J. S29034/19

2019 PA Super 255

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JOSE E. HERNANDEZ, : No. 2210 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence Entered June 27, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0603151-1988

BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E. 

OPINION BY FORD ELLIOTT, P.J.E.: FILED AUGUST 21, 2019

Jose E. Hernandez appeals from the June 27, 2018 judgment of 

sentence of four concurrent terms of 45 years’ to life imprisonment imposed 

after a jury found him guilty of four counts of first-degree murder and one 

count of possessing instruments of crime (“PIC”).1 After careful review, we 

affirm the judgment of sentence.

A prior panel of this court summarized the relevant facts of this case as 

follows:

Appellant’s[

2] next door neighbor, Jerome Moses, 

testified that on March 14, 1988, he heard loud 

scuffling noises between 4:00 and 6:00 a.m. in the 

Hernandez apartment. As these noises continued, he 

heard Carmen Hernandez, appellant’s stepmother, 

 

1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.

2 Appellant was 17 years old at the time of this incident.
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say three times, “I love you.” He then heard three or 

four popping noises that sounded like a cap gun. 

Subsequently, Mr. Moses did not hear any more 

voices, but he did hear dragging sounds and noises 

resembling objects being replaced. He then heard 

somebody leave the apartment. When he looked out 

of the window, he saw one man get into the 

Hernandez family van. Mr. Moses originally thought 

that the man was appellant’s father, since the 

individual was wearing Mr. Hernandez’s jacket and 

since only the father drove the van. Once he learned 

that the father was dead, the witness then concluded 

that the man must have been appellant.

During the next week, friends, neighbors, and 

relatives became concerned about the Hernandez 

family since they had not been seen and since both of 

their vehicles were not in their normal parking places. 

Telephone calls to the apartment were not answered. 

Meanwhile, appellant decided to stay at his girlfriend’s 

house, and he told her mother that he was alone since 

his family suddenly left without telling him or taking 

him with them. However, the family had not told 

anyone about these travel plans. Appellant attended 

school regularly during the week, took his girlfriend 

on a shopping spree, and moved a VCR and other 

valuable items out of his family’s apartment and into 

his girlfriend’s house. His girlfriend commented on 

numerous deep scratches on appellant’s chest[,]

which he explained had been inflicted during a recent 

robbery.

Eventually, appellant was questioned in school by his 

parent[s’] friends and relatives concerning his family's 

whereabouts. He escorted them back to the 

apartment and allowed them to enter. When asked 

about blood stains on the sofa, appellant replied that 

the stains were Carmen’s blood. When questioned 

about why the bathroom door was locked, the fan on, 

and a towel under the door, he had no explanation. 

Appellant fled when the bathroom door was broken 

down and the bodies of his father, stepmother, and 

two younger brothers were found in the bathtub. The 

bodies were encased in plastic bags and covered with 
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towels. It was determined that both parents had been 

shot in the back of the head, one brother had been 

asphyxiated with a plastic bag over his head, and 

another brother had his skull crushed.

Appellant fled Pennsylvania in his father’s Honda. He 

reached Florida and then headed west through 

Tennessee. Tennessee State Troopers Richard Austin 

and Joel Deal observed appellant’s Honda parked in a 

rest stop. Several hours later, the officers observed 

appellant’s Honda parked in the same place at the rest 

stop. Trooper Austin watched appellant get out of his 

automobile, stretch, and put on a long coat. Since the 

weather was warm, Trooper Austin became 

suspicious. He ran a computer check on appellant’s 

license plate number which revealed that appellant 

was wanted in Pennsylvania in connection with 

multiple homicides, that the occupant of the Honda 

matched the description of the suspect, and that 

appellant was presumed armed and dangerous. The 

troopers returned to the rest stop, surprised appellant 

in the restaurant, and arrested him.

The troopers then asked for appellant’s license and 

identification. Police retrieved these items after 

appellant indicated that they were in his wallet in his 

back pocket. When the troopers requested the keys 

to the Honda, appellant indicated they were in his coat 

pocket. Trooper Deal reached in and took the keys 

and handed them to Trooper Austin. Trooper Austin 

inspected the car, unlocked it, and retrieved a letter 

sitting on the car seat in plain view. The letter was 

written by appellant, and in it, he informed his 

girlfriend that he had killed his family, was proud of it, 

and felt better. The troopers then locked the car, 

made arrangements to have it towed, read appellant 

his Miranda[

3] rights, and transported him to the 

nearest police station.

At trial, appellant alleged that he killed his father in 

self-defense and that his father continually abused 

him. He claimed his father was angry that appellant’s 

 

3 Miranda v. Arizona, 384 U.S. 436 (1966).
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stepmother again became pregnant and that his 

father frequently threatened to leave her or to kill the 

whole family. In fact, appellant alleged that his father 

was jealous and suspected him of impregnating his 

stepmother. Appellant produced witnesses who 

substantiated that his father beat him, was having 

marital discord, and had been seen by one of them 

threatening appellant by putting a gun to his head. 

Appellant’s specific defense to the charges of 

first[-]degree murder was that his father had returned 

home in a drunken rage and forced appellant to kill 

the others. His father then made him clean the 

apartment. Later, in the car, his father again 

threatened him, but appellant was able to shoot his 

father. Appellant argued that the evidence supported 

this version of events since the blood-stained seats in 

the car matched only his father’s blood type. The 

Commonwealth refuted this evidence by proving that 

the barrel of the murder weapon contained only the 

blood type[,] which matched his stepmother, but not 

his father. Thus, appellant’s stepmother[,] rather 

than his father[,] was the last one to be shot with that 

gun.

Commonwealth v. Hernandez, 590 A.2d 325, 326-328 (Pa.Super. 1991), 

appeal denied, 600 A.2d 534 (Pa. 1991).

The sentencing court summarized the relevant procedural history of this 

case as follows:

On January 25, 1990, after a jury trial before the 

Honorable Eugene H. Clarke, a jury convicted 

[appellant] of four counts of First-Degree Murder and 

[PIC]. On that same date, [the trial court] sentenced 

[appellant] to two consecutive and two concurrent 

terms of life imprisonment without the possibility of 

parole for the First-Degree Murder convictions, and a 

concurrent sentence of two and one-half to five years 

of imprisonment for PIC.

On June 25, 2012, the Supreme Court of the United 

States issued its holding in Miller v. Alabama, 567 
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U.S. 460 (2012), which rendered all mandatory life 

imprisonment without parole sentences for juveniles 

unconstitutional. On January 27, 2016, the Supreme 

Court of the United States issued its holding in 

Montgomery v. Louisiana, --- U.S. ----, 136 S.Ct.

718 (2016), which held that the Miller decision 

applied retroactively. 

In 2016, a three-judge en banc panel for the 

Philadelphia County Court of Common Pleas was 

established to decide all questions of law concerning 

the resentencing of juveniles previously sentenced to 

life without parole.[Footnote 2] On October 28, 2016, 

the en banc panel was presented with fifteen 

questions of law. On April 13, 2017, the en banc

panel issued its opinion addressing each question of 

law.

[Footnote 2] In 2016, the [Philadelphia 

County] Court of Common Pleas, adopted 

“General Court Regulation No. 1 of 2016.” 

The Regulation established procedures for 

juvenile lifers previously sentenced to life 

without parole to have an opportunity to 

show that their crimes did not reflect 

irreparable corruption and that they 

should be considered for release on 

parole. For further discussion on what 

necessitated the regulation, see Miller v. 

Alabama, [567 U.S. 460] (2012) and 

Montgomery v. Louisiana, 136 S.Ct. 

718 (2016). 

[Appellant filed a petition pursuant to the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, on 

February 29, 2016.] On June 27, 2018, the [PCRA 

court] granted [appellant] post-conviction relief and 

vacated his January 25, 1990 sentence. On that same 

date [the trial court] imposed concurrent forty-five 

years to life sentences on each count of First-Degree 

Murder, and no further penalty on PIC. [Appellant] 

did not file a post-sentence motion.
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On July 27, 2018, [appellant] filed a timely Notice of 

Appeal. On July 30, 2018, [the trial court] ordered 

[appellant] to file a Concise Statement of [Errors]

Complained of on Appeal pursuant to 

Pa.R.A.P. 1925(b). On August 3, 2018, [appellant]

filed a timely 1925(b) Statement, and a motion for

extension of time to file a supplemental Statement. 

On August 21, 2018, [the trial court] granted 

[appellant’s] request. On September 14, 2018, 

[appellant] filed a timely supplemental Statement.

Trial court opinion, 9/25/18 at 1-2 (additional footnotes omitted).

On March 22, 2019, the Commonwealth filed a motion to stay the 

briefing schedule, based on the fact that it has taken the position in a case 

currently pending before our supreme court, Commonwealth v. Felder, 

2017 WL 6505643 (Pa.Super. 2017) (unpublished memorandum), appeal 

granted, 187 A.3d 909 (Pa. June 19, 2018), “that a minimum sentence of 

over 40 years for a resentenced juvenile is a de facto life sentence, and so 

cannot be imposed unless the juvenile is proven to be incorrigible beyond a 

reasonable doubt.” (Commonwealth’s brief at 2.) On April 8, 2019, this court 

issued a per curiam order denying the Commonwealth’s motion to stay the 

briefing schedule and permitting it to raise issues related to Felder in its brief.

On appeal, appellant raises the following issues for our review:

1. Was not the [sentencing] court’s sentence of 

45 years to life imprisonment a de facto life 

sentence requiring proof beyond a reasonable 

doubt that [appellant] was incapable of 

rehabilitation?

2. Did not the [sentencing] court err in sentencing 

[appellant] to a de facto sentence of life 

imprisonment without the possibility of parole 
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where [appellant] has, in fact, been successfully 

rehabilitated over the course of his thirty years 

of imprisonment?

3. Did not the [sentencing] court err in imposing a 

mandatory lifetime parole tail on [appellant] in 

violation of Amendment VIII of the United 

States Constitution?

Appellant’s brief at 3.

In its brief to this court, the Commonwealth avers that the trial court 

did not find appellant to be “permanently incorrigible.” (Commonwealth’s 

brief at 9, referencing trial court opinion, 9/25/18 at 8.) The Commonwealth 

agrees with appellant “that a minimum sentence of 45 years is 

unconstitutional for a redeemable juvenile offender” and “his mandatory 

lifetime parole tail is unconstitutional.” (Id.) In reaching these conclusions, 

the Commonwealth concedes that this court is bound by precedent,

4 but 

requests that we hold this matter in abeyance until the Supreme Court of 

Pennsylvania addresses the threshold de facto life sentence issue in Felder. 

(Id. at 9-10.) We decline to do so.

“It is axiomatic that this Court is bound by existing precedent under the 

doctrine of stare decisis and continues to follow controlling precedent as long 

as the decision has not been overturned by our Supreme Court.” 

Commonwealth v. Martin, 205 A.3d 1247, 1252 (Pa.Super. 2019). As 

 

4 Specifically, Commonwealth v. Bebout, 186 A.3d 462 (Pa.Super. 2018), 

and Commonwealth v. Blount, 207 A.3d 925 (Pa.Super. 2019), discussed 

infra.
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discussed below, our decisions in Bebout and Blount are controlling in this 

matter and render appellant’s claims meritless.

Appellant first contends that his aggregate judgment of sentence of 

45 years to life imprisonment “constituted a de facto life sentence requiring 

that the Commonwealth establish beyond a reasonable doubt that [appellant] 

is incapable of rehabilitation.” (Appellant’s brief at 18.) In a related claim, 

appellant further avers that, “the Commonwealth failed to show that [he] was 

incapable of being rehabilitated as required to support a de facto life sentence 

because the record reflects that [appellant] has, in fact, been rehabilitated.” 

(Id. at 28.)

Appellant’s claims implicate the legality of his sentence. “[A] claim

challenging a sentencing court’s legal authority to impose a particular 

sentence presents a question of sentencing legality.” Commonwealth v. 

Batts, 163 A.3d 410, 434-435 (Pa. 2017) (citations omitted). “The 

determination as to whether a trial court imposed an illegal sentence is a 

question of law; an appellate court’s standard of review in cases dealing with 

questions of law is plenary.” Commonwealth v. Crosley, 180 A.3d 761, 771 

(Pa.Super. 2018) (citation omitted), appeal denied, 195 A.3d 166 (Pa. 

2018).

Here, appellant’s aggregate judgment of sentence of 45 years’ to life 

imprisonment is consistent with this court’s recent holding in Bebout, 186 

A.3d 462. Bebout involved a 15-year-old defendant who was resentenced to 
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45 years’ to life imprisonment for second-degree murder and related offenses,

pursuant to Miller and Montgomery. Bebout, 186 A.3d at 468. The Bebout

court concluded that “[t]he key factor in considering the upper limit of what 

constitutes a constitutional sentence,” as opposed to a de facto sentence of 

life in prison without parole for a juvenile who was not deemed incapable of 

rehabilitation, is whether there is “some meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.” Id. (citation 

omitted). “To be meaningful or, at least, potentially meaningful, it must at 

least be plausible that one could survive until the minimum release date with 

some consequential likelihood that a non-trivial amount of time at liberty 

awaits.” Id. In reaching this conclusion, the Bebout court reasoned that 

although the 45-years-to-life sentence “falls between the ‘clearly’ 

constitutional and unconstitutional parameters suggested by the Foust5

Court[,]” the defendant failed to show that a sentence which authorized his 

release at age 60 was the functional equivalent of a life-without-parole 

sentence. Id. at 467.

 

5 Commonwealth v. Foust, 180 A.3d 416 (Pa.Super. 2018). In Foust, a 

panel of this court held that “a trial court may not impose a term-of-years 

sentence on a juvenile convicted of homicide if that term-of-years sentence 

equates to a de facto [life-without-parole] sentence unless it finds, beyond a 

reasonable doubt, that the juvenile is incapable of rehabilitation.” Id. at 433. 

The Foust court determined that term-of-years sentence of 30 years’ 

imprisonment did not constitute a de facto sentence of life without parole 

[“LWOP”]. Id. at 438. In reaching this conclusion, the Foust court explicitly 

“decline[d] to draw a bright line in this case delineating what constitutes a 

de facto LWOP sentence and what constitutes a constitutional term-of-years 

sentence[,]” and instead limited itself to the facts of the case before it. Id.
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Likewise, in the instant matter, appellant has failed to demonstrate that 

he has no plausible chance of survival until his minimum release date. While 

appellant will not be eligible for parole until age 62, albeit two years longer 

than the defendant in Bebout, appellant has not shown any significant 

difference between the ages at the earliest possible point of release that would 

distinguish his case from Bebout. Accordingly, we decline to find that 

appellant’s sentence constituted a de facto life sentence, necessitating a 

finding by the sentencing court that appellant is “incapable of rehabilitation.” 

See Foust, 180 A.3d at 433. 

Appellant next argues that the sentencing court illegally sentenced him 

to “a maximum sentence with a mandatory lifetime parole tail[,]” which he 

avers does not comport with the holdings in Miller and Montgomery that 

resentenced juveniles be given individualized sentences, and violates the 

prohibition against “cruel and unusual punishments” contained in the Eighth 

Amendment to the United States Constitution. (Appellant’s brief at 33, 37.) 

In support of this contention, appellant avers that “there is no relevant statute 

or appellate case law requiring the imposition of a lifetime parole tail.” (Id.

at 33.) We disagree.

This issue was addressed by our supreme court in Commonwealth v. 

Batts, 163 A.3d 410 (Pa. 2017), and more recently by this court in Foust and 

Blount, which was decided April 8, 2019. Specifically, the Blount court 

stated as follows:
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For those defendants [convicted of first or 

second-degree murder prior to June 25, 2012,] for 

whom the sentencing court determines a [life without 

parole] sentence is inappropriate, it is our 

determination here that they are subject to a 

mandatory maximum sentence of life imprisonment 

as required by Section 1102.1(a), accompanied by a 

minimum sentence determined by the common pleas 

court upon resentencing[.]

Blount, 207 A.3d at , citing Commonwealth v. Seskey, 170 A.3d 1105, 

1108 (Pa.Super. 2017), quoting Batts, 163 A.3d at 421 (brackets in original).

As noted by the Foust court, in light of our supreme court’s decision in 

Batts, “there was valid statutory authority to impose a maximum sentence of 

life imprisonment for [a] first-degree murder conviction.” Foust, 180 A.3d at 

430. Contrary to appellant’s contention, this court has explicitly held that

such mandatory maximums do not violate the Eighth Amendment’s ban on 

cruel and unusual punishment or the mandates of individualized sentencing. 

See Commonwealth v. Olds, 192 A.3d 1188, 1197-1198 (Pa.Super. 2018) 

(holding that, the imposition of mandatory maximum sentence of life 

imprisonment for a juvenile defendant convicted of second-degree murder 

prior to Miller was constitutional and did not violate Eighth Amendment’s ban 

on cruel and unusual punishment), appeal denied, 199 A.3d 334 (Pa. 2018); 

Seskey, 170 A.3d at 1107-1108 (holding that, the trial court was required to 

impose a mandatory maximum sentence of life imprisonment when it 

resentenced a juvenile defendant convicted of first-degree murder prior to 

Miller). Accordingly, appellant’s second claim fails. 
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For all the foregoing reasons, we affirm appellant’s June 27, 2018 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2019