J-A10039-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAMUEL EDWARD SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3599 EDA 2016

Appeal from the Judgment of Sentence October 31, 2016

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

No(s): CP-15-CR-0002130-1996

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2018

Appellant, Samuel E. Smith, appeals from the judgment of sentence of 

life imprisonment without parole, imposed October 31, 2016, following a grant 

of Appellant’s Post-Conviction Relief Act (PCRA) petition for resentencing 

pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012), Montgomery v. 

Louisiana, 136 S. Ct. 718 (2016), and Commonwealth v. Batts, 66 A.3d 

286 (Pa. 2013) (Batts I). We affirm. 

The procedural history and relevant facts are as follows: 

On October 10, 1996, Appellant pleaded guilty to first-degree murder, 

robbery, and conspiracy.1 Appellant was sentenced to a mandatory term of 

life imprisonment without the possibility of parole and an aggregate, 

concurrent sentence of ten to twenty years of imprisonment on the remaining 

____________________________________________

1 18 Pa. §§ 2502(a), 3701(a)(1)(i), and 903, respectively.
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charges. Appellant was sixteen at the time he committed the murder. 

Appellant did not file a direct appeal. 

During his incarceration, Appellant filed multiple, unsuccessful petitions 

for writ of habeas corpus and PCRA relief. However, on July 27, 2012, 

Appellant pro se filed a PCRA petition alleging that he was entitled to relief 

pursuant to the United States Supreme Court’s decision in Miller, where the 

Court held that “mandatory life without parole for those under the age of 18 

at the time of their crime violates the Eighth Amendment’s prohibition on ‘cruel 

and unusual punishment.’” Miller, 132 S. Ct. at 2460. Appellant’s petition 

was stayed pending the disposition of cases pending before the Pennsylvania 

Supreme Court. While Appellant’s case was on hold, the United States 

Supreme Court decided Montgomery, holding that Miller applied 

retroactively. Montgomery, 136 S. Ct. at 736; see also Commonwealth 

v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016) (recognizing “the Miller rule 

of law ... to be retroactive for purposes of collateral review as of the date of 

the Miller decision on June 25, 2012.”). In response to this decision, 

Appellant’s case was scheduled for resentencing. 

On July 25, 2016, Appellant requested a stay of his sentencing hearing, 

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

(Batts II). Notes of Testimony (N.T.), 7/25/16, at 2. The sentencing court 

denied Appellant’s motion but approved a stipulation that: (1) the 

Commonwealth was required to prove beyond a reasonable doubt that 

Appellant qualified for a sentence of life without the possibility of parole; and 
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(2) there is a presumption against imposing a life sentence without the 

possibility of parole on a juvenile offender. Id. at 7-8. Appellant also 

presented a motion to continue the sentencing hearing in order to secure 

expert witnesses to counter the Commonwealth’s expert witnesses. Id. at 8-

9. While the sentencing court declined to postpone the Commonwealth’s 

presentation of evidence, it nonetheless afforded Appellant extra time to 

secure witnesses and prepare his case.2 Id. at 29. 

On July 26, 2016, the sentencing court commenced Appellant’s 

resentencing hearing. The Commonwealth presented extensive testimony 

from numerous witnesses, including for example: the original police 

investigators, victim impact statements, as well as expert testimony. 

Appellant presented testimony from family and friends. For appellate 

purposes, we highlight the following relevant testimony:

The Commonwealth called Lieutenant Michael Torres, a Pennsylvania 

Department of Corrections Officer. Notes of Testimony (N.T. Excerpt), 

7/26/16, at 3.

3

 Lieutenant Torres was qualified as an expert in prison gangs. 

____________________________________________

2 The court directed Appellant to advise it of the time he would require. N.T., 

7/25/16, at 29. The following day, Appellant requested sixty days to secure 

his expert witnesses, and a date was set for September 7, 2016. N.T. 

Continuance, at 4. Following the Commonwealth’s presentation, the 

sentencing hearing was in fact continued until October 18, 2016. 

3 The sentencing court provided this Court with three volumes of transcripts

for July 26, 2016. The first volume contains the main records for the first half 

of Appellant’s sentencing hearing and hereinafter will be labeled N.T.

Sentencing. The second volume includes excerpt testimony from three 
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Id. at 3-7. He testified that Appellant was the leader of prison gang known 

as the State Prison Skinheads (SPS), a neo-Nazi white supremacist group. Id.

at 20. Lieutenant Torres also related information regarding Appellant’s 

attempted escape in 2004. According to Lieutenant Torres, Appellant planned 

a detailed escape utilizing former and current inmates affiliated with SPS and 

planned to secure a firearm. Id. at 15-16. A confidential informant, whom 

Appellant threatened to kill once he established his identity, thwarted this 

attempt. Id. at 18-19. As a result of this escape attempt, Appellant was 

transferred to State Correctional Institute (SCI) Greene, a maximum-security 

prison with a high-risk prisoner designation, where he is currently housed. 

Id. at 19. Lieutenant Torres also reported that prior to Appellant’s appeal, 

Appellant had received nineteen prison misconducts. Id. at 9. 

Finally, Lieutenant Torres also opined that, in his experience, Appellant 

was a rare and uncommon inmate. Id. at 34-37. He based this assessment 

on Appellant’s files, past escape attempt, membership in a prison gang, and 

the number of misconducts. Id. According to Lieutenant Torres, Appellant’s 

nineteen misconducts were excessive, as were his number of days in 

restrictive housing. Id. at 9, 13-14. Lieutenant Torres conceded that there 

was a period of time in which Appellant had received no misconducts but 

____________________________________________

witnesses, and hereinafter will be labeled N.T. Excerpt. The last volume is an 

excerpt of Appellant’s request for a continuance and will be labeled N.T. 

Continuance.
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offered two explanations for Appellant’s good behavior: 1) he was eligible for 

resentencing; and 2) he wanted to maintain his gang leadership. Id. at 34-

35. Lieutenant Torres testified that his office had confiscated a document 

from Appellant that was entitled the “Supreme Word.” Id. at 26.4 The 

document identified Appellant as the editor of the “Supreme Word” and a 

member of SPS. Id. at 27. According to Lieutenant Torres, the document

contained images of skinheads, symbols, and articles espousing rhetoric 

against Jews, “all colored races,” and the mafia, ending with a hidden salute 

to Hitler. Id. at 28-33. 

Next, over Appellant’s objection, the Commonwealth called Special 

Agent Michael Fitzgerald of the Federal Bureau of Investigations (FBI) to 

testify as an expert in neo-Nazi groups. N.T. Excerpt, at 73-76.5 Agent 

Fitzgerald based his testimony on his almost twenty-six years in the FBI, his 

fifteen years investigating domestic terrorism, and his review of Appellant’s 

record prior to the sentencing hearing. N.T. Excerpt, at 70-72, 75, 94. Agent 

____________________________________________

4 The “Supreme Word” newsletter was a compilation by Appellant containing 

white supremacist rhetoric and skinhead illustrations by Appellant depicting 

hanging race traitors (informants); an excerpt from a “martyr for the cause”

who died in a gun fight with the FBI; and articles from various neo-Nazi

fundamentalists. N.T. Excerpt, at 78-86. 

5 According to Appellant, Agent Fitzgerald was not an expert in Pennsylvania 

prison gangs, was not qualified to discuss the philosophy espoused in 

Appellant’s newsletter, and his testimony was cumulative to Lieutenant Torres’ 

earlier testimony. N.T. Excerpt, at 75-76.
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Fitzgerald testified that, in his expert opinion, should Appellant be released 

from custody, he would be connected to a network that would make him a 

danger to the general public and specifically, to Jews, minorities, and law 

enforcement. N.T. Excerpt, at 94-96. 

The Commonwealth called Dr. John O’Brien, a psychiatrist, to testify. 

N.T. Excerpt, at 99-100. Dr. O’Brien had reviewed an earlier psychiatric 

evaluation of Appellant but was unable to conduct his own evaluation. N.T. 

Excerpt, at 100-01.6 Dr. O’Brien also reviewed Appellant’s record, which 

included a history of fire setting, an incident where Appellant shot a dog, and 

a history of substance abuse. Id. at 106. Based on Dr. O’Brien’s review of 

Appellant’s records, he concluded, with a reasonable degree of medical 

certainty, that Appellant has Anti-Social Personality Disorder (“ASPD”). Id.

at 101. While Dr. O’Brien noted that ASPD is not treatable, he stated that it 

could attenuate with age. Id. at 113-14. Dr. O’Brien also testified that it is 

rare to diagnose a person with ASPD and that the number of individuals with 

ASPD involved in prison gangs is also similarly rare. Id. at 116, 119. 

Dr. O’Brien was not confident of Appellant’s rehabilitation because 

Appellant merely presented a superficial sense that he can adjust, essentially 

“flying under the radar” for the previous ten years. Id. at 118. Dr. O’Brien 

____________________________________________

6 The psychiatric evaluation was originally conducted by Dr. Sadoff on June 

16, 1996, before Appellant had originally pleaded guilty. See N.T. Excerpt, at 

100. 
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also expressed concern that Appellant would rely on his connections with SPS 

if released from prison. Id. at 119. 

Next, the Commonwealth called Appellant’s longtime friend, Sherry 

Flick, to testify. Mrs. Flick testified that she originally connected with Appellant 

through a mutual friend named Dwayne in 2002. N.T. Sentencing, at 117. 

Dwayne was one of the men who attempted to aid Appellant in his 2004 

escape attempt and was involved in the same prison gang, SPS. Id. at 124; 

N.T. Excerpt, at 15. Mrs. Flick testified that she had a past romantic 

relationship with Appellant despite being married, although their relationship 

is now platonic. N.T. Sentencing, at 117, 121. While Mrs. Flick testified that 

she did not hold the same beliefs as Appellant, she nonetheless helped to copy 

and distribute copies of Appellant’s newsletter, titled “Supreme Word.” Id. at 

126-29. She also testified that around the time of his filing of his PCRA 

petition, Appellant told her that he no longer identified as a white supremacist 

as he had become a Christian. Id. at 119. Additionally, evidence was 

presented that, during the course of their fourteen-year relationship, Mrs. Flick 

had deposited around $10,000 into Appellant’s prison account. Id. at 117; 

N.T., 10/18/16, at 81. Following her testimony, the Commonwealth rested its 

case, reserving the right to recall its experts or rebuttal witnesses. 

Three months later, Appellant presented his case. First, Appellant called 

Dr. Carol Armstrong, a neuropsychologist. Dr. Armstrong acknowledged that 

she had not reviewed any material on Appellant’s case or met with Appellant 

prior to writing her report. N.T., 10/18/16, at 23. However, Dr. Armstrong 
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explained the differences between adult and juvenile brains and opined that 

juveniles are not capable of making future predictions or controlling 

inappropriate behavior as well as adults. Id. at 18-19. Nonetheless, Dr. 

Armstrong was impeached on cross-examination, and the sentencing court did 

not find her testimony credible. Id. at 60-62; see also N.T., 10/19/16, at 

64-65. 

Next, Appellant presented Dr. William Russell as an expert in forensic 

psychology. Dr. Russell, in preparing for court, reviewed Dr. Sadoff’s report, 

the sentencing memoranda, the notes of testimony, letters from Lieutenant 

Michael Torres and the district attorney, and Dr. O’Brien’s report. N.T., 

10/18/16, at 65, 120. He also met with Appellant twice. Id. Based on his 

review of Appellant’s information, Dr. Russell agreed with Dr. O’Brien’s ASPD 

diagnosis but considered Appellant at a low risk for recidivism based on his

improved behavior over the past eight years. Id. at 78-79, 91. Noting the 

discrepancies in Appellant’s initial reports of the murder, Dr. Russell stated 

that Appellant is still manipulative. Id. at 116-118. By way of example, Dr. 

Russell referenced Appellant’s recent statements that he had embraced 

Christianity and distanced himself from the prison gang. Dr. Russell

contrasted this claim with a transcript of the phone conversation between 

Appellant and his friend Mrs. Flick on December 26, 2015, during which they 

discussed putting Jews in ovens. Id. at 97-98. Overall, Dr. Russell noted that 

Appellant had not “lost the concept of race and white supremacy.” Id. at 96, 

125. Dr. Russell also mentioned Appellant’s 2004 letter to Mrs. Flick where 
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Appellant stated, “when I was real little, I wanted a pet monkey. I never 

thought I would come to prison and have thousands of them, smiley face[.]” 

Id. at 96-97. 

Following Dr. Russell’s testimony, the Commonwealth recalled Dr. 

O’Brien, who also discussed transcripts from the 2015 conversation between 

Appellant and Mrs. Flick. Of significance to Dr. O’Brien was Appellant’s 

comments about putting Mrs. Flick’s husband in a shallow grave, which

demonstrated that he had ongoing aggressive ideation. N.T., 10/18/16, at 

143. Dr. O’Brien also commented on Appellant’s prior abuse of his sister, 

Sherry Hume, when he was a juvenile. N.T., 10/18/16, at 146-47.7 Dr. 

O’Brien concluded that Appellant was a rare and uncommon individual who 

had a poor chance of being rehabilitated. Id. at 151, 160-61.8 

The following day, Appellant exercised his right to allocution. N.T., 

10/19/16, at 5-30. Appellant apologized for the pain and loss his actions 

caused both his and the victim’s families. Id. at 5, 16, 29. Appellant went 

on to say that he was an “emotional mess” after the murder. Id. at 7. He 

asserted that he had distanced himself from all gang activity and no longer 

____________________________________________

7 At the time of Appellant’s arrest, his sister, Sherry Hume, reported that her 

brother had choked her until she turned blue after she had informed him that 

she was saving the milk he was drinking for another sibling. N.T. Sentencing, 

at 109-13. Mrs. Hume also testified that Appellant abused his younger 

siblings. Id. at 111. 

8 Prior to this hearing, on October 11, 2016, Dr. O’Brien was able to meet with 

Appellant and conduct a psychiatric evaluation. N.T., 10/18/19, at 132-33; 

see also Commonwealth’s Exhibit 23. 
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wanted to have racist views. Id. at 11, 13. According to Appellant, religion 

was helping, but he admitted that he still struggled with being a racist and

used racial slurs. Id. at 13, 15. Appellant stated that he maintained healthy 

relationships with his family, although he admitted to a strained relationship

with his younger sister, who has a multiracial child. Id. at 14, 19. Appellant 

noted positive prison activities in which he was involved, such as: recreational 

painting and designs; going to the library; obtaining his GED; working two 

jobs; and he indicated that he is on a waitlist for a peer inmate program. Id.

at 16, 19, 26. 

Appellant also sought to explain why he wanted a gun for his prison 

escape. Id. at 23-25. According to Appellant, it was

insurance that I would never be put in the hole for the rest of my 

life ... I didn’t want a gun for any other reason than that. It’s one 

of them things. I’m glad it was stopped before it ever came to 

fruition beyond talking and minimal planning and like nobody --

like I didn’t make a physical attempt[.]

Id. at 24. As a result of his escape attempt, Appellant stated that he rarely 

sees his family and is restricted in what he can do and the jobs he can hold in 

prison. Id. at 24-25.

9

 Appellant rested his case and incorporated again by 

____________________________________________

9 Appellant’s sister testified that the visits from his family are limited to once 

or twice a year because of the distance Appellant’s family has to travel. See

N.T. Sentencing, at 87.
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reference his sentencing memorandum, which had been already admitted into 

evidence. Id. at 4, 42.10

At the conclusion of the hearing, the court stated that: 

We also believe that it is the Commonwealth that has the burden 

of proof beyond a reasonable doubt to establish that this 

defendant is uncommon and rare and an unusual juvenile who 

would likely kill in the future, and the public can only be protected 

by him being incarcerated for the rest of his natural life.

We believe the Commonwealth has met that burden, and we 

believe that this defendant has earned and has continued to 

exhibit earning a sentence of life without the possibility of parole. 

N.T., 10/19/18, at 67. 

After considering the evidence presented, the court sentenced Appellant 

to life without parole. Id. at 67-68. Appellant timely filed a motion to modify 

his sentence, which was denied. Appellant timely appealed and filed a courtordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive 

opinion. 

On appeal, Appellant raises the following issues: 

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10 On appeal, during oral arguments, on May 3, 2018, this Court asked 

Appellant to point out in the record, specifically, what conduct related to 

Appellant’s rehabilitation over his twenty-year incarceration. However, 

Appellant could not adequately provide an answer. On May 17, 2018, 

Appellant filed an Application for Post-Submission Communication explicitly 

directing this Court’s attention to places in the record that indicated 

Appellant’s rehabilitation. More specifically, Appellant directed this Court’s 

attention to various letters of support from African-American inmates, proof 

of achievements and certificates, and accommodations from various

employers at the prison. Thus, we grant Appellant’s application for PostSubmission Communication. 
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1. Did the trial court violate the First and Fourteenth Amendments of 

the U.S. Constitution and Article 1 Section 7 of the Pennsylvania 

Constitutional in admitting evidence, over objection, regarding 

Appellant’s affiliation with the State Prison Skinheads and other 

references to Appellant’s White Supremacists beliefs when the 

Commonwealth presented no evidence of actions by Appellant that 

would make these beliefs or affiliations relevant to the matter before 

the court? 

2. Did the trial court err in allowing the expert testimony of Special 

Agent James Fitzgerald over objection of counsel?

3. Does Appellant’s sentence violate the constitutional mandate 

articulated by the U.S. Supreme Court in Miller v. Alabama, 132 S.

Ct. 2455 (2012)[,] and Montgomery v. Louisiana, 136 S. Ct. 718 

(2016)[,] that life without parole sentences should be “unusual” or 

“rare” and reserved only for those who are “permanently incorrigible, 

irreparably corrupt, or irretrievably depraved”?

a. Is the instant case one of the “unusual” or “rare” cases 

permitting such a sentence? 

b. Did the trial court make a finding supported by competent 

evidence that appellant is “permanently incorrigible, 

irreparable corrupt or irretrievably depraved”?

4. Did the Commonwealth meet its burden of proof beyond a reasonable 

doubt to justify a life without parole sentence? 

5. Did the trial court err in not giving appropriate consideration and 

weight to the Miller sentencing factors that counsel against imposing 

the harshest sentence on a juvenile

a. Did the trial court improperly abuse its discretion in imposing 

an excessive or unreasonable sentence of life without parole by 

failing to adequately and appropriately consider Appellant’s 

ability to be rehabilitated as required by Miller and 

Montgomery?

6. Did the trial court incorrectly rely upon the antisocial personality 

disorder diagnosis in concluding that Appellant’s approximately 

twenty year prison history supported a prediction of future 

dangerousness while the diagnosis itself includes a diminution of 

criminal behavior as an individual ages?

7. Did the trial court err in denying Appellant’s continuance request of 

July 26, 2016 sentencing hearing when the defense did not have 
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adequate time to procure expert review of the Commonwealth’s 

proffered expert testimony?

See Appellant’s Brief at 6-7 (capitalization omitted; issues renumbered for 

ease of disposition). 

Evidentiary Issues

We will begin by addressing Appellant’s evidentiary issues, as they lay 

the foundation for Appellant’s argument challenging his resentencing to life 

without parole as a juvenile. 

The standard for reviewing the admission of evidence is an abuse of 

discretion. Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018).

In particular, it is well settled that a court has abused its discretion if “the 

record disclosed that the judgment exercised was manifestly unreasonable, or 

the result of partiality, prejudice, bias or ill-will.” Id. at 454 (quoting 

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)).

Appellant contends that the trial court violated his First and Fourteenth 

Amendment rights by admitting evidence of his affiliations with SPS and his 

white supremacist beliefs. See Appellant’s Brief at 58 (citing to Delaware v. 

Dawson, 503 U.S. 159 (1992)). According to Appellant, his affiliations were 

not relevant to the sentencing court’s consideration. Id. Appellant argues 

that the only evidence presented was of his ideology and there was no nexus 

between Appellant’s ideology and violent criminal acts. Id. at 59. Appellant 

asserts that the Commonwealth used his affiliation with SPS to make a 

“speculative leap to projected future dangerousness.” Id. Thus, Appellant 
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concludes that such irrelevant evidence was not a permissible sentencing 

consideration and prejudiced him. Id. at 58. 

As mentioned supra, the admission of evidence during sentencing is in 

the sound discretion of the court and will not be disturbed absent an abuse of 

discretion. King, 182 A.3d at 454-55. The court can consider any evidence 

it deems relevant, as it is “neither bound by the same rules of evidence nor 

criminal procedure as it is in a criminal trial.” Id. at 455. This includes all 

evidence relating to any aggravating or mitigating factor. Commonwealth 

v. Young, 637 A.2d 1313, 1321-22 (Pa. 1993). Thus, reversal of the decision 

requires a finding of an abuse of discretion and prejudice. Commonwealth 

v. Franklin, 580 A.2d 25, 31 (1990). 

In Dawson, during sentencing, the prosecution and the defendant’s 

attorney stipulated that Dawson was a member of the Aryan Brotherhood, a 

white supremacist prison gang. Dawson, 112 S. Ct. at 1096. In return for 

the stipulation, the prosecution agreed not to call any expert witnesses to 

testify regarding the Aryan Brotherhood. Id. The Supreme Court held that 

the stipulation was a constitutional error because the narrowness of the 

stipulation lacked context and was “totally without relevance” to Dawson’s 

sentencing. Id. at 1098. No evidence had been introduced regarding the 

Aryan Brotherhood’s unlawful or violent acts, and the evidence was not 

relevant to rebut any mitigating evidence offered by Dawson. Id. However, 

the Supreme Court noted that if there was relevant evidence connecting the 

Aryan Brotherhood’s violent acts to the defendant, such evidence may have 
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been admissible; there is no per se barrier to the admission of evidence 

concerning one’s beliefs and associations at sentencing merely because the 

First Amendment protects such beliefs. Id. at 1097-98. The Dawson Court 

provided examples of why a defendant’s gang affiliations would be relevant 

admissible evidence, such as establishing a potential future dangerousness, 

and rebut mitigation or character evidence. Id. at 1098. 

The instant case is easily distinguishable from Dawson, and Appellant’s 

argument that his gang affiliations were not relevant to his sentencing 

consideration is without merit. Here, the information regarding Appellant’s 

affiliation with SPS was introduced at sentencing to establish Appellant’s 

future dangerousness and potential for rehabilitation. N.T., 1/26/16, at 94-

96; see also TCO, 5/25/17, at 12-13. Agent Fitzgerald testified regarding 

white supremacist gangs, their far reach, and their violent acts. N.T. Excerpt 

7/26/16, at 70-99. The Commonwealth presented evidence that: (1) 

Appellant was still in contact with gang members and associates; (2) members 

of the gang had plotted to acquire Appellant a gun for use in his escape 

attempt; (3) Appellant had made threats against the lives of specific 

individuals; and (4) the ideology of the gang particularly espouses a rhetoric 

of violence against Jews, other minorities, and law enforcement. See N.T. 

Sentencing, at 117; see also N.T Excerpt, at 15-19, 28-33. At Appellant’s 

sentencing, he admitted he still holds racist beliefs. N.T., 10/19/16, at 13. 

Thus, the information regarding SPS was appropriately considered to counter 

Appellant’s claim that he was rehabilitated, and no longer presented a danger 
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to the public, and was not a violation of his First or Fourteenth Amendment 

rights. See e.g., Dawson, 112 S. Ct. at 1097. Therefore, the sentencing 

court did not abuse its discretion in admitting this evidence. King, 182 A.3d 

at 454-55; Young, 637 A.2d at 1321-22; Franklin, 580 A.2d at 25. 

Appellant also asserts that the court erred in allowing the expert 

testimony of Special Agent Fitzgerald. See Appellant’s Brief at 60.11 

According to Appellant, Agent Fitzgerald has never: (1) testified “as an expert 

in any courtroom”; (2) published any academic studies involving gangs; or

(3) been qualified as an expert in prison gangs or the Pennsylvania prison 

system. Id. Thus, Appellant concludes that Agent Fitzgerald should not have 

been permitted to testify as an expert in prison gangs in the Pennsylvania 

Prison system. Id. 

Pennsylvania has long maintained a liberal standard for admitting expert 

testimony: 

The qualification of an expert witness rests within the sound 

discretion of the trial judge, and absent an abuse of discretion, 

the decision of the trial judge should be upheld. “It is well 

established in this Commonwealth that the standard for 

____________________________________________

11 In support of his argument, Appellant cites to Frye v. United States, 293 

F. 1013 (D.C. Cir. 1923. The Frye court held that in order for scientific, expert 

testimony to be admissible, the methodology relied upon must have gained 

general acceptance in the field to which it belongs. Frye, 293 F. at 1013. 

See Appellant’s Brief at 60. Frye is not relevant to this issue because the 

expert testimony was not novel, and Appellant is not challenging Agent 

Fitzgerald’s background as an FBI agent, which formed the basis of his expert 

deductions. In fact, there was no argument made that Agent Fitzgerald’s 

training and background was not widely accepted by those in law enforcement, 

especially in the FBI. 
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qualification of an expert witness is a liberal one. The test to be 

applied when qualifying an expert witness is whether the witness 

has any reasonable pretension to specialized knowledge on the 

subject under investigation. If he does, he may testify and the 

weight to be given to such testimony is for the trier of fact to 

determine.” It is also well-established that a witness does not 

need formal education on the subject matter of the testimony, and 

may be qualified to render an expert opinion based on training 

and experience.

Commonwealth v. Wallace, 817 A.2d 485, 494 (Pa. Super. 2002) (quoting 

Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa.1995)) (internal citations 

omitted); see also Pa.R.E. 702 (stating testimony is allowed if “(a) the 

expert's scientific, technical, or other specialized knowledge is beyond that 

possessed by the average layperson; (b) the expert's scientific, technical, or 

other specialized knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; and (c) the expert's methodology is 

generally accepted in the relevant field.”). 

Here, the sentencing court allowed Agent Fitzgerald to testify as an 

expert in neo-Nazi groups. N.T Excerpt, at 73-74. Agent Fitzgerald had been 

in the FBI for approximately twenty-six years, fifteen of which were spent 

investigating domestic terrorism, including white supremacist groups. Id. at 

70, 75. Agent Fitzgerald was a certified undercover agent and had gone under 

cover in white supremacist and neo-Nazi groups. Id. at 71-72. 

Thus, because Agent Fitzgerald had specialized knowledge beyond the 

average layperson and this knowledge would help the fact-finder understand 

white supremacist gangs, the sentencing court did not abuse its discretion in 

qualifying him as an expert. Wallace, 817 A.2d at 495; Pa.R.E. 702.
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Appropriate Constitutional Standard

With these evidentiary issues resolved, we turn to Appellant’s 

sentencing claims. Appellant contends that the sentencing court violated the 

constitutional mandates articulated in Miller v. Alabama, 132 S. Ct. 2455 

(2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), namely, that 

life without parole sentences for juveniles should be unusual, rare, and 

reserved only for those who are permanently incorrigible, irreparably corrupt, 

or irretrievably depraved. See Appellant’s Brief at 22.12 Appellant suggests 

that he is capable of rehabilitation and specifically notes the sentencing court’s 

recognition that he has learned “at least to some extent, to comport his 

behavior in prison.” Id. at 31 (quoting N.T., 10/19/16, at 61). Thus, 

Appellant concludes, his case is not one of the unusual or rare cases permitting 

such a sentence, and the sentencing court did not make a finding supported 

by competent evidence that Appellant is permanently incorrigible, irreparably 

corrupt, or irretrievably depraved. Id. 

Under Miller and Montgomery[ v. Louisiana, ––– U.S. –––, 136 

S.Ct. 718, 193 L.Ed.2d 599 (2016)], a sentencing court has no 

discretion to sentence a juvenile offender to life without parole 

unless it finds that the defendant is one of the “rare” and 

“uncommon” children possessing the above-stated 

____________________________________________

12 In this section of Appellant’s brief, he summarizes all of his arguments on 

appeal. As Appellant raises these same issues later in his brief, they will not 

be addressed in Appellant’s first issue. 
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characteristics[

13], permitting its imposition. Montgomery, 136 

S.Ct. at 726, 734; Miller, 567 U.S. at 479, 132 S. Ct. 2455; see

Graham, 560 U.S. at 73, 130 S.Ct. 2011; Roper[ v. Simmons], 

543 U.S. [551,] 572–73, 125 S.Ct. 1183, 161 L.Ed.2d 1 [ (2005) 

]. A sentence of life in prison without the possibility of parole for 

a murder committed when the defendant was a juvenile is 

otherwise disproportionate and unconstitutional under the Eighth 

Amendment. Montgomery, 136 S.Ct. at 734, 735.

Thus, in the absence of the sentencing court reaching a 

conclusion, supported by competent evidence, that the defendant 

will forever be incorrigible, without any hope for rehabilitation, a 

life-without-parole sentence imposed on a juvenile is illegal, as it 

is beyond the court's power to impose. See [Commonwealth v.] 

Vasquez, 560 Pa. 381, 744 A.2d [1280,] 1282 [ (2000) ]; 

[Commonwealth v.] Shiffler, 583 Pa. 478, 879 A.2d [185] 189 

[ (2005) ]; In re M.W., 555 Pa. 505, 725 A.2d [729,] 731 [ 

(1999) ]. As stated by the Montgomery Court, “when a State 

enforces a proscription or penalty barred by the Constitution, the 

resulting conviction or sentence is, by definition, unlawful.” 

Montgomery, 136 S.Ct. at 729–30. As such, we must review the 

sentencing court's legal conclusion that Batts is eligible to receive 

a sentence of life without parole pursuant to a de novo standard 

and plenary scope of review. Commonwealth v. McClintic, 589 

Pa. 465, 909 A.2d 1241, 1245 (2006). Because this legal 

conclusion is premised upon the presentation of testimony and the 

sentencing court's credibility determinations, it presents a mixed 

question of fact and law. In such circumstances, we defer to the 

findings of fact made by the sentencing court as long as they are 

supported by competent evidence, but give no deference to that 

court's legal conclusions. Pennsylvania Nat. Mut. Cas. Ins. Co. 

v. St. John, 630 Pa. 1, 106 A.3d 1, 13 (2014); Commonwealth 

v. James, 620 Pa. 465, 69 A.3d 180, 186 (2013); 

Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011); 

In re Condemnation by Urban Redevelopment Auth. of 

Pittsburgh, 590 Pa. 431, 913 A.2d 178, 183 (2006).

____________________________________________

13 A sentence of life without parole for a juvenile is permissible only if the 

“crime was not the result of the 'unfortunate yet transient immaturity’

endemic of all juveniles.” Commonwealth v. Batts, 163 A.3d 410, 435 (Pa. 

2017).
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Commonwealth v. Coia, 168 A.3d 219, 222–23 (Pa. Super. 2017) (quoting 

Batts II, 163 A.3d 410, 435-36 (Pa. 2017)).

A faithful application of Miller and Montgomery “requires the creation 

of a presumption against sentencing a juvenile offender to life in prison 

without the possibility of parole.” Batts II, 163 A.3d at 452; see also Coia, 

168 A.3d at 223.14 The burden of rebutting this presumption is placed upon

the Commonwealth. Batts II, 163 A.3d at 459. Finally, to rebut the 

presumption, the Commonwealth must prove, “beyond a reasonable doubt, 

that the juvenile offender is permanently incorrigible and thus is unable to be 

rehabilitated.” Id.

While the sentencing court did not use the specific language of Miller, 

stating that Appellant was “irretrievab[ly] deprav[ed,]” it is clear that the court 

was referring to Appellant’s lack of rehabilitation potential. Miller, 132 S. Ct. 

at 2458. The court recognized the burden was on the Commonwealth. N.T., 

10/19/16, at 67. The sentencing court concluded that the Commonwealth had 

____________________________________________

14 In Coia, the defendant was sentenced prior to the Pennsylvania Supreme 

Court’s decision in Batts II. Coia, 168 A.3d at 224. Thus, our Court vacated 

his sentence, remanded for reconsideration with the later-established 

presumption against the imposition of a life without parole sentence for a 

juvenile offender, and required the Commonwealth to rebut the presumption 

with evidence establishing beyond a reasonable doubt that the defendant was 

permanently incorrigible and unable to be rehabilitated. Id. In the instant 

case, although Appellant was sentenced while Batts II was pending on 

appeal, the parties stipulated, prior to resentencing, that there was a 

presumption against life sentences without the possibility of parole and that 

the Commonwealth must prove its case beyond a reasonable doubt. See N.T. 

7/25/16, at 7-8. Accordingly, a remand is unnecessary. 
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met its burden to establish that Appellant was a “rare and uncommon” child. 

Id. During the sentencing, the court noted: 

We also believe that it is the Commonwealth that has the burden 

of proof beyond a reasonable doubt to establish that this 

defendant is uncommon and rare and an unusual juvenile who 

would likely kill in the future, and the public can only be protected 

by him being incarcerated for the rest of his natural life.

We believe the Commonwealth has met that burden, and we 

believe that this defendant has earned and has continued to 

exhibit earning a sentence of life without the possibility of parole. 

N.T., 10/19/18, at 67. The court applied the correct standard. Thus, 

Appellant’s claim is specious and without merit, and Appellant is not entitled 

to relief. Coia, 168 A.3d 219 at 222-23. 

The Sufficiency of the Commonwealth’s Evidence

In a related claim, Appellant asserts that the Commonwealth failed to 

meet its burden to prove beyond a reasonable doubt that a life sentence 

without parole was justified. See Appellant’s Brief at 47-50. Specifically, 

Appellant argues that the Commonwealth did not establish that he was beyond 

rehabilitation. Id. According to Appellant, Dr. O’Brien’s testimony was 

ambivalent. Appellant argues that Dr. O’Brien stated that Appellant had a 

“documented capability of performing at work and ... meeting the 

programmatic needs[,]” but that his “rehabilitative potential is in my opinion 

hard to glean[.]” Id. at 48. Appellant further contends that Dr. O’Brien’s 

conclusion was based on speculation rather that the “subjective state of 

certitude” required by the reasonable doubt standard. Id. at 49. According 
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to Appellant, there was evidence of Appellant’s ability to be rehabilitated. Id.

at 49-50. For example, Appellant states he could be rehabilitated because he 

had met the qualifications for and was granted an incentive-based transfer. 

Id.15 Thus, Appellant concludes that the Commonwealth did not present 

competent evidence of Appellant’s lack of rehabilitative potential beyond a 

reasonable doubt. Id.

Essentially, Appellant challenges the sufficiency of the Commonwealth’s 

evidence, which presents a question of law. 

A claim challenging the sufficiency of the evidence is a question of 

law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 

contradiction to the physical facts, in contravention to human 

experience and the laws of nature, then the evidence is insufficient 

as a matter of law. When reviewing a sufficiency claim the court 

is required to view the evidence in the light most favorable to the 

verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted). Therefore, our standard of review is de novo, and the 

____________________________________________

15 An incentive-based transfer allows an inmate to be transferred closer to his

home region. See Appellant’s Exhibit 1, tab 41; see also Appellant’s Brief at 

49-50. In order for an inmate serving a life sentence to qualify for a transfer, 

the inmates must have: (1) been compliant with their Correctional plan; (2) 

maintained a Level 3 Custody Level; (3) have no Class 1 or Class 2 

misconducts within the prescribed time period; (4) have completed ten years 

of their sentence; and (5) have a period of ten years of overall positive 

adjustment. Id. The requirements also state that if an inmate fails to 

maintain the incentive-based requirements, he will be transferred away from 

his home region. Id. 
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scope of review is plenary. Commonwealth v. Delgros, 183 A.3d 352, 356 

(Pa. 2018). 

Here, Appellant does not accurately represent the testimony of Dr. 

O’Brien. In fact, Dr. O’Brien stated that from his review of Appellant’s record, 

Appellant presented a “superficial sense” of rehabilitation which is why he 

determined that Appellant’s rehabilitative potential was “hard to glean[.]” 

N.T. Excerpt, at 118. Dr. O’Brien clarified that Appellant’s behavior had shifted 

from individualized ASPD to institutionalized ASPD. See N.T. Excerpt, at 112-

13. According to Dr. O’Brien, Appellant is better able to conceal and 

manipulate his disability and “direct others to do his dirty work.” Id. at 113. 

Dr. O’Brien opined that this was consistent with Appellant’s “intelligence and 

Antisocial Personality Disorder diagnosis.” Id. at 112. Further, Dr. O’Brien 

testified that with Appellant’s shift into organized antisocial behavior, he is 

able to shift from acts of violence to other types of criminal activity. Id. at 

117-18.

After this initial testimony, Dr. O’Brien personally examined Appellant 

on October 11, 2016. N.T., 10/18/16, at 132-33. Based on this examination, 

Dr. O’Brien further clarified his original statements: 

[Appellant’s] profile predisposes him to interpersonal difficulty 

because it adversely influences rehabilitation efforts –

interpersonal difficulties that could adversely influence 

rehabilitation efforts. He was also identified as an individual who 

would not be very receptive to suggestions from others and 

resistant to treatment, and indicated that if he were pressured 

into therapy by outside circumstances, his cooperation would tend 

to be minimal ... personality disorders and antisocial disorders do 

attenuate to a certain degree with age, but there’s some variation 
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in that. But the bottom line is that [Appellant]’s testing reveals 

ongoing symptoms consistent with that diagnosis. 

Id. at 150-51; see also Commonwealth’s Exhibit 23 and 24 (Dr. O’Brien’s 

Report and results from Appellant’s tests respectively). Dr. O’Brien concluded 

with a reasonable degree of medical certainty Appellant’s chances of being 

rehabilitated is poor and that he was a rare and uncommon juvenile. Id. at 

151, 160-61. Thus, Appellant’s claim that Dr. O’Brien’s testimony did not 

meet the required burden of proof is not persuasive, in light of the entire 

record of Dr. O’Brien’s testimony. Widmer, 744 A.2d at 751. Therefore, as 

a matter of law, Dr. O’Brien’s testimony was sufficient. Id. 

Further, Appellant’s main argument in support of Appellant’s 

rehabilitative potential was the grant of his incentive-based transfer request 

on May 10, 2016. Appellant’s Brief at 49-50; see also Appellant’s Exhibit 1, 

tab 43. However, Appellant fails to mention that this transfer grant was 

revoked due to Appellant’s misconduct on October 11, 2016, one week prior 

to the second portion of his sentencing hearing. N.T., 10/18/16, at 166-67. 

Additionally, even if Appellant’s argument was credible, this evidence goes to 

an argument against the weight of the evidence and not to the sufficiency of 

the evidence. See, e.g., Commonwealth v. Crosley, 180 A.3d 761, 768 

n.2 (Pa. Super. 2018). 

The Discretionary Aspects of Appellant’s Sentence

Appellant raises two, interrelated arguments challenging the 

discretionary aspects of his sentence. Accordingly, we shall address them 
J-A10039-18

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together. Appellant claims that the trial court did not give the appropriate 

consideration and weight to the Miller sentencing factors. See Appellant’s 

Brief at 43. According to Appellant, the sentencing court: (1) improperly 

allowed the nature of the crime and past conduct to drive the sentence; (2) 

did not consider Appellant’s upbringing; (3) failed to consider evidence of 

Appellant’s rehabilitation; and (4) improperly relied on Appellant’s ASPD 

diagnosis as a predictor for future dangerousness without considering the 

possible attenuation of criminal behavior. Id. at 43-44, 51. 

In the instant case, Appellant

challenges the discretionary aspects of sentencing for which there 

is no automatic right to appeal. This appeal is, therefore, more 

appropriately considered a petition for allowance of appeal. Two 

requirements must be met before a challenge to the judgment of 

sentence will be heard on the merits. First, the appellant must set 

forth in his [or her] brief a concise statement of matters relied 

upon for allowance of appeal with respect to the discretionary 

aspects of his [or her] sentence. Pa.R.A.P. 2119(f). Second, he or 

she must show that there is a substantial question that the 

sentence imposed is not appropriate under the Sentencing Code. 

42 Pa.C.S.A. § 9781(b)[.]

The determination of whether a particular case raises a substantial 

question is to be evaluated on a case-by-case basis. Generally, 

however, in order to establish that there is a substantial question, 

the appellant must show actions by the sentencing court 

inconsistent with the Sentencing Code or contrary to the 

fundamental norms underlying the sentencing process.

Commonwealth. v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)

(quoting Commonwealth v. Marts, 889 A.2d 608, 610-11 (Pa. Super. 

2005)). In addition to filing these requirements, an appellant must have 

timely appealed and preserved the issues on appeal. King, 182 A.2d at 453. 
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Here, Appellant has timely appealed, preserved his issues on appeal through 

a post-sentence motion to modify his sentence, and filed a proper 2119(f) 

statement. Thus, we must determine if Appellant has raised a substantial 

question. Seagraves, 103 A.3d at 841-42 ( stating “[i]n reviewing a 

challenge to the discretionary aspects of sentencing, we evaluate the court's 

decision under an abuse of discretion standard.”) (quoting Dodge, 77 A.3d at 

1274). 

“We are, of course, mindful that it is apparent that this Court's 

determination of whether an appellant has presented a substantial question 

in various cases has been less than a model of clarity and consistency, even 

in matters not involving excessive sentence claims.” Commonwealth v. 

Dodge, 77 A.3d 1263, 1272 n. 8 (Pa. Super. 2013). Nevertheless we have 

recognized a distinction between a sentencing court’s failure to consider the 

factors required by law, in this case as outlined by Miller, and allegations that 

the court has failed to properly weigh these factors. Id. For example, 

allegations that the sentencing court failed to consider the Miller factors raises 

a substantial question. Seagraves, 103 A.3d at 842. However, an argument 

that the court failed to “adequately” consider the mitigating evidence does not 

raise a substantial question. Dodge, 77 A.3d at 1272.

Here, Appellant states that

[t]he sentencing court considered the nature of the crime and past 

conduct primarily in determining the sentence. Rather, Appellant 

asserts that the court erred in not adequately and appropriately 

considering Appellant’s ability to be rehabilitated as required by 

the Miller and Montgomery Supreme Court decisions.
J-A10039-18

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Appellant’s Brief at 19. Unlike in Seagraves, Appellant does not assert the 

Miller factors were ignored, rather Appellant asserts that the court failed to 

adequately consider those factors. Id. Thus, Appellant’s argument, that the 

sentencing court did not adequately consider Appellant’s ability to be 

rehabilitated, does not present a substantial question and does not warrant a 

review on the merits of Appellant’s argument. Dodge, 77 A.3d at 1272 n. 8. 

Nevertheless, the record supports that the sentencing court properly 

considered the Miller factors. N.T., 10/18/16, at 67; see also TCO 5/25/17, 

at 6. The court had access to an extensive sentencing memorandum provided 

by Appellant, which included significant mitigating factors and the court made 

specific mention of his review of these on the record. N.T., 10/19/16, at 66. 

Additionally, to the extent Appellant challenges the court’s reliance on 

Appellant’s ASPD diagnosis, we note that the court is free to rely on evidence 

of a defendant’s mental health. See e.g., Miller, 132 S. Ct. at 2467 (quoting 

Eddings v. Oklahoma, 102 S. Ct. 869, 877 (2012) (stating that “just as the 

chronological age of a minor is itself a relevant mitigating factor of great 

weight, so must the background and mental and emotional development of a 

youthful defendant be duly considered”)); Batts II, 163 A.3d at 422-24 

(discussing expert testimony concerning defendant’s mental health); 

Seagraves, 103 A.3d at 850 (referencing the relevance of a defendant’s 

mental health history). Thus, even if we were to recognize that Appellant 

presented a substantial question, we discern no abuse in the court’s discretion 
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in sentencing Appellant. Dodge, 77 A.3d at 1274; Seagraves, 103 A.3d at 

842. 

Request for Continuance

Finally, Appellant claims that the court erred in denying his request to 

continue the July 26, 2016 sentencing hearing. See Appellant’s Brief at 62. 

According to Appellant, the Commonwealth belatedly notified him of its 

intention to introduce expert testimony. Id. Appellant suggests that the last 

minute addition of expert testimony did not afford him adequate time to 

prepare a response. Id. Appellant’s claim is without merit. 

Our Court has held that a sentencing court’s decision to deny a 

continuance request will be overturned if “prejudice or a palpable and manifest 

abuse of discretion is demonstrated.” Commonwealth v. Pries, 861 A.2d 

951, 953 (Pa. Super. 2004) (citing Commonwealth v. Griffin, 804 A.2d 1, 

12 (Pa. Super. 2002). Further, 

[a]n appellant must be able to show specifically in what manner 

he was unable to prepare his defense or how he would have 

prepared differently had he been given more time. We will not 

reverse a denial of a motion for continuance in the absence of 

prejudice.

Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (citing 

Commonwealth v. Brown, 505 A.2d 295, 298 (Pa. Super. 1986). 

Here, the record does not support Appellant’s assertion. Essentially the 

sentencing court did grant Appellant’s continuance request. See N.T, 

7/25/16, at 29-30. Although the court declined to postpone the 
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Commonwealth’s presentation of its case, it gave Appellant three months to 

acquire experts and prepare a response. Appellant also conceded that he 

would be amenable to having the Commonwealth present its case, if he could 

receive “a very lengthy adjournment from tomorrow until the next time we 

call experts.” Id. at 10. Further, Appellant was able to cross-examine 

Commonwealth’s main expert, Dr. O’Brien, a second time during the October 

portion of Appellant’s sentencing hearing. N.T., 10/18/16, at 161. 

Additionally, Appellant was able to secure Dr. Russell as an expert witness, 

who met with Appellant twice in the interim, three-month period. 

Thus, we conclude that Appellant’s argument is devoid of merit. 

Appellant has not shown that he was prejudiced by the continuance and is not 

entitled to relief. Ross, 57 A.3d at 91.

Application for Post-Submission Communication granted; judgment of 

sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/27/18