J

- A07009

- 19 2020 PA Super 158

____________________________________ * Former Justice specially assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA

v.

JOSE JAVIER DEJESUS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 883 EDA 2018 Appeal from the Judgment of Sentence January 5, 2018 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CR

- 0001277

- 1997

BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E. DISSENTING OPINION BY OLSON, J.: FILED JULY 06, 2020 I must respectfull y dissent from my learned colleagues. I believe that the evidence is insufficient to rebut the presumption against imposing a life

- without

- parole sentence and that Appellant’s sentence is illegal. Thus, I would v acate Appellant’s judgment of sentence and remand for resentencing.
In Miller v. Alabama , the United States Supreme Court held “ that mandatory life 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 punishmen ts.’” Miller , 567 U.S. at 465

. In arriving at this conclusion, the Supreme Court relied upon its past precedent s in Graham v. Florida and Roper v. Simmons

. See Graham v. Florida , 560 U.S. 48 (2010) ; see also Roper v. Simmons , 543 U.S. 551 (2005)

. The Miller Court explained that Graham and Roper “establish[ed] that children are constitutionally different from adults for purposes of sentencing ” because:J

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- [1)] children have a lack of maturity and an underdeveloped sense of responsibility, leading to reckl essness, impulsivity, and heedless risk

- taking [; 2) ] ch ildren are more vulnerable to negative influences and outside pressures, including from their famil y and peers; they have limited control over their own environment and lack the ability to extricate th emselves from horrific, crime

- prod ucing settings [; and, 3) ] a child's character is not as well formed as an adult's; his traits are le ss fixed and his actions less likely to be evidence of irretrievable depravity. Id. at 471 (quotations , citations, and corrections om itted) , quoting Graham , 560 U.S. at 6 8 and Roper , 543 U.S. at 5 69 and 570

. The Miller Court held that, “[b]ecause juveniles have diminished culpability and greater prospects for reform [than adults]

. . . they are less deserving of the most s evere punishments ” and, as a class, “the distinctive attributes of youth diminish the penological justifications” for imposing upon juveniles life without parole. Miller , 567 U.S. at 471 and 472 (quotations omitted). Further, the Miller Court echoed Graham by “ likening life

- without

- parole sentences imposed on juveniles to the death penalty itself.” Id. at 474. The Miller Court explained:

Life

- without

- parole terms . . . share some characteristics with death sentences that are shared by no other sent ences. Impr isoning an offender until he dies al ters the remainder of his life by a forfeiture that is irrevocable. And this lengthies t possible incarceration is an especially h arsh punishment for a juvenile, because h e will almost inevitably serve more y ears and a greater percentage of his life i n prison than an adult offender

. The penalty when imposed on a teenager, as compared wit h an older person, is therefore the same in name only. Id. at 474

- 475 (quotations, citations, and corrections omitted).J

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In Miller , however, the State sought to impos e the “ultimate penalty for juveniles ”

– a term of life in prison without the possibil ity of parole

– as a mandatory penalty for a juvenile convicted of murder

. Id. at 475. The mandatory nature of this penalty pr eclud ed the sentencer from considering mitigating factors, such as “ the distinctive attributes of youth , ” before imposing the S tate ’ s most seve re punishment upon the juvenile

. As the Miller Court held, this was unconstitutional:

By removing youth from the balance

– by subjecting a juvenile to the same life

- without

- parole sentence applicable to an adult

– these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham's (and also Roper 's ) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children

.

. . . Mandatory life without parole for a juvenile precludes consideration of his chronologica l age and its hallmark features

– among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him

– and from which he c annot usually extricate himself

– no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. In deed, it ignores that he might have been charged and convicted of a lesser offense if not for incom petencies associated with youth

– for example, his inabilit y to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it

.J

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Id. at 474 and 477

- 478. Although the Miller Court did not absolutely preclude a sentence of life
in prison without the possibility of parole upon a juvenile, the High Court explained :

given all we have said in Roper , Graham , and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficul ty we noted in Roper and Graham of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Although we do not fore close a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison

. Id. at 479

- 480 (quotations an d citations omitted). The Supreme Court expounded upon Miller in Montgomery v. Louisiana

. In Montgomery , the Supreme Court held that Miller announced

a new, substantive rule of constitutional law that states must appl y retroactively to juvenile offenders on collateral review. Montgomery , 136 S.Ct. at 726 and 732. In concluding that Miller announced a substantive rule

– and, thus, a rule that “prohibits a certain category of punishment for a class of defendants bec ause of their status ”

– the Montgomery Court held:

Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” [ Mil ler , 567 U.S. at 480]

. The Court recognized that aJ

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- sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in light of children's diminishe d culpability and heightened capacity for change, Miller made clear that appropriate occasions for sentencing juveniles to this harshest pos sible penalty will be uncommon. Miller , then, did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life witho ut parole collapse in light of the d istinctive attributes of youth. Even if a court considers a child's age befo re sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment fo r a child whose crime reflects “ unfortu nate yet transient immaturity. ” [ Miller , 567 U.S. at 479]. Because Miller determined that sentencing a child to l ife without parole is excessive for all but “ the rare juvenile offender whose crime r eflects irreparable corruption, ” it rendered life without parole an unconstitutional penalty for “a class of defe ndants because of their status”

– that is, juvenile offend ers whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Mil ler is retroactive because it necessarily carries a sign ificant risk that a defendant

– h ere, the vast majority of juvenile offenders

– faces a punishment that th e law cannot impose upon him. Montgomery , 136 S.Ct. at 734 (corrections and some quotations and citations omitted). The Pennsylvania Supreme Court interpreted and applied Miller and
M ontgomery i n Commonwealth v. Batts , 163 A.3d 410 (Pa. 2017) (hereinafter “ Batts II ” ). The facts of Batts II

– and the Pennsylvania Supreme Court’s prior opinion in Commonwealth v. Batts , 66 A.3d 286 (Pa. 2013) (“hereinafter Batts I ”)

– are as follows.J

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On February 7, 2006, Qu’eed Batts walked up to Clarence Edwards and shot him twice in the head, killing him ; Batts also shot Corey Hilario once in the back, causing him serious bodily injury. Batts II , 163 A.3d at 414. At the time of the murder, Batts wa s 14 years old

. Id. at 411. The jury convicted Batts of first

- degree murder, attempted murder, and aggravated assault and, on October 22, 2007, the trial court sentenced Batts to serve the then

- mandatory term of life in prison without the poss ibility of parole for his first

- degree murder conviction. After we affirmed Batts’ judgment of sentence, the Pennsylvania Supreme Court granted Batts’ petition for allowance of appeal. The Supreme Court then held the case pending the United States Supreme Court’s decision in Miller

. Id. at 419. The Pennsylvania Supreme Court issued its opinion in Batts I on March 26, 2013 . Essentially, in Batts I , the Supreme Court held that Batts’ mandatory sentence of life in prison wit hout the possibility of parole was unconstitutional . Notwithstanding , “ juveniles convicted of first

- degree murder prior to Miller could, after the sentencing court's evaluation of the criteria identified in Miller , be subjected to a sentence of life in pr ison without the possibility of parole

. ” See Batts II , 163 A.3d at 421 ( footnote omitted). The
Batts I Court thus remanded the case to the trial court for resentencing. Id. After the resentencing hearing, the trial court again sentenced Batts to life

- without

- parole for his first

- degree murder conviction. After this Court again affirmed Batts’ judgment of sentence, the Supreme Court granted Batts’ petition for allowance of appeal.J

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At the outset, the Batts II Court held that a challenge to the su ffici ency of the evidence supporting a life

- without

- parole sentence is a challenge to the legality of the sentence. Id. at 435

- 436. This is because, under Miller and Montgomery , “a sentencing court has no discretion to sentence a juvenile offender to lif e without parole unless it finds that the defendant is one of the ‘rare’ and ‘uncommon’ children” who :

is entirely un able to change[,]

. . . t hat there is no possibility that the offender could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects the juvenile's true and unchangeable personality and character

. Id. at 435. Thus, the Batts II Court held, “in the absence of the sentencing court reaching a conclusion, supported by competent evidence, that the defendant will forever be incorrigible, without any hope for rehabilitation, a l i fe

- without

- parole sentence imposed on a juvenile is illegal, as it is beyo nd the court’s power to impose.” Id. ; see also Commonwealth v. Catt , 994 A.2d 1158, 1160 (Pa. Super. 2010) ( en banc ) (“ [a] claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the le gality of the sentence ”)

. Further , since a challenge to the evidentiar y sufficiency of a life

- without

- parole sentence implicates the legality of the defendant’s sentence, the Supreme Court held that the appellate court’s standard and scope of review for such a claim is as follows:J

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- we must review the sentencing court's legal conclusion that [a defendant] is eligible to receive a sentence of life without parole pursuant to a de novo standard and plenary scope of review. Because this legal conclusion is premised upon the presentation of testimony and the sentencing court's credibility determinations, it presents a mixed question of fact and law. In such circumstances, we defer to the findings of fact made by the sentencing court as long as they are suppo rted by competent evidence, but give no deference to that court's legal conclusions

. Batts II , 163 A.3d at 435

- 436 (citations omitted)

. The Batts II Court also “devise[d] a procedure for the implementation of the Miller and Montgomery decisions in Pennsylv ania.” Id. at 451 (quotations omitted). Specifically , the Batts II Court held:

 “[t] he Commonwealth must give [the defendant] reasonable notice of its intention to seek a sentence of life without the possibility of parole , ” id. at 455 and 459;

 there exists “ a presumption against sentencing a juvenile offender to life in prison without the possibility of parole ; ” id. at 452;

 “ to overcome the presumption against the imposition of a sentence of life without parole for a juvenile offender, the Commonweal th must prove that the juvenile is constitutionally eligible for the sentence beyond a reasonable doubt ” ( i.e. , the Commonwealth must prove, beyond a reasonable doubt, that the defendant “is and forever will be a danger to society” and that the defendant “ exhibits such irretrievable depravity that rehabilitation is impossible”) ; id. at 455 (quotations, citations, and emphasis omitted);J

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 “ [t] he Commonwealth's evidence and the sentencing court's decision must take into account the factors announced in Miller [ 1 ] and section 1102.1(d) of the Crimes Code , [ 2 ] ” id. at 455 n.23 and 459

- 460;

_________________ __________ ______ ____ _______ 1 In Batts I , the Supreme Court quoted approvingly from this Court’s opinion in Commonwealth v. Knox , 50 A.3d 732 (Pa. Super. 2012), w here we held:

although Miller did not delineate specifically what factors a sentencing court must consider, at a 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 hi s 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 abili ty to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation

. Knox , 50 A.3d at 745; see also Batts I , 66 A.3d at 297; Batts II , 163 A.3d at 455 n.23.

2 18 Pa.C.S.A. § 1102.1(d) declares: (d) Findings. -- In determining whether to impose a sentence of life without parole under subsection (a), the court shall consider and make findings on the record regarding the following: (1) The impact of the offense on each victim, including oral and wr itten victim impact statements made or submitted by family members of the victim detailing the physical, psychological and economic effects of the crime on the victim and the victim's family. A victim impact statement may include comment on the sentence of the defendant. (2) The impact of the offense on the community. (3) The threat to the safety of the public or any individual posed by the defendant.J

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 “ whether expert testimony is required to rebut the presumption against permanent incorrigibility beyond a reasonable doubt [must] be determined on a case

- by

- case basis by the sentencing court , ” id. at 456;

 a judge may make the finding of “ permanent incorrigibility, ” id. ;

 if the evidence is sufficient to support a finding of “permanent incorrigibility” beyond a reasonable doubt, the trial court still has the

_________________ __________ ______ ____ _______ (4) The nature and circumstances of the offense committed by the defendant. (5) The degree of the defen dant's culpability. (6) Guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing. (7) Age

- related characteristics of the defendant, including: (i) Age. (ii) Mental capacity. (iii) Maturity. (iv) The degree of criminal sophistication exhibited by the defendant. (v) The nature and extent of any prior delinquent or criminal history, including the success or failure of any previous attempts by the court to rehabilitate the defendant. (vi) Probation or institutional reports. (vii) Other relevant factors. 18 Pa.C.S.A. § 1102.1(d).J

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discretion “to impose a life

- without

- parole sentence or to instead impose a sentence that would allow the juvenile to have an opportunity for parole consideration , ” id. at 457; and,

 “[i] n sentencing a juvenile offender to life with the possibility of parole, traditional sentencing considerations apply. See 42 Pa.C.S. § 9721(b). The sentencing court should fashion the minimum term of incarceration using, as guidance, section 1102.1(a) of the Crimes Code , ” id. at 460. In the end, the Batts II Court held that Batts’ life

- without

- parole
sentence was illegal, as the evidence was insufficient to support the sentence and the trial court , in fact, concluded that Batts was amenable to rehabilitation. Id. at 439. In the case at bar, Appellant claims that the evidence is insufficient to rebut the presumption against a life

- without

- parole sentence and that his sentence is, thus, illegal. I agree. As noted above, our standard and sc ope of review is as follows: we must review the sentencing court's legal conclusion that [a defendant] is eligible to receive a sentence of life without parole pursuant to a de novo standard and plenary scope of review. Because this legal conclusion is p remised upon the presentation of testimony and the sentencing court's credibility determinations, it presents a mixed question of fact and law. In such circumstances, we defer to the findings of fact made by the sentencing court as long as they are suppor ted by competent evidence, but give no deference to that court's legal conclusions

. Batts II , 163 A.3d at 435

- 436 (citations omitted).J

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Further, as explained above, the Pennsylvania Supreme Court has recognized “a presumption against the imposition of a sen tence of life without parole” for juvenile murderers. To rebut this presumption, the Commonwealth has the burden of proving, beyond a reasonable doubt, that the defendant :

is entirely unable to change[,] . . . t hat there is no possibility that [ the defendant ] could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects [ the defendant’s ] true and unchangeab le personality and character

. Id. at 435

. As everyone agree s , d uring the resentencing hearing, the Commonwealth presented evidence demonstrating that Appellant has not yet been rehabilitated. Unquestionably , the Commonwealth presented evidence tending to show that, almost since the time Appellant was imprisoned for second

- degree murder in 1997 , he has engaged in a “consistent pattern of aggressive, defian[t] behavior. ” N.T. Resentencing Hearing, 12/5/17, at 215 and 263. This behavior includes multiple vi olations of prison regulations and a variety of criminal acts, such as : Appellant’s unprovoked stabbing of a fellow

- inmate in the face , which occurred in February 2012 ; the three times Appellant “squirted a [shampoo] bottle [filled with] urine [and feces]” atJ

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inmates or prison employees, which occurred in 2012, 2014, and 2016 ; and, Appellant’s multiple acts of sexual harassment

. 3
Nevertheless , as everyone also agrees, A ppellant is in need of treatment for his mental problems and yet Appellant has rejected all forms of treatment during his time in prison , including therapy and medication. Therefore, this is not a case where all possible forms of treatment were attempted on Appellant and Appellant continued to engage in aggressive and antisocial behavior

. Rather, the above

- cited evidence merely demonstrates that, without
treatment , Appellant’s aggressive and antisocial behavior has continued unabated

. Th e above

- cited evidence does not satisfy the Commonwealth’s burden
to establish “ that there is no possibility” that Appellant could be rehabilitated. To be sure, since Appellant ha s not engaged in treatment or attempted to rehabilitate himself , the evidence of Appellan t’s continued aggressive and antisocial behavior simply does not speak to the question of whether Appellant

_________________ __________ ______ ____ _______ 3 In Miller , the Supreme Court held that a trial court must determine whether, at the time of the crime , the defendant was “permanently incorrigible.” See Miller , 567 U.S. at 479

- 480. Nevertheless, in Montgomery , the Supreme Court held that a defendant’s post

- conviction prison conduct was relevant to the issue of whether he is “capable of change.” See Montgomery , 136 S.Ct. at 736 ; see also Batts II , 163 A.3d at 456 ( “ Montgomery

. . . plainly requires a court to consider the post

- crime conduct of a defendant in determining whether life without parole is a permissible sentence ”)

.J

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“ is entirely unable to change . . . [and] without any hope for rehabilitation

. ”
Batts II , 163 A.3d at 435. In addition , during the remainder of the resentencing hearing, the parties presented n o evidence that would tend to show that Appellant’s rehabilitation is impossible. Indeed, the Commonwealth’s own expert witness (whom the trial court concluded was credible) specifically testified that rehabilitation was possible for Appellant. 4
D uring the resentencing hearing, Dr. Russell

– the Commonwealth’s expert witness

– testified that Appellant suffers from both antisocial personality disorder and schizotypal personality disorder

. N.T. Resente ncing Hearing, 12/5/17, at 350. He testified that Appellant’s an tisocial personality disorder manifests in Appellant’s long

- line of behaviors and actions that “infringe [] on the rights of others” and that Appellant’s schizotypal personality disorder manif ests in Appellant’ s social anxiety, wish to be alone, “odd or peculiar ” behavior s and affectations, “unusual perceptions, [] suspiciousness, [and] paranoia ; ” and “ engag[ement] in behaviors and then having a different type of em otional presentation, [such as] smirking while he’s doing an obscene or aggressive act.” Id. at 343, 350

- 351, 353 ; N.T. Resentencing Hearing, 12/6/17, at 141

- 142.

_________________ __________ ______ ____ _______ 4 I note that Appellant’s expert witness also testified that Appellant was capable of being rehabilitated. See , e.g. , N.T. Resentencing Hearing, 12/6/17, at 221

- 222.J

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While Dr. Russell testified that “there is no cure” for either disorder and that the disorders will “never go[] away,” a s they are a part of Appellant’s personality, Dr. Russell specifically testified that “many of the folks who have [antisocial personality disorder], as they begin to hit their mid

- 50s, their early 60s, the violent behavior, the frequency of the impulsive a ggression you see just stop because of increasing age.” N.T. Resentencing Hearing, 12/5/17, at 35 6. Further, as to Appellant’s schizotypal personality disorder, Dr. Russell testified that the personality disorder “can be managed” and that “[w]ith medicat ion and intensive therapy you could begin to assist [a person suffering from schizotypal personality disorder] in making strides to lessen the impact of that personality disorder

. ” N.T. Resentencing Hearing, 12/6/17, at
141

- 143

. Dr. Russell also testifie d that: “there’s certainly a possibility if [Appellant] were to be given a term of years that he could motivate himself to do what’s necessary to earn parole;” “if [Appellant] were to b e successful outside of a prison system,” Appellant would need to cons istently comply with his therapy and medication; a nd, in making a risk assessment of a person,

“ t here is no way you can say that they cannot be rehabilitated or that they will be rehabilitated.” Id. at 63

- 64, 149

- 150 ; N.T. Resentencing Hearing, 12/5/17, at 354

- 355. Therefore, Dr. Russell specifically testified that rehabilitation is not “impossible” for Appellant

. Certainly , he testified that it is possible for Appellant to be rehabilitated with aging (for his antisoci al personality disorder) and with “medication and intensive therapy” (for his schi zotypal personalityJ

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disorder). Furthe r, and importantly, Dr. Russell testified that if Appellant is one of the “many” individuals for whom aging a ffects his antisocial perso nality disorder, it is reasonable to anticipate that “the violent behavior, the frequency of the impulsive aggression you see just stop because of increasing age.” N.T. Resentencing Hearing, 12/5/17, at 345 (emphasis added)

. It is true , Dr. Russell testified , that given Appellant’ s past behavior, his “refus al to participate and engage” in therapy, and his “refusal to maintain the medication or take the medication,” “the risk of [Appellant’s] continued aggressive behavior is high.” Id. at 354

- 356. However, this testimony does not establish that there is no possibility that Appellant can be rehabilitated

– it only establishes that Appellant has not yet chosen to accept or participate
in the treatment that might rehabilitate him

. To be sure, the learn ed majority apparently acknowledges that the Commonwealth’s own expert testified that there is a possibility Appellant will
age - out of the violence and impulsive aggression associated with his antisocial personality disorder and that it is possible for App ellant to manage his schizotypal personality disorder with medication and therapy. Majority Opinion at ** 31

- 34 . Nevertheless, the majority still declares that the evidence is sufficient to rebut the presumption against a life

- without

- parole sentence because “Appellant’s aggressive and antisocial behavior [] has notJ

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ceased despite his entering middle age” 5 and Appellant has not yet participat ed in his necessary mental health treatment. Id. ; see also Majority Opinion at 32 (“ [t]here is nothing in the record to indicate that Appellant’s psychological disorders will resolve themselves without proper medication and intervention, yet the Commonwea lth has shown Appellant ignores therapeutic opportunities and refuses to take medication with regularity ”)

. Respectfully, the majority is not applying the proper standard. We are not here to determine whether Appellant was rehabilitated at the time of the sentencing hearing and we may not attach conditions to make something

– that is otherwise possible

– impossible. Instead, we must a sk whether the Commonwealth proved, beyond a reasonable doubt, that “there is no

_________________ __________ ______ ____ _______ 5 As to this point, t he majority declares, in full: “Appellant’s aggressive and antisocial behavior has not ceased despite his entering middle age, a time of life the expert testimony has concluded that the frequency of impulsive aggression for many people who have antisocial personality disorder would ‘just stop,’ according to Dr. Russell.” Majority Opinion at *34. However, Dr. Russell did not say this. Rather, Dr. Russell testified that “many of the folks who have [antisocial personality disorder ], as they begin to hit their mid - 50s, their early 60s , the violent behavior, the frequency of the impulsive aggression you see just stop because of increasing age.” N.T. R esentencing Hearing, 12/5/17, at 356 (emphasis added)

. Dr. Russell testified that, since Appellant is only in his 40s , there is “[n]o possible way to know right now” whether Appellant is in the category of people whose violence and aggressive impulses sub side as they age. N.T. Resentencing Hearing, 12/6/17, at 136. Therefore, contrary to the majority’ s statement, Dr. Russell did not state that Appellant is at the “time of [his] life” where his violence and impulsive aggression would “ just stop ” due to ag e. Instead, Dr. Russell specifically testified that Appellant has n ot yet reached the age where he c ould possibly age - out of the violence and impulsive aggression associated with his antisocial personality disorder.J

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possibility that [Appellant] could be rehabilitated at any point later in his life , no matter how much time he spends in prison and regardless of the amount of therapeutic int erventions he receives.” Batts II , 163 A.3d at 435 (emphasis added). “Impossibility” in this context equates to a zero percent chance of occurrence

– and, as explained in more detail above, the Commonwealth simply did not satisfy its burden of production in this case. Certainly , the Commonwealth’s own expert testified that rehabilitation for Appellant is p ossible

. On May 20, 1994, Appellant murdered Raymond McKinley in a senseless and reprehensible act of violence

. While in prison for this murder , Appel lant engaged in a “consistent pattern of aggressive, defian[t] behavior ” and committed many violent and appalling acts. Nevertheless, it is undisputed that Appellant may benefit from mental health treatment and that Appellant has yet to agree to this treatment . Thus, the Commonwealth’s evidence of Appellant’s continued aggressive and antisocial behavior merely establishes that Appellant has not yet been rehabilitated . The evidence simply does not establish that Appellant “is one of the very rare ind ividuals who is incapable of rehabilitation” or that “ there is no possibility that [Appellant] could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he

r eceives .” See Batts II , 163 A.3d at 435 and 454 (emphasis added)

. Indeed , the Commonwealth’s own expert testified that it is possible for Appellant to be rehabilitated with medication and therapy and for Appellant’s violent actsJ

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and impulsive aggres s ion to “ just stop ” in the future because of increasing
age . I thus conclude that the evidence is insufficient to rebut the presumption against the imposition of a sentence of life without parole and tha t Appellant’s sentence is illegal. Therefore , I would va cate Appellant’s judgment of sentence and remand for resentencing. 6 , 7

_________________ __________ ______ ____ _______ 6 Given my belief that the evidence is insufficient to rebut the presumption against the imposition of a sentence of life without parole , I will not discuss Appellant’s remaining issues , as they are moot.

7 I note that, even with the possibility of parole, Appellant may never be paroled if he fails to be rehabilitated. As the High Court made clear, Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s c entral intuition

– that children who commit even heinous crimes are capable of change. Montgomery , 136 S.Ct. at 736.