J-S09019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 EDWARD CHESTER WALLS                     :
                                          :
                    Appellant             :   No. 780 WDA 2018

         Appeal from the Judgment of Sentence November 13, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0008331-1996,
                          CP-02-CR-0009738-1996


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 25, 2019

      Edward Chester Walls appeals from the judgment of sentence, entered

in the Court of Common Pleas, after a jury convicted him of first-degree

murder and other related offenses committed when he was a juvenile. Walls

was found guilty of murder, attempted murder (2 counts), aggravated assault

(2 counts), receiving stolen property, violating the uniform firearms act, and

conspiracy. Walls was tried as an adult for the offenses. After careful review,

we affirm.

      The facts underlying Walls’ convictions were summarized by this Court

on Walls’ direct appeal as follows:

      On May 25, 1996, Michael Mammarella reported that his maroon
      1993 Honda Accord vehicle had been stolen. At approximately
      9:00 p.m. that same evening, Torie Jones, Nicole Jay, Tanika
      Maddox, Robert Johnson, Starlin Kyles and Michael Kyles stood
      alongside Mount Pleasant Road. Within minutes, a maroon car
      passed by and fired four to five shots. As a result of the shooting,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Torie Jones sustained a fatal gunshot wound to the head. As
      police responded to the incident, they observed a maroon-colored
      vehicle leaving the scene at a high rate of speed. While the police
      pursued the vehicle, several shots were fired at them. Eventually,
      police apprehended [Walls], who had been wounded by the return
      of fire by police. Police also located a gun nearby.

                                     .    .    .

      Critically, Starlin Kyles testified that he observed [Walls] stick his
      head out the vehicle's window and subsequently fire[] shots at the
      group. Likewise, Michael Kyles identified [Walls] as the shooter.
      Both of these witnesses were familiar with [Walls] from the
      neighborhood. Further, Officer Guy Collins identified [Walls] as
      being the actor involved in the ensuing police chase in which shots
      were fired between [Walls] and the police. Officer Collins testified
      that [Walls] attempted to hide himself in the vehicle when police
      finally forced the vehicle to a stop. Officer Collins also found the
      gun used in the shooting near the location where [Walls] was
      apprehended.

Commonwealth v. Walls, 1121 Pittsburgh 1997, at 2, 8-9 (Pa. Super. filed

Aug. 11, 1999) (unpublished memorandum) (internal citations omitted).

      On March 6, 1997, Walls was tried as an adult and convicted of first-

degree murder and other offenses. On April 30, 1997, he was sentenced to a

mandatory term of life imprisonment. This Court affirmed Walls’ judgment of

sentence on August 11, 1999. Walls filed a PCRA petition on July 7, 2004,

claiming ineffective assistance of counsel, which the PCRA court dismissed on

January 19, 2006. Another PCRA petition was filed on July 14, 2010, which

the court dismissed without hearing on November 16, 2010. On July 10, 2012,

Walls filed a motion for post conviction relief from the mandatory life sentence

following the United States Supreme Court decision in Miller v. Alabama,

567 U.S. 460 (2012). The PCRA court stayed its decision until a higher court

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determined if Miller applied retroactively.   The PCRA court subsequently

dismissed Walls’   petition when the Pennsylvania Supreme Court, in

Commonwealth v. Cunnigham, 81 A.3d 1 (Pa. 2013), found Miller did not

apply retroactively. On December 17, 2013, Walls filed a timely appeal and

this Court issued a memorandum opinion affirming the PCRA court on

November 10, 2014. On February 17, 2016, the Pennsylvania Supreme Court

granted Walls’ ensuing petition for allowance of appeal when Miller was made

retroactive in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and

remanded the case to this Court for further proceedings. On March 30, 2016,

this Court remanded Walls’ case for resentencing.

     A resentencing hearing was held on November 13, 2017.             Doctor

Shannon Edwards, Nancy Turner, and Brittany Dunbar, testified.         Doctor

Edwards, testifying as an expert in forensic psychology, found Walls to have

a medium-risk of reoffending.      Turner, Walls’ sister, stated she could

guarantee employment for Walls should he be released. Dunbar, Walls’ niece,

testified that Walls had a positive attitude, and he was positive even before

he knew he would be granted an opportunity to be resentenced. Walls’ whole

family maintains contact with him, and would assist him if released on parole.

     Walls was resentenced to 35 years’ to life imprisonment for murder in

the first degree, 30 months’ to 60 months’ imprisonment for attempted

murder, 30 months’ to 60 months’ imprisonment for attempted murder, 9

months’ to 60 months’ imprisonment for carrying a firearm without a license,


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and 9 months’ to 60 months’ imprisonment for receiving stolen property.

These sentences were to run consecutively.           Thus, Walls received an

aggregate sentence of 41½ years’ to life imprisonment.            Post-sentence

motions were denied and this timely appeal followed. Walls has raised the

following issue for our review:

      Whether the sentencing court abused its discretion by violating
      the Sentencing Code and the fundamental norms that underlie the
      sentencing process by imposing an excessive and unreasonable
      sentence where the court focused upon the seriousness of the
      offense while categorically rejecting or failing to give meaningful
      consideration to undisputed rehabilitative needs and mitigating
      circumstances. And whether the court thereby also violated
      fundamental sentencing norms by failing to impose an
      individualized sentence and one which would provide a meaningful
      opportunity to obtain release based on demonstrated maturity and
      [rehabilitation].

Appellant’s Brief, at 7 (capitalization omitted).

      Walls’ claim represents a challenge to the discretionary aspects of his

sentence. An appeal from a discretionary aspects of sentencing claim is not

guaranteed of right; rather, a defendant’s appeal is considered a petition for

permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1386-

87 (Pa. Super. 1989) (en banc). An objection to a discretionary aspect of

sentencing is waived if it is not raised at the sentencing hearing or in a motion

to modify sentencing. Commonwealth v. Anderson, 830 A.2d 1013, 1013

(Pa. Super. 2003).    An appellant who challenges a discretionary aspect of

sentencing must include in his or her brief a concise statement of the reasons

relied upon for allowance of appeal. Pa.R.A.P. 2119(f). In addition, appellate



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review will only be granted if the appellant raises a substantial question. 42

Pa.C.S.A. § 9781(b); Commonwealth v. Byrd, 657 A.2d 961, 963 (Pa.

Super. 1995); Williams, 562 A.2d at 1387. The existence of a substantial

question must be determined on a case-by-case basis. Commonwealth v.

Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995).

         Here, Walls filed a post-sentence motion to reconsider his sentence,

followed by a timely notice of appeal. Additionally, he has included in his brief

a concise statement of reasons relied upon for appeal pursuant to Rule

2119(f). Accordingly, we must now determine whether Walls has raised a

substantial question for our review.

         In his Rule 2119(f) statement, Walls asserts that “the sentence was

excessive and contrary to the fundamental norms of the sentencing process”

because the court failed to properly consider his rehabilitative needs and

mitigating circumstances. Appellant’s Brief, at 26. This Court has held that

an excessive sentence claim—in conjunction with an assertion that the court

failed    to   consider   mitigating   factors—raises   a   substantial   question.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2013), citing

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005).

Accordingly, we will consider the merits of Walls’ claim.

         Our standard of review of the discretionary aspects of a sentence is as

follows:

         Sentencing is a matter vested in the sound discretion of the
         sentencing judge, and a sentence will not be disturbed on appeal

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      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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

      Typically, when sentencing a defendant, the court is required to consider

the sentencing guidelines. Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa.

Super. 2017).    However, there are no sentencing guidelines for juveniles

sentenced for first-degree murder prior to June 24, 2012. Id. at 22. Section

1102.1(a) of the Crimes Code states the current sentencing guidelines for

juveniles convicted of first-degree murder, but section 1102.1(a) does not

apply to defendants who were originally convicted before June 24, 2012.

      In Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II), our

Supreme Court held that a trial court, in resentencing a juvenile offender

convicted of first-degree murder prior to Miller, may impose a minimum term-

of-years   sentence   and   a   maximum     sentence    of   life   imprisonment,

thus “exposing these defendants to parole eligibility upon the expiration of

their minimum sentences.”        Batts II, 163 A.3d at 439.         Even without

sentencing guidelines, a sentencing judge should consider “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).       Furthermore, the court may still consider the




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sentencing guidelines in section 1102.1(a) for consistency of sentencing.1

See Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018); see

also Batts II, 163 A.3d at 444-45.

        Walls’ first argument is that the trial court failed to properly consider

mitigating circumstances or his rehabilitative needs. This claim is meritless.

When rendering Walls’ sentence, the Honorable Kathleen A. Durkin “went over

everything,” which included an expert report by Dr. Shannon.                    N.T.

Resentencing Hearing, 11/13/17, at 88. Amongst the materials available to

Judge Durkin was a report that found Walls was at medium risk of recidivism.

Id. at 16. Judge Durkin also addressed each of the factors identified by the

Pennsylvania Supreme Court in Batts II.2 Id. at 88-93.

____________________________________________


1   Section 1102.1 of the Sentencing Code provides:

        a) First degree murder.--A person who has been convicted
           after June 24, 2012, of a murder of the first degree, first degree
           murder of an unborn child or murder of a law enforcement
           officer 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.

18 Pa.C.S.A. §1102.1(a)(1).

2   When sentencing a juvenile convicted of first-degree murder,




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       Judge Durkin noted Walls was 15½ years old at the time of the offense.

N.T. Resentencing Hearing, 11/13/17, at 88. She pointed out that Walls was

the only shooter, and therefore culpable. Id. at 88-89. She found Walls had

“not faced his conduct in this matter,” and therefore, likely lacked the capacity

for change. Id. at 89. The court noted that the crime was unprovoked, with

no previous ill will between Walls and the victim. Id. Walls’ participation was

extensive, as he was the shooter. Id. The court considered Walls’ family and

neighborhood environment, noting that Walls’ family is educated and

industrious, with many male role models. Id. at 89-90. The court recognized

that the neighborhood in which Walls grew up was bad, and considered Walls’

alcohol history, which started at 13. Id. at 90-91. As Walls’ mother was a

police officer and he possessed an average IQ, Judge Durkin found Walls

capable of dealing with the police. Id. at 91. She found no history of mental

health issues and that Walls should have been able to assist his attorney. Id.

Judge Durkin was aware of Walls’ refusal to take responsibility for the crime


____________________________________________


       at a minimum [the court] 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 (citing Commonwealth v. Batts, 66 A.3d
286, 297 (Pa. 2013) (Batts I)).

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and his issues with authority figures. See id. at 32-33. In the end, she found

his potential for rehabilitation poor because he lacked remorse and failed to

take responsibility. Id. at 91. The judge came to this determination even

after Walls’ counsel argued the existence of mitigating circumstances. Id. at

82-84.

      In light of the record evidence, we cannot conclude that the sentencing

court failed to consider Walls’ mitigating circumstances or rehabilitative needs.

      Walls’ second argument claims that his aggregate sentence does not

provide a real opportunity for parole because he will not be eligible for parole

until he is 56½ years old. A court may not impose a sentence on a juvenile

that does not provide a “meaningful opportunity to obtain release.”

Commonwealth v. Bebout, 186 A.3d 462, 467 (Pa. Super. 2018) (quoting

Graham v. Florida, 560 U.S. 48, 75 (2010)). If a sentence does not provide

a meaningful opportunity to obtain release, it is a de facto life sentence and

will trigger the protections of Miller. Foust, 180 A.3d at 438.

      In determining whether a sentence is a de facto life sentence, “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.” Bebout, 186 A.3d at 468 (emphasis in original). Walls cites three

studies that state incarcerated individuals have a shorter life expectancy than




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the general public.3 Appellant’s Brief, at 40. However, even though the life

expectancy cited in those studies is lower than what Walls’ age will be at his

minimum sentence date, it is certainly plausible that Walls will survive for

many years past that age. Accordingly, Walls has not demonstrated that his

sentence amounts to a de facto life sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/2019




____________________________________________


3These studies were mentioned for the first time in Walls’ appellate brief and
never brought to the sentencing court’s attention.

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