J-S57016-16

2016 PA Super 257

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRILL JAVON HICKS,

Appellant No. 1742 WDA 2015

Appeal from the Judgment of Sentence October 23, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0006205-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,*JJ.

OPINION BY SHOGAN, J.: FILED NOVEMBER 18, 2016

Appellant, Terrill Javon Hicks, appeals from the judgment of sentence 

entered on October 23, 2015, in the Allegheny County Court of Common 

Pleas. After careful review, we vacate and remand with instructions.

The trial court provided the following factual background in this

matter:

The testimony in this case is summarized as follows. 

Kendall Dorsey testified that on December 23, 2006, while 

sitting on the front porch with his friend Kevin Harrison, he saw 

Appellant shooting at him and at Harrison. (Transcript of Jury 

Trial April 27-May 3, 2010, hereinafter TT[, at] 108-9) Dorsey 

saw co-Defendant Raymont Walker standing with Appellant. (TT 

109) Dorsey scurried into the house and avoided injury, but 

Harrison was shot and killed. (TT 109-10)

Dorsey testified that a few days earlier he was at his friend 

John McDonald’s house. (TT 97) He heard a knock on the door. 

 

*

 Retired Senior Judge assigned to the Superior Court.
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Another friend, Michael Harris, answered the door. Immediately, 

Appellant attempted to pull Harris out of the house, but the 

attempt was unsuccessful as Harris was able to close the door. 

(TT 98) Dorsey testified that he went upstairs, looked out a 

window and observed Appellant and Walker in the street holding 

pistols. Ibid.

The following day, the day before the shooting, Dorsey 

testified that he had an encounter in the neighborhood with 

Appellant. Appellant said that he had been robbed, and that he 

thought that Dorsey, Harris and Harrison did it. (TT 100) Dorsey 

denied robbing Appellant. Ibid. 

The next day, the day of the murder, Dorsey testified that 

Appellant and Walker drove up to Dorsey and Harrison while 

they were walking a dog. Appellant and Walker exited the car, 

and Walker said, “Where is Mike Harris at?” (TT 102) Dorsey 

observed that both Appellant and Walker had weapons. (TT 103) 

Dorsey and Harrison lied, denying that they knew Harris’ 

location, and eventually Appellant and Walker got back in their 

car, a white Chevrolet Impala, and left. (TT 104)

After that incident, Dorsey testified that he and Harrison 

immediately returned to Harrison’s house, where they knew 

Harris was. Ibid. Dorsey noticed a white Chevrolet Impala 

circling the house, the same car in which he had just seen 

Appellant and Walker. Ibid. He safely entered the residence but 

eventually went outside to the front porch with Harrison to 

smoke a cigarette. (TT 105-6) Dorsey told Harris not to join 

them on the porch because Appellant and Walker were looking 

for him. (TT 106) Appellant and Walker approached the house. 

Appellant fired approximately ten shots, killing Kevin Harrison.

John McDonald corroborated Dorsey’s testimony regarding 

the incident at his house. McDonald said that he encountered 

Appellant at a gas station the day before Appellant came to his 

house. McDonald said Appellant was upset because he had been 

robbed. (TT 192) Appellant told McDonald he did not know who 

had robbed him. Ibid.

McDonald said that, on the following day, Appellant came 

to his house and attempted to forcibly remove Harris from 

McDonald’s home when Harris answered the door. (TT 190) The 

day after, Appellant and Walker came to his house again. (TT 
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191) By that point, Appellant had become convinced that Harris, 

Harrison and a third individual nicknamed “Dee” had robbed him. 

(TT 192-3) Appellant told McDonald that he was looking for the 

people that he thought had robbed him, and if Appellant found 

them, either they would get hurt or someone would die. (TT 

196) Walker added that what the robbers had done “wasn’t 

cool” and that he “was going to ride with Appellant,” his best 

friend. (TT 199) McDonald, an army sergeant with eight years of 

military experience, observed that Appellant was carrying a gun 

which he recognized as a “Glock 45.” (TT 196)

Michael Harris testified that he was inside Harrison’s house 

on the couch in the front living room when the shots were fired. 

(TT 240) He heard the shots hit the house, so he moved to the 

floor and exited toward the rear of the house. He also reiterated 

that Appellant had attempted to pull him out of McDonald’s 

residence on the day before the shooting. (TT 239) 

John Betarie, a Homestead police officer, testified that he 

recovered six shell casings at the scene of the shooting in the 

location where Dorsey said Appellant was standing, and three 

additional projectiles on the kitchen floor. (TT 86) These shell 

casings were sent to the crime lab for analysis. Ibid. Dr. Robert 

Levine, a forensics expert at the crime lab, testified that the 45 

caliber casings found at the scene were all fired from the same 

weapon. (TT 347)

Dr. Abdulrezak Shakir, a forensic pathologist with the 

Allegheny County Medical Examiner’s Office, conducted the 

autopsy of Kevin Harrison. (TT 357-8) Dr. Shakir stated that 

Harrison was shot three times. (TT 358) He concluded that 

Harrison died as a result of a gunshot wound to the head, and 

ruled the manner of death as homicide. (TT 362)

Trial Court Opinion, 2/8/12, at 3-6.

On May 3, 2010, Appellant, Terrill Hicks, was convicted by 

a jury of his peers of one count of Murder of the First Degree, 

two counts of Aggravated Assault, one count of Criminal 

Attempt-Homicide, one count of Possession of Firearm by a 

Minor and one count of Criminal Conspiracy [to commit 

homicide]. On August 2, 2010, this Court sentenced Appellant 

to life without the possibility of parole on the charge of Murder in 

the First Degree, a consecutive ten to twenty years for the 
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Criminal Attempt-Homicide count, a consecutive five to ten years 

for the Aggravated Assault[1]and no further penalty on the 

remaining charges. Post sentence motions were denied on 

August 25, 2010 and Appellant did not file a timely Notice of 

Appeal. On June 29, 2011, Appellant filed a pro se PostConviction Relief Act petition seeking to have his appellate rights 

reinstated nunc pro tunc. On November 7, 2010, this Court 

reinstated appellate rights to Appellant. Appellant filed a Notice 

of Appeal on November 17, 2010 and a Statement of Errors 

Complained of on Appeal on November 30, 2010.

Trial Court Opinion, 2/8/12, at 2-3.

While this matter was pending on appeal, the United States Supreme 

Court issued an opinion in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 

2455 (2012). The Supreme Court held that mandatory sentences of life 

imprisonment without the possibility of parole for defendants under the age 

of eighteen at the time of their crimes violate the Eighth Amendment to the 

United States Constitution. Miller, 132 S. Ct. at 2464. On November 21, 

2013, a panel of this Court vacated Appellant’s judgment of sentence and 

remanded for resentencing. Commonwealth v. Hicks, 1822 WDA 2011, 

91 A.3d 1293 (Pa. Super. filed November 21, 2013) (unpublished 

memorandum).

On October 23, 201[5], after a remand from the Superior 

Court of Pennsylvania, [the trial court] re-sentenced Appellant, 

Terrill Javon Hicks, on one count each of Murder of the First 

Degree, Criminal Attempt-Homicide, Aggravated Assault, 

Possession of a Firearm by a Minor, and Criminal Conspiracy. 

[The trial court] sentenced Appellant to 35 years to life 

imprisonment for the Murder in the First Degree conviction, 10 

to 20 years for the Criminal Attempt-Homicide conviction, 21⁄2 to 

 

1

 The second conviction for aggravated assault merged with the attempted 

homicide conviction for sentencing purposes.
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5 years for the Aggravated Assault conviction, both sentences to 

be served consecutive to the Homicide sentence, and no further 

penalty on the remaining counts. This Court denied Appellant’s 

Motion for Post Sentence Relief on October 28, 2015. Appellant 

filed a Notice of Appeal and a Statement of Errors Complained of 

on Appeal on November 3, 2015.

Trial Court Opinion on Remand, 2/29/16, at 2 (footnotes omitted).

On appeal, Appellant presents the following issues for this Court’s 

consideration:

1. Did the trial court err in denying Appellant’s post sentencing 

motions since the evidence was insufficient to convict 

Appellant of aggravated assault-[serious bodily injury (“SBI”)] 

of Michael Harris since Harris was inside of the house when 

shots were fired, and therefore could not have been the 

target or a possible victim of the shooter, who shot at 

Harrison and Dorsey, who were on the outside porch of the 

house. Moreover, the evidence was insufficient to convict 

Appellant of conspiracy (with co-defendant Raymont Walker) 

to commit homicide (of Harrison), attempted homicide of 

Dorsey, aggravated assault-SBI of Dorsey and aggravated 

assault-SBI of Harris since there was no evidence presented 

at trial of a conspiracy between Appellant and Walker to 

commit these crimes[?]

2. Did the trial court err in denying Appellant’s post sentencing 

motions since Appellant’s convictions of the homicide of 

Harrison, the attempted homicide of Dorsey, aggravated 

assault-SBI of Harris, aggravated assault-SBI of Dorsey, 

VUFA, and conspiracy with Walker were against the weight of 

the evidence due to the incredible and contradictory 

testimony of Commonwealth witnesses Harris, Dorsey, and 

John McDonald[?]

3. Did the trial court err in denying Appellant’s post sentencing 

motions since the trial court erred in denying Appellant’s 

motion in limine (pursuant to Pa.R.E. 403) regarding evidence 

surrounding the charges against Appellant at 8245-2007 

(aggravated assault-SBI of Dorsey, aggravated assault-SBI of 

Harris, and VUFA regarding shots fired at the two victims on 

4/23/07), which occurred four months after the instant 
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homicide/shooting at 6205-2007, and which were severed by 

Judge Nauhaus and to be tried separately (but were 

eventually nolle prossed after Appellant’s homicide, etc. 

conviction at the instant case); the prejudicial effect of the 

evidence outweighed its probative value, and deprived 

Appellant of a fair jury trial[?]

4. Did the trial court err in denying Appellant’s post sentencing 

motions since Appellant’s murder 1 sentence of 35 years to 

life imprisonment, and, the imposition of a consecutive 

sentence [of] 10-20 years’ imprisonment for attempted 

homicide, and a second consecutive sentence of 2.5-5 years’ 

imprisonment, resulting in an aggregate sentence of 47.5 

years to life imprisonment, were each and aggregately 

manifestly excessive since [Appellant] showed remorse and 

accepted responsibility for his crimes, he was taking steps to 

rehabilitate himself and demonstrated that he was a changed 

person, and it is unreasonable to believe that it will take 

another 39 years, when he will be 62 years old, for Appellant 

to reach the point at which he can return to and become a 

productive member and positive member of society?

Appellant’s Brief at 3-4 (full capitalization omitted).2

In Appellant’s first issue, he argues that: 

there was insufficient evidence to convict [him] of the 

aggravated assault-SBI of Michael Harris, and insufficient 

evidence to convict of conspiracy with Raymont Walker to 

commit the homicide of Harrison, the attempted homicide of 

Dorsey, aggravated assault-SBI of Dorsey and aggravated 

assault-SBI of Harris since there was no evidence adduced at 

trial indicating that any conspiracy or agreement existed. 

Appellant’s Brief at 37. After reviewing the record, we conclude that 

Appellant is entitled to no relief.

Our standard of review when considering challenges to the sufficiency 

of the evidence is well settled:

 

2

 For purposes of our discussion, we have renumbered Appellant’s questions 

presented on appeal. 
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The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of

proof or proving every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003). 

The trial court addressed Appellant’s challenge to the sufficiency of the 

evidence as follows:

As to the conspiracy charge, an eyewitness identified Appellant 

as the shooter and identified Walker as being with Appellant. A 

few days earlier, Appellant, again accompanied by Walker, tried 

unsuccessfully to pull Harris into the street, presumably to exact 

revenge against the individual Appellant concluded had robbed 

him. Then later Appellant and Walker together went looking for 

Harris in the neighborhood. At least two witnesses testified to

seeing one or both men with guns on these earlier occasions. 

The white Impala they had been using was observed circling 

Harris’ residence. Later, Dorsey observed Appellant and Walker 

across the street from Harris’ residence with a gun. At all times 

Walker was with Appellant, his self-described best friend. 

[Walker] made a statement that he was going to “ride” with 

Appellant, a statement which, given the context, easily could be 

interpreted beyond its literal meaning. Given the totality of 

circumstances, it was not error for the jury to find Appellant and 
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Walker conspired to commit the offenses for which Appellant was 

convicted[.]

Regarding the Aggravated Assault charge, even assuming 

the evidence did not support that Harris was an intended target 

of Appellant, Appellant is incorrect in asserting that he cannot be 

convicted of Aggravated Assault on an unintended victim. 

Aggravated Assault is defined as follows:

2702. Aggravated assault

(a) Offense defined.--A person is guilty of 

aggravated assault if he:

(1) attempts to cause serious bodily injury to 

another, or causes such injury intentionally, 

knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of 

human life.

Appellant’s assertion that aggravated assault requires an 

assailant to intend to cause serious bodily injury to a victim is 

clearly erroneous. Under a plain reading of the statute, one who 

causes serious bodily injury to another recklessly under 

circumstances manifesting extreme indifference to the value of 

human life is guilty of this offense. Shooting multiple rounds at 

people standing on the front porch of a house demonstrated 

Appellant’s extreme indifference to the value of human life. 

Commonwealth v. Hunter, 644 A.2d 763 (Pa.Super 1994). This 

reckless conduct alone is sufficient to support his conviction for 

Aggravated Assault on a person inside the house, especially 

when shell casings were recovered from the floor inside that 

house.

Trial Court Opinion, 2/8/12, at 6-7.

We agree with the trial court’s analysis. Appellant, in concert with 

Walker, pursued the victims and fired multiple shots at an occupied house, 

which resulted in Harrison’s death and projectiles penetrating the house 

where Harris and Dorsey had hidden. In Hunter, the case cited by the trial 
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court, this Court explained that where an individual fired gunshots into a 

residence that he knew to be occupied, his indifference as to who might be 

shot does not lessen the seriousness of the act, and the intent to do serious 

bodily harm can be inferred from discharging a firearm into an occupied 

home. See Hunter, 644 A.2d 763, 764 (“Because there exists the 

probability that a person in the home could be harmed if someone were to 

shoot into the home, an attempt to cause serious bodily harm to such a 

person can be inferred.”) (citing Commonwealth v. Eaddy, 614 A.2d 1203 

(Pa. Super. 1992)). Accordingly, we conclude there was ample evidence 

establishing Appellant’s guilt.

Next, Appellant argues that his convictions were against the weight of 

the evidence because the testimony of Commonwealth witnesses Harris, 

Dorsey, and John McDonald was contradictory and not credible. We 

conclude that no relief is due.

At the outset, we note that the weight attributed to the evidence is a 

matter exclusively for the fact finder, who is free to believe all, part, or none 

of the evidence and to determine the credibility of the witnesses. 

Commonwealth v. Forbes, 867 A.2d 1268, 1272-1273 (Pa. Super. 2005). 

The grant of a new trial is not warranted because of “a mere conflict in the 

testimony” and must have a stronger foundation than a reassessment of the 

credibility of witnesses. Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa. 

Super. 2007). Rather, the role of the trial judge is to determine that, 
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notwithstanding all of the facts, certain facts are so clearly of greater weight, 

that to ignore them or to give them equal weight with all of the facts is to 

deny justice. Id. 

An appellate court’s purview:

is extremely limited and is confined to whether the trial court 

abused its discretion in finding that the jury verdict did not shock 

its conscience. Thus, appellate review of a weight claim consists 

of a review of the trial court’s exercise of discretion, not a review 

of the underlying question of whether the verdict is against the 

weight of the evidence.

Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (internal 

citations omitted). An appellate court may not reverse a verdict unless it is 

so contrary to the evidence as to shock one’s sense of justice. Forbes, 867 

A.2d at 1273. “[T]he trial court’s denial of a motion for a new trial based on 

a weight of the evidence claim is the least assailable of its rulings.” 

Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

Here, the focus of Appellant’s argument is solely on the credibility of 

the Commonwealth’s witnesses. Appellant’s Brief at 39-45. Specifically, 

Appellant argues that one of the victims, Dorsey, denied knowing who the 

shooter was and delayed in reporting the identity of the shooter. Id. at 42. 

Appellant also points to the fact that Dorsey admitted he told police that he 

did not know it was Appellant who fired the gun, but at trial, Dorsey stated 

that his denial to police was because he planned to retaliate against 

Appellant. Id. (citing N.T., 4/27/10-5/3/10, at 111; 136-137). However, as 

noted above, it was for the jury as the finder of fact to determine the 
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credibility of the witnesses. Forbes, 867 A.2d at 1272-1273. This Court 

does not reweigh the evidence, and pursuant to our standard of review, we 

cannot conclude that the verdict in this matter in any way shocks the 

conscience. We discern no abuse of discretion by the trial court’s denial of 

Appellant’s post-sentence motion for a new trial based on the weight of the 

evidence.

In his third issue, Appellant avers that the trial court erred when it 

denied his motion in limine regarding charges against Appellant at trial court 

docket number 8245-2007. As noted above, docket number 8245-2007 

concerned charges of aggravated assault and violations of the Uniform 

Firearms Act (“VUFA”) filed against Appellant and Deondray Beasley due to 

the shots fired at Dorsey and Harris on April 23, 2007, four months after the 

homicide in the instant case. The trial court severed the cases, but the 

charges at 8245-2007 were nol prossed after Appellant’s conviction in the 

case at bar. Appellant argues that evidence of the subsequent shooting 

incident at 8245-2007 was prejudicial and outweighed its probative value.

In evaluating the denial or grant of a motion in limine, our standard of 

review is the same as that utilized to analyze an evidentiary challenge. 

Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014). It is well 

settled that “[t]he admission of evidence is solely within the discretion of the 

trial court, and a trial court’s evidentiary rulings will be reversed on appeal 

only upon an abuse of that discretion.” Commonwealth v. Woodard, 129 
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A.3d 480, 494 (Pa. 2015) (citation omitted). “An abuse of discretion will not 

be found based on a mere error of judgment, but rather occurs where the 

court has reached a conclusion that overrides or misapplies the law, or 

where the judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will.” Id. (citation omitted). “The court may 

exclude relevant evidence if its probative value is outweighed by a danger of 

one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Pa.R.E. 403. 

As discussed above, when Dorsey was initially questioned, he denied 

knowing that it was Appellant who had shot at Harris, Harrison, and him. 

N.T., 4/27/10-5/3/10, at 111. Dorsey testified that his reluctance to 

cooperate with the investigation was because “we don’t deal with police.” 

Id. at 171. However, after Appellant again shot at Dorsey in April of 2007, 

the event that underlies the separate charges against Appellant at docket 

number 8245-2007, Dorsey told police that it was Appellant who had shot at 

him both in the shooting that resulted in the death of Harrison in December 

of 2006 and in the April 2007 shooting. Id. at 112. Dorsey testified that he 

came forward because he came to fear for his safety. Id. at 174. In the 

motion in limine and now on appeal, Appellant argues that the events from 

April of 2007 should not have been admissible. We disagree.
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“It is axiomatic in a criminal trial that all evidence offered by the 

prosecution will be prejudicial to the defendant. Were mere prejudice the 

standard, virtually all evidence could reasonably be excluded.” 

Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996). For this 

reason, the test for admissibility is whether the probative value of the 

challenged evidence is outweighed by unfair prejudice. Commonwealth v. 

K.S.F., 102 A.3d 480, 484-485 (Pa. Super. 2014); and Pa.R.E. 403.

The trial court addressed this issue as follows:

Appellant alleges this Court erred in denying Appellant’s Motion 

in Limine, in that the prejudicial effect of testimony regarding an 

alleged shooting four months after the instant homicide 

outweighed any probative value. Specifically, Dorsey testified 

that four months after witnessing the homicide, a number of 

individuals shot at him and other members of his family. (TT 

115, 118-119) Dorsey believed that he and his family were in 

danger. As a result of this incident Dorsey decided to reveal 

additional information to the police. (TT 116, 163, 174)

“Evidence of a defendant’s distinct crimes are not generally 

admissible against a defendant solely to show his bad character 

or his propensity for committing criminal acts, as proof of the 

commission of one offense is not generally proof of the 

commission of another.” Commonwealth v. Billa, 555 A.2d 835, 

838 (Pa. 1989) (emphasis in original); See Pa.R.E. 404; See also 

Commonwealth[] v. Lark, 543 A.2d 491, 497 (Pa. 1988). 

However, this general proscription against admission of a 

defendant’s distinct bad acts is subject to numerous exceptions if 

the evidence is relevant for some legitimate evidentiary reason 

and not merely to prejudice the defendant by showing him to be 

a person of bad character. Billa, supra. Exceptions that have 

been recognized as legitimate bases for admitting evidence of a 

defendant’s distinct crimes include, but are not limited to:

(1) motive; (2) intent; (3) absence of mistake 

or accident; (4) a common scheme, plan or design 

such that proof of one crime naturally tends to prove 
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the others; (5) to establish the identity of the 

accused where there is such a logical connection 

between the crimes that proof of one will naturally 

tend to show that the accused is the person who 

committed the other; (6) to impeach the credibility 

of a defendant who testifies in his trial; (7) situations 

where defendant’s prior criminal history had been 

used by him to threaten or intimidate the victim; (8) 

situations where the distinct crimes were part of a 

chain or sequence of events which formed the 

history of the case and were part of its natural 

development (sometimes called “res gestae” 

exception).

Ibid. citing Pa.R.E. 404(b); See also Lark, supra. This list is by 

no means exhaustive. See Commonwealth v. Watkins, 843 A.2d 

1203, 1215 n. 1 (Pa. 2003). Additional exceptions are 

recognized when the probative value of the evidence outweighs 

the potential prejudice to the trier of fact. Commonwealth v. 

Claypool, 495 A.2d 176 (Pa. 1985). For example, an additional 

exception, explaining a delay in reporting a crime, was 

recognized in Commonwealth v. Dillon, 925 A.2d 131, 139 (Pa. 

2007).

In the case sub judice, the critical eye-witness, Dorsey, 

delayed in fully reporting a crime. Only the testimony regarding 

the subsequent attempted shooting can explain to the fact finder 

such a delay. Thus, the probative value of this evidence is 

significant. The prejudicial effect of testimony regarding a later 

shooting, in which Appellant may have been involved but was 

not directly implicated, in the context of a homicide trial, while 

not insignificant, was considerably less than the probative value. 

The testimony of the shooting four months after the homicide 

does not establish any element of the crimes for which Appellant 

is charged, but it does explain the eyewitness’ delay in coming 

forward. As such, this Court did not err in determining that its 

probative value outweighs any resulting prejudice to Appellant.

Trial Court Opinion, 2/8/12, at 8-10. 

After review, we discern no abuse of discretion in the trial court’s 

ruling. As explained by the trial court, Pennsylvania recognizes a res gestae
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exception, permitting the admission of evidence of other crimes or bad acts 

to tell “the complete story.” Commonwealth v. Hairston, 84 A.3d 657, 

665 (Pa. 2014) (citations omitted). “Such evidence may be admitted, 

however, ‘only if the probative value of the evidence outweighs its potential 

for unfair prejudice.’” Id. (citing Pa.R.E. 404(b)(2)). Herein, the testimony 

regarding the April shooting provided the jury with the full history of the 

interaction among Appellant, his cohorts, and the victims. Moreover, the 

events in April of 2007 provided a background by which the jury could weigh 

Dorsey’s testimony and his delay in identifying Appellant as the perpetrator 

of the crimes. Accordingly, we conclude that Appellant is entitled to no 

relief.

Finally, Appellant claims that the trial court abused its discretion when 

it resentenced him pursuant to 18 Pa.C.S. § 1102.1. Specifically, Appellant 

avers that his sentence of thirty-five years to life, coupled with two 

consecutive terms of imprisonment of ten to twenty years for attempted 

homicide and two and one-half to five years for aggravated assault, resulting 

in an aggregate sentence of forty-seven and one-half years to life 

imprisonment, were each and aggregately manifestly excessive. After 

review, we are constrained to conclude that the trial court abused its 

discretion in relying solely on section 1102.1 without considering the 

sentencing factors set forth in Commonwealth v. Knox, 50 A.3d 732, 745 

(Pa. Super. 2012) (citing Miller, 132 S.Ct. at 2455). 
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Appellant’s claims of sentencing errors are challenges to the 

discretionary aspects of his sentence. We note that “[t]he right to appellate

review of the discretionary aspects of a sentence is not absolute.” 

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, 

where an appellant challenges the discretionary aspects of a sentence, the 

appeal should be considered a petition for allowance of appeal. 

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

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 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 appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. 

Super. 2006)). The determination of whether there is a substantial question 

is made on a case-by-case basis, and this Court will grant the appeal 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 
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the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

Herein, the first three requirements of the four-part test are met: 

Appellant filed a timely appeal, raised the challenges in a post-sentence 

motion, and included in his brief the necessary separate concise statement 

of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 

2119(f). Therefore, we next determine whether Appellant raises a 

substantial question requiring us to review the discretionary aspects of the 

sentence imposed by the trial court.

“We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Ahmad, 961 

A.2d 884, 886-887 (Pa. Super. 2008). Here, Appellant argues in his 

Pa.R.A.P. 2119(f) statement that the trial court abused its discretion by 

imposing a manifestly excessive sentence and by failing to provide the 

reasons for the sentence imposed. Appellant’s Brief at 15. 

“While a bald claim of excessiveness does not present a substantial 

question for review, a claim that the sentence is manifestly excessive, 

inflicting too severe a punishment, does present a substantial question.” 

Commonwealth v. Haynes, 125 A.3d 800, 807-808 (Pa. Super. 2015) 

(citation omitted). Moreover, the sentencing court’s failure to set forth 

adequate reasons for the sentence imposed also raises a substantial 

question. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 
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2009) (citation omitted). As we noted above, the trial court improperly 

relied on 18 Pa.C.S. § 1102.1(a) without making a determination of 

sentence duration based on Knox and Miller. Because the trial court was 

not bound by 18 Pa.C.S. § 1102.1(a), it could have, within its discretion, 

imposed a shorter minimum sentence on the homicide conviction.3 

Accordingly, we will consider the merits of Appellant’s sentencing challenges.

First, we note that at Appellant’s resentencing, the trial court reviewed 

the pre-sentencing expert reports, stated the applicable sentencing guideline 

ranges, and heard testimony from Appellant, his mother, his sisters, and a 

family friend. N.T., 10/23/15, at 4, 5-37, 46, 54-56. The trial court 

considered the above information and thoroughly explained its rationale for 

the sentences imposed. Id. at 54-55. 

Additionally, in its Pa.R.A.P. 1925(a) opinion, the trial court further 

addressed this issue as follows:

Appellant was originally sentenced to a mandatory term of 

life imprisonment on the Murder of the First Degree conviction. 

Due to the decision in Miller v. Alabama, Appellant was resentenced.3

 In response to Miller v. Alabama, Pennsylvania 

enacted 18 Pa.C.S. § 1102.1, which provides the mandatory 

minimum sentences for juvenile murderers. A court is required 

to sentence a juvenile between ages 15-18 who commits a 

 

3

 We are constrained to point out that because Miller and its Pennsylvania 

progeny do not prohibit a life sentence, the trial court could have, within its 

discretion, imposed a longer minimum sentence. See Knox, 50 A.3d at 745 

(noting that while Miller held that mandatory life sentences were 

unconstitutional, “our disposition does not mean that it is unconstitutional 

for a juvenile actually to spend the rest of his life in prison, only that the 

mandatory nature of the sentence, determined at the outset, is 

unconstitutional.”) (emphasis added).
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Murder in the First Degree to at least 35 years to life 

imprisonment. 18 Pa.C.S. § 1102.1(a)(1).

3

 In Miller v. Alabama, the Supreme Court held that 

“mandatory life imprisonment without parole for 

those under the age of 18 at the time of their crimes 

violates the Eighth Amendment’s prohibition on cruel 

and unusual punishments.” Miller v. Alabama, 132 

S.Ct. 2455 (2012).

In accordance with § 1102.1, this Court resentenced 

Appellant to 35 years to life imprisonment. This Court sentenced 

Appellant to the mandatory minimum required by Pennsylvania 

law on the Murder in the First Degree count. As the sentence 

was statutorily required, his claim of excessiveness as to this 

count lacks merit.

Appellant was sentenced in the standard range for the 

counts of Criminal Attempt-Homicide and Aggravated Assault. 

None of these sentences are individually excessive because they 

are each within the required or standard range proscribed by the 

Pennsylvania Sentencing Guidelines. A standard range sentence 

carries its own presumption of reasonability. Commonwealth v. 

Walls, 926 A.2d 957, 964-965 (Pa. 2007).

Furthermore, the aggregate sentence imposed is not 

excessive upon consideration of the sentencing factors of 

§ 9721. Appellant heinously murdered 16 year-old Kevin 

Harrison on his own front porch and attempted to do the same 

to Kendall Dorsey and Michael Harris. Appellant is not entitled to 

a volume discount nor should he receive a benefit for his poor 

aim. It is this Court’s obligation to protect the public from those 

who commit vicious crimes such as those committed by 

Appellant. This Court did not act unreasonably or with prejudice. 

This sentence is thoroughly reflective of the gravity of the 

offense as it relates to the three victims, particularly 

Kevin Harrison who was robbed of his life, and of the need to 

protect the community, yet allows the possibility for Appellant to 

reenter society eventually as a rehabilitated man.

Trial Court Opinion on Remand, 2/29/16, at 4-6.
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The trial court correctly noted that 18 Pa.C.S. § 1102.1 carries a 

mandatory minimum sentence of thirty-five years to life imprisonment for an 

offender who is between fifteen and eighteen years of age at the time of the 

offense. Appellant was sixteen years old at the time of the homicide, and 

the trial court imposed a thirty-five years to life sentence pursuant to section 

1102.1. However, section 1102.1 applies only to convictions that occurred 

“after June 24, 2012.” 18 Pa.C.S. § 1102.1(a). Here, Appellant was 

convicted on May 3, 2010, prior to the effective date of 18 Pa.C.S. 

§ 1102.1(a). 

In Commonwealth v. Batts, 125 A.3d 33 (Pa. Super. 2015) (“Batts 

III”), our Court addressed this issue as follows:

[T]he new Section 1102.1 did not apply to Appellant 

because Appellant was convicted of murder in 2007, before the 

effective date of Section 1102.1. Instead, Appellant was subject 

to the version of Section 1102 that was in effect at the time of 

his sentencing. Accordingly, in [Commonwealth v. Batts, 66 

A.3d 286 (Pa. 2013) (“Batts II”)], our Supreme Court examined 

“the appropriate remedy for the Eighth Amendment violation 

that, under Miller, occurred when Appellant was mandatorily 

sentenced to life imprisonment without the possibility of parole 

upon his conviction for first-degree murder” in context of the 

then-existing statutory scheme in Section 1102. Batts II, 

supra. 

In Batts II, our Supreme Court explained that Miller’s

holding is narrow, i.e., mandatory sentences of life 

imprisonment without the possibility of parole are not 

constitutional when imposed on juveniles convicted of murder. It 

accordingly rejected Appellant’s argument that Miller rendered 

Section 1102 unconstitutional in its entirety as applied to 

juveniles, reasoning as follows.
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Section 1102, which mandates the imposition 

of a life sentence upon conviction for first-degree 

murder, see 18 Pa.C.S. § 1102(a), does not itself 

contradict Miller; it is only when that mandate 

becomes a sentence of life-without-parole as applied 

to a juvenile offender—which occurs as a result of 

the interaction between Section 1102, the Parole 

Code, see 61 Pa.C.S. § 6137(a)(1), and the Juvenile 

Act, see 42 Pa.C.S. § 6302—that Miller’s

proscription squarely is triggered. Miller neither 

barred imposition of a life-without-parole sentence 

on a juvenile categorically nor indicated that a life 

sentence with the possibility of parole could never be 

mandatorily imposed on a juvenile. Rather, Miller

requires only that there be judicial consideration of 

the appropriate age-related factors set forth in that 

decision prior to the imposition of a sentence of life 

imprisonment without the possibility of parole on a 

juvenile.

Batts II, supra at 295–296 (some citations omitted). The Court 

also noted that it would not expand the holding of Miller absent 

a common law history or a legislative directive. Id. at 296 

(citation omitted). Accordingly, our Supreme Court remanded to 

the trial court with instructions to consider the following agerelated factors in resentencing Appellant.

At a minimum the trial court should 

consider a juvenile’s age at the time of 

the offense, his diminished culpability 

and capacity for change, the 

circumstances of the crime, the extent of 

his participation in the crime, his family, 

home and neighborhood environment, 

his emotional maturity and development, 

the extent that familial and/or peer 

pressure may have affected him, his past 

exposure to violence, his drug and 

alcohol history, his ability to deal with 

the police, his capacity to assist his 

attorney, his mental health history, and 

his potential for rehabilitation.
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Commonwealth v. Knox, 50 A.3d 732, 745 

(Pa.Super.2012) (citing Miller, 132 S.Ct. at 2455) 

(remanding for resentencing a juvenile who had 

previously received a mandatory life without parole 

sentence in violation of Miller, and instructing trial 

court to resentence juvenile to either life with parole 

or life without parole), appeal denied, 620 Pa. 721, 

69 A.3d 601 (2013). We agree with the 

Commonwealth that the imposition of a minimum 

sentence taking such factors into account is the most 

appropriate remedy for the federal constitutional 

violation that occurred when a life-without-parole 

sentence was mandatorily applied to Appellant.

Batts II, supra at 297[.]

Batts III, at 38–39 (Pa. Super. 2015). However, in Batts III, this Court 

also discussed Justice Baer’s concurring opinion in Batts II:

Justice Baer authored a concurring opinion, joining in the 

majority’s decision to “remand the case to the trial court for it to 

resentence Appellant based upon his individual circumstances to 

a sentence of life imprisonment either with the possibility of 

parole or without the possibility of parole for his conviction of 

first-degree murder committed when he was a fourteen year old 

juvenile.” [Batts II] at 299-300 (Baer, J., concurring). Justice 

Baer further opined that, to achieve uniformity in sentencing, 

trial courts should be guided by Section 1102.1 in resentencing 

juveniles whose life without parole sentences violated Miller, but 

would not otherwise be resentenced under Section 1102.1 

because they were convicted before Miller was decided. Id. at 

300 (Baer, J., concurring).

Batts III, at 39.4

 

4

 We note that the Supreme Court granted allowance of appeal on April 19, 

2016, and entered the following order:

AND NOW, this 19th day of April, 2016, the Petition for 

Allowance of Appeal is GRANTED, LIMITED TO the following 

issues raised by Petitioner:
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Pursuant to the holding in Batts II, we remand this matter to the trial 

court to resentence Appellant in accordance with the factors set forth in 

Knox and Miller. As the resentencing has the potential to disrupt the trial 

court’s entire sentencing scheme, we vacate all of Appellant’s sentences at 

 

1. In Miller v. Alabama, the U.S. Supreme Court 

outlawed mandatory life without parole for juveniles 

(LWOP), and instructed that the discretionary imposition of 

this sentence should be “uncommon” and reserved for the 

“rare juvenile offender whose crime reflects irreparable 

corruption.”

i. There is currently no procedural mechanism to 

ensure that juvenile LWOP will be “uncommon” in 

Pennsylvania. Should this Court exercise its authority 

under the Pennsylvania Constitution to promulgate 

procedural safeguards including (a) a presumption 

against juvenile LWOP; (b) a requirement for 

competent expert testimony; and (c) a “beyond a 

reasonable doubt” standard of proof?

ii. The lower court reviewed the Petitioner’s sentence 

under the customary abuse of discretion standard. 

Should the Court reverse the lower court’s 

application of this highly deferential standard in light 

of Miller?

2. In Miller, the U.S. Supreme Court stated that the basis 

for its individualized sentencing requirement was Graham’s 

comparison of juvenile LWOP to the death penalty. The 

Petitioner received objectively less procedural due process 

than an adult facing capital punishment. Should the Court 

address the constitutionality of the Petitioner’s 

resentencing proceeding?

The Petition for Allowance of Appeal is DENIED with respect to 

Petitioner’s third stated issue.

Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016).
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trial court docket number CP-02-CR-0006205-2007, and remand for 

resentencing at all counts. See Commonwealth v. Vanderlin, 580 A.2d 

820, 831 (Pa. Super. 1990) (“[I]f a trial court errs in its sentence for one 

count in a multi-count case, then all sentences for all counts will be vacated 

so that the court can re-structure its entire sentencing scheme.”). Because 

we have vacated Appellant’s judgment of sentence as a whole and remanded 

for resentencing on each count, we need not address Appellant’s challenge 

to the duration or consecutive nature of the sentences previously imposed. 

Judgment of sentence vacated. Case remanded with instructions. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016