Commonwealth v. Clary

226 A.3d 571

COMMONWEALTH of Pennsylvania

v.Terrell Lamar CLARY, Appellant

Commonwealth of Pennsylvania

v.Terrell Lamar Clary, Appellant

No. 3105 EDA 2018

No. 3107 EDA 2018

Superior Court of Pennsylvania.

Argued October 17, 2019

Filed January 2, 2020

Reargument Denied March 3, 2020

Katherine E. Ernst, Public Defender, Norristown, for appellant.

Adrienne D. Jappe, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.^*

OPINION BY DUBOW, J.:

Appellant, Terrell Lamar Clary, appeals from the May 31, 2018 Judgment of Sentence of 48 years' to life imprisonment imposed upon resentencing after the grant of post-conviction relief based on Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).¹ Appellant challenges certain evidentiary rulings made at his resentencing hearing, as well as the discretionary aspects and legality of his sentence. After careful review, we affirm.

Facts and Procedural History

A detailed recitation of the procedural and factual history is unnecessary to our disposition. Briefly, in 1999, when Appellant was 16 years old, he shot Juan Watson in the chest. The next day, he shot and killed William Six. Appellant was charged, inter alia , with the murder of Mr. Six and attempted murder of Mr. Watson.

On August 17, 2000, a jury found Appellant guilty of First-Degree Murder and related charges in the death of Mr. Six (Docket No. 8066-99) and guilty of Attempted Murder and related charges in the shooting of Mr. Watson (Docket No. 1873-00).² On November 6, 2000, the court sentenced Appellant, in relevant part, to a statutorily mandated sentence of life without parole ("LWOP") for the first-degree murder conviction.³ This Court affirmed the Judgment of Sentence. Commonwealth v. Clary , 573 Pa. 663, 820 A.2d 702 (Pa. Super. 2003) (unpublished memorandum).

On March 22, 2016, Appellant filed a Petition pursuant to the Post Conviction Relief Act ("PCRA") asserting that his LWOP sentence was unconstitutional under Miller and Montgomery . The PCRA court granted relief, vacated Appellant's sentence, and scheduled the case for resentencing.

A three-day resentencing hearing commenced on May 7, 2018. The Commonwealth sought a LWOP sentence. The Commonwealth presented testimony from, inter alia , Detective Dillon, with whom Appellant had interacted when he was 16 years old. The Commonwealth also presented testimony from an expert in gang affiliation in rebuttal.

On May 9, 2018, after providing a thorough review of the applicable sentencing factors, the court determined that Appellant was not permanently incorrigible and declined to impose a LWOP sentence. The court resentenced Appellant to a term of 42 years to life imprisonment for his First-Degree Murder conviction, a consecutive sentence of 6 to 12 years of imprisonment for his Attempted Murder conviction; and a consecutive sentence of 7 years of probation for a gun violation charge. Thus, the court sentenced him to an aggregate term of 48 years' to life imprisonment, followed by 7 years' probation.

Appellant filed a Post-Sentence Motion, which the trial court denied.

This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Issues Raised

Appellant raises the following four issues on appeal, which we have reordered for ease of disposition:

1. Did the sentencing court abuse its discretion in allowing the Commonwealth to present expert testimony regarding gang affiliation and activity where no expert report or other notice was provided to the defense and [Appellant's] gang activity was one of the critical factors that shaped the court's decision?

2. Did the sentencing court abuse its discretion in denying defense counsel the right to cross-examine a Commonwealth witness on issues of [Appellant's] interactions with police where "the ability to navigate the system" is one of the enumerated factors that must be considered in Miller and the sentencing court erroneously found that [Appellant] was able to navigate the system?

3. Did the sentencing court abuse its discretion in imposing a manifestly excessive and unreasonable sentence where the court failed to follow the mandates of Miller , Montgomery , and Batts ?

4. Is the sentence imposed an illegal sentence as it is a de facto life sentence when the court found that [Appellant] was not permanently incorrigible?

Appellant's Br. at 3.

Issue 1: Rebuttal Testimony

Appellant's first issue challenges an evidentiary ruling. The admissibility of evidence lies "within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion." Commonwealth v. Young , 989 A.2d 920, 924 (Pa. Super. 2010) (citations omitted). See , e.g. , Commonwealth v. Feflie , 398 Pa.Super. 622, 581 A.2d 636, 643 (1990) (noting that the admission of rebuttal testimony is within the discretion of the trial court). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Nypaver , 69 A.3d 708, 716 (Pa. Super. 2013) (citations omitted).

Appellant asserts that the trial court abused its discretion in permitting the Commonwealth to present as a rebuttal witness a gang expert, Lieutenant Eric Echevarria, when the Commonwealth failed to disclose this witness to Appellant in violation of Pa.R.Crim.P. 573. Appellant's Br. at 60.

Pa.R.Crim.P. 573(B)(1) outlines the Commonwealth's mandatory obligation to disclose certain evidence to a defendant, including exculpatory evidence, inculpatory statements, and tangible evidence. See Pa.R.Crim.P. 573(B)(1). However, our rules contain no "provision which requires the Commonwealth to disclose rebuttal witnesses[.]" Feflie , supra at 643.⁴ Further, we have opined that it is impossible for the Commonwealth "to provide the defense with a complete list of every possible witness who might be called in rebuttal, since plans for such rebuttal obviously cannot be finalized until the defense is presented." Commonwealth v. Oliver , 251 Pa.Super. 17, 379 A.2d 309, 313 (1977). See also Commonwealth v. Novasak , 414 Pa.Super. 21, 606 A.2d 477, 487 (1992) (quoting Commonwealth v. Thiel , 323 Pa.Super. 92, 470 A.2d 145, 148 (1983) ("[W]e cannot expect the Commonwealth to anticipate the materiality of all possible rebuttal evidence[.]")).

In this case, Appellant presented testimony from John Hepburn, Ph.D., an expert in sociology, corrections, and "security threat group management," including organized gang members. Dr. Hepburn interpreted evidence relevant to whether Appellant continued to act as a gang member in prison. N.T. Resentencing, 5/9/18, at 20-21. On cross-examination, the Commonwealth questioned Dr. Hepburn on Appellant's classification as "H-5," and asked him to interpret symbols on a letter from a gang member as well as a list of names and addresses on a yellow piece of paper. Id. at 56, 75, 84-86. Dr. Hepburn testified that the H-5 classification typically means mid-level, but did not know the exact classification relative to Appellant's alleged gang. Id. at 56. Dr. Hepburn could not interpret the symbols on the letter and did not know if the list of names was a roster of gang members. Id. at 75, 84-86.

In rebuttal, the Commonwealth called Lieutenant Detective Echevarria as an expert witness to testify regarding gang activity, including gang language. Appellant's counsel objected, arguing that the Commonwealth should have informed him of the rebuttal expert. The court overruled the objection and permitted Detective Echevarria to testify. He testified in detail about the H-5 classification, interpreted the symbols on the letter that the Commonwealth had shown to Dr. Hepburn, opined as to Appellant's status in the gang based on those symbols, and identified the yellow paper as a list of gang members and their hierarchy. Id. at 116-19, 121-22.

Following our review, we conclude that the sentencing court did not abuse its discretion in permitting the rebuttal testimony of Detective Echevarria. Appellant has presented no authority to support his claim that the Commonwealth was required to disclose the names of its rebuttal witnesses. As the resentencing court concluded, the Commonwealth could not have known whether it needed to produce a rebuttal witness until after Appellant's defense experts completed their testimony. Trial Ct. Op. at 35. See Feflie , supra at 643 (concluding the Commonwealth was not required to disclose witnesses rebutting prison procedure and alibi evidence testimony); Oliver , supra at 313 (concluding the Commonwealth complied with the rules of discovery where it disclosed all its witnesses, except some called only on rebuttal). Accordingly, this claim is meritless.

Issues 2-4: Sentencing

Before we address Appellant's specific issues, each of which references Miller and its progeny, we provide the following background.

Miller 's Applicability and Appellate Review

In Miller , the U.S. Supreme Court held that it was unconstitutional to impose mandatory LWOP sentences for defendants who committed their crimes while under the age of 18. Miller , 567 U.S. at 465, 132 S.Ct. 2455. The Court nonetheless opined that a LWOP sentence is still a viable sentence for "the rare juvenile offender whose crime reflects irreparable corruption," and a judge or jury must consider individualized characteristics and circumstances, including an offender's youth and attendant characteristics, before imposing this harshest possible penalty. Id. at 479-80, 483, 489, 132 S.Ct. 2455. In Montgomery , the U.S. Supreme Court held that its decision in Miller, supra , applies retroactively. Montgomery , 136 S.Ct. at 732. The Court "expressly left it to...