J-S45002-18

2019 PA Super 99

____________________________________

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

SCOTT CHARLES DAVIS,

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 76 MDA 2018

Appeal from the Judgment of Sentence December 7, 2017

in the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-MD-1000728-1980

BEFORE: OTT, J., MUSMANNO, J., and PLATT*, J.

OPINION BY MUSMANNO, J.: FILED: MARCH 29, 2019

Scott Charles Davis (“Davis”) appeals from the judgment of sentence

imposed after he was resentenced pursuant to Miller v. Alabama, 567 U.S. 

460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).1, 2 We 

affirm in part, vacate in part, and remand with instructions.

In 1980, Davis, who was 15 years old, shot and killed Roderick Kotchin. 

On May 7, 1981, following a jury trial, Davis was convicted of murder in the 

first degree.3 The trial court sentenced Davis to a mandatory term of LWOP, 

____________________________________________

1 The Supreme Court in Miller held that sentencing schemes that mandate 

life in prison without parole (“LWOP”) sentences for defendants who 

committed their crimes while under the age of eighteen violate the Eighth 

Amendment’s prohibition on “cruel and unusual punishments.” Miller, 567 

U.S. at 465.

2 The Supreme Court in Montgomery held that the Miller decision announced 

a new substantive rule of constitutional law that applies retroactively. 

Montgomery, 136 S. Ct. at 736.

3 See 18 Pa.C.S.A. § 2502(a).
J-S45002-18

- 2 -

and ordered Davis to pay the costs of prosecution.

4

 This Court and the 

Pennsylvania Supreme Court affirmed the judgment of sentence. See 

Commonwealth v. Davis, 479 A.2d 1041 (Pa. Super. 1984), aff’d, 510 A.2d 

722 (Pa. 1986).

Following a procedural history not relevant to this appeal, the United 

States District Court for the Middle District of Pennsylvania granted Davis’s 

Petition for Writ of Habeas Corpus based upon Miller and Montgomery. See

Davis v. Wetzel, No. 3:13-CV-1687 (M.D. Pa. 2016) (unpublished 

memorandum). The federal district court ordered the York County Court of 

Common Pleas to resentence Davis. After a hearing, the trial court 

resentenced Davis to 40 years to life in prison, and ordered Davis to pay the 

costs of prosecution.

5

 Davis filed Post-Sentence Motions, which the trial court 

denied. Davis filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise 

Statement of errors complained of on appeal. 

On appeal, Davis raises the following questions for our review:

1. Did the resentencing court commit an error of law and abuse 

its discretion by ignoring the mandate of the Pennsylvania 

Supreme Court in Commonwealth v. Batts, 163 A.3d 410 (Pa. 

2017)[(“Batts II”),] which held that [Davis] should have been resentenced to 35 years to life [in prison]?

____________________________________________

4 The costs assessed against Davis at that time totaled $1,248.78. See Court 

Commitment, 6/15/82, at 1 (pages unnumbered).

5 The costs assessed against Davis relative to resentencing were $20,674.73, 

and included charges for “transport costs,” “transcript fees,” and “witness 

fees.” See Trial Court Docket, 11/14/18, at 20.
J-S45002-18

- 3 -

2. Did the resentencing court commit an error of law and abuse 

its discretion when it imposed costs [on Davis]?

3. Did the resentencing court commit an error of law and abuse 

its discretion by not ordering the Commonwealth to compensate 

[Davis] for his costs and attorneys’ fees?

Brief for Appellant at 2.

In his first claim, Davis alleges that the trial court’s sentence of 40 years 

to life in prison is an illegal sentence.

6

 See id. at 8-21. Davis argues that 

there is no statutory authority for the trial court’s sentence. Id. at 8-9. Davis 

claims that 18 Pa.C.S.A. § 1102.1 requires the trial court to sentence him to 

a 35-year minimum sentence. Id. at 9-21. According to Davis, 18 Pa.C.S.A. 

§ 1102.1(e) does not apply to him, because he committed his crime prior to 

the Supreme Court’s holding in Miller. Id.

“Issues relating to the legality of a sentence are questions of law. Our 

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

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

2014) (brackets and ellipses omitted).

Section 1102.1 states, in relevant part, as follows:

§ 1102.1. Sentence of persons under the age of 18 for 

murder, murder of an unborn child and murder of a law 

enforcement officer

____________________________________________

6 Although Davis’s Statement of Questions Involved is vague as to whether 

his first claim challenges the legality of his sentence or the discretionary 

aspects of his sentence, his Reply Brief makes it clear that he is challenging 

the legality of his sentence. See Reply Brief of Appellant at 2-3 (stating that 

“[Davis] challenged the legality of his sentence, not the discretionary aspect 

of the sentence....”). Accordingly, we will limit our review on this claim to the 

legality of the sentence.
J-S45002-18

- 4 -

(a) First degree murder.--A person who has been convicted 

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

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

of the first degree and who was under the age of 18 at 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 life imprisonment without parole, or a term of 

imprisonment, the minimum of which shall be at least 

35 years to life.

***

(e) Minimum sentence.--Nothing under this section shall 

prevent the sentencing court from imposing a minimum 

sentence greater than that provided in this section. ...

18 Pa.C.S.A. § 1102.1 (emphasis added).

In Batts II, our Supreme Court set forth the guidelines for resentencing 

defendants whose sentences had been declared unconstitutional by 

Miller/Montgomery. The Court instructed, “look to the mandatory minimum 

sentences set forth in [S]ection 1102.1(a) for guidance in setting a minimum 

sentence for a juvenile convicted of first-degree murder prior to Miller.” 

Batts II, 163 A.3d at 443 n.16. Further, the Court in Batts II held that the 

sentencing court may deviate upwards from the mandatory minimum. See 

id. at 443 (stating that “[s]ubsection (e) makes clear that [35 years in prison] 

is only the minimum sentence required.... In determining the minimum 

sentence for a juvenile convicted of first-degree murder prior to Miller, a 

sentencing court is to exercise its discretion to find the appropriate, 
J-S45002-18

- 5 -

individualized sentence in each case, just as it would when fashioning the 

minimum sentence for any other defendant before it.”).

Here, the trial court sentenced Davis to 40 years to life in prison.

7

 

Accordingly, because trial courts may exercise discretion in imposing 

sentences beyond the 35-year minimum provided for in Section 1102.1(a), 

see Batts II, 163 A.3d at 443, Davis’s sentence is not illegal. See 18 

Pa.C.S.A. § 1102.1(e).

In his second claim, Davis alleges that the sentencing court imposed an 

illegal sentence by ordering him to pay the costs of prosecution associated 

with his resentencing.

8

 See Brief for Appellant at 21-34. Davis alleges that 

the costs imposed against him are not related to his “prosecution” under 16 

____________________________________________

7 Although Davis did not challenge the discretionary aspects of his sentence 

on appeal, we briefly note that the trial court considered the testimony and 

reports of expert witnesses for Davis and the Commonwealth, and Davis’s 

testimony. The trial court analyzed, in detail, each of the Miller “hallmark 

factors,” see Miller, 567 U.S. at 477-78, and the sentencing factors set forth 

at 18 Pa.C.S.A. § 1102.1(d). See N.T., 12/7/17, at 7-23. Significantly, the 

trial court voiced concern with Davis’s lingering psychological issues and

continued danger to the community. Id. at 23.

8 Although Davis phrases his second claim as whether the trial court abused 

its discretion, see Brief for Appellant at 2, a challenge to the trial court’s 

imposition of costs presents a legality of sentencing claim. See

Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa. Super. 2010) (stating 

that “inasmuch as [a]ppellant’s argument is premised upon a claim that the 

trial court did not have the authority to impose the costs at issue, [a]ppellant

has presented a legality of sentencing claim.”). Accordingly, we limit our 

review of Davis’s second claim to the legality of the court’s imposition of costs.
J-S45002-18

- 6 -

P.S. § 1403.

9

 See Brief for Appellant at 23-27. Further, Davis asserts that

the costs should be paid by the Commonwealth because the costs were 

unnecessary and unreasonable. Id. at 27-32. Finally, Davis claims that the 

costs cannot be imposed because he is indigent. Id. at 32-33.

In order to determine whether the costs imposed upon Davis fall within 

the purview of Section 1403, we must look to the language of the statute. 

This issue is one of statutory interpretation, which is a question of law and 

requires a de novo standard of review. See Commonwealth v. Segida, 985 

A.2d 871, 874 (Pa. 2009). Pursuant to the Statutory Construction Act,10 “our 

paramount interpretive task is to give effect to the intent of our General 

Assembly in enacting the particular legislation under review.” 

Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011). See also 1 

Pa.C.S.A. § 1921(a) (providing that “[t]he object of all interpretation and 

construction of statutes is to ascertain and effectuate the intention of the 

General Assembly. Every statute shall be construed, if possible, to give effect 

to all its provisions.”). “The best indication of the General Assembly’s intent 

may be found in the plain language of the statute.” Commonwealth v. 

Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018). Consequently, “[w]hen the 

____________________________________________

9 Davis also alleges that 42 Pa.C.S.A. § 9728 does not authorize the costs 

imposed against him. However, because the trial court relied on 16 P.S. 

§ 1403 in imposing costs, we limit our analysis to Section 1403.

10 See 1 Pa.C.S.A. §§ 1501-1991.
J-S45002-18

- 7 -

words of a statute are clear and free from all ambiguity, the letter of it is not 

to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. 

§ 1921(b); see also id. § 1922(1) (stating that “the General Assembly does 

not intend a result that is absurd, impossible of execution or unreasonable.”).

Section 1403 states the following:

§ 1403. Expenses incurred by district attorney

All necessary expenses incurred by the district attorney or his 

assistants or any office directed by him in the investigation of 

crime and the apprehension and prosecution of persons charged 

with or suspected of the commission of crime, upon approval 

thereof by the district attorney and the court, shall be paid by the 

county from the general funds of the county. In any case where 

a defendant is convicted and sentenced to pay the costs of 

prosecution and trial, the expenses of the district attorney in 

connection with such prosecution shall be considered a part of the 

costs of the case and be paid by the defendant.

16 P.S. § 1403.

While Section 1403 does not define “prosecution” or “costs of 

prosecution,” “[t]he term ‘prosecution’ [must] be read as synonymous with 

‘conviction.’” Commonwealth v. Moran, 675 A.2d 1269, 1272 (Pa. Super. 

1996); see also id. (stating that 16 P.S. § 1403 “explicitly permits a District 

Attorney to be reimbursed for expenses incurred in prosecuting cases, with 

the proviso that the defendant be ‘convicted’ and the expenses have arisen ‘in 

connection with such prosecution.’”); Commonwealth v. Ramirez, 533 A.2d 

116, 118-19 (Pa. Super. 1987) (holding, in the context of determining when 

prosecutions are barred by former prosecutions under Section 111 of the 

Crimes Code, that the “prosecution” is completed when a defendant is 
J-S45002-18

- 8 -

acquitted or convicted). Further, Section 1403 makes no mention of 

sentencing or sentencing costs. Thus, because the purpose of imposing the 

costs of prosecution against the defendant is to reimburse the Commonwealth 

for the expenses incurred preparing a case for, and conducting, a trial, 

“prosecution” ends with the conviction or acquittal of the defendant. See

Commonwealth v. Coder, 415 A.2d 406, 408 (Pa. 1980) (stating that “[t]he 

purpose of [Section 1403] is to recoup the costs of trial where a jury finds the 

defendant guilty beyond a reasonable doubt[.]”).

Here, the trial court resentenced Davis, in part, to pay costs that were 

purportedly incurred by the Commonwealth relative to Davis’s resentencing.

See Court Commitment, 6/15/82, at 1 (unnumbered). As we have 

determined that, under 16 P.S. § 1403, “prosecution” ends at the time of a 

conviction or acquittal, the trial court imposed an illegal sentence by ordering

Davis to pay the costs relative to his resentencing. Moreover, Davis’s 

resentencing, through no fault of his own, occurred only after his sentence 

was deemed unconstitutional, and he should not be liable for such costs. See 

generally Commonwealth v. Weaver, 76 A.3d 562, 574 (Pa. Super. 2013); 

Commonwealth v. Garzone, 993 A.2d 306, 318-20 (Pa. Super. 2010). 

Accordingly, we vacate the portion of Davis’s sentence that ordered him to 

pay the costs of prosecution, and remand for resentencing for the following 

reasons.
J-S45002-18

- 9 -

It is unclear from the record before us which costs assessed against 

Davis were denoted “costs of prosecution” by the trial court. See Trial Court 

Docket, 11/14/18, at 20. We therefore remand to the trial court for a 

determination of the origin of the costs. Any costs not considered “costs of 

prosecution,” as defined in this Opinion, shall not be imposed upon Davis.11

Judgment of sentence affirmed in part and vacated in part. Case 

remanded with instructions. Superior Court jurisdiction relinquished.

Judge Platt did not participate in the consideration or decision of this 

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/29/2019

____________________________________________

11 We need not address Davis’s remaining claims in light of our disposition.