J-S20012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN EARL LEBO, JR. : : Appellant : No. 1538 MDA 2020
Appeal from the Judgment of Sentence Entered October 30, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-MD-0000335-1984
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 24, 2021
Appellant John Earl Lebo, Jr. appeals pro se from the judgment of
sentence of two consecutive sentences of life without parole (LWOP), after his
prior juvenile LWOP sentences were vacated. Appellant argues that the
Commonwealth failed to prove he was permanently incorrigible. We affirm
based on the trial court’s opinion and deny Appellant’s application for relief.
We state the facts and procedural history as presented by the trial court:
On January 31, 1984, [Appellant] was charged with two counts of first-degree murder, two counts of kidnapping, indecent assault, and theft by unlawful taking. [Appellant] was sixteen years old at the time of the murders. His victims were his aunt, Lana Hahn, and Ms. Hahn’s two-year old child, Morgan Hahn. Acting alone, [Appellant] killed them both after taking his victims from their residence at gun point and making a long trek up a snow-covered mountain. Prior to leaving the residence, [Appellant] attempted to rape Ms. Hahn at knifepoint and attempted to do so a second time after they reached the top of the mountain.
Following a guilty plea on October 5, 1984, the [trial court] sentenced [Appellant] to two consecutive terms of life J-S20012-21
imprisonment without parole. [Appellant did not appeal. Following a Post-Conviction Relief Act1 petition, and p]ursuant to Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 136 S. Ct. 718 (2016) and Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), [Appellant’s] sentence was vacated and he was awarded a new sentencing hearing.
Trial Ct. Op., 2/25/21, at 1.
On October 30, 2020, the trial court conducted a sentencing hearing.
The trial court summarized the extensive testimony presented at that hearing
as follows:
The Commonwealth first called Trooper Daniel Wertz, a retired member of the Pennsylvania State Police who was involved in the investigation of the double murder leading to Appellant’s arrest. Trooper Wertz testified that [Appellant] never expressed remorse for his crimes. [Appellant] demonstrated to Trooper Wertz how he shot two-year-old Morgan Hahn, telling the trooper that he blew him off of a rock. After relaying that description to the trooper, [Appellant] smiled at him. When asked why he shot the child, [Appellant] told Trooper Wertz that the boy was crying and making noise. Trooper Wertz further testified that [Appellant] had his victims make a 50-minute trek in very heavy snow from their home to the top of a mountain, where [Appellant] executed his plan to kill Ms. Hahn and her young son. On cross-examination Trooper Wertz acknowledged that he has had no interaction with [Appellant] since he was incarcerated.
John O’Brien, M.D., J.D., testified for the Commonwealth as an expert in forensic psychiatry. While Dr. O’Brien had requested an in-person examination of [Appellant], he was informed that [Appellant] was unavailable for an evaluation.[2] Nonetheless, Dr. O’Brien was able to gather sufficient information to render an opinion/report. Dr. O’Brien reviewed Dauphin County Children & Youth documents, [Appellant’s] juvenile case record, ____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 Appellant’s counsel declined to make Appellant available to Dr. O’Brien. N.T. Sentencing Hr’g, 10/30/20, at 39.
-2- J-S20012-21
Pennsylvania State Police records, extensive presentence mental health evaluations, transcript of [Appellant’s] sentencing hearing, correctional records from the Pennsylvania Department of Corrections [(DOC)], a juvenile lifer packet, numerous pro se filings signed by [Appellant], and a letter addressed to the District Attorney’s Office from [Appellant’s] sister, Bonnie Edwards.
The records make reference to [Appellant’s] first episodes of misbehavior occurring in kindergarten, so over time he had been evaluated multiple times by a variety of professionals. When [Appellant] was eight years old, Dauphin County Children & Youth began supervision and the records make reference to his evaluation in Kindergarten, and a representation by his mother that he was unmanageable at home. [Appellant] had numerous residential and treatment and therapeutic placements between 1980 and 1983 when he was between 13 and 16 years old. His juvenile case record revealed numerous charges and behavioral deterioration between the ages of 12 and 14. [Appellant] was discharged from a program to live with his paternal grandmother in July of 1983. His behavior appeared to be improving during that time until January of 1984, when he committed the murders. [Appellant’s] police records between 1979 and 1981 included theft, arson, criminal mischief, burglary, burglary associated with home invasion, and attempted burglary.
Dr. O’Brien testified that while he reviewed extensive and detailed records and evaluations up until the crimes at issue, he was surprised at how little information was included in [Appellant’s DOC] records since [Appellant’s] incarceration in 1984. Notwithstanding the nature and gravity of his crimes, [Appellant] has undergone very little evaluation and treatment. Dr. O’Brien also noted that there is a great deal of material that has been generated by [Appellant] himself, including a vast amount of pro se filings, the most salient feature being that he alleges his innocence in those materials.
Dr. O’Brien pointed out that there is a striking consensus in all of [Appellant]’s evaluations that he does not have a psychiatric condition or illness. While there is evidence to support borderline intellectual functioning, the pleadings do not depict [Appellant] as incapable of making an argument or coming to a point. However, the records do repeatedly make reference to emotional detachment, marginal adjustment, poor response to placements, consistent minimization of responsibility, and no capacity for
-3- J-S20012-21
empathy. Dr. O’Brien opined that these traits are all consistent with an individual who has distanced himself actively from the offense and not really participated in anything focused on addressing the issues underlying it.
In terms of incorrigibility, one of the things Dr. O’Brien found most striking is that [Appellant] has been repeatedly documented to be unresponsive to efforts to treat him, and the word “incorrigibility” actually appears in his records on a number of occasions. The refractory quality of [Appellant’s] behavioral problems is documented across the board in every setting - parents, foster care placements, juvenile placements, and therapeutic juvenile placements. His behavior was provocative and even sadistic. . . . He has participated in work while [in prison], enjoys making money, and has demonstrated himself to be able to behave. Dr. O’Brien testified that [Appellant] was not being pushed to focus on engaging himself in participating in programming of a therapeutic nature appropriate for his history and was able to remain complacent without anyone prodding him to do otherwise. [Dr. O’Brien also testified that it] is also possible that [Appellant’s] behavior in prison is a manifestation of the benefits of structure and having an easy route in terms of not dealing with the issues related to his offenses. Dr. O’Brien relayed that it is not surprising for him to see a case where an inmate has a terrible criminal record and then they get incarcerated and they do not behave as they behaved outside; they adjust well to prison, possibly in light of the structure. Given these considerations, including the fact that the crimes reflect a shocking degree of depravity and were significantly egregious, Dr. O’Brien’s conclusion to a reasonable degree of medical certainty is that [Appellant] has not demonstrated himself to be capable of rehabilitation.
Dr. Susan Rushing, [Esq.,] also a forensic psychiatric expert, was called as a witness for [Appellant]. Dr. Rushing met with [Appellant] and also reviewed the extensive records that were available. Like Dr. O’Brien, Dr. Rushing noted very little in terms of [Appellant’s] files during his term of incarceration. Prior to his imprisonment, Dr. Rushing testified as to [Appellant’s] intellectual limitations and repeated findings of his lack of ability to relate to others, lack of attachment to people who should have been parental figures in his life, along with traits described as autistic qualities. There was social deprivation from a very young age. [Appellant’s] mom was intellectually disabled and his father was in and out of drug rehabilitation. Moreover, the records contain
-4- J-S20012-21
references that [Appellant] was subject to both physical and sexual abuse. Unlike Dr. O’Brien, Dr. Rushing does not view [Appellant’s] incarceration time as a period of lack of improvement. Her interpretation is that [Appellant] was put into a structured environment with appropriate support in terms of being fed and given an opportunity to work, which he did.
On cross[-]examination, Dr. Rushing was questioned about [Appellant’s] risk of future danger, as suggested in [Appellant’s] sister’s letter to the District Attorney’s Office. In such letter, Bonnie Edwards asked that her brother not be allowed to go free, that these crimes were premeditated and involved his own family[:] “Please, I beg and implore you to please reconsider letting him free. He’s been in jail for over 30 years. He has no family. He has no one on the outside. He will not become anything but do more crime.” Moreover, a summary update from the DOC on January 10, 2014 was referenced. Specifically, [Appellant] gave a summary of the killing and described the sexual aspect of the offense and murdering of both victims, indicating he shot the child because the child started to cry. Dr. Rushing concluded to a reasonable degree of medical certainty that, having not seen continued violence after incarceration, [Appellant’s] record does not speak to someone who is permanently incorrigible.
Id. at 3-7 (citations omitted and formatting altered). The Commonwealth
requested that the trial court reimpose consecutive life sentences. N.T.
Sentencing Hr’g, 10/30/20, at 77-78.
At the conclusion of the hearing, the trial court again sentenced
Appellant to two consecutive terms of LWOP. The trial court reasoned, among
other things, that Appellant is permanently incorrigible. Id. at 85. Appellant
timely filed a counseled post-sentence motion, which the trial court denied on
November 16, 2020.
Appellant’s counsel filed a timely notice of appeal and a timely court-
ordered Pa.R.A.P. 1925(b) statement, which claimed that the Commonwealth
-5- J-S20012-21
failed to present sufficient evidence that he is permanently incorrigible and
that the trial court abused its discretion by imposing sentences of LWOP. The
trial court filed a responsive Rule 1925(b) decision addressing Appellant’s
claims.
Meanwhile, Appellant requested, and the trial court held, a Grazier3
hearing. On February 25, 2021, the trial court granted Appellant’s request to
represent himself pro se, and he subsequently filed a pro se appellate brief
with this Court. On August 2, 2021, Appellant subsequently filed an
application for relief in this Court requesting that this Court turn over various
documents in his record. Appl. for Relief, 8/2/21.
We paraphrase the issues raised in Appellant’s pro se appellate brief,
which we have reordered, as follows:4
1. Appellant was never arrested or indicted by a grand jury.
2. Appellant has been falsely imprisoned because the [DOC] did not receive a signed BC-300B form.5
____________________________________________
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4 Appellant’s pro se brief violates numerous Rules of Appellate Procedure, including a failure to include a statement of questions involved under Pa.R.A.P. 2116. We decline to find waiver, however, as we are able to discern Appellant’s arguments. 5 Initially, Appellant’s record reflects a signed BC-300B form, which is now known as a DC-300B form. Appellant appears to argue that because the DOC did not receive the form from the trial court per 42 Pa.C.S. § 9764, the DOC has no authority to detain him. Appellant’s Brief at 2 (unpaginated). In (Footnote Continued Next Page)
-6- J-S20012-21
3. The record establishes he was found guilty by a jury on the same day he pled guilty, which Appellant contends is impossible.
4. The criminal information was not signed by the district attorney.
5. Appellant appears to argue he should have been tried by the juvenile court.
6. The Commonwealth failed to establish Appellant was permanently incorrigible or unable to be rehabilitated.
Appellant’s Brief at 1-7 (unpaginated).
We need not summarize Appellant’s arguments in support of his initial
five issues. It is well-settled that “[a]ny issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998). Here, Appellant failed to raise his initial five issues
in his Rule 1925(b) statement, and therefore has waived them for appellate
review. See id.
Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), this Court rejected a similar argument:
The language and structure of section 9764, viewed in context, make clear that the statute pertains not to the DOC’s authority to detain a duly-sentenced prisoner, but, rather, sets forth the procedures and prerogatives associated with the transfer of an inmate from county to state detention. . . . Moreover, section 9764 neither expressly vests, nor implies the vestiture, in a prisoner of any remedy for deviation from the procedures prescribed within.
Id. at 371 (footnote omitted); see generally 42 Pa.C.S. § 9764. Therefore, although we hold, infra, that Appellant waived this issue, it lacks merit.
-7- J-S20012-21
In support of his last issue, Appellant has argued, in a single sentence,
that under Miller, the Commonwealth “never proved that [he] was ever
permanently incorrigible or unable to be rehabilitated . . . .”6 Appellant’s Brief
at 6 (unpaginated).
“A claim challenging a sentencing court’s legal authority to impose a
particular sentence presents a question regarding the legality of the
sentence.”7 Commonwealth v. Clary, 226 A.3d 571, 580-81 (Pa. Super.
2020) (citation omitted). Our Supreme Court has explained:
[W]e must review the sentencing court’s legal conclusion that [the defendant] is eligible to receive a sentence of life without parole pursuant to a de novo standard and plenary scope of review. ____________________________________________
6 The Commonwealth did not address the merits and instead argued that Appellant waived all of his issues by failing to file a brief that conformed with the Rules of Appellate Procedure. Commonwealth’s Brief at 4. 7 “[I]n 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.” Batts, 163 A.3d at 435, abrogated on other grounds by Jones v. Mississippi, 141 S. Ct. 1307 (2021). “The Jones Court confirmed that mandatory sentences of life without the possibility [of parole] for juvenile offenders violate the cruel and unusual punishment clause of the Eighth Amendment of the United States Constitution, but held that sentencing schemes which allow the discretionary imposition of life sentences pass constitutional muster and need not require a separate factual finding of permanent incorrigibility before doing so.” Commonwealth v. McGrath, ___ A.3d ___, 2021 WL 2641915, *2 n.1 (Pa. Super. 2021). We note, however, that Jones did not prevent “the States from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder,” and permits States to “require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole.” Jones, 141 S. Ct. at 1323. Therefore, Batts continues to bind this Court when the Commonwealth requests an LWOP sentence for a juvenile. McGrath, 2021 WL 2641915 at *4.
-8- J-S20012-21
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, 163 A.3d at 435-36 (citations omitted and formatting altered).
The McGrath Court explained that in Batts, our Supreme Court
concluded that to effectuate the mandate of Miller and [Montgomery,] it would provide a procedural safeguard to ensure that LWOP sentences are meted out only to the rarest of juvenile offenders whose crimes reflect permanent incorrigibility by recognizing a presumption against the imposition of a LWOP sentence for a juvenile offender. Therefore, if the Commonwealth seeks a LWOP sentence for a juvenile offender, it must prove beyond a reasonable doubt that the offender exhibits such irretrievable depravity that rehabilitation is impossible. If the Commonwealth satisfies its burden of proof, the sentencing court has discretion to impose a LWOP sentence upon the juvenile offender.
When the Commonwealth requests a sentence of LWOP, the sentencing court must consider the Miller and Section 1102.1(d) factors on the record, before imposing a sentence. If the court imposes the requested LWOP sentence, it must find that the juvenile offender is permanently incorrigible and that rehabilitation would be impossible.
McGrath, 2021 WL 2641915 at *3-4 (citations and footnotes omitted and
formatting altered).
The Section 1102.1(d) factors follow:
(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
-9- J-S20012-21
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.
(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. § 1102.1.
After careful review of the record, including the resentencing transcript,
we conclude that the trial court thoroughly reviewed the record and considered
the testimony and evidence introduced at the resentencing hearing. See Trial
- 10 - J-S20012-21
Ct. Op. at 1-12. Because the record supports the trial court’s determination
that the Commonwealth proved, via competent evidence, that Appellant was
permanently incorrigible, we affirm the judgment of sentence based on the
trial court’s well-reasoned opinion. See id.; Batts, 163 A.3d at 435-36.
Judgment of sentence affirmed. Appellant’s application for relief denied.
Judge Musmanno joins the memorandum.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/24/2021
- 11 - Circulated 08/13/2021 04:02 PM
COMMONWEALTH OF PENNSYLVANIA fN THE COURT OF COMMON PLEAS DAUPHfN COUNTY, PENNSYLVANIA
vs. NO. 0335-MD-l 984
JOHN EARL LEBO, JR.
MEMORANDUM OPINION
On January 3 1, 1984, Defendant John Earl Lebo, Jr. was charged with two counts of first-
degree murder, two counts of kidnapping, indecent assault, and theft by unlawful taking.
Defendant was sixteen years old at the time of the murders. His victims were his aunt, Lana
1Iahn, and Ms. Hahn 's two-year old chi ld, Morgan Hahn. Acting alone, Defendant killed them
both after taking his victims from their residence at gun point and making a long trek up a snow-
covered mountain. Prior to leaving the residence, Defendant attempted to rape Ms. Hahn at
knifepoint and attempted to do so a second time after they reached the top of the mountain.
Fo llowing a guilty plea on October 5, 1984, the Honorable Warren G. Morgan sentenced
Defendant to two consecutive terms of li fe imprisonment without parole. Pursuant to Miller v.
Alabama, 567 U.S. 460 (20 12), Montgome,y v. Louisiana, 136 S.Ct. 718 (20 16) and
Commonwealth v. Batts, 163 A.3d 410 (Pa. 20 17), Defendant' s sentence was vacated and he was
awarded a new sentencing hearing.
A hearing was held on October 30, 2020, following which thi s Court reimposed two
consecuti ve life-without-parole sentences. This appeal followed. In his statement of matters
complained of on appeal , Defendant raises the fol lowing issues:
)\)-)) 1. The Commonwealth presented insufficient evidence to prove beyond a reasonable doubt the n'ecessary factual predicates set forth in Miller, Montgomery, and Batts.
2. Even if the Court was justified in finding that the Commonwealth met its burden of proof, it is left to the sentencing court's discretion whether 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 pursuant to Batts. The Court's sentence was so manifestly excessive as to constitute an abuse of discretion, was not consistent with the protection of the public, the gravity of the offenses, and Defendant's rehabilitative needs.
In Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that
sentences of "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 pun,ishments. "' Id. at
465. Subsequently, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court
concluded that the holding of Miller applied retroactively to juvenile offenders on collateral
review. Id.
In Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) ("Batts I"), the Pennsylvania
Supreme Court addressed for the first time after Miller the sentencing of a juvenile offender
convicted of first-degree murder. Noting that the Court in Miller declined to place a "categorical
ban" on life-without-parole sentences for juvenile offenders, our Supreme Court in Batts I held
that juvenile offenders convicted of first-degree murder could be subject to a life-without-parole
sentence only after th_e sentencing court considered the criteria outlined in Miller. Id. at 296-99.
Upon resentencing, Batts once again received a sentence of life imprisonment without the
possibility of parole. He would go on to appeal this sentence to the Pennsylvania Supreme Court
in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts If').
2 With respect to the protocol for resentencing juvenile offenders convicted of first-degree
murder, the Batts II Court first determined that "a faithful application of the holding in Miller, as
clarified in Montgomery, requires the creation of a presumption against sentencing a juvenile
offender to life in prison without the possibility of parole." Id. at 452. The Court reasoned that
such a presumption stemmed from Miller's holding that "life without parole is an excessive
sentence for children whose crimes reflect transient immaturity" and that this, according to
Montgomery, means that only the rarest of juvenile offenders are eligible to receive a sentence of
life without the possibility of parole. Batts 11, supra, at 452. Second, our Supreme Court held
that "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." Id. at 455. The Court explained that to rebut the
presumption against a life-without-parole sentence, the Commonwealth must prove, "beyond a
reasonable doubt, that the juvenile offender is permanently incorrigible and thus is unable to be
rehabilitated." Id. at 459. The Court reasoned that the high burden of proof is necessary given
that the United States Supreme Court clearly instructed that a decision that an offender is one of
the rare and uncommon juveniles permitted to constitutionally receive a life sentence without
parole must be made with near certainty. Id. at 454-55.
In light of the foregoing standards, we summarize the testimony garnered at Defendant
Lebo's October 30, 2020 sentencing hearing. The Commonwealth first called Trooper Daniel
Wertz, a retired member of the Pennsylvania State Police who was involved in the investigation
of the double murder leading to Defendant's arrest. [Sentencing Hearing, October 30, 2020,
Notes of, pp Testimony. 8-9]. Trooper Wertz testified that Defendant never expressed remorse
for his crimes. Defendant demonstrated to Trooper Wertz how he shot two-year-old Morgan
3 Hahn, telling the trooper that he blew him off of a rock. After relaying that description to the
trooper, Defendant smiled at him. When asked why he shot the child, Defendant told Trooper
Wertz that the boy was crying and making noise. [N.T., 10-30-20, pp. 11-12]. Trooper Wertz
further testified that Defendant had his victims make aSO-minute trek in very heavy snow from
their home to the top of a mountain, where Defendant executed his plan to kill Ms. Hahn and her
young son. [N.T., 10-30-20, pp. 12-13]. On cross-examination Trooper Wertz acknowledged
that he has had no interaction with Defendant since he was incarcerated. [N.T., 10-30-20, p. 13].
John O'Brien, M.D., J.D., testified for the Commonwealth as an expert in forensic c_
psychiatry. While Dr. O'Brien had requested an in-person examination of Defendant, he was
informed that Defendant was unavailable for an evaluation. Nonetheless, Dr. O'Brien was able
to gather sufficient information to render an opinion/report. [N.T., 10-30-20, pp. 14-20]. Dr.
O'Brien reviewed Dauphin County Children & Youth documents, Defendant's juvenile case
record, Pennsylvania State Police records, extensive presentence mental health evaluations,
transcript of Defendant's sentencing hearing, correctional records from the Pennsylvania_
Department of Corrections, a juvenile lifer packet, numerous prose filings signed by Defendant,
and a letter addressed to the District Attorney's Office from Defendant's sister, Bonnie Edwards.
[N.T., 10-30-20, pp. 21-24].
The records make reference to Defendant's first episodes of misbehavior occurring in
kindergarten, so over time he had been evaluated multiple times by a variety of professionals.
When Defendant was eight years old, Dauphin County Children & Youth began supervision and
the records make reference to his evaluation in Kindergarten, and a representation by his mother
that he was unmanageable at home. Defendant had numerous residential and treatment and
therapeutic pl'acements between 1980 and 1983 when he was between 13 and 16 years old.
4 [N.T., 10-30-20, p. 21]. His juvenile case record revealed numerous charges and behavioral
deterioration between the ages of 12 and 14. Defendant was discharged from a program to live
with his paternal grandmother in July of 1983. His behavior appeared to be improving during
that time until January of 1984, when he committed the murders. Defendant's pol\ce records
between 1979 and 1981 included theft, arson, criminal mischief, burglary, burglary associated
with home invasion, and attempted burglary. [N.T., 10-30-20, pp. 22-23].
Dr. O'Brien testified that while he reviewed extensive and detailed records and
evaluations up until the crimes at issue, he was surprised at how little information was included
in Defendant's Department of Corrections' records since Defendant's incarceration in 1984.
Notwithstanding the nature and gravity of his crimes, Defendant has undergone very little
evaluation and treatment. Dr. O'Brien also noted that there is a great deal of material that has
been generated by Defendant himself, including a vast amount of pro se filings, the most salient
feature being that he alleges his innocence in those materials. [N.T., 10-30-20, pp. 24-26].
Dr. O'Brien pointed out that there is a striking consensus in all of Defendant's
evaluations that he cloes not have a psychiatric condition or illness. While there is evidence to
support borderline intellectual ·functioning, the pleadings do not depict Defendant as incapable of
making an argument or coming to a point. However, the records do repeatedly make reference to
emotional detachment, marginal adjustment, poor response to placements, consistent
minimization of responsibility, and no capacity for empathy. Dr. O'Brien opined that these traits
are all consistent with an individual who has distanced himself actively from the offense and not
really participated in anything focused on addressing the issues underlying it. [N.T., I 0-30-20,
pp. 26-28].
5 In terms of incorrigibility, one of the things Dr. O'Brien found most striking is that
Defendant has been repeatedly documented to be unresponsive to efforts to treat him, and the
word "incorrigibility" actually appears in his records on a number of occasions. [N.T., 10-30-20,
p. 30]. The refractory quality of Defendant's behavioral problems is documented across the·
board in every setting - parents, foster care placements, juvenile placements, and therapeutic
juvenile placements. His behavior was provocative and even sadistic. So the question becomes
what does one make of Defendant's complacency during the years in the penitentiary? He has
participated in work while there, enjoys making money, and has demonstrated himself to be able
to behave. Dr. O'Brien testified that Defendant was not being pushed to focus on engaging
himself in participating in programming of a therapeutic nature appropriate for his history and
was able to remain complacent without anyone prodding him to do otherwise. It is also possible
that Defendant's behavior in prison is a manifestation of the benefits of structure and having an
easy route in terms of not dealing with the issues related to his offenses. [N.T., 10-30-20, pp. 31-
33]. Dr. O'Brien relayed that it is not surprising for him to see a case where an inmate has a
terrible criminal record and then they get incarcerated and they do not behave as they behaved
outside; they adjust well to prison, possibly in light of the structure. [N.T., 10-30-20, p. 45].
Given these considerations, including the fact that the crimes reflect a shocking degree of
depravity and were significantly egregious, Dr. O'Brien's conclusion to a reasonable degree of
medical certainty is that Defendant has not demonstrated himself to be capable of rehabilitation.
[N.T., 10-30-20, pp. 36-37].
Dr. Susan Rushing, also a forensic psychiatric expert, was called as a witness for
Defendant. [N.T,, 10-30-20, p. 46]. Dr. Rushing met with Defendant and also reviewed the
extensive records that were available. Like Dr. O'Brien, Dr. Rushing noted very little in terms of
6 Defendant's files during his term of incarceration. Prior to his imprisonment, Dr. Rushing
testified as to his intellectual limitati~ns and repeated findings of his lack of ability to relate to
others, lack of attachment to people who should have been parental figures in his life, along with
traits described as autistic qualities. [N.T., 10-30-20, pp. 52-54]. There was social deprivation
from a very young age. Defendant's mom was i~tellectually disabled and his father was in and
out of drug rehabilitation. Moreover, the records contain references that Defendant was subject
to both physical and sexual abuse. [N.T., 10-30-20, pp. 55-56]. Unlike Dr. O'Brien, Dr.
Rushing does not view Defendant's incarceration time as a period of lack of improvement. Her
interpretation is that Defendant was put into a structured environment with appropriate support in
terms of being fed and given an opportunity to work, which he did. [N.T., 10-30-20, pp. 58-59].
On cross examination, Dr. Rushing was questioned about Defendant's risk of future
danger, as suggested in Defendant's sisfer's letter to the District Attorney's Office. In such
letter, Bonnie Edwards asked that her brother not be allowed to go free, that these crimes were
premeditated and involved his own family. "Please, I beg and implore you to please reconsider
letting him free. He's been in jail ... for over 30 years. He has no family. He has no one on the
outside. He will not become anything but do more crime." [N.T., 10-30-20, p. 70]. Moreover, a
summary update from the DOC on January JO, 2014 was referenced. Specifically, Defendant
gave a summary of the killing and described the sexual aspect of the offense and murdering of
both victims, indicating he shot the child because the child started to cry. [N.T., 10-30-20, p.
71]. Dr. Rushing concluded to a reasonable degree of medical certainty that, having not seen
continued violence after incarceration, Defendant's record does not speak t,o someone who is
permanently incorrigible. [N.T., I 0-30-20, pp. 61-64].
7 At the conclusion of the hearing, this Court sentenced Defendant to life imprisonment for
the death of Ms. Hahn and a consecutive life imprisonment sentence for the death of Morgan
Hahn. In support of this decision, this Court reasoned as follows:
The criminal actions and acts that took place here cry out for the imposition of life sentences. There is no doubt. However, that is not alone what is to be weighed here today.
It has been sent back to the Court because at the time these actions took place, the individual was a juvenile; specifically, I 6 years of age. In weighing the expert reports and the testimony and review of other items placed in evidence, it is clear that the defendant herein experienced such trauma that many of us are (ortunate not to have to undergo in their lifetimes, and the trauma to his life and what he experienced as a child greatly affected him and his development.. ..
[W]hile we feel great sympathy into what he had experienced and observed in his developmental years ... we cannot lose fact of what that then created in his development as an individual. ....
I want to reemphasize, there is a shocking degree of depravity that took place in the entire criminal episode. It was not something that was just a spur of the moment, a lapse in judgment, a juvenile lack of development, a reaction to peers, an emotional rush that took place that caused a child to just react badly.
The degree of the actions and the continuation of that criminal episode does, in fact, speak greatly to the development of that individual at that time. The incorrigible child turned into an incorrigible young man ....
I would be remiss if I didn't comment, I believe, on a quote that was made by Dr. O'Brien of the manifestation of sadistic feelings. And that underplays, because when the cases are being sent back for review, the Courts have to struggle with the developmental mind of the juvenile and how that changes over time.
So that change is always perceived to take place in juveniles as they go into adult development. But, again, it's what are we watching in that development that truly comes into play, because there was, again, no peer pressure here. These actions were, I believe, different from what a lot of the rese11tencings of juveniles-now- turned-adult become an assessment process of the initial act, the development, and the rehabilitation that can take plac~ for the future.
The interesting note ... is the lack - after initial write-ups ... of any write-ups for violence once in the prison setting, because we saw in child placements ... the actions that would take place, and that were promulgated ... in those settings did not repeat itself. And so one could interpret it possibly, as his development and ·
8 rehabilitation had taken place and there has been an adjustment by the defendant to 1 the prison setting.
But I harken back to the expert reports made ... in '84 ... the projection of the rehabilitative possibilities for the defendant.
And, granted, include in this area are some learning disability issues. The mere fact that there were no write-ups in prison does not indicate to this Court that there has been an appreciable manner or change or rehabilitation that would evidence a change from those findings made earlier by the doctors and are brought true now.
And, therefore, in assessing the status of the defendant as it exists, the same exact need to protect society that existed with the sentence of Judge Warren Morgan I do not find has changed.
Back then there was a finding of permanent incorrigibility - although those words were not used by Judge Morgan, although they were not used by those assessments - exists, and have not altered this Court's mind to today[.]
And being irreparably depraved, given the actions and the involvement that took place there at the time of these two murders, and any advancements that have happened in the prison setting for the defendant, I see no appreciable change or rehabilitation, just adjustment.
So, therefore, although I initially sat and was trying to determine what sentence would be appropriate, after all the testimony, I believe the initial one was correct.
[N .T., 10-30-20, pp. 82-85].
Defendant's first issue on appeal challenges the Commonwealth's evidence; specifically,
that there was insufficient evidence to prove beyond a reasonable doubt that the imposition of
consecutive life sentences was justified under the pertinent case law. Our appellate courts'
standard of review is well-settled.
In reviewing a sufficiency claim, we consider the entirety of the evidence introduced, including improperly admitted evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en bane). We view that evidence in a light most favorable to the Commonwealth, drawing all reasonable inferences in favor of the Commonwealth. Id The evidence "need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id. Only where "the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances[,]" is a defendant entitled to relief. Id We do not "re-weigh the
9 C
evidence and substitute our judgment for that of the fact-finder." Id. As the question of the sufiiciency of the evidence is one of law, we consider the evidence de nova. Commonwealth v. Sanchez, 6 I 4 Pa. I, 36 A.3d 24, 37 (2011 ).
Commonwealth v. Ford, 141 A.3d 547, 552-53 (Pa. Super. 2016).
As recognized by both Dr.-O'Brien and Dr. Rushing, the numerous records in this case
make repeated reference to Defendant's emotional detachment and no capacity for empathy. It is
not disputed that the crimes at issue reflect an appalling degree of depravity and were
exceedingly egregious. Dr. O'Brien testified to Defendant's incorrigibility, pointing out the fact
that Defendant's records reflect the term being used on several occasions. Moreover, he
recognized Defendant's behavior in all settings prior to imprisonment as provocative and
sadistic. It is Dr. O'Brien's opinion, and this Court agrees, that Defendant's acceptable behavior
while incarcerated speaks more to the fact that he has adjusted to the structure of prison life as
opposed to reflecting rehabilitation or the possibility ofrehabilitation. Defendant's
incorrigibility, reflected in years of behavioral documentation and the opinion of the
Commonwealth's expert, has not been shown to have been altered by the fact that he has had
only minimal negative write-ups in prison. Defendant has done very little, if anything,' to avail
himself of any therapeutic programs to deal with the underlying issues leading to his horrific
crimes. As reflected by the evidence presented, this is not a situation whereby Defendant's
crimes reflected a'"transient immaturity" as set forth in Miller. Again, these crimes were not
carried out during an emotional lapse in judgment at the spur of the moment, nor were they
influence by peer pressure. Dr. O'Brien clearly stated his conclusion that Defendant has not
demonstrated that he is capable of rehabilitation and the evidence of record is plainly sufficient.
Ford, supra. While the exact language in Batts II might not have been utilized, the
determination by Dr. O'Brien that Defendant is incapable of rehabilitation, is incorrigible, and
10 \ has well-documented years of provocative, sadistic, and depraved behavior, reflects that
Defendant is indeed one of the rare and uncommon juveniles who is constitutionally eligible for
a reimposed life sentence. Defendant's first issue must fail. ' In his remaining issue, Defendant asserts his sentence is excessive and an abuse of this
Court's discretion. In addition to asserting that his sentence is manifestly excessive, Defendant
claims that the life-without-parole consecutive sentences it is not consistent with the protection
of the public, the gravity of the offenses, and his rehabilitative needs.
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. Commonwealth
v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).
[A]n abuse of discretion is more than a mere error of judgment, thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, .... An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. Even with the advent of the sentencing guidelines, the power of sentencing is a function to be performed by the sentencing court. Thus, rather than cabin the exercised of a sentencing court's discretion, the guidelines merely inform the sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65 (2007) (internal quotation
marks, footnotes, and citations omitted). A sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence. Commonwealth v. Crump, 995 A.2d 1280,
11 1283 (Pa. Super. 20 I 0) . Rather, the record as a who le must refl ect the sentencing court ' s
consideratio n of the facts of the case and the defendant's character. Id. It is presumed that
where a pre-sentence repo rt exists the sentencing court is aware of re levant informatio n
concerning the defendant' s character, and cons idered that in formation along w ith miti gating
statuto ry factors, when imposing its sentence. Commonwealth v. Devers, 5 19 Pa. 88, 546 A.2d
12 ( l 988); see also Commonwealth v. Bonner, 135 A.3d 592,605 (Pa. Super.20 16) (A
presentence investigatio n report constitutes the record and speaks for itself.).
This Court did, in fact, engage in a lengthy di scourse in support of the sentence imposed.
As ev idenced by the resentencing hearing, this Court had access to extensive records, pre-
sentencing m emoranda, and the like. Devers, supra. Defendant's sentence falls withi n the
sentenc ing guidelines and, as re flected in our disposition of Defendant' s first issue on a ppeal, is
not unreasonable given the gravity of the o ffense, protectio n of the public, and De fendant' s
rehabilitati ve needs. We have already conc luded that Defendant canno t be reha bilitated. G iven
the heino us c ircumstances, it would be diffi cult to env ision a crime more worthy of consecutive
Ii fe sentences. Such punishment is not mani festly unreasonable, the result of partiality,
prejud ice, bias, or ill w ill ; there was no abuse of di screti on. Walls, supra. In light of the
foregoing, De fendant's judgment o f sentence should be a ffirmed.
BY T HE COURT:
Scott A rthur Evans, Judge
.. .. 0 V • ..., 12 DA TED:_ d=+/_ J._1./,f-l-.;)_I_ _
Distribution: J }J:i/J, , /.'S 7f/'7 District Attorney's Office :Lo .lames J . Kal·I , Esq. , Public Defender's Offi ce. ::[.o . / Prothonotaiy, Superior Court of Pennsy lvama mu,,
~a;:~ofJ~:A :hur~(j:f)h,~ L~ l?n~ MoJ/