Opinion
1317 WDA 2022 J-A25036-23
01-11-2024
COMMONWEALTH OF PENNSYLVANIA v. ANGELA MARINUCCI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 31, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000850-2010
BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, Angela Marinucci, appeals from the judgment of sentence imposed following her 2011 jury convictions for murder of the first degree, conspiracy to commit murder of the first degree, murder of the second degree, murder of the third degree, kidnapping, and conspiracy to commit kidnapping. The charges arose from the torture and brutal murder of Jennifer Daugherty in 2010 when Appellant was 17 years and seven months old. Because this case has been caught in the changing law governing the sentencing of juvenile murderers, this appeal is from the third sentencing after two remands and was conducted when Appellant was 29 years and 11 months old. Appellant challenges the exercise of the sentencing court's discretion in imposing an aggregate term of 60 years to life imprisonment. We affirm.
18 Pa.C.S. §§ 2502(a), (2502(b), 2502(c), 903(a)(1) and 2901(a)(3), respectively.
This Court, in a memorandum decision filed on August 26, 2013, set forth the facts proven at trial:
… Jennifer Daugherty, a mentally handicapped young woman … was held captive [from February 8 until February 11, 2010], raped, forced to drink Appellant's urine, as well as a combination of feces, urine, spices, parsley, and garlic, and an additional concoction of Clorox, water, and cigarette ashes. She also was beaten with a towel rack before she was brutally stabbed in the chest, torso, and throat by one of Appellant's co-defendant's, Melvin Knight. An additional co-defendant, Ricky Smyrnes, slit the victim's wrists and, along with Knight, used Christmas lights to choke the victim. After the victim expired, Smyrnes and Knight placed her in a garbage bag, covered her head with an insulation bag, and set her into a trashcan. The two men put the trash can underneath a work truck in the Greensburg Salem Middle School parking lot.
Daniel Grant discovered the body after attempting to remove the trashcan from underneath his work truck. An autopsy revealed seven incise wounds to the back of the victim's head, four incise wounds to her neck, and seven stab wounds to her chest that punctured her heart and left lung. An investigation led to Appellant, Ricky Smyrnes, Melvin Knight, Amber Meidinger, Robert Masters, and Peggy Miller. Knight and Meidinger were romantically involved, as were Masters and Miller. Smyrnes was in a relationship with Appellant and there was evidence that he also was in a relationship with the victim. It was the Commonwealth's theory at trial that Appellant's jealousy motivated the horrific treatment of the victim and her death.
On February 11, [2010], police found Appellant and Smyrnes walking along a road in Greensburg; Appellant indicated Smyrnes was her boyfriend. …Appellant voluntarily agreed to travel to the Greensburg Police station. Although police advised her she was free to leave, Appellant remained and answered questions. Appellant informed police that she and the victim had argued on February 6 and 7 … over Smyrnes. She claimed that she and the victim reconciled on February 8, but also indicated that the victim
was tied up with Christmas garland and that she had punched the victim. Additionally, she admitted that Knight had stabbed the victim. At this juncture, police terminated the interview.
The victim had traveled by bus to Greensburg on February 8 [2010], for a doctor's appointment and to spend time at an apartment with her alleged friends. Appellant had, in fact, texted the victim using Smyrnes' phone and asked her to spend the weekend at an apartment in Greensburg. The victim's stepfather confirmed that the victim had been on her phone constantly communicating with Appellant and Smyrnes. Upon arriving at the bus station, the victim met the six co-conspirators. Knight, Meidinger, and Appellant initially left the group and traveled to a Knights Inn. While there, Appellant spoke with Smyrnes over the phone and told him, "I hope you're not with that bitch." N.T., 5/12/11, 759-760. Appellant eventually left Knights Inn to meet Smyrnes. Knight and Meidinger ultimately were picked up … and brought to an apartment on 428 North Pennsylvania Avenue in Greensburg. At the apartment were Smyrnes, Knight, Meidinger, Masters, [and] Miller … the victim arrived at the apartment. She asked Smyrnes if he would have sex with her, and he angrily refused. The next day, the victim had a scheduled doctor's appointment for 3:00 p.m., but did not want to attend. Smyrnes, Knight, and the victim then began to argue before the victim decided to take a shower. At this point, Smyrnes telephoned Appellant using the speaker function of the phone and told her that the victim tried to have sex with him the previous night, which angered Appellant. Appellant indicated she wanted to beat up the victim and instructed Smyrnes not to allow the victim to leave.
The group at the apartment then went through the victim's purse and poured toothpaste and mouthwash on her purse and clothing. Meidinger took the victim's cell phone and Knight took cash and a gift card. When the victim exited the shower, Knight told her to buy him cigarettes with the money he had taken. Initially the victim refused, but ultimately she acquiesced. Those in the apartment continued to harass the victim, with Smyrnes and Knight striking her on the head with empty plastic bottles. The victim grew angry and called Knight an "asshole." Id. at 780. He then pushed her into a wall and choked her.
Shortly thereafter, Appellant arrived and confronted the victim about her attempt to sleep with Smyrnes. Appellant pushed the victim into a bathroom towel rack three times and lied to
Meidinger, telling her that the victim liked Knight. Meidinger then continued the attack on the victim. Knight and Smyrnes joined in by dragging the now crying victim from the bathroom and pouring spices on her head. Appellant also poured water onto the victim. Smyrnes then forced the victim to take a shower.
After the shower, Smyrnes and Knight forced the victim into the attic because the original tenant on the apartment lease was returning to retrieve some property. Police actually arrived outside the apartment when that individual and Smyrnes and Knight engaged in an altercation. Subsequently, Knight and Smyrnes forced the victim to remove her pajamas and threw them outside onto a porch roof. The two men also cut her hair and demanded that she clean it from the floor. Knight then put a sock in the victim's mouth and raped her.
Appellant telephoned her family and informed them that she intended to spend the night at the apartment. She, Meidinger, Knight, and Smyrnes retreated to her home to gather some medication. While retrieving the medication, Miller called Smyrnes and told him that the victim was attempting to leave the apartment. The group returned to the apartment and Smyrnes and Knight began to assault the victim. Knight was especially angered because Meidinger, who was pregnant with his child, had passed out from running back to the apartment after they learned the victim was trying to escape. When the victim complained of a headache, Smyrnes and Knight provided her with Appellant's Seroquel medication, which does not treat headaches but is for bipolar disorder.
The following morning, Appellant, Smyrnes and Knight left the apartment to cash a check. Smyrnes instructed those left behind not to allow the victim to leave and threatened them if anyone attempted to help her. Upon returning, Appellant attacked the victim by pushing her to the floor, sitting on top of her, and punching her in the face. When the victim defended herself by kneeing Appellant in the stomach, she told Smyrnes that the victim had killed her baby, although Appellant was not pregnant.
At this juncture, Smyrnes conducted a meeting among all those present. Appellant informed Smyrnes that he had to choose between her or the victim, and, if he chose her, he had to get rid of the victim. At a subsequent meeting, the group decided to provide the victim with urine to drink. Appellant peed in a cup and
Meidinger forced the victim to consume it by hitting her in the head with a towel rack. An additional mixture was made of Meidinger's feces, urine, spices, parsley and garlic. Meidinger again repeatedly struck the victim with a towel rack to force her to consume the disgusting concoction. A third drink consisting of Clorox, water, and cigarette ashes was fed to the victim. Throughout this ordeal, the victim was crying and vomiting.
Not satisfied with this humiliation, Knight and Smyrnes bound the victim with Christmas lights. Appellant insisted that the lights work so that the victim would look like a Christmas tree. When the lights did not blink as desired by Appellant, she, Smyrnes, Knight and Meidinger removed the bulbs and used the strands to tie the victim up. The group then conducted another meeting at which point Appellant as well as the others voted to kill the victim. Smyrnes forced the victim to write a suicide note, and when she finished, Appellant remarked, "Just kill that bitch." Id. at 821.
Smyrnes and Knight then led the victim into the bathroom where Smyrnes told Knight, "You know what to do." Id. at 822. Smyrnes retrieved a steak knife and gave it to Knight who initially hesitated before entering the bathroom and stabbing the victim in her chest, torso and throat. This attack did not completely kill the victim and Smyrnes went into the bathroom and slit the victim's wrists. When the victim survived, Smyrnes and Knight wrapped the Christmas lights around her neck and each pulled tightly to cut off her air supply. The group agreed to dispose of the body, with Appellant suggesting that they burn the victim's body in front of a church. Instead, Smyrnes and Knight disposed of the victim as previously described.
Following her arrest, Appellant made several incriminating statements to other inmates at the Westmoreland County Correctional Facility. One inmate provided that Appellant admitted to assaulting the victim because the victim and Smyrnes had engaged in sexual relations, and that Appellant stated that she was the one who wanted the victim dead. Another inmate testified that Appellant told her that she wanted the victim dead because the victim had stolen Smyrnes and a previous boyfriend from her. Appellant stated to a third prisoner that she had lured the victim to the apartment and commented that she fed feces to retards.Commonwealth v. Marinucci, No. 909 WDA 2012, 2013 WL 11255556, *1-4 (Pa. Super., filed Aug. 26, 2013) (non-precedential memorandum).
Following trial before the Honorable Rita D. Hathaway of the Court of Common Pleas of Westmoreland County, the jury found Appellant guilty of murder, kidnapping and conspiracy. The court sentenced Appellant to the mandatory term of life imprisonment without the possibility of parole for murder of the first degree. The court also imposed concurrent terms of imprisonment of: life without parole for felony murder, twenty to forty years for conspiracy to commit murder, and three to twenty years for conspiracy to commit kidnapping. Appellant filed a timely appeal.
While Appellant's direct appeal was pending, the United States Supreme Court announced its decision in Miller v. Alabama, 567 U.S. 460 (2012), holding that a mandatory term of life imprisonment without parole for juvenile offenders violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. This Court affirmed Appellant's convictions but vacated the judgment of sentence and remanded for resentencing citing the Pennsylvania Supreme Court's ruling in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) ("Batts I"). See Marinucci, 2013 WL 11255556. The Pennsylvania Supreme Court denied Appellant's Petition for Allowance of Appeal. See Commonwealth v. Marinucci, 86 A.3d 232 (Pa., filed Feb. 25, 2014) (Table).
On July 1, 2015, after a two-day sentencing proceeding with multiple experts and other witnesses, the trial court imposed an aggregate term of life imprisonment with no parole. This Court affirmed the judgment of sentence. See Commonwealth v. Marinucci, No. 1758 WDA 2015, 2016 WL 6081005 (Pa. Super., filed Oct. 17, 2016) (non-precedential memorandum). Appellant filed a Petition for Allowance of Appeal. While that petition was pending, the Pennsylvania Supreme Court issued Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts II"), which announced a procedure for the implementation of Miller and required a finding of permanent incorrigibility for a juvenile to be sentenced to a term of life without parole. As a result, the Supreme Court granted Appellant's petition, summarily vacated the judgment of sentence and remanded for reconsideration under Batts II of whether the sentence imposed was constitutional under the Eighth Amendment. See Commonwealth v. Marinucci, 170 A.3d 1010 (Pa., filed Aug. 25, 2017) (Table). On reconsideration, this Court concluded that the judgment of sentence imposed at the first resentencing was unconstitutional under the Eighth Amendment and remanded to the trial court for resentencing in light of Batts II. See Commonwealth v. Marinucci, No. 1758 WDA 2015, 2017 WL 5513588 (Pa. Super, filed November 17, 2017) (non-precedential memorandum).
The trial court imposed the following concurrent terms of imprisonment: life without the possibility of parole for murder of the first degree; life without the possibility of parole for murder of the second degree; 20 to 40 years for conspiracy to commit homicide; 3 to 20 years for conspiracy to kidnap. In addition, Appellant's convictions for murder of the third degree and for kidnapping were deemed to merge for sentencing purposes.
Prior to the second resentencing, the Supreme Court of the United States issued its opinion in Jones v. Mississippi, 141 S.Ct. 1307 (U.S. 2021), narrowly construing Miller and holding that the Eighth Amendment did not require a factual finding of permanent incorrigibility for a juvenile to be sentenced to life without parole. Following that, the Pennsylvania Supreme Court issued Commonwealth v. Felder, 269 A.3d 1232, which, relying on Jones, essentially reversed Batts II and held 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." Felder, 269 A.3d at 1232.
The Supreme Court found that Jones "fundamentally altered" the support for the "entire procedural framework" devised in Batts II and dissolved those procedures. Felder, 269 A.3d at 1243-44. "Moving forward, 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 42 Pa.C.S. § 9721(b) and 18 Pa.C.S. § 1102.1, and by Miller's command to 'consider the mitigating qualities of youth.'" Felder, 269 A.3d at 1245 (quoting Miller, 567 U.S. at 476). Appellant's second resentencing, the judgment of sentence under review in this appeal, was conducted pursuant to Felder.
On May 31, 2022, the trial court conducted the instant resentencing. At that proceeding, the court took judicial notice or admitted into the record the following evidence: a new pre-sentence investigation report prepared by the probation department dated May 23, 2022; the victim impact statements from the victim's family given in evidence at the first resentencing in 2015; Appellant's mother's statement given in evidence at the first resentencing in 2015; four letters from Appellant's fellow inmates in support of Appellant; a report dated April 26, 2022 by, and testimony from, Appellant's expert in general and forensic psychiatry, Dr. Louis S. Martone, as to Appellant's amenability to rehabilitation; a report dated May 23, 2022, by the Commonwealth's psychiatric witness, Dr. Bruce Wright, as to Appellant's amenability to rehabilitation; and the recorded testimony of Dr. Wright and appellant's expert at the first resentencing in 2015. In addition, the trial court heard Appellant's allocution and noted that it had reread the trial transcripts in 2015.
Appellant did not suggest a specific minimum sentence, but argued to the Court that Miller required a meaningful opportunity for her to obtain release based on maturity and rehabilitation. The court sentenced Appellant to an aggregate of 60 years to life: 40 to life for murder of the first degree; a consecutive term of 20 to 40 years for conspiracy to commit murder; and concurrent terms of 40 to life for murder of the second degree and 3 to 20 years for conspiracy to commit kidnapping. N.T. 5/31/22, 75-76. The court explained its reasons for the sentence imposed and demonstrated its detailed knowledge of Appellant and the case. Id. at 51-75.
Murder of the third degree and kidnapping merged for sentencing purposes.
Appellant filed a timely post-sentence motion. Acknowledging that the court "ostensibly addressed each of the factors which must be considered," she argued that it nonetheless "abused its discretion in disregarding the numerous pieces of evidence showing actual maturation and rehabilitation." Appellant's Post-Sentence Motion, ¶ 12. Appellant specifically alleged that the court: disregarded her expert's testimony, "apparently adopting the opinions of Dr. Bruce Wright," id. ¶ 13; "failed to review and consider letters of support," id. ¶ 14; and exhibited "bias in its recitation of the rationale for imposing sentence," id. ¶ 15. The trial court denied the post-sentence motions on November 4, 2022, with a written opinion, which, among other things, noted its decision was informed by a recent presentence investigation report and the sentences imposed were in the standard guideline range. Trial Court Opinion, 18-21. Moreover, the court considered the statutory factors as required by Felder, noted the crime was "particularly brutal and protracted, with torture over a period of days," and found the sentence warranted by the facts and circumstances. Id., 20-22. Appellant filed this timely appeal.
In the Statement of Questions Involved in her brief, Appellant rephrases her sentencing claim as follows:
Appellant filed a Rule 1925(b) statement mirroring the claims raised in her post-sentence motion.
Whether the court below abused its discretion in sentencing the Appellant: in failing to actually consider her youth as a factor; in rejecting expert testimony offered by Appellant, yet accepting an outdated opinion by the Commonwealth's expert; in failing to review and consider letters of support offered on behalf of Appellant; and in exhibiting bias and ill-will towards Appellant at the sentencing hearing.Appellant's Brief, 5.
Appellant's claims challenge the discretionary aspects of her sentence:
The Pennsylvania Supreme Court in Felder left open the possibility of an as-applied Eighth Amendment challenge to the proportionality of a sentence, Appellant did not assert such a claim below or in her brief before this Court. Nor has Appellant argued that the Pennsylvania Constitution requires more protection than Felder mandates under the Eighth Amendment.
Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing norms. Id. An appellant must satisfy all four requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022), appeal denied, 302 A.3d 626 (Pa. 2023). Appellant satisfied the first two requirements. Thus, we turn to the Rule 2119(f) statement included in her brief to discern whether a substantial question has been raised.
Appellant's "youth" is included in her Statement of Questions Involved as a factor the trial court allegedly failed to consider. Appellant's Brief, 5. As a stand-alone claim, this factor has been waived from further review as it was not included in the post-sentence motion. Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009). It also is meritless. She argues that youth must be considered as a mitigating factor. Appellant's Brief, 14-15. To the contrary, it is a requirement of Jones and Felder that the age and attendant circumstances of an offender are considered before sentencing to a life term without possibility of parole. Felder, 269 A.3d at 1245. It is not a requirement that it be considered as mitigating the discretionary sentence imposed. Here, the court plainly considered Appellant's age and explained fully why it did not find it mitigating. N.T. 5/31/22, 54, 57, 62-63.
We determine whether there is a substantial question on a case-by-case basis. Commonwealth v. Crawford, 257 A.3d 75, 78 (Pa. Super. 2021). "We cannot look beyond the statement of questions presented and the prefatory Rule 2119(f) statement to determine whether a substantial question exists." Crawford, 257 A.3d at 78-79 (quoting Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018)) (brackets omitted). A substantial question is presented where:
… an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010) (quoting Commonwealth v. Bullock, 948 A.2d 818, 826 n. 6 (Pa. Super. 2008)) (citation omitted).
Appellant cites Commonwealth v. White, 193 A.3d 977 (Pa. Super. 2018), for the proposition that a claim that a sentence is excessive - in conjunction with an assertion that the court failed to consider mitigating factors - raises a substantial question. Appellant's Brief, 10. She then asserts four mitigating factors the trial court allegedly failed to consider. Id. at 11. Appellant did not assert her sentence was "excessive," much less establish how the alleged failure to give sufficient weight to mitigating factors here constituted a substantial question. Indeed, we have held that similar allegations "that the sentencing court failed to consider mitigating factors generally does not necessarily raise a substantial question." Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). See also Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) ("a claim that a court did not weigh the factors as an appellant wishes does not raise a substantial question").
However, we are mindful that we must evaluate whether a substantial question has been presented on a case-by-case basis, and not as a blanket rule. In the circumstances presented, where the governing law has been in flux over ten years and caused a juvenile murderer to have been sentenced to a mandatory life term, then a discretionary life term, and now to a discretionary term of years, review is warranted. Such history implies that the sentence could be excessive, and, in light of Appellant's allegation that the trial court was biased, a substantial question has been raised. Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011).
Appellant does not delineate which sentence she is challenging as excessive. Instead, she repeatedly refers to her aggregate term of 60 years to life without acknowledging that the aggregate term is two separate sentences the trial court ordered to be served consecutively. The statute through which Appellant seeks to state a substantial question affords the sentencing court discretion to impose sentence concurrently or consecutively. 42 Pa.C.S. § 9721(a). As a general matter, "[a]ny challenge to the exercise of this discretion ordinarily does not raise a substantial question." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). Therefore, the preliminary substantial question inquiry in this case is whether the decision to sentence consecutively raises the aggregate to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case. Mastromarino, 2 A.3d at 588. The aggregate term was not facially excessive in light of the murder and torture of the victim. Moreover, the conspiracy lasted for days and was an essential element for the escalating conduct that culminated in the murder. Accordingly, our grant of a substantial question for review is limited to the term of years sentence imposed for murder of the first degree, 40 years to life imprisonment.
Our standard of review for a challenge to the discretionary aspects of sentencing 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 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. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting other cases). In resentencing a juvenile murderer, who was initially sentenced to a mandatory term of life imprisonment, the sentencing court is obligated to apply the traditional sentencing considerations under 42 Pa.C.S. § 9721, and may consider the factors listed in 18 Pa.C.S. § 1102.1. Miller, 275 A.3d at 535.
"Section 9721 provides in part that 'the sentence imposed should call for confinement 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.'" Miller, 275 A.3d at 535 (quoting 42 Pa.C.S. § 9721(b)). Moreover, the sentencing court, which is present at the hearing and observes all witnesses and the defendant firsthand, "is in a superior position to review the defendant's character, defiance or indifference, and the overall effect and nature of the crime." Commonwealth v. Lekka, 210 A.3d 343, 353 (Pa. Super. 2019); Miller, 275 A.3d at 535. Where, as here, the sentencing court had a presentence investigation report, we can "presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth. v. Devers, 546 A.2d 12, 18 (Pa. 1988); Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009). This rule applies even when a sentencing court imposes a discretionary term of years on a juvenile murderer. See Miller, 275 A.3d at 534-535; Commonwealth v. Harper, 273 A.3d 1089, 1098 (Pa. Super.), appeal denied, 286 A.3d 1283 (Pa. 2022).
Additionally, our review of the discretionary aspects of a sentence is confined by statutory mandate. Johnson, 125 A.3d at 826-827. More specifically, here, we may only vacate and remand for resentencing if the sentencing court's application of a guideline sentence was "clearly unreasonable." 42 Pa.C.S. § 9781(c)(2). "[I]t is clear that the General Assembly intended the concept of unreasonableness [for the purposes of Section 9781(c)] to be inherently a circumstance-dependent concept that is flexible in understanding and lacking precise definition." Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
In deciding whether a sentencing court imposed a sentence that was unreasonable, we are to be guided by the considerations listed in 42 Pa.C.S. § 9781(d) - nature and circumstances of the offense and history and characteristics of the defendant; opportunity of sentencing court to observe the defendant, including any presentence investigation; findings upon which the sentence was based; and sentencing guidelines - and whether the trial court properly considered the sentencing factors outlined in 42 Pa.C.S. § 9721(b) - protection of the public, gravity of the offense with respect to victim and community, and rehabilitative needs of the defendant. Walls, 926 A.2d at 964; Commonwealth v. Velez, 273 A.3d 6, 12 (Pa. Super.), appeal denied, 283 A.3d 792 (Pa. 2022).
Appellant first argues that the trial court imposed a de facto life sentence by not providing a meaningful opportunity for her to obtain parole in her lifetime. Appellee's Brief, 12-18. Acknowledging that such sentence is not per se unreasonable, Appellant argues that court "must have a rational justification." Id. As a challenge to the trial court's exercise of discretion, this claim is waived. It was not encompassed within any of the four specific complaints raised in the Rule 2119(f) Statement. See Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013) (improper to not forward an argument for each discretionary sentencing claim raised where they are distinct claims, even though intertwined).
As a challenge to the legality of Appellant's sentence, her claim that she is subject to a de facto life term and thereby entitled to relief is meritless. In rejecting Felder's claim that his term of 50 years to life was unconstitutional as a de facto life sentence, the Pennsylvania Supreme Court held:
It logically and necessarily follows that if a discretionary sentencing scheme is constitutionally sufficient to permit the imposition of a life-without-parole sentence on a juvenile homicide offender, so too can a court impose a sentence that is something less than life without parole. This includes a term-of-years sentence that may amount to a de facto life sentence. Stated differently, as long as the sentence was the product of a discretionary sentencing system that included consideration of the juvenile's youth, the Eighth Amendment is satisfied.Felder, 269 A.3d at 1245-46. See also Miller, 275 A.3d at 533-534 (discretionary term of years sentence of 55 to life complies with the Eighth Amendment); Harper, 273 A.3d at 1094-95 (similar but applied to term of 35 years to life).
Turning to Appellant's challenges to the trial court's weighing of the Section 9721 factors, she argues it failed to adequately consider her rehabilitative needs and focused too much on the gravity of her offense.
Appellant's Brief, 18-26. We remain cognizant that the balancing of the sentencing factors is the sole province of the sentencing court. Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012). Moreover, where, as here, "the sentencing court imposed a standard-range sentence with the benefit of a pre-sentence report, we will not consider the sentence excessive," but will "assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Corley, 31 A.3d at 298 (internal quotation marks and citations omitted). As noted by the trial court, Appellant's sentence, given her status as a juvenile at the time of the torture-murder, is wholly consistent with her culpability in the range of sentences imposed on her fellow conspirators; the two with whom she shared the most culpability received death sentences, and the others received lesser terms than Appellant. N.T. 5/31/22, 54, 57-58, 60.
Appellant argues that the court "confused the concepts of rehabilitation with the capacity for rehabilitation." Appellant's Brief, 19 (emphasis in original). To the contrary, the required statutory factor is Appellant's "needs for rehabilitation" not her inherent capacity. 42 Pa.C.S. § 9721. That the trial court did not view the nearly 30-years-old Appellant as likely to become rehabilitated as did her expert is not an abuse of discretion. Nor does Appellant's argument that the trial court erroneously gave more weight to the report written by the Commonwealth's expert than that prepared by
Appellant's expert and his testimony. The court explained its reasons for not being convinced that Appellant was amenable to rehabilitation, including her continuing failure to accept responsibility for the totality of her role in the murder. N.T. 5/31/22, 63. It was reasonable for the court to conclude that Appellant's failure to show "that she is being rehabilitated" after 12 years in prison undermines her assertion she has the ability to become rehabilitated sooner rather than later. Id. at 74. According to the trial court, Appellant had continued to show manipulative behavior in achieving her ultimate goals, casting doubt on the expert opinion that had accepted her bald assertions. Ultimately, Appellant's argument is merely a complaint about the court's weighing of the evidence presented by the competing experts. It does not demonstrate an abuse of discretion. Bricker, 41 A.3d at 876. See Miller, 275 A.3d at 535.
In contrast to the competing expert reports here, we have found an abuse of discretion where a sentencing court disregarded an uncontradicted report by a psychiatric expert that concluded the juvenile was "very likely to transition successfully to the community without reoffending or exhibiting aggressive or violent behavior" and instead imposed the maximum term of life imprisonment without the possibility of parole. See Commonwealth v. Schroat, 272 A.3d 523, 529 (Pa. Super. 2022).
Appellant also argues that the court failed to review four letters written in her support by fellow inmates. Appellant's Brief, 21. As Appellant notes, there was no break in the proceedings when the trial court might have read the letters fully. However, there also is no evidence that the court could not glean the content of the letters quickly during the course of the proceeding. Indeed, the letters are not in the record available to us.
"It is well settled that the Appellant bears the burden of ensuring a completed record." Commonwealth v. Dunkle, 932 A.2d 992, 996 (Pa. Super. 2007).
More to the point, the content of the letters was not discussed by Appellant at the sentencing proceeding, in her post sentence motion brief, or in her Appellate brief. Under these circumstances, we cannot assume that the contents of these letters were so compelling as to require a different result. Moreover, the letters themselves are not a statutory factor the sentencing court was obligated to consider, but rather evidence - from laypersons - as to Appellant's rehabilitative needs. As such, the court was free to give them no weight at all. Bricker, 41 A.3d at 876. We will not vacate the sentence on the basis of the unknown content of letters that the trial court may or may not have been aware of, and which, under any circumstance, would have warranted far less weight than the expert reports, presentence investigation and the court's own experience with Appellant.
Appellant's final claim is that the trial court exhibited bias against her by focusing on the nature of her offenses. Appellant's Brief, 20. As a similar bias claim was raised in her appeal from the first resentencing, and the instant allegation relies in part on "the court's actions and statements during that hearing," Appellant's Brief, 22, this claim should have been raised as a motion for the trial court's recusal. Corley, 31 A.3d at 298 ("We note that if Appellant believed that the trial court was biased when it imposed its initial sentence, the proper practice was to address an application for recusal by petition to the judge"). Appellant did not do so, and therefore it is waived.
Even if we addressed this claim as though it were based solely on the instant resentencing, it is meritless. "[I]t was within the resentencing court's discretion to place emphasis on the serious nature of this crime. … Miller and its jurisprudence do not require that a resentencing court prioritize mitigating factors to the exclusion of all others or sentence those who committed crimes as a juvenile to the minimum sentence." Commonwealth v. Summers, 245 A.3d 686, 696 (Pa. Super. 2021), appeal denied, 276 A.3d 700 (Pa. 2022).
To demonstrate the alleged bias, Appellant notes that the trial court was personally affected by the facts of the case, for which it was the trial court for all of the conspirators. However, this also provided a perspective for the court to fairly evaluate the relative culpability of each of the conspirators. The extensive discussion of the facts of the case was in persuasive support of the court's conclusion that Appellant's participation reflected a heightened culpability rather than a diminished one for the crime. Moreover, Appellant's acceptance of responsibility paled in comparison to the near-in-age Meidinger who accepted full responsibility for her role in the torture-murder and testified at trial. As it is for the sentencing court to balance the relevant factors, Appellant has not demonstrated an abuse of discretion. Bricker, 41 A.3d at
876. "The goal to be achieved in the sentencing decision must accommodate a number of different objectives. The trial court is required to be fair to the offender but at the same time protect society and vindicate the victim." Commonwealth v. Jones, 565 A.2d 732, 734 (Pa. 1989) ("In dealing with such an equation, reasonable [people] can obviously differ"); Summers, 245 A.3d at 696 (Pa. Super. 2021) ("the court is permitted to hold juveniles accountable and impose a sentence commensurate' with a juvenile's actions").
The record demonstrates that in determining Appellant's discretionary term of years the trial court thoroughly considered the totality of requirements mandated by Pennsylvania law, including the protection of the public and Appellant's rehabilitative needs, in addition to the seriousness of her offenses. We find no abuse of discretion.
Judgment of sentence affirmed.
[*] Retired Senior Judge assigned to the Superior Court.