J-A07009-19

2020 PA Super 158

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE JAVIER DEJESUS 

Appellant

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 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 respectfully 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 vacate 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 

punishments.’” Miller, 567 U.S. at 465. In arriving at this conclusion, the 

Supreme Court relied upon its past precedents 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:
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[1)] children have a lack of maturity and an underdeveloped 

sense of responsibility, leading to recklessness, impulsivity, 

and heedless risk-taking[; 2)] children are more vulnerable 

to negative influences and outside pressures, including from 

their family and peers; they have limited control over their 

own environment and lack the ability to extricate themselves 

from horrific, crime-producing settings[; and, 3)] a child's 

character is not as well formed as an adult's; his traits are 

less fixed and his actions less likely to be evidence of 

irretrievable depravity.

Id. at 471 (quotations, citations, and corrections omitted), quoting Graham, 

560 U.S. at 68 and Roper, 543 U.S. at 569 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 severe 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 sentences. 

Imprisoning an offender until he dies alters the remainder of 

his life by a forfeiture that is irrevocable. And this lengthiest 

possible incarceration is an especially harsh punishment for 

a juvenile, because he will almost inevitably serve more years 

and a greater percentage of his life in prison than an adult 

offender. The penalty when imposed on a teenager, as 

compared with an older person, is therefore the same in 

name only.

Id. at 474-475 (quotations, citations, and corrections omitted).
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In Miller, however, the State sought to impose the “ultimate penalty 

for juveniles” – a term of life in prison without the possibility of parole – as a 

mandatory penalty for a juvenile convicted of murder. Id. at 475. The 

mandatory nature of this penalty precluded the sentencer from considering 

mitigating factors, such as “the distinctive attributes of youth,” before 

imposing the State’s most severe 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 chronological 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 cannot 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. Indeed, it ignores 

that he might have been charged and convicted of a lesser 

offense if not for incompetencies associated with youth – for 

example, his inability 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.
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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 

difficulty 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 foreclose 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 and 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 apply 

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 because 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.” 

[Miller, 567 U.S. at 480]. The Court recognized that a 
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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 diminished culpability and heightened capacity for 

change, Miller made clear that appropriate occasions for 

sentencing juveniles to this harshest possible 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 

without parole collapse in light of the distinctive attributes of 

youth. Even if a court considers a child's age before 

sentencing him or her to a lifetime in prison, that sentence 

still violates the Eighth Amendment for a child whose crime 

reflects “unfortunate yet transient immaturity.” [Miller, 567 

U.S. at 479]. Because Miller determined that sentencing a 

child to life without parole is excessive for all but “the rare 

juvenile offender whose crime reflects irreparable 

corruption,” it rendered life without parole an 

unconstitutional penalty for “a class of defendants because of 

their status” – that is, juvenile offenders whose crimes reflect 

the transient immaturity of youth. As a result, Miller

announced a substantive rule of constitutional law. Like 

other substantive rules, Miller is retroactive because it 

necessarily carries a significant risk that a defendant – here, 

the vast majority of juvenile offenders – faces a punishment 

that the 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 

Montgomery in 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. 
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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 was 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 possibility 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 without 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 prison 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. 
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At the outset, the Batts II Court held that a challenge to the sufficiency 

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 life without parole unless it finds that the defendant is one of the 

‘rare’ and ‘uncommon’ children” who:

is entirely unable to change[,] . . . that 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 

life-without-parole sentence imposed on a juvenile is illegal, as it is beyond 

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 legality of the sentence”).

Further, since a challenge to the evidentiary 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:
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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 

supported 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 Pennsylvania.” 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 Commonwealth 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);
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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;

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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), where 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 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.

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 

written 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.
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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 defendant'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).
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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 scope 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 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 

supported by competent evidence, but give no deference to 

that court's legal conclusions.

Batts II, 163 A.3d at 435-436 (citations omitted).
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Further, as explained above, the Pennsylvania Supreme Court has 

recognized “a presumption against the imposition of a sentence 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[,] . . . that 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 unchangeable personality and 

character.

Id. at 435.

As everyone agrees, during 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 violations 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]” at 
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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, Appellant 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. 

The 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 has not engaged in treatment or attempted to 

rehabilitate himself, the evidence of Appellant’s continued aggressive and 

antisocial behavior simply does not speak to the question of whether Appellant 

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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”).
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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 no 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 

During 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. Resentencing 

Hearing, 12/5/17, at 350. He testified that Appellant’s antisocial 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 manifests in Appellant’s social anxiety, wish to be alone, “odd or 

peculiar” behaviors and affectations, “unusual perceptions, [] suspiciousness, 

[and] paranoia;” and “engag[ement] in behaviors and then having a different 

type of emotional 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.

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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.
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While Dr. Russell testified that “there is no cure” for either disorder and 

that the disorders will “never go[] away,” as 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 aggression you see 

just stop because of increasing age.” N.T. Resentencing Hearing, 12/5/17, at 

356. Further, as to Appellant’s schizotypal personality disorder, Dr. Russell 

testified that the personality disorder “can be managed” and that “[w]ith 

medication 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 testified 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 be successful 

outside of a prison system,” Appellant would need to consistently comply with 

his therapy and medication; and, in making a risk assessment of a person, 

“there 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 antisocial personality disorder) 

and with “medication and intensive therapy” (for his schizotypal personality 
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disorder). Further, and importantly, Dr. Russell testified that if Appellant is 

one of the “many” individuals for whom aging affects his antisocial personality 

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

“refusal 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 learned 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 Appellant 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 not 
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ceased despite his entering middle age”5 and Appellant has not yet 

participated 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 Commonwealth 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 ask whether the 

Commonwealth proved, beyond a reasonable doubt, that “there is no 

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5 As to this point, the 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. 

Resentencing 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 subside 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 age. Instead, Dr. 

Russell specifically testified that Appellant has not yet reached the age where 

he could possibly age-out of the violence and impulsive aggression associated 

with his antisocial personality disorder. 
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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 interventions 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 possible.

On May 20, 1994, Appellant murdered Raymond McKinley in a senseless 

and reprehensible act of violence. While in prison for this murder, Appellant

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 individuals 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 

receives.” 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 acts 
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and impulsive aggression 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 that Appellant’s 

sentence is illegal. Therefore, I would vacate Appellant’s judgment of 

sentence and remand for resentencing.6, 7

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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 central intuition – that children who commit even heinous 

crimes are capable of change.

Montgomery, 136 S.Ct. at 736.