J. A20040/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KENNETH CARL CRAWFORD, III, : No. 1768 MDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence Entered April 30, 2018,

in the Court of Common Pleas of Luzerne County

Criminal Division at No. CP-40-CR-0001480-2000

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2020

Kenneth Carl Crawford, III, appeals from the April 30, 2018 aggregate 

judgment of sentence of 52 years to life imprisonment imposed after he was 

resentenced following the grant of post-conviction collateral relief1 pursuant 

to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 

136 S.Ct. 718 (2016).2 After careful review, we affirm the judgment of 

sentence.

 

1 See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

2

In Miller, the United States Supreme Court recognized a constitutional right 

for juveniles, holding that “mandatory life without parole for those under the 

age of 18 at the time of their crimes violates the Eighth Amendment’s 

prohibition against ‘cruel and unusual punishments.’” Miller, 567 U.S. at 465. 

In Montgomery, the Supreme Court held that its rule announced in Miller

applies retroactively on collateral review. Montgomery, 136 S.Ct. at 736.
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A prior panel of this court set forth the relevant facts of this case as 

follows:

In July 1999, [appellant], then 15 years of age, was 

traveling with a companion, David Lee Hanley, when 

they found themselves at the Pilot Truck Stop near the 

City of Hazelton, Luzerne County. They were, at the 

time and place, looking for a ride to Georgia. 

[Appellant] and Hanley were picked up by Diane Algar 

(Algar) and Jose Molina (Molina) and taken to the 

Algar trailer at Paradise Campground. The two 

remained as guests for approximately two days, 

during which time they were fed and entertained by 

Algar and Molina. On the morning of the second day 

[July 19, 1999], Algar and Molina were shot and killed 

inside the trailer. [Appellant] and Hanley left the 

scene in Algar’s vehicle.

The investigation into the killings led Pennsylvania 

State Police to search for two hitchhikers heading to 

Georgia. Following a segment on television’s 

“America’s Most Wanted,” the authorities received a 

tip which led to the discovery of the Algar vehicle in 

Winchester, Virginia, where it was abandoned by 

[appellant] and Hanley. At that point, the two 

boarded a bus bound for Rome, Georgia, but they 

decided to split up in Tennessee. Hanley continued 

south, while [appellant] proceeded toward the 

Midwest.

. . . .

[Appellant], when discovered, was being detained in 

a juvenile detention center in Missouri for an Illinois 

assault offense. [He pleaded guilty to that offense, 

which predated the present offenses, and was 

sentenced to a juvenile facility at Joliet, Illinois.] 

Eventually, [appellant] was extradited to 

Pennsylvania.

Commonwealth v. Crawford, No. 479 MDA 2001, unpublished

memorandum at 1-2 (brackets in original) (Pa.Super. filed May 30, 2002).
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On January 24, 2001, a jury found appellant guilty of two counts each 

of first-degree murder, criminal conspiracy, and aggravated assault, and one 

count each of robbery, theft by unlawful taking or disposition, and attempted 

theft.3 Appellant was sentenced to two consecutive terms of life imprisonment 

without the possibility of parole (“LWOP”) on February 27, 2001. On May 30, 

2002, a panel of this court affirmed appellant’s judgment of sentence, and 

appellant did not seek allowance of appeal with our supreme court. Id. 

Between 2005 and 2014, appellant unsuccessfully litigated two separate PCRA 

petitions.

On March 24, 2016, appellant filed his third PCRA petition, arguing that 

his two consecutive LWOP sentences were unconstitutional under 

Miller/Montgomery. As noted, the PCRA court granted appellant relief and 

ordered that he be resentenced. Following a three-day hearing, the 

sentencing court resentenced appellant to an aggregate term of 52 years to 

life imprisonment on April 30, 2018.4 In fashioning appellant’s sentence, the 

 

3 18 Pa.C.S.A. §§ 2501(a), 903(a)(1), 2702(a)(1), 3701(a)(1), 3921(a), and 

901(a), respectively.

4 Specifically, appellant was resentenced as follows: 26 years to life 

imprisonment on Count 1 (first-degree murder – Victim 1); 26 years to life 

imprisonment on Count 2 (first-degree murder – Victim 2), consecutive to

Count 1; 240 to 480 months’ imprisonment on Count 3 (criminal conspiracy), 

concurrent to Count 1; 240 to 480 months’ imprisonment on Count 4 (criminal 

conspiracy), concurrent to Count 3; 84 to 168 months’ imprisonment on 

count 7 (robbery), consecutive to Count 4; 21 to 42 months’ imprisonment on

Count 8 (theft by unlawful taking or disposition), consecutive to Count 7; and 

21 to 42 months’ imprisonment on Count 9 (attempted theft), consecutive to 

Count 8.
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sentencing court granted appellant 6,569 days’ credit for time-served from 

May 5, 2000 to April 30, 2018, and noted that appellant was not “permanently 

incorrigible” nor incapable of rehabilitation. (See notes of testimony, 4/30/18 

at 6.) Appellant filed a timely post-sentence motion to vacate or reconsider 

his sentence, which was denied on June 22, 2018. On July 25, 2018, appellant 

filed an untimely notice of appeal that was dismissed by this court for failure 

to file a docketing statement, in accordance with Pa.R.A.P. 3517. Following

the reinstatement of his direct appeal rights nunc pro tunc, appellant filed 

the instant appeal.5

Appellant raises the following issues for our review:

[I.] Whether [appellant’s] aggregate sentences of 

52 years to life (Counts 1 and 2) and of 50.5 to 

101 years (Counts 3 through 9) are 

unconstitutional de facto LWOP sentences that 

violate the Eighth Amendment of the United 

States Constitution and Article I, Section 13 of 

the Pennsylvania Constitution because 

[appellant] is capable of rehabilitation and 

[appellant’s] first opportunity for release under 

either would come more than 16 years after

his undisputed life expectancy[?]

[II.] Whether the sentencing court violated 

procedural protections required by the United 

States and Pennsylvania Constitutions by 

failing to make a finding as to [appellant’s] life 

expectancy and to consider that finding while 

crafting [appellant’s] sentence[?]

[III.] Whether [appellant’s] maximum sentence of 

life imprisonment exceeds the maximum 

 

5 The record reflects that appellant has timely complied with 

Pa.R.A.P. 1925(b).
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punishment allowed by statute because the 

entire Pennsylvania sentencing scheme for 

first- and second-degree murder was struck

down as unconstitutional and the only 

remaining constitutional sentencing scheme for 

[appellant] is the sentencing scheme for the 

lesser included offense of third-degree murder, 

[18 Pa.C.S.A.] § 1102(d), which has a 

maximum statutory punishment of 40 years, 

not life imprisonment[?]

[IV.] Whether the sentencing court was required to 

give individualized consideration to the 

proportionality of [appellant’s] maximum 

sentence of life imprisonment to safeguard 

[appellant’s] rights under the Eighth 

Amendment of the United States Constitution 

and Article I, Section 13 of the Pennsylvania 

Constitution[?]

[V.] Whether [appellant’s] sentence is manifestly 

excessive because the sentencing court 

focused solely on the seriousness of 

[appellant’s] offenses, failed to consider 

mitigating factors (such as the extent of 

[appellant’s] rehabilitation and the fact that 

[appellant] does not pose a continuing threat 

to the public), and failed to adequately explain 

its reason for imposing a sentence where the 

first opportunity for release would come more 

than 16 years after [appellant’s] undisputed life 

expectancy[?]

Appellant’s brief at 6-7 (emphasis in original). For ease of discussion, we have 

elected to renumber appellant’s issues and will address them in a different 

order than originally presented in his appellate brief.

I.

Appellant first contends that his aggregate judgment of sentence of 

52 years to life imprisonment constituted an unconstitutional de facto LWOP 
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sentence “because [he] is capable of rehabilitation and [his] first opportunity 

for release under either would come more than 16 years after his undisputed 

life expectancy.” (Id. at 6, 24.) We disagree. 

“[A] claim challenging a sentencing court’s legal authority to impose a 

particular sentence presents a question of sentencing legality.” 

Commonwealth v. Batts, 163 A.3d 410, 434-435 (Pa. 2017) (citations 

omitted). “The determination as to whether a trial court imposed an illegal 

sentence is a question of law; an appellate court’s standard of review in cases 

dealing with questions of law is plenary.” Commonwealth v. Crosley, 180 

A.3d 761, 771 (Pa.Super. 2018) (citation omitted), appeal denied, 195 A.3d 

166 (Pa. 2018).

Here, appellant’s aggregate judgment of sentence of 52 years to life 

imprisonment was comprised of, inter alia, two consecutive terms of 26 years

to life imprisonment and is consistent with this court’s recent holdings in 

Commonwealth v. Foust, 180 A.3d 416 (Pa.Super. 2018), and 

Commonwealth v. Bebout, 186 A.3d 462 (Pa.Super. 2018). Foust involved 

a 17-year-old defendant who was convicted of two counts of first-degree 

murder and resentenced pursuant to Miller/Montgomery to two consecutive 

terms of 30 years to life imprisonment. Foust, 180 A.3d at 421. The Foust 

court held that “a trial court may not impose a term-of-years sentence on a 

juvenile convicted of homicide if that term-of-years sentence equates to a 

de facto [life-without-parole] sentence unless it finds, beyond a reasonable 
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doubt, that the juvenile is incapable of rehabilitation.” Id. at 433. The Foust

court determined that term-of-years sentence of 30 years’ imprisonment did 

not constitute a de facto LWOP sentence. Id. at 438. In reaching this 

conclusion, the Foust court explicitly “decline[d] to draw a bright line in this

case delineating what constitutes a de facto LWOP sentence and what 

constitutes a constitutional term-of-years sentence” and instead limited itself 

to the facts of the case before it. Id. The Foust court further noted that “the 

individual sentences,” rather than the aggregate sentence, “must be 

considered when determining if a juvenile received a de facto LWOP 

sentence.” Id. at 434.

Bebout involved a 15-year-old defendant who was resentenced to 

45 years to life imprisonment for second-degree murder and related offenses,

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

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

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

sentence for a juvenile who was not deemed incapable of rehabilitation, is 

whether there is “some meaningful opportunity to obtain release based 

on demonstrated maturity and rehabilitation.” Id. (citation omitted; 

emphasis added). “To be meaningful or, at least, potentially meaningful, it 

must at least be plausible that one could survive until the minimum release 

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

liberty awaits.” Id. In reaching this conclusion, the Bebout court reasoned 
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that although the 45-years-to-life sentence “falls between the ‘clearly’

constitutional and unconstitutional parameters suggested by the Foust

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

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

sentence. Id. at 467.

Likewise, in the instant matter, appellant has failed to demonstrate that

his judgment of sentence does not afford him a meaningful opportunity for 

release or that he has no plausible chance of survival until his minimum 

release date. While appellant will not be eligible for parole until age 68, albeit 

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

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

distinguish his case. Accordingly, we decline to find that appellant’s sentence 

constituted a de facto LWOP sentence.

II.

In a related claim, appellant contends that the sentencing court erred 

“by failing to make a finding as to [appellant’s] life expectancy and to consider 

that finding while crafting [his] sentence.” (Appellant’s brief at 6, 46.) In 

support of this contention, appellant relies on the recent Third Circuit case, 

United States v. Grant, 887 F.3d 131 (3d Cir. 2018), rehearing en banc 

granted and opinion vacated, 905 F.3d 285 (3d Cir. 2018).

In Grant, the United States Court of Appeals for the Third Circuit 

discussed de facto LWOP sentences and concluded that a judge is required 
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to impose a sentence “so that a juvenile offender who is capable of reform is 

not sentenced to a term-of-years beyond his or her expected mortality.” Id.

at 149. The Grant court held that a sentencing court is required to conduct 

an individualized evidentiary hearing and make factual findings as to a 

defendant’s life expectancy, following consideration of “any evidence made 

available by the parties that bears on the offender’s mortality, such as medical 

examinations, medical records, family medical history, and pertinent expert 

testimony.” Id. at 150.

Upon review, we find that appellant is not entitled to relief on this claim.

Contrary to appellant’s contention, neither the United States Supreme Court 

nor the Pennsylvania Supreme Court have mandated that a sentencing court 

make factual findings as to a defendant’s life expectancy prior to resentencing 

under Miller/Montgomery. Grant is clearly not binding upon this court and,

in any event, was recently vacated and accepted for en banc consideration. 

Accordingly, appellant’s second claim must fail.

III. & IV.

Appellant next argues that because “the entire Pennsylvania sentencing 

scheme for first-and-second-degree murder was struck down as 

unconstitutional[,]” the sentencing court should have resentenced him for 

first-degree murder in accordance with the sentencing scheme for the lesser 

included offense of third-degree murder, which has a maximum statutory 

punishment of 40 years. (Appellant’s brief at 7, 57.) Appellant further 
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contends that his mandatory maximum sentence of life in prison, or “life tail,” 

does not comport with the holdings in Miller/Montgomery that resentenced 

juveniles be given individualized sentences and violates the prohibition against

“cruel and unusual punishment” set forth in the Eighth Amendment to the 

United States Constitution. (Id. at 7, 54.) We disagree.

These issues were addressed by our supreme court in Batts and more 

recently by this court in Foust and Commonwealth v. Blount, 207 A.3d 925 

(Pa.Super. 2019), appeal denied, 218 A.3d 1198 (Pa. 2019). Specifically, 

the Blount court stated as follows:

For those defendants [convicted of first or 

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

whom the sentencing court determines a [LWOP] 

sentence is inappropriate, it is our determination here 

that they are subject to a mandatory maximum 

sentence of life imprisonment as required by Section 

1102.1(a), accompanied by a minimum sentence 

determined by the common pleas court upon 

resentencing[.]

Blount, 207 A.3d at 938, citing Commonwealth v. Seskey, 170 A.3d 1105, 

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

original).

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

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

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

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

such mandatory maximums do not violate the Eighth Amendment’s ban on 
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cruel and unusual punishment or the mandates of individualized sentencing. 

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

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

imprisonment for a juvenile defendant convicted of second-degree murder 

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

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

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

impose a mandatory maximum sentence of life imprisonment when it 

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

Miller). Accordingly, appellant’s claims must fail.

V.

Having determined that appellant’s sentence is not illegal, we turn to 

his remaining claim that the sentencing court abused its discretion by: 

(1) “focus[ing] solely on the seriousness of [his] offenses” and (2) failing to 

consider various mitigating sentencing factors in imposing a “manifestly 

excessive” sentence, including “the extent of [appellant’s] rehabilitation and 

the fact that [appellant] does not pose a continuing threat to the public.” 

(Appellant’s brief at 6, 51.) Appellant avers that “[t]he sentencing court [] 

abused its discretion by imposing an excessive sentence without fully 

explaining [whether it] adequately assessed the sentencing factors set forth 

in Miller.” (Id. at 53.)

Sentencing is a matter vested in the sound discretion 

of the sentencing judge, and a sentence will not be 
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disturbed on appeal absent a manifest abuse of 

discretion. In this context, an abuse of discretion is 

not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the 

record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons 

of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision. 

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

omitted), appeal denied, 117 A.3d 297 (Pa. 2015) 

Where an appellant challenges the discretionary aspects of his sentence, 

as is the case here, the right to appellate review is not absolute. See 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Rather, an 

appellant challenging the discretionary aspects of his sentence must invoke 

this court’s jurisdiction by satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether 

Appellant preserved his issue; (3) whether Appellant’s

brief includes a concise statement of the reasons 

relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing 

code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

Instantly, the record reveals that appellant has satisfied these 

prerequisites. Appellant filed a timely notice of appeal and preserved his issue 

in a post-sentence motion. Appellant has also included a statement in his 

brief that comports with the requirements of Pa.R.A.P. 2119(f). (See 
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appellant’s brief at 20-24.) Additionally, appellant presents a substantial 

question for our review. A “claim that the sentence is manifestly excessive, 

inflicting too severe a punishment, . . . present[s] a substantial question. 

Moreover, the sentencing court’s failure to set forth adequate reasons for the 

sentence imposed also raises a substantial question.” Commonwealth v. 

Hicks, 151 A.3d 216, 227 (Pa.Super. 2016) (citations omitted), appeal 

denied, 168 A.3d 1287 (Pa. 2017). Accordingly, we may review the merits 

of appellant’s claim.

In situations where the Commonwealth requests a sentence LWOP, the 

sentencing court must consider the statutory sentencing factors set forth in 

18 Pa.C.S.A. 1102.1(d) (“the Miller factors”) on the record, prior to imposing

sentence. Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019). 

Specifically, as our supreme court stated in Batts, compliance with Miller

requires consideration of the following:

[A]t minimum it 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.

Batts, 163 A.3d at 421 n.5 (citations omitted). 
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However, where, as here, the Commonwealth does not give notice of its 

intention to seek an LWOP sentence and the sentencing court sentences “a 

juvenile offender to life with the possibility of parole, traditional sentencing 

considerations apply[,]” and the sentencing court considers the factors set

forth in 42 Pa.C.S.A § 9721(b). Batts, 163 A.3d at 460 (citation omitted; 

emphasis added). Section 9721(b) provides that the sentencing court shall 

fashion a sentence “that is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the victim and 

on the community, and the rehabilitative needs of the defendant.” 

42 Pa.C.S.A. § 9721(b).

Here, the sentencing court conducted a comprehensive evidentiary 

hearing prior to appellant’s resentencing that commenced on January 29, 

2018, and concluded on January 31, 2018. Our review of the record 

establishes that the sentencing court considered and weighed numerous 

factors in fashioning appellant’s sentence, including both the “Miller factors”

and the traditional sentencing factors set forth in Section 9721(b); the 

testimony and exhibits presented by the parties at the three-day evidentiary 

hearing; appellant’s troubled childhood and age at the time of the offense;

and the gravity of the crime. Contrary to appellant’s contention, the record 

further reflects that the sentencing court took into consideration the 

life expectancy report completed by Dr. Evelyn J. Paterson and “[appellant’s]

rehabilitative accomplishments and achievements while under the care of the 
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department of corrections.” (Sentencing court opinion, 11/14/18 at 15, 

17-18.)

At the April 30, 2018 resentencing hearing, the sentencing court stated 

the following rationale in support of appellant’s aggregate term of 52 years to 

life imprisonment:

Sentences in Pennsylvania must be individualized. 

The Court has considered inter alia the sentencing 

memorandum submitted by the parties, the 

presentence investigation [(“PSI”)] report, the trial 

transcript, and all testimony and exhibits introduced 

at the resentencing evidentiary hearing, along with 

the guidance of Section 1102.1(a) of the crimes code, 

and traditional sentencing considerations found in 

Section 9721.1 that the Court shall follow the general 

principle that the sentence imposed should call for 

confinement, that it’s consistent with the protection of 

the public, gravity of the offense as it relates to the 

impact on the life of the victim and on the 

community[,] and the rehabilitative needs of 

[appellant].

The Court is well aware that [appellant] was 15 at the 

time of the crime and the circumstances of [his] 

childhood, along with his rehabilitative 

accomplishments and achievements while under the 

care of the Department of Corrections. The Court is 

also mindful of the senseless, tragic murders of 

Diana Algar and Jose Molina, along with all attending 

circumstances of their deaths, and the recognized 

principle that all murders are heinous in nature. 

The Court has not found [appellant] permanently 

incorrigible as understood in existing law and 

recognizes an offender must be held accountable and 

serve a sentence commensurate with those 

committed acts in accordance with existing law. The 

Court also notes it reviewed actuarial life expectancy 

data, along with estimates and averages of life 
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expectancy as introduced in the report of 

Dr. [Paterson].

The Court further acknowledges that as there is a 

possibility of rehabilitation, [appellant] must be 

provided some meaningful opportunity to obtain a 

release based on demonstrated maturity and 

rehabilitation. A state is not required to guarantee 

eventual freedom.

Notes of testimony, 4/30/18 at 5-6 (emphasis added).

Additionally, the sentencing court was in possession of a PSI report and 

indicated that it reviewed it. (Sentencing court opinion, 11/14/18 at 14; see 

also notes of testimony, 4/30/18 at 5.) Where the trial court has the benefit 

of a PSI report, “we shall . . . presume that the sentencing judge was aware 

of relevant information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal 

denied, 95 A.3d 275 (Pa. 2014). Accordingly, for all the foregoing reasons, 

we find that appellant’s challenges to the discretionary aspects of his sentence 

must fail.

Judgment of sentence affirmed.

Gantman, P.J.E. did not participate in the consideration or decision of 

this case.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/14/2020