J-A12011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

RICKY BREEZE MOOREFIELD,

Appellant No. 709 WDA 2018

Appeal from the Judgment of Sentence Entered March 1, 2018

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013363-1996

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 6, 2019

Appellant, Ricky Breeze Moorefield, appeals from the judgment of 

sentence of 40 years’ incarceration to life imprisonment (“40-life”), imposed 

following resentencing for his 1999 conviction for first-degree murder, for 

which he had originally been sentenced to life without the possibility of parole 

(“LWOP”). Appellant challenges the discretionary aspects of his sentence. 

After careful review, we affirm.

On September 27, 1996, police were called to the scene of 

a shooting. They found the body of Jason Wingfield, who had been 

shot three times in the head and face and once in the elbow. 

During their investigation, the police interviewed several people 

including Kevin Tuggles who ultimately told the police that he had 

seen Appellant shoot the victim. Appellant[, who was 17 years 

old at the time,] was ... arrested and interviewed by detectives. 

He gave both oral and audiotaped statements in which he 

admitted shooting Wingfield. Both in his statement and in his 

testimony at trial, Appellant recounted a confrontation he had with 

Jeff Lowry a day or two before the shooting. As a result of this 

confrontation and subsequent ... conversations with Lowry and the 
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victim, Appellant stated that he believed either Lowry or the victim 

intended to kill him.

Commonwealth v. Moorefield, No. 301 WDA 2000, unpublished 

memorandum at 1-2 (Pa. Super. filed July 17, 2001). Following a jury trial, 

Appellant was convicted of first-degree murder and carrying a firearm without 

a license. On January 19, 2000, the trial court sentenced Appellant to a 

mandatory term of LWOP for first-degree murder. This Court affirmed his 

judgment of sentence, and our Supreme Court denied further review. 

Commonwealth v. Moorefield, 782 A.2d 1057 (Pa. Super. 2001) 

(memorandum), appeal denied, 808 A.2d 570 (Pa. 2002). Appellant 

subsequently filed several unsuccessful PCRA1 petitions, none of which “are 

relevant to this appeal.” Appellant’s Brief at 15. 

Appellant filed, pro se, his fourth PCRA petition on March 10, 2016, 

“seeking a resentencing hearing in light of the United States Supreme 

Court[’s] decisions in” Miller v. Alabama, 567 U.S. 460 (2012), and 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 The PCRA court 

appointed current counsel, who then filed an amended PCRA petition on 

Appellant’s behalf. The Commonwealth conceded that Appellant was entitled 

to resentencing, and the PCRA court granted the petition.

____________________________________________

1 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

2

In Miller, the Supreme Court of the United States ruled that the Eighth

Amendment prohibits mandatory LWOP sentences for juvenile offenders. In 

Montgomery, the Court held that Miller had announced a new substantive 

constitutional rule that applied retroactively on state collateral review. 
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A resentencing hearing was held on February 21, 2018. In addition to 

Appellant’s testimony, the resentencing court heard testimony from his aunt, 

Beatrice Simpson; his wife, Tahnee Moorefield; his daughter, Camaya 

Moorefield; and a mitigation expert, Samuel K. Schachner, Ph.D. (“Dr. 

Schachner”). The Commonwealth called one witness, Agent Michael Glen of 

the Pennsylvania Department of Corrections. On March 1, 2018, the court 

resentenced Appellant to 40-life for murder.

3

 Appellant filed a timely postsentence motion on March 12, 2018, which was denied on April 12, 2018. He

then filed a timely notice of appeal on May 11, 2018, and a timely, courtordered Pa.R.A.P. 1925(b) statement on June 5, 2018. The resentencing court 

issued its Rule 1925(a) opinion on August 22, 2018. 

Appellant now presents the following questions for our review: “Did the 

Sentencing Court commit legal error and abuse its discretion when it 

resentenced Appellant, a juvenile-lifer, to 40[-]life?” Appellant’s Brief at 4.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Commonwealth v. 

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: (1) whether 

[the] appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. [720]; (3) whether [the] 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the sentence 

____________________________________________

3 The court assessed no further penalty for Appellant’s conviction for carrying 

a firearm without a license. 
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appealed from is not appropriate under the Sentencing 

Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), 

appeal denied, ... 909 A.2d 303 ([Pa.] 2006) (internal citations 

omitted). Objections to the discretionary aspects of a sentence 

are generally waived if they are not raised at the sentencing 

hearing or in a motion to modify the sentence imposed. 

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), 

appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. Commonwealth v. 

Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial 

question exists “only when the appellant advances a colorable 

argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the 

sentencing process.” Sierra, supra at 912-13.

As to what constitutes a substantial question, this Court 

does not accept bald assertions of sentencing errors. 

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 

2006). An appellant must articulate the reasons the sentencing 

court’s actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

Appellant has satisfied these prerequisites to appellate review of his 

discretionary-aspects-of-sentencing claim. He filed a timely notice of appeal 

and a timely post-sentence motion raising the issue(s) now presented in his 

brief. He also provided a Rule 2119(f) statement in his brief. Additionally, 

Appellant presents a substantial question for our review. A “claim that the 

sentence is manifestly excessive, inflicting too severe a punishment, ... 

present[s] a substantial question. Moreover, the sentencing court’s failure to 

set forth adequate reasons for the sentence imposed also raises a substantial 
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question.” Commonwealth. v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016) 

(cleaned up). Accordingly, we may review the merits of Appellant’s claim.4 

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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation 

omitted).

Appellant argues that the resentencing court “ran afoul of the mandates 

of Miller in four particulars” when it resentenced him to 40-life. Appellant’s 

Brief at 22. Recently, in Commonwealth. v. Machicote, 206 A.3d 1110 (Pa. 

2019), the Pennsylvania Supreme Court held that “when a juvenile is exposed 

to a potential sentence of [LWOP] the trial court must consider the Miller

factors,[5] on the record, prior to imposing a sentence.” Id. at 1120. A 

____________________________________________

4

In this regard, we reject the resentencing court’s contrary conclusion that 

Appellant failed to present a substantial question for appellate review.

 

5 As our Supreme Court stated in Commonwealth v. Batts, 163 A.3d 410

(Pa. 2017), compliance with Miller

requires consideration of the defendant’s age at the time of the 

offense, as well as “its hallmark features,” including:

immaturity, impetuosity, and failure to appreciate risks and 

consequences[;] ... the family and home environment that 

surrounds him—and from which he cannot usually extricate 

himself—no matter how brutal or dysfunctional[;] ... the 
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sentencing court’s failure to do so renders the imposed sentence illegal, even 

if the defendant is not ultimately sentenced to LWOP. Id.

Here, the Commonwealth did not seek imposition of LWOP. Thus, the 

resentencing court was not required to apply the Miller factors in crafting

Appellant’s new sentence. Nevertheless, the resentencing court considered 

the Miller factors when it imposed Appellant’s new sentence of 40-life. See

N.T., 3/1/18, at 9 (“There are also, of course, guidelines provided through the 

Miller case about things that we should look at when we are resentencing and 

some of those perhaps work in your favor and some of them don’t.”); and 

see id. at 9-16 (addressing individual Miller factors prior to imposing 

sentence). Accordingly, out of an abundance of caution, we will consider 

whether the resentencing court abused its discretion in applying the Miller

factors in fashioning Appellant’s sentence. However, it is clear that the 

resentencing court did not violate Machicote, as Appellant was never 

“exposed to a potential sentence of life without the possibility of parole[.]” 

Machicote, 206 A.3d at 1120. 

____________________________________________

circumstances of the homicide offense, including the extent 

of his participation in the conduct and the way familial and 

peer pressures may have affected him[;] ... that he might 

have been charged and convicted of a lesser offense if not 

for incompetencies associated with youth—for example, his 

inability to deal with police officers or prosecutors (including 

on a plea agreement) or his incapacity to assist his own 

attorneys[;] ... [and] the possibility of rehabilitation ... 

when the circumstances [(the youthfulness of the offender)] 

most suggest it.

Id. at 431 (quoting Miller, 576 U.S. at 477-78).
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Appellant first argues that the resentencing court abused its discretion 

by treating Appellant’s age at the time of his crime (17) as an aggravating 

factor despite his expert witness’ opinion that Appellant was far more 

immature than his chronological age:

Here, notwithstanding that [Appellant]’s expert, Dr. Schachner, 

characterized him as a “pre-teen” at the time of the shooting due 

to his “limited experience of a moral compass” and “many 

impediments to higher level judgment and consideration of 

decision making,” the [res]entencing [c]ourt thought it more 

important to think of [Appellant] as a near adult. It emphasized 

that [Appellant] was “not a 15-year-old boy . . . not a 14-year-old 

boy ... [but] a 17 year old, close to 18 when this [shooting] 

occurred,” as if his chronological age of 17 was a strike against 

him, or meaningful in any way in light of the expert analysis 

provided.

Quite simply, the [res]entencing [c]ourt viewed [Appellant]’s age 

too simplistically, considering him more as if he were an adult than 

the immature child that he really was. In essence, therefore, the 

... [c]ourt erred in treating [Appellant]’s chronological age as if it 

were an aggravating circumstance, making him someone who’s 

more worthy of a harsher sentence.

Appellant’s Brief at 25 (footnotes omitted). 

The resentencing court rejected this claim for the following reasons:

With respect to [Appellant]’s claim that this court “minimized” his 

age and aligned him more with an adult than as a “pre-teen” as 

Dr. Schachner described him in his report, the court simply took 

note of the undisputed fact that [Appellant] was eleven (11) 

months[’] shy of committing the crime as an adult. [Appellant] 

was born on August 22, 1979, and he committed the murder on 

September 27, 1996, when he was 17 years [and] 1 month old. 

The court further considered the facts that [Appellant] had 

admitted to Dr. Schachner during his interview regarding the 

circumstances of the crime (i.e.[,] planning the confrontation, 

firing multiple shots, changing clothes and fleeing the scene), and 

it found that his actions aligned more with the actions of an adult 

than that of a 10, 11 or 12 year old. []Psychological Report, 
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10/5/17, [at] 8[]; (Sentencing Transcript [(“ST”)], 3/21/18, [at] 

55).

Moreover, at the resentencing hearing, Dr. Schachner qualified his

characterization of [Appellant] as a “pre-teen” when the 

Commonwealth confronted him with the specific facts of the 

murder. [Id.] Indeed, when the Commonwealth asked “how 

admittedly luring someone out into an alley, shooting them three 

times, changing their clothes afterwards ... can be equated with 

the actions of an 11 or 12 or ten-year-old?”, Dr. Schachner 

replied, “[w]ith those specific examples, they may be less 

related.” [Id.] He explained that his “pre -teen” description was 

“[s]pecific to [Appellant’s] ability to demonstrate executive 

functioning, cognitive ability, academic achievement and 

recognizing right or wrong.” [Id.] 

Resentencing Court Opinion (“RSCO”), 8/22/18, at 7. 

We ascertain no abuse of discretion with regard to the resentencing 

court’s consideration of Appellant’s age at the time of the murder. First, the 

court was not required to accept Dr. Schachner’s opinion at face value. 

Second, his opinion with regard to Appellant’s effective age in terms of his 

maturity at the time of the murder was essentially impeached, at least in part. 

Third, Appellant’s actual/chronological age is itself a relevant factor to consider 

under Miller; indeed, the court was required to consider his chronological age. 

See Batts, 163 A.3d at 431. Fourth, it would have been rational for the court 

to consider Appellant’s actual age at the time of the crime as an aggravating 

factor. Just as it is reasonable to believe that a pre-teen presents a greater 

potential for rehabilitation, a corollary follows that a juvenile closer to the age 

of maturity may present relatively less potential for rehabilitation. 

Accordingly, we conclude that this aspect of Appellant’s sentencing claim is 

meritless. 
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Next, Appellant argues that the resentencing court abused its discretion 

by not permitting him to “elicit the nature and circumstances of the underlying 

crime from his perspective.” Appellant’s Brief at 26 (emphasis added). 

Specifically, the court prevented defense counsel from eliciting Appellant’s 

subjective views concerning the events that led up to the murder of Jason 

Wingfield. See N.T., 2/21/18, 89-93. Appellant specifically complains that 

he

was foreclosed from answering the question [of] why he continues 

to maintain self-defense, and he was denied the opportunity to 

rebut the assertion that this somehow shows a lack of capacity for 

rehabilitation. [Appellant] appreciated that he didn’t get to 

change the facts as the jury found them-which expressly rejected 

his claim of self-defense-but he wanted at least the opportunity to 

tell the [res]entencing [c]ourt why he acted the way he did, why 

he believed self-defense was at issue (rightly or wrongly), and 

why he still believes that to be the case.

But that did [not] happen here. Rather[,] what happened was 

that the [res]entencing [c]ourt, which wasn’t the trier of fact, got 

a narrow view of the underlying circumstances of this crime, 

without any first-hand perspective from [Appellant], and it was 

left with the Commonwealth’s singular viewpoint as to why 

[Appellant] continued to maintain self-defense-i.e.[,] because 

he’s “not rehabilitated” and he exhibits “a real lack of 

accountability.” That singular perspective robbed [Appellant]’s 

resentencing proceeding of perspective and a full picture that was 

necessary to meting out a truly individualized sentence. In that 

regard, the [res]entencing [c]ourt erred. 

Appellant’s Brief at 31-32. 

While the facts and circumstances of the underlying crime are certainly 

relevant matters when resentencing pursuant to Miller, Appellant fails to cite 

any authority for the proposition that Appellant’s subjective view of those facts 

and circumstances are relevant or important factors. As such, we cannot 
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conclude that the resentencing court abused its discretion by refusing to hear 

from Appellant in that regard. 

In any event, the resentencing court indicates that it “was well aware of 

[Appellant’s] perspective on the matter by way of Dr. Schachner’s testimony 

and his expert report, which contained incredibly detailed information from 

[Appellant] as to his background and his position regarding the circumstances 

of the crime.” RSCO at 8. We agree with the resentencing court that, to the 

extent that Appellant’s subjective beliefs regarding the murder were relevant 

to his resentencing, the court was aware of them. Moreover, Appellant fails 

to specify in his brief how his omitted testimony would have added to or 

corrected Dr. Schachner’s report and/or testimony.6 Accordingly, even if 

Appellant’s subjective view of the facts and circumstances of this case were 

relevant, we would ascertain no abuse of discretion in the resentencing court’s 

decision to preclude Appellant’s testimony. 

Next, Appellant contends that the court abused its discretion when it 

asserted that there “does not seem to be any suggestion that [Appellant was] 

____________________________________________

6 Appellant argues that “he wanted at least the opportunity to tell why he 

acted the way he did, why he believed self-defense was at issue (rightly or 

wrongly), and why he still believes that to be the case.” Appellant’s Brief at 

31 (emphasis in original). However, Appellant does not detail those reasons 

in his brief, nor how those specific reasons would have suggested that a lesser 

sentence was appropriate. Appellant contends that in the absence of his 

perspective, the court “was left with the Commonwealth’s singular viewpoint 

as to why he continued to maintain self-defense,” that being that he was 

ostensibly not rehabilitated and that he lacked accountability. Id. at 31-32. 

Yet, Appellant provides no alternative in his brief but for the mere abstract 

notion that he might have provided a different theory for the court to consider. 
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unable to cooperate with [his] attorney or with the police.” N.T., 3/1/18, at 

11. Appellant argues that this “assertion was belied by Dr. Schachner’s 

report....” Appellant’s Brief at 32. Appellant points to statements in Dr. 

Schachner’s report that Appellant was exceptionally immature for a 17 year 

old at the time of the murder, and the doctor’s opinion that he was skeptical 

that Appellant truly comprehended the proceedings or the consequences of 

his inculpatory statements. Id. at 32-33.

The resentencing court responds:

With respect to the claim that this court [glossed] over 

[Appellant]’s ability to cooperate with counsel or law enforcement 

at the time of trial, the issue before this court was not whether 

[he] deserved a new trial, but rather what sentence was 

appropriate for his crime. [Appellant] took the stand on his own 

behalf at trial and asserted his self-defense claim, which shows 

that he was able to adequately participate in his defense and trial 

strategy. In this court’s estimation, [Appellant]’s admissions 

regarding his actions on the day of the murder indicate a degree 

of criminal sophistication which substantially weakens [his] 

suggestion that he was unable to adequately cooperate with 

counsel or law enforcement. The court also notes that [Appellant] 

was accompanied by his mother when he voluntar[il]y ... 

surrendered to police after the murder.

RSCO at 8-9. 

We do not agree that the record supports that Appellant was able to 

participate in a meaningful way in his own defense merely because he took 

the stand to express his self-defense. Nevertheless, there is very little 

indication in the record that Appellant’s immaturity undermined the fairness 

of his trial or his participation therein in any significant way. Ultimately, the 

facts that Appellant both waived his Miranda rights and confessed in the 
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presence of his mother indicate that this particular Miller factor did not weigh 

strongly in Appellant’s favor. 

Finally, Appellant argues that the resentencing court took Dr. 

Schachner’s findings out of context, and effectively treated what should have 

been mitigating factors as aggravating factors. We disagree. As accurately 

noted by the Commonwealth, the resentencing court “was not obligated to 

accept every statement made by [A]ppellant’s expert. ‘Furthermore, when 

expert opinion evidence is admitted, the factfinder is free to reject it, accept 

it, or give it some weight between the two.’ Commonwealth v. Stephens, 

74 A.3d 1034, 1041 (Pa. Super. 2013).” Commonwealth’s Brief at 20.

Appellant quibbles about specific statements made by the resentencing 

court as they relate to Dr. Schachner’s findings, which incorrectly presumes 

that the court was bound by those findings, although it was not. Moreover, 

Appellant argues over minutiae, and in doing so misses the forest for the trees, 

as we conclude that the resentencing court provided, overall, a detailed and 

thoughtful analysis of the Miller factors as they related to Appellant’s 

resentencing. See N.T., 3/1/18, at 8-16. 

Moreover, 18 Pa.C.S. § 1102.1(a) provides, in pertinent part, as follows:

(a) First degree murder.--A person who has been convicted 

after June 24, 2012, of a murder of the first degree, first degree

murder of an unborn child or murder of a law enforcement officer 

of the first degree and who was under the age of 18 at the time 

of the commission of the offense shall be sentenced as follows:

(1) A person who at the time of the commission of the 

offense was 15 years of age or older shall be sentenced to 

a term of life imprisonment without parole, or a term of 
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imprisonment, the minimum of which shall be at least 35 

years to life.

18 Pa.C.S. § 1102.1(a). 

Unfortunately, our legislature has failed to provide explicit guidance for 

situations where, as here, a defendant was originally convicted prior to June 

24, 2012. However, our Supreme Court has indicated that, despite this 

legislative oversight, a “sentencing court should fashion the minimum term of 

incarceration using, as guidance, Section 1102.1(a) of the Crimes Code.” 

Batts, 163 A.3d at 460. Here, Appellant was sentenced to 40-life, only 5 

years’ minimum incarceration more than the mandatory-minimum sentence 

provided by Section 1102.1(a)(1). Additionally, as noted by the 

Commonwealth, 

[I]t is noted that with the changes that occurred to Pennsylvania’s 

Sentencing Code after Miller, a sentence ... for a first[-]degree 

murder committed by a defendant such as [A]ppellant, would 

have an Offense Gravity Score of 15. With an Offense Gravity 

Score of 15, [and] if [A]ppellant’s prior record score was [zero], 

the sentencing guidelines would provide a standard range 

sentence of thirty-five years to life as a minimum sentence, plus 

or minus five years for aggravating or mitigating factors. 204 

Pa.Code [§§] 303.15 and 303.16(b). 

Commonwealth’s Brief at 11. Thus, under the sentencing guidelines, 

Appellant’s sentence falls on the boundary between the standard and 

aggravated range. 

Thus, we consider Appellant’s sentence as a small deviation upward 

from the mandatory minimum sentence under Section 1102.1(a)(1), and a 

top-of-the-standard-range or bottom-of-the-aggravated-range sentence 
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under the sentencing guidelines. In light of this, it appears that the 

resentencing court only afforded slightly more weight to aggravating factors 

than it did to mitigating factors, and we ascertain no manifest 

unreasonableness in such a determination. To the extent that Appellant is 

merely complaining about the relative weight that the resentencing court 

afforded to these various factors, such a claim does not present a substantial 

question for our review. See Commonwealth v. Disalvo, 70 A.3d 900, 903 

(Pa. Super. 2013) (holding that an “argument that the trial court failed to give 

adequate weight to mitigating factors does not present a substantial question 

appropriate for our review”). 

For all the aforementioned reasons, we conclude that Appellant is not 

entitled to relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/6/2019