentencer might encounter the rare juvenile offender who
    exhibits such irretrievable depravity that rehabilitation is
    impossible and life without parole is justified. But in light of
    children's diminished culpability and heightened capacity for
    change, Miller made clear that appropriate occasions for
    sentencing juveniles to this harshest possible penalty will be
    uncommon.
    Miller, then, did more than require a sentencer to consider a
    juvenile offender's youth before imposing life without parole;
    it established that the penological justifications for life
    without parole collapse in light of the distinctive attributes of
    youth.      Even if a court considers a child's age before
    sentencing him or her to a lifetime in prison, that sentence
    still violates the Eighth Amendment for a child whose crime
    reflects “unfortunate yet transient immaturity.” [Miller, 567
    U.S. at 479]. Because Miller determined that sentencing a
    child to life without parole is excessive for all but “the rare
    juvenile offender whose crime reflects irreparable
    corruption,”     it   rendered     life  without    parole    an
    unconstitutional penalty for “a class of defendants because of
    their status” – that is, juvenile offenders whose crimes reflect
    the transient immaturity of youth. As a result, Miller
    announced a substantive rule of constitutional law. Like
    other substantive rules, Miller is retroactive because it
    necessarily carries a significant risk that a defendant – here,
    the vast majority of juvenile offenders – faces a punishment
    that the law cannot impose upon him.
    Montgomery, 136 S.Ct. at 734 (corrections and some quotations and
    citations omitted).
    The Pennsylvania Supreme Court interpreted and applied Miller and
    Montgomery in Commonwealth v. Batts, 
    163 A.3d 410
     (Pa. 2017)
    (hereinafter “Batts II”).    The facts of Batts II – and the Pennsylvania
    Supreme Court’s prior opinion in Commonwealth v. Batts, 
    66 A.3d 286
     (Pa.
    2013) (“hereinafter Batts I”) – are as follows.
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    On February 7, 2006, Qu’eed Batts walked up to Clarence Edwards and
    shot him twice in the head, killing him; Batts also shot Corey Hilario once in
    the back, causing him serious bodily injury. Batts II, 163 A.3d at 414. At
    the time of the murder, Batts was 14 years old. Id. at 411.
    The jury convicted Batts of first-degree murder, attempted murder, and
    aggravated assault and, on October 22, 2007, the trial court sentenced Batts
    to serve the then-mandatory term of life in prison without the possibility of
    parole for his first-degree murder conviction.     After we affirmed Batts’
    judgment of sentence, the Pennsylvania Supreme Court granted Batts’
    petition for allowance of appeal.   The Supreme Court then held the case
    pending the United States Supreme Court’s decision in Miller. Id. at 419.
    The Pennsylvania Supreme Court issued its opinion in Batts I on March
    26, 2013.     Essentially, in Batts I, the Supreme Court held that Batts’
    mandatory sentence of life in prison without the possibility of parole was
    unconstitutional. Notwithstanding, “juveniles convicted of first-degree murder
    prior to Miller could, after the sentencing court's evaluation of the criteria
    identified in Miller, be subjected to a sentence of life in prison without the
    possibility of parole.” See Batts II, 163 A.3d at 421 (footnote omitted). The
    Batts I Court thus remanded the case to the trial court for resentencing. Id.
    After the resentencing hearing, the trial court again sentenced Batts to
    life-without-parole for his first-degree murder conviction.   After this Court
    again affirmed Batts’ judgment of sentence, the Supreme Court granted Batts’
    petition for allowance of appeal.
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    At the outset, the Batts II Court held that a challenge to the sufficiency
    of the evidence supporting a life-without-parole sentence is a challenge to the
    legality of the sentence. Id. at 435-436. This is because, under Miller and
    Montgomery, “a sentencing court has no discretion to sentence a juvenile
    offender to life without parole unless it finds that the defendant is one of the
    ‘rare’ and ‘uncommon’ children” who:
    is entirely unable to change[,] . . . that there is no possibility
    that the offender could be rehabilitated at any point later in
    his life, no matter how much time he spends in prison and
    regardless of the amount of therapeutic interventions he
    receives, and that the crime committed reflects the juvenile's
    true and unchangeable personality and character.
    Id. at 435.
    Thus, the Batts II Court held, “in the absence of the sentencing court
    reaching a conclusion, supported by competent evidence, that the defendant
    will   forever   be   incorrigible,   without   any    hope   for   rehabilitation,   a
    life-without-parole sentence imposed on a juvenile is illegal, as it is beyond
    the court’s power to impose.” Id.; see also Commonwealth v. Catt, 
    994 A.2d 1158
    , 1160 (Pa. Super. 2010) (en banc) (“[a] claim that implicates the
    fundamental legal authority of the court to impose a particular sentence
    constitutes a challenge to the legality of the sentence”).
    Further, since     a   challenge   to    the   evidentiary sufficiency of a
    life-without-parole sentence implicates the legality of the defendant’s
    sentence, the Supreme Court held that the appellate court’s standard and
    scope of review for such a claim is as follows:
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    we must review the sentencing court's legal conclusion that
    [a defendant] is eligible to receive a sentence of life without
    parole pursuant to a de novo standard and plenary scope of
    review. Because this legal conclusion is premised upon the
    presentation of testimony and the sentencing court's
    credibility determinations, it presents a mixed question of
    fact and law. In such circumstances, we defer to the findings
    of fact made by the sentencing court as long as they are
    supported by competent evidence, but give no deference to
    that court's legal conclusions.
    Batts II, 163 A.3d at 435-436 (citations omitted).
    The Batts II Court also “devise[d] a procedure for the implementation
    of the Miller and Montgomery decisions in Pennsylvania.”               Id. at 451
    (quotations omitted). Specifically, the Batts II Court held:
       “[t]he Commonwealth must give [the defendant] reasonable notice of
    its intention to seek a sentence of life without the possibility of parole,”
    id. at 455 and 459;
       there exists “a presumption against sentencing a juvenile offender to
    life in prison without the possibility of parole;” id. at 452;
       “to overcome the presumption against the imposition of a sentence of
    life without parole for a juvenile offender, the Commonwealth must
    prove that the juvenile is constitutionally eligible for the sentence
    beyond a reasonable doubt” (i.e., the Commonwealth must prove,
    beyond a reasonable doubt, that the defendant “is and forever will be a
    danger to society” and that the defendant “exhibits such irretrievable
    depravity that rehabilitation is impossible”); id. at 455 (quotations,
    citations, and emphasis omitted);
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       “[t]he Commonwealth's evidence and the sentencing court's decision
    must take into account the factors announced in Miller[1] and section
    1102.1(d) of the Crimes Code,[2]” id. at 455 n.23 and 459-460;
    ____________________________________________
    1 In Batts I, the Supreme Court quoted approvingly from this Court’s opinion
    in Commonwealth v. Knox, 
    50 A.3d 732
     (Pa. Super. 2012), where we held:
    although 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.
    Knox, 
    50 A.3d at 745
    ; see also Batts I, 66 A.3d at 297; Batts II, 163 A.3d
    at 455 n.23.
    2   18 Pa.C.S.A. § 1102.1(d) declares:
    (d) Findings.--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.
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       “whether expert testimony is required to rebut the presumption against
    permanent incorrigibility beyond a reasonable doubt [must] be
    determined on a case-by-case basis by the sentencing court,” id. at
    456;
       a judge may make the finding of “permanent incorrigibility,” id.;
       if the evidence is sufficient to support a finding of “permanent
    incorrigibility” beyond a reasonable doubt, the trial court still has the
    ____________________________________________
    (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.
    (vii) Other relevant factors.
    18 Pa.C.S.A. § 1102.1(d).
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    discretion “to impose a life-without-parole sentence or to instead impose
    a sentence that would allow the juvenile to have an opportunity for
    parole consideration,” id. at 457; and,
       “[i]n sentencing a juvenile offender to life with the possibility of parole,
    traditional sentencing considerations apply. See 42 Pa.C.S. § 9721(b).
    The sentencing court should fashion the minimum term of incarceration
    using, as guidance, section 1102.1(a) of the Crimes Code,” id. at 460.
    In the end, the Batts II Court held that Batts’ life-without-parole
    sentence was illegal, as the evidence was insufficient to support the sentence
    and the trial court, in fact, concluded that Batts was amenable to
    rehabilitation. Id. at 439.
    In the case at bar, Appellant claims that the evidence is insufficient to
    rebut the presumption against a life-without-parole sentence and that his
    sentence is, thus, illegal. I agree.
    As noted above, our standard and scope of review is as follows:
    we must review the sentencing court's legal conclusion that
    [a defendant] is eligible to receive a sentence of life without
    parole pursuant to a de novo standard and plenary scope of
    review. Because this legal conclusion is premised upon the
    presentation of testimony and the sentencing court's
    credibility determinations, it presents a mixed question of
    fact and law. In such circumstances, we defer to the findings
    of fact made by the sentencing court as long as they are
    supported by competent evidence, but give no deference to
    that court's legal conclusions.
    Batts II, 163 A.3d at 435-436 (citations omitted).
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    Further, as explained above, the Pennsylvania Supreme Court has
    recognized “a presumption against the imposition of a sentence of life without
    parole” for juvenile murderers. To rebut this presumption, the Commonwealth
    has the burden of proving, beyond a reasonable doubt, that the defendant:
    is entirely unable to change[,] . . . that there is no possibility
    that [the defendant] could be rehabilitated at any point later
    in his life, no matter how much time he spends in prison and
    regardless of the amount of therapeutic interventions he
    receives, and that the crime committed reflects [the
    defendant’s] true and unchangeable personality and
    character.
    Id. at 435.
    As   everyone    agrees,    during      the   resentencing   hearing,   the
    Commonwealth presented evidence demonstrating that Appellant has not yet
    been rehabilitated. Unquestionably, the Commonwealth presented evidence
    tending to show that, almost since the time Appellant was imprisoned for
    second-degree murder in 1997, he has engaged in a “consistent pattern of
    aggressive, defian[t] behavior.” N.T. Resentencing Hearing, 12/5/17, at 215
    and 263. This behavior includes multiple violations of prison regulations and
    a variety of criminal acts, such as:     Appellant’s unprovoked stabbing of a
    fellow-inmate in the face, which occurred in February 2012; the three times
    Appellant “squirted a [shampoo] bottle [filled with] urine [and feces]” at
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    inmates or prison employees, which occurred in 2012, 2014, and 2016; and,
    Appellant’s multiple acts of sexual harassment.3
    Nevertheless, as everyone also agrees, Appellant is in need of treatment
    for his mental problems and yet Appellant has rejected all forms of treatment
    during his time in prison, including therapy and medication. Therefore, this is
    not a case where all possible forms of treatment were attempted on Appellant
    and Appellant continued to engage in aggressive and antisocial behavior.
    Rather, the above-cited evidence merely demonstrates that, without
    treatment, Appellant’s aggressive and antisocial behavior has continued
    unabated.
    The above-cited evidence does not satisfy the Commonwealth’s burden
    to establish “that there is no possibility” that Appellant could be rehabilitated.
    To be sure, since Appellant has not engaged in treatment or attempted to
    rehabilitate himself, the evidence of Appellant’s continued aggressive and
    antisocial behavior simply does not speak to the question of whether Appellant
    ____________________________________________
    3 In Miller, the Supreme Court held that a trial court must determine whether,
    at the time of the crime, the defendant was “permanently incorrigible.” See
    Miller, 567 U.S. at 479-480. Nevertheless, in Montgomery, the Supreme
    Court held that a defendant’s post-conviction prison conduct was relevant to
    the issue of whether he is “capable of change.” See Montgomery, 136 S.Ct.
    at 736; see also Batts II, 163 A.3d at 456 (“Montgomery . . . plainly
    requires a court to consider the post-crime conduct of a defendant in
    determining whether life without parole is a permissible sentence”).
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    “is entirely unable to change . . . [and] without any hope for rehabilitation.”
    Batts II, 163 A.3d at 435.
    In addition, during the remainder of the resentencing hearing, the
    parties presented no evidence that would tend to show that Appellant’s
    rehabilitation is impossible. Indeed, the Commonwealth’s own expert witness
    (whom the trial court concluded was credible) specifically testified that
    rehabilitation was possible for Appellant.4
    During the resentencing hearing, Dr. Russell – the Commonwealth’s
    expert witness – testified that Appellant suffers from both antisocial
    personality disorder and schizotypal personality disorder. N.T. Resentencing
    Hearing, 12/5/17, at 350. He testified that Appellant’s antisocial personality
    disorder manifests in Appellant’s long-line of behaviors and actions that
    “infringe[] on the rights of others” and that Appellant’s schizotypal personality
    disorder manifests in Appellant’s social anxiety, wish to be alone, “odd or
    peculiar” behaviors and affectations, “unusual perceptions, [] suspiciousness,
    [and] paranoia;” and “engag[ement] in behaviors and then having a different
    type of emotional presentation, [such as] smirking while he’s doing an
    obscene or aggressive act.”         Id. at 343, 350-351, 353; N.T. Resentencing
    Hearing, 12/6/17, at 141-142.
    ____________________________________________
    4 I note that Appellant’s expert witness also testified that Appellant was
    capable of being rehabilitated.   See, e.g., N.T. Resentencing Hearing,
    12/6/17, at 221-222.
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    While Dr. Russell testified that “there is no cure” for either disorder and
    that the disorders will “never go[] away,” as they are a part of Appellant’s
    personality, Dr. Russell specifically testified that “many of the folks who have
    [antisocial personality disorder], as they begin to hit their mid-50s, their early
    60s, the violent behavior, the frequency of the impulsive aggression you see
    just stop because of increasing age.” N.T. Resentencing Hearing, 12/5/17, at
    356. Further, as to Appellant’s schizotypal personality disorder, Dr. Russell
    testified that the personality disorder “can be managed” and that “[w]ith
    medication and intensive therapy you could begin to assist [a person suffering
    from schizotypal personality disorder] in making strides to lessen the impact
    of that personality disorder.”      N.T. Resentencing Hearing, 12/6/17, at
    141-143.   Dr. Russell also testified that:    “there’s certainly a possibility if
    [Appellant] were to be given a term of years that he could motivate himself
    to do what’s necessary to earn parole;” “if [Appellant] were to be successful
    outside of a prison system,” Appellant would need to consistently comply with
    his therapy and medication; and, in making a risk assessment of a person,
    “there is no way you can say that they cannot be rehabilitated or that they
    will be rehabilitated.”   Id. at 63-64, 149-150; N.T. Resentencing Hearing,
    12/5/17, at 354-355.
    Therefore, Dr. Russell specifically testified that rehabilitation is not
    “impossible” for Appellant.    Certainly, he testified that it is possible for
    Appellant to be rehabilitated with aging (for his antisocial personality disorder)
    and with “medication and intensive therapy” (for his schizotypal personality
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    disorder). Further, and importantly, Dr. Russell testified that if Appellant is
    one of the “many” individuals for whom aging affects his antisocial personality
    disorder, it is reasonable to anticipate that “the violent behavior, the frequency
    of the impulsive aggression you see just stop because of increasing age.”
    N.T. Resentencing Hearing, 12/5/17, at 345 (emphasis added).
    It is true, Dr. Russell testified, that given Appellant’s past behavior, his
    “refusal to participate and engage” in therapy, and his “refusal to maintain the
    medication or take the medication,” “the risk of [Appellant’s] continued
    aggressive behavior is high.” Id. at 354-356. However, this testimony does
    not establish that there is no possibility that Appellant can be rehabilitated –
    it only establishes that Appellant has not yet chosen to accept or participate
    in the treatment that might rehabilitate him.
    To be sure, the learned majority apparently acknowledges that the
    Commonwealth’s own expert testified that there is a possibility Appellant will
    age-out of the violence and impulsive aggression associated with his antisocial
    personality disorder and that it is possible for Appellant to manage his
    schizotypal personality disorder with medication and therapy.            Majority
    Opinion at **31-34.       Nevertheless, the majority still declares that the
    evidence is sufficient to rebut the presumption against a life-without-parole
    sentence because “Appellant’s aggressive and antisocial behavior [] has not
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    ceased despite his entering middle age”5 and Appellant has not yet
    participated in his necessary mental health treatment. Id.; see also Majority
    Opinion at 32 (“[t]here is nothing in the record to indicate that Appellant’s
    psychological disorders will resolve themselves without proper medication and
    intervention, yet the Commonwealth has shown Appellant ignores therapeutic
    opportunities and refuses to take medication with regularity”).
    Respectfully, the majority is not applying the proper standard. We are
    not here to determine whether Appellant was rehabilitated at the time of the
    sentencing hearing and we may not attach conditions to make something –
    that is otherwise possible – impossible.           Instead, we must ask whether the
    Commonwealth proved, beyond a reasonable doubt, that “there is no
    ____________________________________________
    5  As to this point, the majority declares, in full: “Appellant’s aggressive and
    antisocial behavior has not ceased despite his entering middle age, a time of
    life the expert testimony has concluded that the frequency of impulsive
    aggression for many people who have antisocial personality disorder would
    ‘just stop,’ according to Dr. Russell.” Majority Opinion at *34. However, Dr.
    Russell did not say this. Rather, Dr. Russell testified that “many of the folks
    who have [antisocial personality disorder], as they begin to hit their
    mid-50s, their early 60s, the violent behavior, the frequency of the
    impulsive aggression you see just stop because of increasing age.” N.T.
    Resentencing Hearing, 12/5/17, at 356 (emphasis added). Dr. Russell
    testified that, since Appellant is only in his 40s, there is “[n]o possible way
    to know right now” whether Appellant is in the category of people whose
    violence and aggressive impulses subside as they age. N.T. Resentencing
    Hearing, 12/6/17, at 136. Therefore, contrary to the majority’s statement,
    Dr. Russell did not state that Appellant is at the “time of [his] life” where his
    violence and impulsive aggression would “just stop” due to age. Instead, Dr.
    Russell specifically testified that Appellant has not yet reached the age where
    he could possibly age-out of the violence and impulsive aggression associated
    with his antisocial personality disorder.
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    possibility that [Appellant] could be rehabilitated at any point later in his
    life, no matter how much time he spends in prison and regardless of the
    amount of therapeutic interventions he receives.” Batts II, 163 A.3d at 435
    (emphasis added). “Impossibility” in this context equates to a zero percent
    chance of occurrence – and, as explained in more detail above, the
    Commonwealth simply did not satisfy its burden of production in this case.
    Certainly, the Commonwealth’s own expert testified that rehabilitation for
    Appellant is possible.
    On May 20, 1994, Appellant murdered Raymond McKinley in a senseless
    and reprehensible act of violence. While in prison for this murder, Appellant
    engaged in a “consistent pattern of aggressive, defian[t] behavior” and
    committed many violent and appalling acts. Nevertheless, it is undisputed
    that Appellant may benefit from mental health treatment and that Appellant
    has yet to agree to this treatment. Thus, the Commonwealth’s evidence of
    Appellant’s continued aggressive and antisocial behavior merely establishes
    that Appellant has not yet been rehabilitated. The evidence simply does not
    establish that Appellant “is one of the very rare individuals who is incapable
    of rehabilitation” or that “there is no possibility that [Appellant] could be
    rehabilitated at any point later in his life, no matter how much time he spends
    in prison and regardless of the amount of therapeutic interventions he
    receives.” See Batts II, 163 A.3d at 435 and 454 (emphasis added). Indeed,
    the Commonwealth’s own expert testified that it is possible for Appellant to
    be rehabilitated with medication and therapy and for Appellant’s violent acts
    - 18 -
    J-A07009-19
    and impulsive aggression to “just stop” in the future because of increasing
    age.
    I thus conclude that the evidence is insufficient to rebut the presumption
    against the imposition of a sentence of life without parole and that Appellant’s
    sentence is illegal.       Therefore, I would vacate Appellant’s judgment of
    sentence and remand for resentencing.6, 7
    ____________________________________________
    6Given my belief that the evidence is insufficient to rebut the presumption
    against the imposition of a sentence of life without parole, I will not discuss
    Appellant’s remaining issues, as they are moot.
    7 I note that, even with the possibility of parole, Appellant may never be
    paroled if he fails to be rehabilitated. As the High Court made clear,
    Extending parole eligibility to juvenile offenders does not impose
    an onerous burden on the States, nor does it disturb the finality
    of state convictions. Those prisoners who have shown an inability
    to reform will continue to serve life sentences. The opportunity
    for release will be afforded to those who demonstrate the truth of
    Miller’s central intuition – that children who commit even heinous
    crimes are capable of change.
    Montgomery, 136 S.Ct. at 736.
    - 19 -
    

Document Info

Docket Number: 883 EDA 2018

Filed Date: 7/6/2020

Precedential Status: Precedential

Modified Date: 7/6/2020