J-A26035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN SAMUEL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 250 WDA 2019

Appeal from the Judgment of Sentence Entered January 22, 2019

In the Court of Common Pleas of Beaver County Criminal Division at 

No(s): 

CP-04-CR-0001376-1996

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 16, 2019

Appellant, Brian Samuel, appeals from the judgment of sentence 

entered on January 22, 2019 in the Criminal Division of the Court of Common 

Pleas of Beaver County. On appeal, Appellant challenges the legality of his 

sentence as well as the exercise of the court’s discretion in fixing his 

punishment. In particular, Appellant alleges that his consecutive sentences 

of 30 years to life for two first-degree murder convictions constitute a de facto

sentence of life without the possibility of parole (LWOP) which violates his 

constitutional rights. Appellant also claims that the trial court erred in 

imposing upon him the costs of prosecution associated with resentencing 

procedures necessitated by the evolution of constitutional law. In the 

alternative, Appellant maintains that the trial court abused its discretion by

imposing an excessive sentence and in denying the appointment of a 
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mitigation expert. For the reasons that follow, we conclude that the trial court 

imposed lawful sentences and that it did not abuse its discretion during the 

course of Appellant’s resentencing proceedings. We vacate, however, the 

judgment of sentence to the extent it directed Appellant to pay the costs of 

prosecution.

The trial court summarized the facts and procedural history in this case 

as follows.

On April 11, 1996, at about 10:00 p.m. in the City of Aliquippa, 

Beaver County, William and Teresa Samuel were murdered, 

contemporaneously, in and just outside their home. [Appellant] 

along with his co-defendants were arrested and charged with both 

killings on or about April 15, 1996. At the time of the incident, 

[Appellant], who was the son of both victims, was 16 years of age, 

born May 21, 1979. Following a jury trial which began on 

September 22, 1997, [Appellant] was found guilty on all counts in 

the information. The most serious of the counts being 

first-degree murder, the case then proceeded to a penalty phase. 

The jury rendered a verdict of life imprisonment as to one of the 

co-defendants but could not reach a verdict as to [Appellant] or 

[his] other co-defendant. The [trial c]ourt discharged the jury at 

that time and on October 28, 1997, sentenced [Appellant] to two 

consecutive terms of life imprisonment [without the possibility for 

parole] for the first-degree murder convictions.

[Appellant] appealed from the judgment of sentence and on 

October 6, 1999, th[is] Court affirmed. Subsequently, [Appellant]

filed a petition for allowance of appeal, and on May 9, 2001 the 

Supreme Court of Pennsylvania issued an order denying 

[Appellant’s] petition. On August 6, 2012, [Appellant] filed a pro

se motion [pursuant to the Post-Conviction Relief Act1 (“PCRA”)]

citing Miller v. Alabama[, 567 U.S. 460 (2012)]. Th[e PCRA 

c]ourt appointed the Beaver County Public Defender’s office to 

represent [Appellant] and on May 1, 2013 the [c]ourt entered an 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
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[o]rder deferring its decision on [Appellant’s] petition pending [a] 

decision by [the Pennsylvania] Supreme Court in 

Commonwealth v. Cunningham, 51 A.3d 178 (Pa. 2012), 

which had granted an appeal on the issue of whether Miller

applied retroactively to an inmate serving a sentence of life 

imprisonment without parole when the inmate had exhausted his 

direct appeal rights and is proceeding under the [PCRA].

On December 23, 2013, the [PCRA c]ourt entered an [o]rder 

providing that our Supreme Court in Commonwealth v. 

Cunningham, 81 A.3d 1 (Pa. 2013) had decided that “Miller’s

proscription of the imposition of mandatory life-without-parole 

sentences upon offenders under the age of 18 at the time their 

crimes were committed will not be extended retroactively[.]” 

Thereafter, on February 5, 2014, the [c]ourt dismissed 

[Appellant’s] PCRA petition without a hearing.

On or about March 4, 2016, [Appellant] filed a[ second PCRA 

petition] arguing that the United States Supreme Court held in 

Montgomery v. Louisiana[, 136 S.Ct. 718 (2016)] that Miller

announced a substantive rule that is retroactive in cases on 

collateral review. Montgomery, 136 S.Ct. [at] 732[.] 

[Appellant’s second] PCRA [petition] was reassigned to [the 

original PCRA c]ourt for further proceedings on March 9, 2017. On 

or about April 30, 2018, [Appellant] filed a motion for the 

appointment of a mitigation specialist and forensic psychiatrist 

and requested $35,000[.00] in funding for these experts. The 

Commonwealth filed a brief in opposition to [Appellant’s] motion 

and by order dated June 27, 2018, th[e PCRA c]ourt denied 

[Appellant’s] request for expert funding. In that [o]rder [the 

court] held that based upon the Pennsylvania Supreme Court’s 

decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) 

(“Batts II”) and Commonwealth v. Foust, 180 A.3d 416 (Pa. 

Super. 2018), expert testimony was unnecessary in this case.

On January 22, 2019, th[e trial c]ourt held a sentencing hearing. 

At the time of the hearing, the Commonwealth presented 

testimony and evidence in support of [its] recommendation to the 

court that [Appellant] be resentenced to two terms of 35 years[’]

imprisonment to life to run consecutively. Contrarily, [Appellant]

argued in his sentencing memorandum as well as at the time of 

the hearing that the [c]ourt should run the 35[-]year to life 

sentences concurrently so that [Appellant would] be eligible for 

parole by age 51. Having considered the testimony of the 

witnesses, impact statements, the photographic and documentary 
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evidence as well as the testimony by [Appellant] himself, th[e 

c]ourt determined that an appropriate sentence based upon 

[Appellant’s age] at the time of the offense is two, 30-year to life 

sentences to run consecutively.

Trial Court Opinion, 1/29/19, at 1-4.

Appellant filed a timely notice of appeal to this Court on February 14, 

2019. Thereafter, pursuant to Pa.R.A.P. 1925(b), Appellant filed a timely, 

court-ordered concise statement of errors complained of on appeal.

Appellant raises the following claims in his brief to this Court:

1. Is the imposition of an aggregate sentence of 60 years to life 

on a juvenile a de facto life sentence requiring, as mandated 

by the [Pennsylvania Supreme] Court in [Batts II], the 

resentencing court to find beyond a reasonable doubt that the 

juvenile is permanently incorrigible, irreparably corrupt, or 

irretrievably depraved?

2. Did the resentencing court err in holding that consecutive 

sentences that in the aggregate constitute an unconstitutional 

de facto life sentence are nevertheless lawful because the court 

may examine the sentence on each individual count separately, 

even when the counts arise from a single episode of criminal 

conduct?

3. Did the resentencing court err by failing to consider on the 

record the factors contained in Miller and adopted by the 

Pennsylvania Supreme Court in Commonwealth v. Batts, 66 

A.3d 286, 297 (Pa. 2013) [hereinafter “Batts I”] prior to 

sentencing [Appellant] and, as a result, impose a manifestly 

excessive sentence?

4. Did the resentencing court err by imposing a mandatory 

maximum sentence of life imprisonment for a murder 

committed by a juvenile?

5. Did the resentencing court err when it ordered [Appellant] to 

pay the costs of prosecution associated with a resentencing 

necessitated by the evolution of constitutional law, particularly 

when the court did not consider [Appellant’s] ability to pay and 
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re-imposed costs that exceed the amounts authorized by 

statute?

6. Did the resentencing court abuse its discretion when it denied 

[Appellant’s] request for funding for a mitigation expert, 

thereby leaving the court without all of the evidence 

demonstrating [Appellant’s] mental, emotional, or 

developmental characteristics at the time of the offense?

7. Did the resentencing court abuse its discretion by failing to 

consider on the record the factors set forth in Miller and 18 

Pa.C.S. § 1102.1(d) prior to sentencing [Appellant] and, as a 

result, impose a manifestly excessive sentence?

Appellant’s Brief at 5-6.

Appellant’s first five issues challenge the legality of his sentence. Hence, 

our standard of review is de novo and our scope of review is plenary. See

Foust, 180 A.3d at 422 (considering constitutionality of imposing 60-year to 

life sentence upon juvenile double homicide defendant).

2

In his first and second issues, Appellant argues that his sentence is 

illegal because it constitutes a de facto LWOP sentence. Citing Miller and 

Montgomery, Appellant argues that juvenile homicide defendants may not 

be subject to LWOP sentences in the absence of a determination that they are 

permanently incorrigible or incapable of rehabilitation. Appellant points out 

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2 Our Supreme Court has placed on hold a petition for allowance of appeal 

filed in Foust pending the disposition of an appeal taken from a decision 

issued by this Court in Commonwealth v. Felder, 181 A.3d 1252 (Pa. Super. 

2017). Felder asks our Supreme Court to consider whether a sentence of 50 

years to life constitutes a de facto sentence of life without the possibility of 

parole so as to require a finding of permanent incorrigibility by the sentencing 

court. See Commonwealth v. Foust, 126 WAL 2018 (Pa. Sept. 5, 2018) 

(order holding petition for allowance of appeal in abeyance); see also 

Commonwealth v. Felder, 187 A.3d 909 (Pa. 2018) (granting petition for 

allowance of appeal).
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that Foust extended this rule to de facto life sentences. Moreover, according 

to Appellant, multiple consecutive sentences, such as those imposed in this 

case, must be examined in the aggregate, and not individually, when 

evaluating whether they constitute de facto life sentences. In Appellant’s 

view, both Miller and our Supreme Court’s decision in Batts II support the 

idea that sentences must be examined in the aggregate because any 

categorical prohibition against “volume discounts” in sentencing wrongly 

discounts considerations of youth and allows the facts of a crime to outweigh 

valid mitigation arguments.

Foust stands on all fours with the instant case and squarely rejects the 

contentions raised in Appellant’s first two issues. In Foust, a 17 year-old 

defendant was convicted of two counts of first degree murder for the 

intentional killings of two individuals. In June 1994, he was sentenced to two 

consecutive LWOP sentences. In 2016, Foust filed a PCRA petition in which 

he argued that his two consecutive LWOP sentences violated the Eighth 

Amendment of the United States Constitution as interpreted in Miller and 

Montgomery. After granting Foust’s petition, the trial court re-sentenced 

him to serve two consecutive 30 to life sentences for his double homicide 

convictions.

In affirming Foust’s new sentences on appeal, this Court held that “a 

trial court may not impose a term-of-years sentence, which constitutes a de 

facto LWOP sentence, on a juvenile offender convicted of homicide unless it 

finds, beyond a reasonable doubt, that he or she is incapable of rehabilitation.” 
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Foust, 180 A.3d at 431. Notwithstanding this conclusion, however, we also 

said that “when considering the constitutionality of a [punishment imposed 

upon a juvenile homicide defendant under Miller, individual] sentences must 

be considered when determining if [the] juvenile received a de facto LWOP 

sentence.” Id. at 434. Considering the sentences in this manner, Foust held 

that “[a] sentence of 30 years to life imprisonment does not constitute a de 

facto LWOP sentence which entitles a defendant to the protections of Miller.” 

Id. at 420 and 438. In view of this binding precedent, Appellant’s first two

issues merit no relief.

In his third issue, Appellant contends that the trial court failed to 

undertake an on-the-record consideration of the mitigating factors articulated 

in Miller, and set forth at 42 Pa.C.S.A. § 1102.1(d). According to Appellant, 

the trial court’s failure to address these factors violated his right to an 

individualized assessment of an appropriate punishment. Citing 

Commonwealth v. Machicote, 206 A.3d 1110 (Pa. 2019), Appellant argues 

that since he faced a LWOP sentence, he was constitutionally entitled to an 

on-the-record assessment of the factors identified in Miller before his 

sentence was imposed. Appellant thus concludes that his sentence is unlawful 

because the trial court failed to provide any insight into how or why the 

age-related concerns identified in Miller factored into the court’s sentencing 

decision.

For the reasons we explain below in rejecting Appellant’s challenge to 

the discretionary aspects of his sentence, we find that the trial court 
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adequately examined the mitigating, age-related factors in fixing Appellant’s 

punishment. Hence, Appellant’s third issue merits no relief.

Appellant’s fourth issue asserts that his mandatory maximum sentence

of life is illegal because it violates the concept of individualized juvenile 

sentencing developed in Miller and Montgomery. See Appellant’s Brief at 

37-39. Our Supreme Court has rejected this contention. In Batts II, our 

Supreme Court held:

For those defendants for whom the sentencing court determines 

a [LWOP] 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(a), accompanied by a 

minimum sentence determined by the common pleas court upon 

resentencing[.]

Batts II, 163 A.3d at 421.

3

 Because our Supreme Court has determined that 

juvenile homicide defendants such as Appellant are subject to a mandatory 

maximum term of life imprisonment, we reject Appellant’s fourth issue on 

appeal which asserts that his mandatory maximum sentence of life is illegal.

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3 As we explained in Foust:

Section 1102 sets forth the mandatory sentence of life in prison 

for a defendant convicted of first- or second-degree murder. Our 

Supreme Court did not find that section 1102 is unconstitutional 

in light of Miller. Instead, it found that 61 Pa.C.S.A. § 6137(a)(1) 

(which prohibits parole for a defendant serving life imprisonment) 

is unconstitutional when applied to juvenile homicide offenders 

capable of rehabilitation. See Batts II, 163 A.3d at 421. Thus, 

section 1102 remains applicable to juveniles who were convicted 

of first- or second-degree murder prior to June 25, 2012.

Foust, 180 A.3d at 429 n.14.
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In his final challenge to the legality of his sentence, Appellant maintains 

that the trial court erred to the extent it required him to pay the costs incurred 

by the prosecution during the resentencing process. This claim has merit. We 

previously held in similar cases that a defendant cannot be compelled to pay 

the costs associated with resentencing occasioned by the evolution in 

constitutional law. See Commonwealth v. Davis, 207 A.3d 341, 346 (Pa. 

Super. 2019) (trial court imposed unlawful sentence by ordering payment of 

costs relating to resentencing since “prosecution” ends at time of acquittal or 

conviction and resentencing was necessitated by evolution of constitutional 

law which later deemed defendant’s sentence to be illegal), appeal granted, 

215 A.3d 968 (Pa. 2019); Commonwealth v. Lehman, 201 A.3d 1279 (Pa. 

Super. 2019) (“We hold that the trial court lacked the authority to order 

Appellant to pay the costs associated with the resentencing necessitated by 

evolution of constitutional law.”), appeal granted, 215 A.3d 967 (Pa. 2019). 

Because the trial court lacked authority to compel Appellant to pay the costs 

of resentencing necessitated by evolution of constitutional law, it erred to the 

extent it did so.

Having concluded that, with the exception of the imposition of costs, 

Appellant's sentence is lawful, we now consider Appellant's alternate 

challenges, which assert that the trial court abused its discretion in denying 

appointment of a mitigation expert and in sentencing Appellant to two 

consecutive terms of incarceration of 30 years to life. Pursuant to statute, 
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Appellant does not have an automatic right to appeal the discretionary aspects 

of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, he must petition this 

Court for permission to challenge the discretionary aspects of his sentence. 

Id.

To reach the merits of a discretionary aspects claim,

we must engage in a four part analysis to determine: (1) whether 

the appeal is timely; (2) whether Appellant preserved his issue; 

(3) whether Appellant's brief includes a concise statement of the 

reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence is 

appropriate under the [S]entencing [C]ode.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations 

omitted). Appellant filed a timely notice of appeal and included a Pennsylvania 

Rule of Appellate Procedure 2119(f) statement in his appellate brief. Although 

Appellant did not raise his discretionary sentencing claims in a timely 

post-sentence motion, the record confirms that he raised his claims orally 

before the court at his resentencing hearing. Hence, Appellant has preserved 

his discretionary sentencing issues for purposes of appellate review. 

Accordingly, we examine whether Appellant presents a substantial question

and, if so, whether his discretionary challenges have merit.

This Court evaluates the presence of a substantial question on a 

case-by-case basis. Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. 

Super. 2017) (citation omitted). “A substantial question exists only when the 

appellant advances a colorable argument that the sentencing judge's actions 
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were either: (1) inconsistent with a specific provision of the Sentencing Code; 

or (2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Grays, 167 A.3d 793, 816 (Pa. Super. 2017) 

(citation omitted).

In his Rule 2119(f) statement, Appellant argues that this case presents 

a substantial question because imposing consecutive sentences for the two 

murder convictions was clearly unreasonable and results in an excessive 

sentence. This argument presents a substantial question. See 

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal 

denied, 91 A.3d 161 (Pa. 2014). Accordingly, we proceed to analyze the 

merits of Appellant's discretionary aspects challenge.

“Sentencing is a matter vested in the sound discretion of the [trial 

court], and a sentence will not be disturbed on appeal absent a manifest abuse 

of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 

2017) (en banc) (citation omitted). Pursuant to the Sentencing Code,

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.

42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to parrot the words 

of the Sentencing Code, stating every factor that must be considered under 

Section 9721(b), however, the record as a whole must reflect due 

consideration by the court of the statutory considerations at the time of 
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sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super. 

2017) (internal alterations, quotation marks, and citation omitted).

Typically, when sentencing a defendant, the trial court is required to 

consider the sentencing guidelines. Commonwealth v. Melvin, 172 A.3d 

14, 21 (Pa. Super. 2017) (citation omitted). In this case, however, no 

sentencing guidelines exist for juveniles convicted of first-degree murder prior 

to June 25, 2012. See id. at 22. Instead, our Supreme Court in Batts II

held that, in these cases, the applicable “sentencing guidelines” that the trial 

court should consider are the mandatory minimum penalties set forth in 

section 1102.1. See Batts II, 163 A.3d at 443 n.17.

The trial court offered the following explanation for imposing 

consecutive 30 to life sentences for Appellant’s double homicide convictions.

In this case, the [trial c]ourt heard testimony from witnesses 

presented by the Commonwealth who described the impact this 

crime had on their lives and the lives of others in the community. 

The [c]ourt also considered evidence offered by [Appellant], 

including his conduct while incarcerated and the statements he 

made at the time of the hearing expressing remorse for the crimes 

he committed as a juvenile. [The court] looked at the 

Commonwealth’s and [Appellant’s] exhibits, other relevant 

documents, court filings, photographs of the victims, and impact 

statements when crafting a sentence for [Appellant]. Ultimately, 

[the court] concluded that a sentence of 30 years to life, per 

victim, is fitting for the crime in this case, and individually, each 

30 year sentence does not constitute an unconstitutional de facto 

LWOP sentence.

Trial Court Opinion, 1/29/19, at 8.

In sum, the trial court considered all relevant documents and testimony 

in fixing Appellant’s sentence. After due consideration, the court determined 
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that sentences of 30 years to life were appropriate under the circumstances 

and that the sentences should run consecutively since two victims lost their 

lives in this case.

We perceive no abuse of discretion in this decision. The trial court 

determined that the nature of Appellant’s offenses called for separate 

punishments, notwithstanding the rehabilitation Appellant demonstrated while 

imprisoned for the past two decades. Although this Court has previously 

invalidated lengthy, consecutive term-of-years sentences, we have not 

extended those cases to include violent offenses, see Commonwealth v. 

Coulverson, 34 A.3d 135, 138–139 (Pa. Super. 2011), but instead confined 

the reach of those decisions to situations involving property crimes. See 

Commonwealth v. Dodge, 957 A.2d 1198, 1202 (Pa. Super. 2008), appeal 

denied, 980 A.2d 605 (Pa. 2009). We see no reason to alter that practice 

here.

Finally, we turn briefly to Appellant’s claim that the trial court abused 

its discretion in rejecting the appointment of a mitigation expert or forensic 

psychiatrist since experts are uniquely suited to opine “on how external 

influences such as a juvenile’s home and family life, neighborhood, peer 

groups, and exposure to violence and/or substance abuse affected [a] 

juvenile’s development and emotional composition, as well as how [a] 

juvenile’s development compared to other children of his age.” Appellant’s 

Brief at 45. This claim merits no relief.
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Our Supreme Court has held that the need for expert testimony in 

considering issues pertinent to a juvenile’s criminal culpability is a matter that 

falls within the discretion of a trial court and is to be determined on a 

case-by-case basis. See Batts II, 163 A.3d at 456. We note here that, in 

Pennsylvania, the core function of a sentencing court is to ascertain the 

circumstances that surround the commission of an offense, including the 

rehabilitative needs of an offender. See 42 Pa.C.S.A. § 9721(b). With 

youthful offenders, this task necessarily includes consideration of domestic 

factors that influenced the individual, an individual’s exposure to violence and 

drugs, and other common components of the sentencing determination such 

as impulsivity and maturity. In this case, the record confirms that the court, 

at the resentencing hearing, heard Appellant’s testimony regarding his 

remorse for his actions, as well as evidence pertaining to the factors that 

influenced him at the time of the offense and his emotional growth and 

development during his intervening years in prison. Appellant does not claim 

that the trial court did not comprehend the evidence placed before it or that 

the lack of expert testimony deprived the court of specific proof of mitigation. 

Hence, we are not persuaded that Appellant has shown that the trial court 

abused its discretion in refusing to enlist the aid of experts in carrying out one 

of its most basic and commonly recurring duties.
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Judgment of sentence affirmed in part and vacated in part. Judgment 

vacated to the extent it imposes costs of resentencing upon Appellant. 

Judgment affirmed in all other respects.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2019