COMMONWEALTH OF PENNSYLVANIA v. BRANDON K. SUMMERS
No. 1966 EDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
January 21, 2021
2021 PA Super 11
J-A15041-20
BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: Filed: January 21, 2021
Brandon K. Summers (Appellant) appeals from the May 17, 2019 judgment of sentence for second-degree murder, imposed following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012).1 We affirm.
We provide the following background. On May 3, 2003, when he was 17 years and 3 months old, Appellant was involved in the shooting death of John Lacey, a Widener University student, which occurred during the commission of a robbery outside of a tavern adjacent to the University. On December 8, 2005, a jury found Appellant guilty of second-degree murder
Appellant filed a post-sentence motion, which the trial court denied. On June 21, 2006, Appellant filed a direct appeal.3 This Court affirmed Appellant‘s judgment of sentence, and on February 27, 2009, our Supreme Court denied Appellant‘s petition for allowance of appeal. Commonwealth v. Summers, 959 A.2d 974 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 966 A.2d 571 (Pa. 2009).
On April 24, 2009, Appellant timely filed pro se a PCRA petition. Counsel was appointed and ultimately filed a Turner/Finley4 no-merit letter. The PCRA court dismissed Appellant‘s petition on March 30, 2010. Appellant did not appeal that dismissal. Instead, on June 14, 2010,
On July 23, 2012, Appellant pro se filed a fourth PCRA petition, claiming that his sentence was unconstitutional under Miller.5 The PCRA court appointed counsel and issued an order on August 23, 2013, holding the petition in abeyance pending the outcome of Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), as the Cunningham Court was to determine whether Miller was retroactively applicable to post-conviction collateral review petitioners. On October 30, 2013, the Cunningham Court determined Miller was not retroactively applicable. As a result, the PCRA court vacated its order holding the petition in abeyance, and ordered counsel to file an amended petition or a Turner/Finley no-merit letter. Accordingly, relying on Cunningham, PCRA counsel filed a no-merit letter, and the PCRA court permitted counsel to withdraw from the case. On April 14, 2015, the PCRA court dismissed Appellant‘s 2012 petition as untimely filed.
Appellant timely appealed to this Court, claiming that Miller applied retroactively to his case. While his appeal was pending, the United States Supreme Court held that Miller applied retroactively to cases on collateral review, essentially overruling Cunningham. Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016). Following that decision, this Court reversed the PCRA court‘s order, vacated Appellant‘s LWOP sentence, and remanded the matter for further proceedings. Commonwealth v. Summers, 144 A.3d 194 (Pa. Super. 2016) (unpublished memorandum).
The resentencing court held a hearing on February 13, 2019. On May 17, 2019, the resentencing court sentenced Appellant to 40 years to life imprisonment. Appellant timely filed a post-sentence motion for reconsideration of sentence, wherein he raised several claims, including a claim challenging the discretionary aspects of his sentence and a claim that the resentencing court imposed an impermissible de facto life sentence. The court denied his post-sentence motion on June 5, 2019.
Appellant timely filed a notice of appeal.6 Appellant‘s appeal challenges the legality and discretionary aspects of his sentence. Appellant‘s Brief at 5.
We begin by reviewing Appellant‘s challenges to the discretionary aspects of his sentence.
An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court‘s jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, seePa.R.Crim.P. 720 ; (3) whether appellant‘s brief has a fatal defect,Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code,42 Pa.C.S.[] § 9781(b) .
Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019), quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014).
Appellant has satisfied the first three requirements: he timely filed a notice of appeal, preserved the issue in a post-sentence motion, and included a
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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.
DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).
In his
Appellant has raised a substantial question with each of these claims.7 See Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018)
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, 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.
* * *
When imposing [a] sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant‘s prior criminal record, age, personal characteristics and potential for rehabilitation.
Appellant presents many issues and sub-issues, but the root of his discretionary-aspects-of-sentencing challenges is that the resentencing court had disdain for Miller and did not consider the factors Miller requires. Precisely, Appellant contends the resentencing judge “did not apply the Miller factors to [Appellant‘s] specific childhood circumstances and recognize their mitigating impact.” Appellant‘s Brief at 34. It is Appellant‘s position that the resentencing court had an “inordinate fixation on the underlying offense” and “erred by focusing on the tragedy that occurred to the exclusion of any meaningful consideration regarding youth‘s attendant characteristics.” Id. at 34, 40 (footnote omitted). Furthermore, Appellant contends that the resentencing court showed bias in the treatment of Appellant in the form of racism and classism. Id. at 46.
Preliminarily, we note that
At the resentencing hearing on February 13, 2019, Appellant presented evidence regarding his deficient intellectual and emotional development, and offers of support by his family upon his potential release from incarceration. A neuropsychologist, Dr. Carol Armstrong, who
On cross-examination, the Commonwealth questioned Dr. Armstrong concerning the reports from evaluations of Appellant conducted in 2000 and 2001. The reports described Appellant as having a temper, quick to become angry, having a propensity to act out aggressively, being manipulative of others, and appearing to have little regard for the feelings or welfare of others. Appellant self-reported he engaged in physical altercations once a week. The Commonwealth also reviewed with Dr. Armstrong Appellant‘s juvenile delinquency and adult criminal history, including an adjudication for
Appellant also presented the testimony of his sister, Zanea Summers, who recounted fond memories with Appellant, and stated that she supports Appellant and that he may reside with her if released from incarceration. Appellant‘s father, James Miller, testified that he met Appellant for the first time when they were both incarcerated in the same institution,8 and that he would support Appellant in the same manner as Zanea.
The Commonwealth presented the testimony of Patrick Sullivan, director of campus security for Widener University, and the resentencing court heard victim impact testimony from three of Lacey‘s family members. Sullivan testified to the negative influence the murder had on the students of Widener University and safety measures the University implemented because of the murder. He attributed to the murder 40 to 50 students’ decisions not to return to the University the following year. Although the
The court then heard Argument by Appellant‘s counsel, along with Appellant‘s allocution expressing remorse to Lacey‘s family.
The resentencing court deferred resentencing to May 17, 2019, to “give very serious contemplation as to all the factors listed in Miller and Section 1102.1.” N.T., 5/17/2019, at 16. When announcing the sentence, the resentencing court acknowledged that it had read the entire trial transcript, the motions that were filed, the exhibits that were submitted, and considered a pre-sentence investigation (PSI) report. Id. at 15. The resentencing court analyzed the case pursuant to the three factors set out in subsection 9721(b) and considered the factors set forth in Miller.
Considering subsection 9721(b) sentencing factors, the resentencing court thoroughly discussed the impact on Widener University and Lacey‘s family. Regarding rehabilitative needs, the court referenced Dr. Armstrong‘s testimony that Appellant required positive environmental support for a long period of time to thrive. The court stated that while Appellant had expressed sorrow to the Lacey family, the “expression lacked true remorse. Rather, it was meek and self-serving. There was no heartfelt contriteness.”
On appeal, Appellant essentially argues the resentencing court prioritized the severity of the offense over mitigating factors. Appellant‘s argument is nothing more than a request for this Court to re-weigh the sentencing factors differently than the resentencing court. This we cannot do. See Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation omitted) (“We cannot re-weigh the sentencing factors and impose our judgment in the place of the sentencing court.“).
Moreover, the resentencing court had the benefit of a PSI report, sentencing guidelines, and statements from Appellant, Appellant‘s sister, father, and counsel. “[W]here the sentencing judge had the benefit of a [PSI] report, it will be presumed that he or she was aware of the relevant information regarding the defendant‘s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (citation omitted). Furthermore, the resentencing court used Section 1102.1 as guidance, noting that it required an offender convicted post-Miller to be resentenced
Appellant‘s position that the resentencing court improperly had an “inordinate fixation” on the underlying offense is meritless, as it was within
Insofar as Appellant claims the resentencing court‘s statement that it “unfortunately” could not stand firm on Appellant‘s original sentence proves the resentencing court had contempt for the holding in Miller, the use of the word “unfortunately” is an acknowledgement of the sentiments of Lacey‘s brother and “shows only that the judge had a grasp of human nature, not that he was biased” against Appellant. See Commonwealth v. Flor, 998 A.2d 606, 642 (Pa. 2010) (regarding a victim impact statement, our Supreme Court held that the judge‘s statement that he would have understood a call for vengeance by a murdered officer‘s brother does not suggest or imply that the court was in any sense motivated by vengeance or bias). The resentencing court‘s statement does not establish that it
We next turn to Appellant‘s contention that the resentencing court abused its discretion when it fashioned his sentence because of the judge‘s partiality and bias, or ill will toward Appellant. Specifically, Appellant claims that the resentencing court “portrayed [Appellant] as older than he was at the time of the offense.” Appellant‘s Brief at 46. Appellant also raises other concerns of bias. In his brief, Appellant argued the following.
One can only speculate about the source of the judge‘s animosity against the defense. See [Trial Court Opinion, 8/22/2019, at 18] (insisting Appellant cannot prove bias). It might stem from conscious or implicit racial and class-based prejudice. Sentencing disparities are well-documented in cases like [Appellant‘s] involving a white victim and black defendant. Intended or not, it is impossible to overlook the judge‘s dog whistling. The court:
- vilified [Appellant] as “extremely street wise”
- []
- maligned the entire [c]ity of Chester
- groundlessly belittled [Appellant‘s] substantial family support, and
- doubted [Appellant‘s] history of medical and emotional trauma
Appellant‘s Brief at 46 (footnotes and some commas omitted).
We acknowledge that the types of bias Appellant describes can occur in society and sentencing. Nevertheless, we have reviewed the comments and the record, and do not discern bias by the resentencing court that resulted in the excessive sentencing of Appellant. In the instant case, the resentencing court accurately stated the age of Appellant as 17 years and 3
As to the other statements recounted above, those statements were made by the resentencing court in the context of imposing Appellant‘s sentence. Our Supreme Court has stated “it is not improper for a judge to address a defendant after sentencing for the purpose of reiterating to the defendant that the punishment just imposed was well-deserved.” Flor, 998 A.2d at 642. Thus, we discern no abuse of discretion and conclude that the resentencing court exercised its judgment without partiality, prejudice, bias, or ill will.
In his remaining two issues, Appellant raises challenges to the legality of his sentence. “When reviewing the legality of a sentence, our standard of review is de novo and our scope of review is plenary.” Lekka, 210 A.3d at 355.
“[A] trial court may not impose a term-of-years sentence, which constitutes a de facto LWOP sentence, on a juvenile offender convicted of homicide unless it finds, beyond a reasonable doubt, that he or she is incapable of rehabilitation.” Commonwealth v. Foust, 180 A.3d 416, 431 (Pa. Super. 2018). “There are certain term-of-years sentences [that] clearly constitute de facto LWOP sentences. For example, a 150-year sentence is a de facto LWOP sentence. Similarly, there are clearly sentences [that] do not constitute de facto LWOP sentences. A sentence of 30 years to life falls into this category.” Id. at 438.
Appellant‘s minimum sentence of 40 years of imprisonment falls between these two categories. The Foust Court “decline[d] to draw a bright line [] delineating what constitutes a de facto LWOP sentence and what constitutes a constitutional term-of-years sentence.” Id. However, in light of Foust, this Court outlined the method for determining where such “in between” minimum sentences fall on the spectrum.
The key factor in considering the upper limit of what constitutes a constitutional sentence, in this narrow context, appears to be whether there is “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham v. Florida, 560 U.S. 48, 75 (2010). Implicit in this standard is the notion it would not be meaningful to provide an opportunity for
release based solely on the most tenuous possibility of a defendant‘s surviving the minimum sentence imposed. To be meaningful or, at least, potentially meaningful, it must at least be plausible that one could survive until the minimum release date with some consequential likelihood that a nontrivial amount of time at liberty awaits. Thus, though it expressly declined to do so, the Foust Court seemed to suggest some sort of meaningful-opportunity-for-release standard by declaring that a 150-years-to-life sentence constitutes a de facto LWOP sentence.
Commonwealth v. Bebout, 186 A.3d 462, 467 (Pa. Super. 2018) (footnote omitted; citations altered; emphasis in original). Applying this test, we concluded in Bebout that a minimum sentence of 45 years, which made Bebout eligible for parole at 60 years old, did not constitute a de facto LWOP sentence.
[Bebout‘s] opportunity for release [was] meaningful, especially in light of the gravity of his crime, because he has the potential to live for several decades outside of prison if paroled at his minimum.
Thus, based on the record and arguments before us, we conclude that [Bebout] has simply failed to meet his burden of demonstrating that the lower court sentenced him to a de facto LWOP sentence. There simply is no comparison between the opportunity to be paroled at 60 years of age and 100+ years of age. The difference is, quite literally, a lifetime. As such, we are not convinced that [Bebout‘s] sentence is the functional equivalent of LWOP.
Id. at 469 (emphasis in original); see also Lekka, 210 A.3d at 357-58 (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).
Lastly, Appellant claims that his maximum sentence of life imprisonment is illegal.10 Specifically, he argues that the resentencing court erred in relying on, inter alia, Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018), which held that a maximum sentence of life imprisonment is required for juveniles convicted of second-degree murder pre-Miller, because he believes that the case was decided erroneously. Appellant‘s Brief at 58. In support, Appellant contends that pursuant to Miller and Graham v. Florida, 560 U.S. 68 (2010), the imposition of a mandatory maximum term of life imprisonment is unconstitutional and violates the mandates of proportionality and individualized sentencing. Appellant‘s Brief at 58-65. According to Appellant, “[a] child who commits second[-]degree
By way of background, our Supreme Court held that in re-sentencing a juvenile defendant convicted of first-degree murder pre-Miller, a court may sentence the defendant to LWOP only after finding him “permanently incorrigible and that rehabilitation would be impossible[;]” otherwise, the defendant shall be sentenced to life with the possibility of parole following a minimum term-of-years sentence. Batts II, 163 A.3d at 484 (Pa. 2017). Neither our Supreme Court nor the Pennsylvania General Assembly has addressed the resentencing procedure for juveniles, like Appellant, who were convicted of second-degree murder pre-Miller. Although Batts II involved a juvenile convicted of first-degree murder, this Court has found no difference that would place a juvenile convicted of second-degree murder outside the Batts II analysis.11 See Olds, 192 A.3d at 1194; see also
“It is beyond the power of a Superior Court panel to overrule a prior decision of the Superior Court, except in circumstances where intervening authority by our Supreme Court calls into question a previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (citations omitted). That has not occurred here. Thus, our Court‘s
Judgment of sentence affirmed.
Judge Lazarus joins the opinion.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
Notes
Within Appellant‘s claim that the resentencing court ignored, misapprehended, and misapplied the law, he presents a sub-issue that the resentencing court violated United States Supreme Court precedent when it considered victim impact statements regarding the appropriate sentence for Appellant at his resentencing hearing. Appellant‘s Brief at 32. This claim is not within Appellant‘s
Appellant also argues that the resentencing court conflated first- and second-degree murder, and “punished [him] as if the jury convicted him of [first-degree murder].” Appellant‘s Brief at 30. Appellant did not raise this argument in his
Even if he properly preserved this issue, Appellant‘s claim lacks merit. By way of background, at the evidentiary hearing, the resentencing court overruled the objection of Appellant‘s counsel to the use of the term murder by the prosecutor, stating, “Second[-]degree murder is murder.” N.T., 2/13/2019, at 86-87. When the resentencing court sentenced Appellant, it stated “The [c]ourt recognizes that the jury found [Appellant] guilty of second[-]degree murder and not guilty of the weapons charge. That said, [Appellant] still bears direct culpability.” N.T., 5/17/2019, at 16. Although Appellant points to these comments as an indicator that the resentencing court punished him as if he committed first-degree murder, we are not convinced. Instead, in context, we understand the resentencing court‘s comment to indicate that Appellant played a direct role in a robbery that resulted in a death, whether or not he was the shooter. Thus, the resentencing court did not improperly misapply the law and impose an excessive sentence as if it was sentencing Appellant for first-degree murder.
Batts II established guidelines and procedures for sentencing and resentencing juveniles convicted of first-degree murder. 163 A.3d at 483-84. The Court announced that
there is a presumption against the imposition of a sentence of life without parole for a defendant convicted of first-degree murder committed as a juvenile. The Commonwealth must give reasonable notice of its intention to seek a sentence of [LWOP]. To rebut the presumption, the Commonwealth has the burden to prove, beyond a reasonable doubt, that the juvenile offender is permanently incorrigible and thus is unable to be rehabilitated.
Consistent with the mandate of Miller and Montgomery, for a [LWOP] sentence to be constitutionally valid, the sentencing court must find that the juvenile offender is permanently incorrigible and that rehabilitation would be impossible. The Commonwealth‘s evidence and the sentencing court‘s decision must take into account the factors announced in Miller and [subsection 1102.1(d)]. Even if the Commonwealth satisfies its burden of proof, the sentencing court is not required to impose a [LWOP] sentence upon a juvenile offender.
In 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, [subsection 1102.1(a)].
Id.