Com. v. Street, L.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2022
• Docket: 1038 WDA 2020
• Status: Unpublished

Opinion

J-A06027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAMON STREET : : Appellant : No. 1038 WDA 2020

Appeal from the Judgment of Sentence Entered January 30, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011095-2009

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY SULLIVAN, J.: FILED: July 18, 2022

Lamon Street (“Street”) appeals from the judgment of sentence

imposed following his convictions for first-degree murder, criminal homicide

of an unborn child, and related offenses.1 We affirm.

The relevant factual and procedural history underlying this appeal is

extensive, but essential to an understanding of the issues presented. In 2009,

a group of individuals associated with a gang assembled in front of a residence

in Pittsburgh. Street, who was associated with a rival gang, fired thirteen

shots at the group, one of which killed Shavaughn Wallace, an eighteen-year-

old pregnant woman, and her unborn child. At the time of the homicides,

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2502(a), 2603(a), 6106(a)(1), 2705. J-A06027-22

Street was a juvenile (seventeen years, eleven months, and three days old).2

Following a non-jury trial, the trial court convicted Street of first-degree

murder, criminal homicide of an unborn child, firearms not to be carried

without a license, and recklessly endangering another person. In February

2012, the sentencing court imposed a mandatory term of life in prison without

the possibility of parole (“LWOP”) for first-degree murder, with no further

penalty for the remaining convictions.3 Street appealed his judgment of

sentence.

While Street’s direct appeal was pending, the United States Supreme

Court decided Miller v. Alabama, 567 U.S. 460 (2012), wherein it held that

statutory schemes such as Pennsylvania’s, which imposed mandatory LWOP

for certain homicide convictions, constituted cruel and unusual punishment in

violation of the Eighth Amendment to the United States Constitution when

applied to juvenile homicide offenders. Id. at 470. In so ruling, the High

Court reaffirmed the principle that children are constitutionally different from

adults for purposes of sentencing because they have diminished culpability

2For more detailed description of the facts surrounding the shooting, see Commonwealth v. Street, 69 A.3d 628, 630-31 (Pa. Super. 2013).

3 At the time of Street’s initial sentencing, Pennsylvania law mandated a LWOP sentence for a juvenile convicted of first-degree murder or first-degree murder of an unborn child. See 18 Pa.C.S.A. § 1102(a)(1) (superseded as applied to juveniles by 18 Pa.C.S.A. § 1102.1). The procedures for sentencing an individual under section 1102 are set forth in 42 Pa.C.S.A. § 9711 (sentencing procedures for murder of the first degree).

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and greater prospects for reform. Id. at 471. Thus, pursuant to Miller, for

a LWOP sentence imposed on a juvenile homicide offender to pass federal

constitutional muster, the sentencing court must have the discretion to

consider certain factors bearing upon the juvenile’s “youth and attendant

characteristics” before deciding whether to impose a LWOP sentence.4 Id. at

477-78.5

Following Miller, the Pennsylvania Supreme Court decided

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”), wherein it

ruled that, pursuant to Miller, the appropriate appellate remedy for the

unconstitutional imposition of a mandatory LWOP sentence upon a juvenile

homicide offender is to vacate the sentence and remand for the sentencing

court to consider the juvenile’s youth and attendant characteristics pursuant

4 Pennsylvania’s General Assembly responded to Miller by enacting a new sentencing statute for juveniles. See 18 Pa.C.S.A. § 1102.1. Section 1102.1 provides that an individual convicted of first-degree murder or first-degree murder of an unborn child after June 24, 2012, who was under the age of 18 but over the age of 15 at the time of the offense, “shall be sentenced to a term of [LWOP], 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). Section 1102.1(d) requires the sentencing court to consider numerous age-related characteristics of the juvenile offender, and to make findings on the record regarding those factors when determining whether to impose a sentence of LWOP. See 18 Pa.C.S.A. § 1102.1(d)(7)(i-vii). As Street was convicted prior to June 24, 2012, his sentencing was subject to the statutory framework set forth in section 1102 rather than section 1102.1.

5 In Montgomery v. Louisiana, 577 U.S. 190 (2016), the United States Supreme Court ruled that its holding in Miller announced a substantive rule of law which applied retroactively to cases on collateral review. See id. at 206.

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to Miller or the section 1102.1(d) factors before resentencing the juvenile

offender. See id. at 297.

In light of Miller and Batts I, this Court affirmed Street’s convictions,

but remanded for resentencing. See Street, 69 A.3d at 634. Following

remand, the sentencing court considered Street’s youth and attendant

characteristics pursuant to Miller but nevertheless reimposed LWOP for first-

degree murder. In August 2016, this Court affirmed the judgment of

sentence. See Commonwealth v. Street, 156 A.3d 348 (Pa. Super. 2016)

(unpublished memorandum).

In June 2017, our Supreme Court decided Commonwealth v. Batts,

163 A.3d 410 (Pa. 2017) (“Batts II”). The Batts II Court “exercise[d] [its]

constitutional power of judicial administration to devise a procedure for the

implementation of the Miller and Montgomery decisions in Pennsylvania.”

Id. at 451. The Batts II Court held that procedural safeguards beyond

consideration of youth and attendant characteristics pursuant to Miller or the

sentencing factors set forth in section 1102.1(d) were required to satisfy

Eighth Amendment scrutiny and to ensure that LWOP sentences are meted

out only to “the rarest of juvenile offenders” whose crimes reflect “permanent

incorrigibility,” “irreparable corruption” and “irretrievable depravity.” Id. at

416. The Batts II Court recognized a presumption against the imposition of

LWOP for a juvenile offender and held that the Commonwealth must provide

reasonable notice of its intent to seek a LWOP sentence and then prove beyond

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a reasonable doubt that the juvenile offender is “permanently incorrigible and

that rehabilitation would be impossible.” Id. at 459.

In August 2017, Street filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”)6 alleging that his sentence was illegal under Batts II. The

PCRA court agreed, and vacated Street’s sentence. Upon resentencing, the

Commonwealth did not seek a sentence of LWOP. On January 30, 2020, the

sentencing court resentenced Street to consecutive terms of thirty years to

life in prison, one for each homicide count. Street filed a post-sentence motion

and sought leave to obtain an updated expert report. After granting Street

numerous extensions to secure an updated expert report, the court denied

the post-sentence motion. Street filed a timely notice of appeal and both he

and the trial court complied with Pa.R.A.P. 1925.

During the pendency of the present appeal, the United States Supreme

Court decided Jones v. Mississippi, 141 S. Ct. 1307 (2021). The Jones

Court reaffirmed its decisions in Miller and Montgomery and reiterated that

mandatory LWOP sentences for juvenile offenders violate the Eighth

Amendment. Id. at 1311. However, the Jones Court held that sentencing

schemes which allow the discretionary imposition of life sentences after

consideration of the juvenile homicide offender’s youth and attendant

6 See 42 Pa.C.S.A. §§ 9541-9546.

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characteristics pass constitutional muster without the need for a separate

factual finding of permanent incorrigibility. Id. at 1317-18.

In response to Jones, the Pennsylvania Supreme Court issued its

decision in Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022), wherein it

dissolved the procedural requirements set forth in Batts II that are not

constitutionally required; namely, the presumption against sentencing a

juvenile homicide offender to LWOP, and the imposition on the Commonwealth

of the burden of proving beyond a reasonable doubt that the juvenile is

permanently incorrigible. Id. at 1244. The Felder Court ruled that, when

sentencing juvenile homicide offenders, “sentencing courts are required to

consider only the relevant sentencing statutes, which will guarantee that the

sentencer considers the juvenile’s youth and attendant characteristics as

required by Miller.” Id. at 1246. The Felder Court further held that “[s]o

long as the sentence imposed is discretionary and takes into account the

offender’s youth, even if it amounts to a de facto life sentence, Miller is not

violated.” Id.

With this background in mind, we turn to the issues that Street raises

for our review:

1. Whether the trial court’s aggregate sentence of [sixty] years to life is an unconstitutional and illegal de facto life sentence which violates Miller . . . and Batts [II]?

2. Whether the trial court erred in failing to properly consider, and failed to properly articulate its consideration of, the factors it was required to consider under Miller and Batts [II], which

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renders the aggregate sentence of [sixty] years to life both illegal and an abuse of discretion?

3. Whether the trial court erred, abused its discretion and/or denied [Street’s] right to due process under the United States and Pennsylvania Constitutions by preventing [him] from presenting expert testimony on the key issue of capability of rehabilitation?

Street’s Brief at 7 (unnecessary capitalization omitted).

As Street’s issues are interrelated, we will address them together. Each

of Street’s issues is premised on a claim that his aggregate sentence of sixty

years to life in prison constitutes an unconstitutional and illegal de facto life

sentence. As this claim presents a challenge to the legality of Street’s

sentence, our standard of review is de novo and our scope of review is plenary.

See Commonwealth v. Clary, 226 A.3d 571 (Pa. Super. 2020).

Street claims that his sentence is unconstitutional and illegal because it

amounts to a de facto life sentence for which the trial court was required to

adequately consider and articulate his youth and attendant characteristics

pursuant to Miller and to make a finding that he is permanently incorrigible

pursuant to Batts II. Street also contends that the trial court erred and

abused its discretion by denying his post-sentence motion before he could

obtain an updated expert report discussing his youth and attendant

characteristics pursuant to Miller and demonstrating that he is not

permanently incorrigible pursuant to Batts II.

Importantly, Street acknowledges that, pursuant to Commonwealth v.

Foust, 180 A.3d 416, 438 (Pa. Super. 2018); appeal denied, ___ A.3d ___,

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2022 Pa. LEXIS 701 (Pa. 2022), his consecutive thirty-years-to-life sentences

do not amount to an unconstitutional or illegal de facto life sentence. See

Street’s Brief at 34. For this reason alone, Street’s claims that his sentence

is unconstitutional and illegal must fail. See Commonwealth v. Beck, 78

A.3d 656, 659 (Pa. Super. 2013) (acknowledging that a three-judge panel of

the Superior Court “is not empowered to overrule another panel of the

Superior Court” where the facts of the two cases are indistinguishable).

Moreover, as the Felder Court explained, a sentencing court is not

required to consider a juvenile offender’s youth and attendant characteristics

pursuant to Miller when imposing a discretionary term-of-years sentence.

See Felder, 269 A.3d at 1235 (holding that “even if a term-of-years sentence

amounts to a de facto life sentence, Miller provides no viable avenue for

relief”). Similarly, in light of Jones, our Supreme Court dissolved the

procedural requirement set forth in Batts II which required the

Commonwealth to prove that the juvenile is permanently incorrigible before

imposing a LWOP sentence. Id. at 1244. Thus, as the trial court was not

required to consider Street’s youth and attendant characteristics pursuant to

Miller or to make a finding that Street was permanently incorrigible pursuant

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to Batts II when imposing the subject discretionary term-of-years sentence,

Street’s constitutionality and legality of sentencing claims merit no relief.7

In cases where, as here, the Commonwealth did not seek a LWOP

sentence and the sentencing court imposed a discretionary term-of-years-

sentence which does not amount to a de facto life sentence, traditional

sentencing considerations apply. See Commonwealth v. Summers, 245

A.3d 686, 693 (Pa. Super. 2021) (applying traditional sentencing

considerations where the Commonwealth did not seek a LWOP sentence and

appellant received a discretionary term-of-years-sentence);8 see also Foust,

7As Felder was decided while Street’s present appeal was pending, we granted his request to file a supplemental brief regarding the impact of Felder on his issues. In Street’s supplemental brief, he argues that Felder dissolved the protections required by Batts II solely in relation to the Eighth Amendment and not as to Article I, Section 13 of the Pennsylvania Constitution. The Commonwealth argues that Street failed to preserve a claim under Article I, Section 13 for our review. Even assuming that Street preserved such a claim, we are bound by the Felder Court’s express dissolution of its mandates in Batts II. See Felder, 269 A.3d at 1244. Therefore, until such time as our High Court indicates otherwise, we deem such dissolution to extend to constitutionality challenges under Article I, Section 13. See id; see also Commonwealth v. Moye, 266 A.3d 666, 675- 76 (Pa. Super. 2021) (holding that where the juvenile did not receive a de facto life sentence, there is no viable theory of relief under the Eighth Amendment or Article I, Section 13).

8 In Felder, the Court did not indicate whether the Commonwealth sought a LWOP sentence. However, its ruling that “the authority of a sentencing court to impose a life-without-parole sentence on a juvenile homicide offender is circumscribed only to the extent set forth in [section] 9721(b) and [section] 1102.1, and by Miller's command to “consider the mitigating qualities of youth,” suggests that such notice was issued. Felder, 269 A.3d at 1245 (quoting Miller, 567 U.S. at 476).

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180 A.3d at 438 (applying traditional sentencing considerations to a preserved

discretionary sentencing claim after determining that a sentence of thirty

years to life in prison did not constitute a de facto LWOP sentence). Such

considerations require the sentencing court to consider the factors set forth in

42 Pa.C.S.A. § 9721(b) and fashion a sentence that is consistent with the

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. See 42 Pa.C.S.A. § 9721(b).

While we are mindful that Street attempted to raise a challenge to the

discretionary aspects of his sentence, the sole discretionary sentencing claim

raised in his post-sentence motion was that the sentencing court abused its

discretion by imposing a de facto LWOP sentence without first considering and

articulating on the record its consideration of his youth and attendant

characteristics pursuant to Miller, his capacity for rehabilitation under Batts

II, and the section 1102.1(d) factors. See Post-Sentence Motion, 2/7/20, at

2-7. As explained above, pursuant to Felder, the sentencing court was not

required to consider Street’s youth and attendant characteristics pursuant to

Miller or whether Street was permanently incorrigible pursuant to Batts II.

Additionally, the sentencing court was not required to consider the section

1102.1(d) factors because Street was convicted prior to June 24, 2012. See

18 Pa.C.S.A. § 1102.1(a)(1) (applying to juveniles convicted of first-degree

murder after June 24, 2012). Instead, because Street was convicted prior to

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June 24, 2012, his sentencing was subject to section 1102 and the procedures

set forth in section 9711. See 18 Pa.C.S.A. § 1102; see also 42 Pa.C.S.A.

§ 9711.

Street did not assert a claim in his post-sentence motion that the

sentencing court abused its discretion relative to section 1102, section 9711,

or section 9721(b) when fashioning his sentence. See Pa.R.A.P. 302(a)

(providing that issues not raised in the lower court are waived and cannot be

raised for the first time on appeal); see also Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (holding that issues challenging the

discretionary aspects of a sentence must be raised at sentencing or in a post-

sentence motion or they are waived).9 Thus, Street failed to preserve any

9 We recognize that this Court has considered a discretionary sentencing claim after determining that a juvenile homicide offender did not receive a de facto LWOP sentence; however, in those cases the appellant preserved a discretionary sentencing claim relative to traditional sentencing considerations. See e.g., Foust, 180 A.3d 439 (addressing preserved claims that “imposing consecutive sentences . . . was clearly unreasonable and results in an excessive sentence”); see also Commonwealth v. Derrickson, 242 A.3d 667, 679 (Pa. Super. 2020) (addressing preserved claims that the sentence was “manifestly excessive and overly harsh,” “unreasonable,” “based on the serious nature of the crime,” and “failed to give due consideration as required by [section] 9721”); Commonwealth v. White, 193 A.3d 977, 981 (Pa. Super. 2018) (addressing preserved claims that the sentence imposed was “excessive” and was not “individualized”). In his post- sentence motion, Street claimed that the sentencing court’s failure to consider and make findings on the record regarding his youth and attendant characteristics pursuant to Miller and that he was incapable of rehabilitation under Batts II constituted an abuse of discretion “regardless of the general principle that the running of sentences concurrently or consecutively is typically reserved to the discretion of the [c]ourt.” Post Sentence Motion, (Footnote Continued Next Page)

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such claim for our review.10 Accordingly, as none of Street’s issues merit

relief, we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/18/2022

2/7/20, at 5. Street did not specifically challenge the trial court’s decision to impose consecutive rather than concurrent sentences or present any claim that his sentences were inconsistent with the provisions of the sentencing code or contrary to the fundamental norms underlying the sentencing process. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

10 We further observe that the only discretionary sentencing claim that Street raised in his Pa.R.A.P. 2119(f) statement was that “the trial court failed to undertake such an analysis and instead simply rubber-stamped the sentence requested by the prosecutor.” Street’s Brief at 28. Street made this assertion following a quote from a footnote in Foust, wherein the Court stated, in dicta, that “[i]f a trial court determines that the facts in a particular case warrant consecutive sentences, it should detail, on the record, why consecutive sentences are appropriate.” Foust, 180 A.3d at 441 n.21. To the extent that the Foust Court’s dicta can be viewed as a legitimate discretionary sentencing issue, Street waived the issue by not raising it in his post-sentence motion. See Pa.R.A.P. 302(a); Cartrette, 83 A.3d 1042. Moreover, Street raised no other discretionary sentencing claim in his Rule 2119(f) statement and the Commonwealth objected to this omission. See Commonwealth’s Brief at 13- 14. Therefore, for this additional reason, we are unable to review any discretionary sentencing claim in this appeal. See Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (holding that if an appellant fails to include a discretionary sentencing issue in his Rule 2119(f) statement and the Commonwealth objects, the issue is waived and this Court may not address it).

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