J-A05031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MACK D’JUAN HILL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 381 WDA 2018

Appeal from the Judgment of Sentence February 2, 2018

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0000151-2002, 

CP-25-CR-0000152-2002

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 14, 2019

Mack D’Juan Hill (Appellant) appeals from the judgment of sentence

entered following a re-sentencing hearing pursuant to Miller v. Alabama, 

567 U.S. 460 (2012). After careful review, we affirm. 

Appellant was born on April 10, 1984. On October 2, 2001, after 

conspiring with two other individuals, Appellant committed an armed robbery, 

during the course of which Appellant attempted to shoot Rolando Ruiz. The 

next night, Appellant and his co-conspirators committed a similar robbery. 

While robbing Darrell Dickerson, Appellant shot and killed him.

As a result of Appellant’s actions on October 2, 2001, a jury convicted 

Appellant of attempted criminal homicide, robbery, conspiracy to commit 

robbery, recklessly endangering another person, and possession of an 
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instrument of crime.1 For the subsequent robbery and killing on October 3, 

2001, Appellant was convicted of second-degree murder, robbery, conspiracy 

to commit robbery, firearms not to be carried without a license, and receiving 

stolen property.2 On September 18, 2002, the trial court sentenced Appellant 

to an aggregate term of life in prison without parole, plus 111⁄2 to 23 years of 

incarceration.

On February 24, 2016, Appellant filed a petition seeking relief under the 

Post Conviction Relief Act (PCRA).3In his petition, Appellant challenged the

legality of his life without parole sentence pursuant to Miller and 

Montgomery v. Louisiana, — U.S. —, 136 S. Ct. 718 (2016). The court 

granted Appellant’s petition on July 7, 2016. On February 2, 2018, Appellant 

appeared before the court, which re-sentenced Appellant to an aggregate term 

of 47.3 years to life of incarceration. Specifically, the court re-sentenced 

Appellant at his second-degree murder conviction to a term of 35 years to life. 

On February 12, 2018, Appellant filed a post-sentence motion, which 

the trial court denied. Appellant filed this timely appeal. Both the trial court 

and Appellant have complied with Pennsylvania Rule of Appellate Procedure 

1925. 

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1

 18 Pa.C.S.A. §§ 901(a)/2502, 3701(a)(1)(ii), 903/3701(a)(1)(ii), 2705, and 

907(a). 

2

 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(a)(1)/3701, 6106(a)(1), and 

3925(a). 

3

 42 Pa.C.S.A. §§ 9541-9546. 
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On appeal, Appellant presents the following issues for review: 

1. Does Appellant raise a substantial question for appellate 

review? 

2. Did the trial court err in sentencing Appellant to a de facto [l]ife 

without [p]arole sentence?

3. Did the trial court improperly consider Appellant’s age at the 

time of the offenses? 

4. Did the trial court err in giving Appellant a disproportionately 

harsh sentence? 

5. [Did t]he trial court impose on Appellant an excessive sentence? 

Appellant’s Brief at 8. 

In his first, third, and fifth issues, Appellant challenges the discretionary 

aspects of his sentence. “The right to appellate review of the discretionary 

aspects of a sentence is not absolute, and must be considered a petition for 

permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 

(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this 

Court’s jurisdiction when challenging the discretionary aspects of a sentence.” 

Id. We conduct this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). “A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the sentencing 
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code or is contrary to the fundamental norms of the sentencing process.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations 

omitted).

While Appellant has complied with the first two prongs of this test by 

raising his discretionary sentencing claims in a timely post-sentence motion 

and filing a timely notice of appeal, he failed to include in his brief a Rule 

2119(f) concise statement. However, because the Commonwealth has not 

objected, we will examine whether Appellant’s claims present substantial 

questions. Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004)

(“[W]hen the appellant has not included a Rule 2119(f) statement and the 

[Commonwealth] has not objected, this Court may ignore the omission and 

determine if there is a substantial question that the sentence imposed was not 

appropriate[.]”) (citation omitted). 

Appellant’s first discretionary claim4 asserts that the trial court relied 

upon an impermissible factor when fashioning his sentence. This raises a 

substantial question. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. 

Super. 2003) (“[A] claim that the sentence is excessive because the trial court 

____________________________________________

4

 We note that the first question presented in Appellant’s Brief is labeled 

“Appellant Raises a Substantial Question.” Appellant’s Brief at 13. As we find 

substantial questions presented by both of Appellant’s discretionary 

sentencing claims, we forgo a further substantive analysis of this question 

presented. 
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relied on impermissible factors raises a substantial question.”) (citation 

omitted).

Appellant further argues that he received an excessive sentence where 

the trial court imposed “consecutive sentences without properly considering 

mitigating factors.” Appellant’s Brief at 14. This argument also presents a 

substantial question. See Commonwealth v. Swope, 123 A.3d 333, 340 

(Pa. Super. 2015) (“This Court has also held that an excessive sentence 

claim—in conjunction with an assertion that the court failed to consider 

mitigating factors—raises a substantial question.”) (citations omitted). We 

thus review Appellant’s sentencing claims mindful of the following: 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge. The standard employed when reviewing the 

discretionary aspects of sentencing is very narrow. We may 

reverse only if the sentencing court abused its discretion or 

committed an error of law. A sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, exercised 

its judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision. We must accord 

the sentencing court’s decision great weight because it was in the 

best position to review the defendant’s character, defiance or 

indifference, and the overall effect and nature of the crime. 

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations 

omitted). 

Appellant claims “the trial judge . . . improperly sentenced [Appellant] 

when it included as a sentencing factor the age of Appellant at the time of the 
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offense.” Appellant’s Brief at 44. The relevant portion of 42 Pa.C.S.A. § 

9721(b) states: 

In selecting from the alternatives set forth in subsection (a), the 

court shall follow the general principle that the sentence imposed 

should call for confinement that is consistent with the protection 

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

on the life of the victim and on the community, and the 

rehabilitative needs of the defendant. . . . In every case in which 

the court imposes a sentence for a felony or misdemeanor . . . the 

court shall make as a part of the record, and disclose in open court 

at the time of sentencing, a statement of the reason or reasons 

for the sentence imposed.

Id. This Court has also held, “[w]hen a sentencing court has reviewed a pre[-

]sentence investigation report, we presume that the court properly considered 

and weighed all relevant factors in fashioning the defendant’s sentence.” 

Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893 A.2d 758, 767 

(Pa. Super. 2006)). Additionally: 

[i]n imposing sentence, the trial court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. The trial court should refer to the defendant’s prior 

criminal record, age, personal characteristics, and potential for 

rehabilitation. However, where the sentencing judge had the 

benefit of a presentence investigation report, it will be presumed 

that he or she was aware of the relevant information regarding 

the defendant’s character and weighed those considerations along 

with mitigating statutory factors. 

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149, 

154 (Pa. Super. 2004)) (some citations omitted) (emphasis added). 

Appellant takes issue with the following statement made by the trial 

court during re-sentencing: 
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You were 17 years old and 6 months. So, had this been committed 

six months later as [the Commonwealth] pointed out, we wouldn’t 

even be here. 

Appellant’s Brief at 45 (citing N.T., 2/2/18, at 128). 

Upon review, we are satisfied that the trial court committed no abuse of 

discretion in referring to Appellant’s age. While Appellant argues the “trial 

[court] improperly used his age as an aggravating rather than a mitigating 

factor,” Appellant’s Brief at 45, we find no support for this assertion in the 

notes of testimony. N.T., 2/2/18, at 121-131. As referenced above, a 

defendant’s age is specifically prescribed by this Court as a factor a “trial court 

should refer to” during the imposition of a sentence. Fowler, 893 A.2d at 

767. Further, age is now a mandatory consideration when a trial court is 

determining whether to impose a sentence of life without parole. 18 Pa.C.S.A. 

§ 1102.1(d)(7)(i) (“In determining whether to impose a sentence of life 

without parole . . . the court shall consider and make findings on the record 

regarding . . . [a]ge-related characteristics of the defendant, including . . . 

[a]ge.”). The trial court was therefore within its discretion in stating on the 

record Appellant’s age at the time of the crimes. As such, this issue is 

meritless. 

Appellant further argues that his sentence was excessive “given the 

expert testimony [of Randolph Matuscak] . . . offered at his re-sentencing that 

he is amenable to rehabilitation and has a low risk to re-offend.” Appellant’s 

Brief at 52. Appellant specifically contends: 
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[T]he trial [court] ignored the uncontested and 

overwhelming evidence suggesting that despite Appellant’s rough 

formative years, he has made great emotional and academic 

strides in prison, demonstrating his commitment to rehabilitation. 

The trial [court’s] erroneous interpretation of the expert’s report 

combined with the trial [court’s] failure to discern the significance 

of Appellant’s positive growth while incarcerated resulted in an 

unduly and excessively harsh sentence imposed on Appellant, 

calling out for relief by this Court. 

Id. at 57. 

At the February 2, 2018 hearing, the trial court acknowledged that it 

was in receipt of, and “reviewed,” Appellant’s pre-sentence investigation 

report prepared in anticipation of re-sentencing. N.T., 2/2/18, at 121. Prior 

to imposing Appellant’s sentence, the trial court stated: 

I read Mr. Matuscak’s report in its entirety[.] . . . I was 

disappointed that Mr. Matuscak didn’t acquaint himself with the 

facts of this case. He didn’t even read the trial transcripts but yet 

was willing to render opinions and judgments thereon. You know, 

I certainly respect his expertise as a social worker, but in reading 

his report it was rather striking the selective information that he 

had or that he relied on and my impression is that he really wasn’t 

a disinterested expert, but was clearly serving as an advocate. 

Now having said that, I appreciated the history that he provided, 

he obviously did a lot of research in terms of upbringing of 

[Appellant] and the research related to what [Appellant] has done 

while he has been in prison. So, there was some value there in 

his report. 

* * *

I do recognize and consider the fact that you have matured while 

in jail. . . That there are programs that you’ve taken advantage 

of within the prison in addition to getting your GED and that you’ve 

expressed some goals and that you have recognized the impact 

on victims. I did view the entirety of the CD that was provided of 

your talk. 
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I do believe that there is some potential for rehabilitation for you, 

[Appellant], so I want to fashion or try to balance all of these 

factors in arriving at a sentence in this case. 

Id. at 121, 122, 129-130.

In its opinion, the trial court further explained: 

Appellant’s allegation of error based on the purported failure 

to adequately consider the expert testimony of Randolph A. 

Matuscak is belied by the record. The entirety of Mr. Matuscak’s 

testimony was considered, however, it was found to be largely 

unhelpful[.] 

* * *

The majority of Mr. Matuscak’s testimony focused on 

Appellant’s traumatic childhood and the role those external factors 

played in causing Appellant’s criminal acts. While Mr. Matuscak’s 

extensive research describing Appellant’s childhood was helpful, 

and a factor cited as part of the sentencing rationale, Matuscak’s 

premise that these external factors caused him to commit 

homicide was not accepted[.] . . .

Appellant’s unfortunate upbringing was considered, 

however it did not exonerate Appellant of the robberies, 

attempted homicide and homicide he intentionally committed in 

the two cases at bar. Appellant’s childhood circumstances were 

similar to what his brother Calvin also experienced. Calvin and 

Appellant were close in age and bonded as biological brothers. 

Calvin testified for Appellant at re-sentencing. Calvin was exposed 

to the same external forces as Appellant. Yet Calvin had no 

history of committing violent crimes. There was also two other 

siblings close in age to Appellant who did not commit violent 

crimes despite their domestic instability. These facts undermine 

Mr. Matuscak’s premise that Appellant’s crimes were the direct 

result of his childhood circumstances. 

Mr. Matuscak’s premise was also refuted by Appellant. To 

his credit, Appellant did not try to minimize his culpability because 

of his traumatic childhood.

Mr. Matuscak’s attempt to whitewash the facts of these 

crimes turns a blind eye to what the jury unanimously agreed was 
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proven beyond a reasonable doubt. These were crimes of extreme 

violence which were carefully planned out on both occasions.

* * *

There was considerable thought over an extensive period of 

time put into the appropriate re-sentence for Appellant. All of the 

factors, including the mitigating factors Appellant emphasizes, 

were considered to arrive at a balanced sentence. This sentence 

protects the public from the proven ability of Appellant to engage 

in depraved acts of violence. Yet, having found Appellant has the 

potential for rehabilitation, the sentence provides Appellant with 

light at the end of the tunnel. While incarcerated, or after his 

release, Appellant can still live a meaningful life, which is better 

than the fate that befell Darrell Dickerson. 

Trial Court Opinion, 5/16/18, at 6, 7-8, 9. 

Based on our review of the transcript of Appellant’s re-sentencing 

hearing, including the trial court’s remarks cited above, we conclude that the 

court considered the appropriate factors when determining Appellant’s 

sentence. In addition to reviewing Appellant’s pre-sentence investigation 

report, the court considered Appellant’s potential for rehabilitation, his 

activities while incarcerated, as well as the report and testimony provided by 

Appellant’s mitigation expert. Accordingly, we discern no abuse of discretion. 

Appellant additionally disputes the legality of his sentence. We are 

mindful that “[i]ssues relating to the legality of a sentence are questions of 

law. Our standard of review over such questions is de novo and our scope is 

plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 

2014) (citation omitted). We note:

The scope and standard of review applied to determine the legality 

of a sentence are well established. If no statutory authorization 
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exists for a particular sentence, that sentence is illegal and subject 

to correction. An illegal sentence must be vacated. In evaluating 

a trial court’s application of a statute, our standard of review is 

plenary and is limited to determining whether the trial court 

committed an error of law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation 

omitted). 

Appellant claims that “[g]iven that he was 18 years old at his initial 

sentencing, the sentence of 47.3 years to life violates both the Pennsylvania 

and United States Constitution[s’] prohibition[s] against cruel and unusual 

punishment and runs afoul of Miller, Montgomery, and Batts II[.]” 

Appellant’s Brief at 28-29. This statement is premised on Appellant’s assertion 

that his sentence “constitutes a de facto life sentence” because “he will remain 

in prison until the age of 65.” Id. at 29. 

We have previously summarized the applicable authority: 

In Miller, the Supreme Court of the United States held that 

a juvenile convicted of a homicide offense could not be sentenced 

to life in prison without parole absent consideration of the 

juvenile’s special circumstances in light of the principles and 

purposes of juvenile sentencing. Subsequently, in Montgomery, 

the Court held that the Miller decision announced a substantive 

rule of constitutional law that applies retroactively. 

Commonwealth v. Bebout, 186 A.3d 462, 472 n.1 (Pa. Super. 2018) 

(citations omitted). 

The Pennsylvania Supreme Court in Commonwealth v. Batts, 163 

A.3d 410 (Pa. 2017) (Batts II) addressed how a sentencing court should 

proceed following Miller when faced with re-sentencing a juvenile offender 
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who was originally sentenced, pre-Miller, to life imprisonment without the 

possibility of parole. Our Supreme Court explained:

For those defendants for whom the sentencing court determines 

a life-without-parole sentence is inappropriate, “it is our 

determination here that they are subject to a mandatory 

maximum sentence of life imprisonment as required by Section 

1102(a), accompanied by a minimum sentence determined by the 

common pleas court upon re[-]sentencing[.]”

Batts II, 163 A.3d at 421 (quoting Commonwealth v. Batts, 66 A.3d 286, 

296-97 (Pa. 2013) (Batts I)).5 “The sentencing court should fashion a 

minimum term of incarceration using, as guidance, [S]ection 1102.1(a) of the 

Crimes Code.” Id. at 484. 

Section 1102.1, which the General Assembly enacted in the wake of the 

Miller decision, sets forth the guidelines for sentencing those who commit 

second-degree murder while under the age of 18: 

(c) Second degree murder.--A person who has been convicted 

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

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

officer of the second degree and who was under the age of 18 at

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5

 In Batts I, the Pennsylvania Supreme Court addressed for the first time 

after Miller the sentencing of a juvenile offender convicted of murder. Noting 

that the United States Supreme Court in Miller declined to place a “categorical 

ban” on life-without-parole sentences for juvenile offenders, our Supreme 

Court in Batts I held that juvenile offenders convicted of murder could be 

subject to a life-without-parole sentence only after the sentencing court

considered the criteria outlined in Miller. Id. at 296-99. Batts II followed 

four years later when the Supreme Court set forth the procedure for resentencing juvenile offenders who were improperly sentenced to life without 

parole prior to Miller.
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the time of the commission of the offense shall be sentenced as 

follows: 

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

was 15 years of age or older shall be sentenced to a term of 

imprisonment the minimum of which shall be at least 30 years 

to life. 

18 Pa.C.S.A. § 1102.1(c)(1).6 While we note that Section 1102.1 is not 

directly applicable to Appellant because he was convicted prior to June 24, 

2012, the Supreme Court made clear in Batts II that where a trial court 

determines that a sentence of life imprisonment without the possibility of 

parole is inappropriate for a juvenile offender who was originally sentenced to 

life without parole prior to Miller, the minimum sentence is left to the trial 

court’s discretion on re-sentencing, using Section 1102.1 as guidance. Batts 

II, 163 A.3d at 421. 

In Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018), we held 

that upon re-sentencing a defendant under Miller, “a trial court may not 

impose a term-of-years sentence, which constitutes a de-facto [life-withoutparole] sentence, on a juvenile offender convicted of homicide unless it finds, 

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6

 Given the charges the defendant faced in Batts I, the court specifically 

referred to subsection (a) of Section 1102.1, which addresses sentencing for 

first-degree murder. Since that decision, we have also applied the Batts I

sentencing scheme in the context of juveniles convicted of second-degree 

murder prior to June 12, 2012 by also using Section 1102.1 as guidance in 

fashioning a minimum sentence. See Commonwealth v. Machiote, 172 

A.3d 595 (Pa. Super. 2017); Commonwealth v. Melvin, 172 A.3d 14 (Pa. 

Super. 2017); see also 18 Pa.C.S.A. § 1102.1(c) (subsection of statute 

specifically referring to the sentencing of juvenile offenders convicted of 

second-degree murder). 
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beyond a reasonable doubt, that he or she is incapable of rehabilitation.” Id.

at 431. However, we “explicitly decline[d] to draw a bright line . . . delineating 

what constitutes a de facto [life without parole] sentence and what constitutes 

a constitutional term-of-years sentence.” Id. at 438. Similarly, we

“decline[d] to set forth factors that trial courts must consider when making 

this determination.” Id. We further explained:

There are certain term-of-years sentences which clearly constitute 

de facto [life without parole] sentences. For example, a 150—

year [minimum] sentence is a de facto [life without parole] 

sentence. Similarly, there are clearly sentences which do not 

constitute de facto [life without parole] sentences. A sentence of 

30 years to life falls into this category. We are unaware of any 

court that has found that a sentence of 30 years to life 

imprisonment constitutes a de facto [life without parole] sentence 

for a juvenile offender. Even the study with the shortest life 

expectancy for an offender in [the a]ppellant’s position places his 

life expectancy at 49 years, i.e., beyond 30 years. 

Id. 

Including Foust, there have been numerous published opinions of this 

Court analyzing whether a sentence fashioned by a trial court amounted to a 

de facto life without parole sentence for a juvenile offender. See, e.g., Foust, 

180 A.3d at 438 (holding that a sentence of 30 years to life did not constitute 

a de facto life sentence, where the defendant was charged with two counts of 

first-degree murder and received consecutive, 30-year-to-life sentences at 

each conviction); Bebout, 186 A.3d at 469-70 (holding that a sentence of 45 

years to life did not constitute a de facto life without parole sentence); 

Commonwealth v. White, 193 A.3d 977, 986 (Pa. Super. 2018) (holding a 
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sentence of 35 years to life did not constitute a de facto life without parole 

sentence). 

Instantly, Appellant contends the entirety of his sentence received 

should be used in determining whether he was re-sentenced to a de facto life 

without parole sentence. Appellant’s Brief at 36-38. However, as admitted 

by Appellant,7in Foust, we held that “when considering the constitutionality 

of a sentence, the individual sentences must be considered when 

determining if a juvenile received a de facto [life without parole] sentence.” 

Foust, 180 A.3d at 434 (emphasis added). As such, Appellant’s sentence for 

second-degree murder must be analyzed separately from the sentences 

received at his other convictions. 

The trial court re-sentenced Appellant to a minimum term of 35 years 

of incarceration. At the time of his effective sentence date on December 26, 

2001, Appellant’s age was 17 years, 8 months. Sentencing Order, 9/18/02, 

at 1. Thus, Appellant will be parole-eligible at the age of 52. With prior 

precedent in mind when viewing the instant record,8 we cannot conclude that 

____________________________________________

7

 Appellant’s Brief at 37 (“Admittedly, the court in [Foust] did hold that it 

would examine sentences separately in assessing whether a particular 

sentence constituted a de facto [life without parole] sentence.”).

8

 “There is simply no comparison between the opportunity to be paroled at 

60 years of age and 100+ years of age. The difference is, quite literally, a 

lifetime.” White, 193 A.3d at 986 (citing Bebout, 186 A.3d at 469-70). 
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Appellant’s minimum sentence constitutes a de facto life without parole 

sentence. This issue lacks merit. 

Appellant’s next issue “contends that the sentence he received is 

disproportionate to other sentences of similar circumstance in the 

Commonwealth,” and is therefore “violative of the Eighth Amendment.” 

Appellant’s Brief at 46, 51. We have stated: 

Article 1, Section 13 of the Pennsylvania Constitution provides 

“[e]xcessive bail shall not be required, nor excessive fines 

imposed, nor cruel punishments inflicted.” Pa. Const. art. I, § 13. 

“[T]he guarantee against cruel punishment contained in the 

Pennsylvania Constitution, Article 1, Section 13, provides no 

broader protections against cruel and unusual punishment than 

those extended under the Eighth Amendment to the United States 

Constitution.” Commonwealth v. Spells, 612 A.2d 458, 461 

(Pa. Super. 1992). The Eighth Amendment does not require strict 

proportionality between the crime committed and the sentence 

imposed; rather, it forbids only extreme sentences that are 

grossly disproportionate to the crime. See Commonwealth v. 

Hall, 701 A.2d 190, 209 (Pa. 1997) (citing Harmelin v. 

Michigan, 501 U.S. 957, 1001 (1991) (emphasis added). 

In Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super. 

1992) (en banc), this Court applied the three-prong test for Eighth 

Amendment proportionality review set forth by the United States 

Supreme Court in Solem v. Helm, 463 U.S. 277 (1983): 

[A] court’s proportionality analysis under the Eighth 

Amendment should be guided by objective criteria, 

including (i) the gravity of the offense and the 

harshness of the penalty; (ii) the sentences imposed 

on other criminal in the same jurisdiction; and (iii) the 

sentences imposed for commission of the same crime 

in other jurisdictions. 

Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. at 292). 

However, this Court is not obligated to reach the second and third 

prongs of the Spells test unless “a threshold comparison of the 

crime committed and the sentence imposed leads to an inference 
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of gross disproportionality.” Spells, supra at 463 (citation 

omitted) b.

Commonwealth v. Lankford, 164 A.3d 1250, 1252-53 (Pa. Super. 2017).

Appellant’s proportionality claim is based upon the Supreme Court’s 

holding in Batts II that, “for a sentence of life without parole to be 

proportional as applied to a juvenile murderer, the sentencing court must first 

find, based on competent evidence, that the offender is entirely unable to 

change.” Appellant’s Brief at 49 (citing Batts II, 163 A.3d at 435); see also 

Batts II, 163 A.3d at 435-46 (“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.”) (citing Montgomery, 136 S. Ct. at 734, 735). Appellant avers 

that because the trial court failed to conduct such an analysis in fashioning his 

sentence, the reasoning provided by the trial court “falls short of what is 

required by Batts [II] to ensure that a juvenile receives a proportionate 

sentence[.]” Appellant Brief at 51. 

Instantly, we determined that Appellant’s 35-year minimum does not 

constitute a de facto life without parole sentence. The trial court was therefore 

not bound by the holding in Batts II, requiring an inability-to-change finding 

where a juvenile defendant is sentenced to life without parole. Accordingly, 

Appellant’s sentence is constitutional. 
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In sum, the trial court did not abuse its discretion in sentencing 

Appellant, and the sentence Appellant received was legal. Because Appellant’s 

issues lack merit, we affirm his judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/14/2019