Com. v. Clary, T.
226 A.3d 571
| Pa. Super. Ct. | 2020Background
- In 1999, Terrell Lamar Clary (age 16) shot Juan Watson and fatally shot William Six; convicted in 2000 of first-degree murder and attempted murder and originally sentenced to mandatory life without parole (LWOP).
- After Miller and Montgomery, Clary secured PCRA relief; the trial court held a three-day resentencing in May 2018 where the Commonwealth sought LWOP.
- At resentencing, Clary presented a defense expert on gangs; the Commonwealth called a gang expert in rebuttal without prior disclosure—trial court allowed the rebuttal testimony.
- The trial court found Clary was not permanently incorrigible, declined to impose LWOP, and resentenced him to 42 years to life (murder) consecutive 6–12 years (attempted murder) plus 7 years probation for a gun offense.
- On appeal Clary raised four issues: (1) improper admission of undisclosed rebuttal gang expert, (2) erroneous limitation on cross-exam re: juvenile interactions with police (a Miller factor), (3) discretionary-sentencing excessiveness/errors applying Miller/Batts, and (4) that his aggregate term is a de facto LWOP (illegal sentence).
- The Superior Court affirmed: it upheld the rebuttal testimony, found the Miller-related cross-exam claim moot/correctly limited, declined to review most discretionary-sentencing claims for lack of a substantial question, and rejected the de facto LWOP claim because Clary will be eligible for parole at age 58.
Issues
| Issue | Clary's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| 1. Admission of undisclosed rebuttal gang expert | Allowing Lt. Echevarria in rebuttal violated Rule 573/non-disclosure and prejudiced Clary | Rebuttal witnesses need not be pre-listed; Commonwealth could not anticipate need until defense testimony | Admission affirmed; no Rule 573 violation for rebuttal witnesses; no abuse of discretion |
| 2. Limitation on cross-exam about juvenile police interactions (Miller factor: ability to deal with police) | Preventing questioning of Detective Dillon deprived consideration of a Miller factor and harmed Clary | Court properly limited irrelevant/cumulative questioning; Miller factors were considered in LWOP inquiry | Claim moot (court declined LWOP) and limitation not an abuse of discretion |
| 3. Discretionary-sentencing challenge (failure to consider mitigating factors, misuse of expert testimony, Section 1102.1) | Sentencing court ignored diminished culpability, youth-related factors, sexual-abuse history, and misread expert testimony leading to excessive sentence | Sentencing discretion; issues were not preserved/raise no substantial question for review under Rule 2119(f) | Most claims waived/insufficiently developed; Superior Court declined to review discretionary aspects |
| 4. De facto LWOP (legality) | Aggregate sentence (42-to-life + 6–12 consecutive) effectively equals LWOP in violation of Miller absent finding of permanent incorrigibility | Individual terms are not de facto LWOP; evaluate each sentence and parole eligibility; juveniles get no "volume discount" but parole eligibility matters | Rejected: individual terms are not de facto LWOP and Clary will be parole-eligible at 58, providing a meaningful opportunity for release |
Key Cases Cited
- Miller v. Alabama, 567 U.S. 460 (2012) (mandatory LWOP for juveniles unconstitutional; sentencing must account for youth-related factors)
- Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (Miller is retroactive)
- Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Pennsylvania framework implementing Miller; presumption against LWOP for juveniles and Commonwealth burden when seeking LWOP)
- Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018) (analysis of when a term-of-years constitutes de facto LWOP; examine individual sentences and parole eligibility)
- Commonwealth v. Bebout, 186 A.3d 462 (Pa. Super. 2018) (a sentence is not de facto LWOP if there is a meaningful opportunity for release; assess parole-eligibility age)
- Commonwealth v. Lekka, 210 A.3d 343 (Pa. Super. 2019) (term-to-life sentences not de facto LWOP where parole eligibility yields meaningful release prospect)
- Commonwealth v. Feflie, 581 A.2d 636 (Pa. Super. 1990) (Rule-based principle that Commonwealth need not disclose every possible rebuttal witness)
- Commonwealth v. Oliver, 379 A.2d 309 (Pa. Super. 1977) (recognizing impracticality of listing all potential rebuttal witnesses and permitting rebuttal evidence)