Opinion
J-A20044-16 No. 1758 WDA 2015
10-17-2016
COMMONWEALTH OF PENNSYLVANIA v. ANGELA MARINUCCI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 1, 2015 in the Court of Common Pleas of Westmoreland County, Criminal Division, No(s): CP-65-CR-0000850-2010 BEFORE: BOWES, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Angela Marinucci ("Marinucci") appeals the judgment of sentence imposed, upon re-sentencing, for her convictions of first-degree murder, second-degree murder, third-degree murder, kidnapping, conspiracy to commit homicide, and conspiracy to kidnap. We affirm.
See 18 Pa.C.S.A. §§ 2502(a), (b), (c); 2901(a)(3); 903(a)(1).
In its Opinion, the trial court set forth the gruesome factual history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 10/28/15, at 1-14.
The trial court sentenced Marinucci to life in prison without the possibility of parole. A panel of this Court affirmed her conviction, but remanded for re-sentencing based on Miller v. Alabama , 132 S. Ct. 2455 (2012); Commonwealth v. Batts , 66 A.3d 286 (Pa. 2013) (hereinafter " Batts I "); Commonwealth v. Lofton , 57 A.3d 1270 (Pa. Super. 2012); and Commonwealth v. Knox , 50 A.3d 732 (Pa. Super. 2012). See Commonwealth v. Marinucci , 83 A.3d 1073 (Pa. Super. 2013) (unpublished memorandum). The Pennsylvania Supreme Court denied Marinucci's Petition for allowance of appeal. See Commonwealth v. Marinucci , 86 A.3d 232 (Pa. 2014).
In Miller , the Court held that the Eighth Amendment to the United States Constitution forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders, and that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. See Miller , 132 S. Ct. at 2474. While the Court did not prohibit the imposition of such a sentence, it ruled that the trial court must first consider certain age-related factors prior to imposing such a sentence. See id. at 2468-69 (wherein the Court held that mandatory prison sentence of life without parole for a juvenile precludes consideration of the defendant's age (and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences), the defendant's family and home environment (which may be brutal or dysfunctional), the circumstances of the homicide offense (including the extent of the defendant's participation in the conduct and the way familial and peer pressures may have affected him), whether the defendant might have been charged and convicted of a lesser offense if not for incompetencies associated with youth (such as an inability to deal with police officers or prosecutors, or incapacity to assist his own attorneys)).
In Batts I , the Pennsylvania Supreme Court narrowly interpreted Miller as requiring only that there be judicial consideration of the appropriate age-related factors set forth in that decision prior to the imposition on a juvenile of a sentence of life imprisonment without the possibility of parole. See Batts I , 66 A.3d at 296.
On July 1, 2015, upon remand, the trial court re-sentenced Marinucci to life in prison without the possibility of parole. Marinucci thereafter filed a post-sentence Motion, which the trial court denied. This timely appeal followed.
The trial court sentenced Marinucci as follows: Count 1 (murder of the first degree) - life without the possibility of parole; Count 2 (murder of the second degree) - life without the possibility of parole; Count 3 (murder of the third degree) - merged with Count 1; Count 4 (conspiracy to commit homicide) - 20 to 40 years in prison; Count 5 (conspiracy to kidnap) - 3 to 20 years in prison; Count 6 (kidnapping) - merged with Count 2.
On appeal, Marinucci raises the following issues for our review:
1 Whether the court below erred in imposing an illegal sentence, by imposing a life sentence without the possibility of parole[,] in contradiction to the clear mandate stated in [ Batts I ], that "it is our determination here that they are subject to a mandatory maximum sentence of life imprisonment[,] as required by [18 Pa.C.S.A. §] 1102(a), accompanied by a minimum sentence determined by the common pleas court upon resentencing[?]"
2 Whether the court below abused its discretion in imposing a life without parole sentence on [Marinucci] on re[-] sentencing[?]
3 Whether the court below erred in failing to empanel a sentencing jury to allow the factors that could increase the sentence imposed to be determined beyond a reasonable doubt by a jury[?]
4 Whether the court below erred in imposing a life sentence without the possibility of parole on a juvenile offender, as such sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment, as well as Article 1, Section 13 of the Pennsylvania Constitution[,] which
provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted[?]"Brief for Appellant at 6 (footnote added).
Although Marinucci did not include a citation for the passage she quotes, it is taken from Batts I , 66 A.3d at 297.
In her first issue, Marinucci contends that, when imposing sentence on a juvenile offender who was convicted of murder prior to the United States Supreme Court's decision in Miller , a trial court is required to follow the Pennsylvania Supreme Court's holding in Batts I. Brief for Appellant at 11. Marinucci points to the Batts I Court's statement that juveniles convicted of murder prior to Miller "are subject to a mandatory maximum sentence of life imprisonment as required by [18 Pa.C.S.A. §] 1102(a), accompanied by a minimum sentence determined by the common pleas court upon resentencing." Brief for Appellant at 12 (footnote added). Marinucci asserts that, pursuant to this statement, Batts I dictates that a juvenile defendant, such as Marinucci, may not be sentenced to life in prison without some possibility of parole. Id. at 12. Marinucci argues that, pursuant to Batts I , the trial court, when re-sentencing her, was required to impose a sentencing range with a minimum sentence and a maximum sentence. Id. at 14. Marinucci also argues that the trial court should have applied 42 Pa.C.S.A. § 9756(b)(1), which provides that "[t]he court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed." Brief for Appellant at 14 (citing 42 Pa.C.S.A. § 9756(b)(1)). Marinucci claims that the trial court's imposition of a sentence of life in prison without the possibility of parole constitutes an illegal sentence, which must be vacated. Brief for Appellant at 15.
Pursuant to 18 Pa.C.S.A. § 1102(a), a person convicted of murder of the first degree shall be sentenced to death or life in prison. However, in response to Miller , the General Assembly enacted 18 Pa.C.S.A. § 1102.1, which established a new sentencing scheme for juveniles convicted of homicide offenses after June 24, 2012. Because Marinucci was convicted of first-degree murder prior to that date, section 1102.1 does not apply to her re-sentencing. Nevertheless, Pennsylvania courts have been guided by section 1102.1 in re-sentencing juveniles under section 1102(a), as it permits courts to consider certain age-related factors (i.e., age, mental capacity, maturity, the degree of criminal sophistication exhibited by the defendant, 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, probation or institutional reports, and any other relevant factors). See Lofton , 57 A.3d at 1276-77.
Marinucci asserts that the only sentencing statute in effect at the time of her conviction, mandating a life without parole sentence, was deemed unconstitutional by Miller when imposed upon a juvenile. Brief for Appellant at 14. To the extent that Marinucci argues that 18 Pa.C.S.A. § 1102 is unconstitutional in light of Miller , our Supreme Court has expressly rejected that argument. See Batts I , 66 A.3d at 294-96.
Notably, Marinucci concedes elsewhere in her brief that, pursuant to Miller , a trial court is not foreclosed from imposing a life-without-parole sentence on a juvenile offender. Brief for Appellant at 20, 28.
A challenge to the legality of a sentence may be entertained as long as the reviewing court has jurisdiction. Commonwealth v. Batts , 125 A.3d 33, 45 (Pa. Super. 2015) (hereinafter " Batts II "). Issues relating to the legality of a sentence are questions of law; therefore, our standard of review is de novo and our scope of review is plenary. Id. at 45-46.
Because Marinucci reiterates the same argument that was unsuccessful before the Batts II panel, we cannot reassess those claims herein. See Batts II , 125 A.3d at 46 (declining to read Batts II as categorically prohibiting a sentence of life without parole for juveniles sentenced before Miller ); see also Commonwealth v. Beck , 78 A.3d 656, 659 (Pa. Super. 2013) (stating that a three-judge panel "is not empowered to overrule another panel of the Superior Court") (citations omitted); see also Trial Court Opinion, 10/28/15, at 14-23.
In her second issue, Marinucci contends that the trial court "abused its discretion and demonstrated partiality, prejudice, bias and/or ill[-]will [when] resentencing [her]." Brief for Appellant at 15. Marinucci asserts that, although the trial court "ostensibly addressed each of the factors which must be considered pursuant to Miller , [it] abused its discretion in disregarding [] numerous pieces of evidence[,]" including Marinucci's maturation and rehabilitation, and the numerous programs in which she has participated while in prison. Id. at 16. Marinucci claims that the trial court's concern that Marinucci may have manipulated her behavior in anticipation of re-sentencing is unfounded, as "there were numerous certificates [of] achievement that pre-dated [] Miller ." Id. at 17.
Marinucci points out that the trial "court sua sponte inquired [of] Dr. [Bruce] Wright ... whether [] Marinucci may have been engaging in modeling behavior for the purpose of trying to look good for the re[-]sentencing[.]" Id. at 17. Marinucci claims that, although Dr. Wright opined that Marinucci could manipulate, he "made no assertions that she did in fact manipulate." Id. (emphasis in original). Marinucci argues that the trial court abused its discretion by "apparently completely adopting the testimony of Dr. [] Wright," and "disregarding and/or discounting the testimony of Dr. Stephen Zerby," who testified regarding evidence of Marinucci's maturation and rehabilitation. Id. at 19.
Marinucci further asserts that the trial judge's following comments provide evidence that the judge had already decided Marinucci's sentence before the re-sentencing hearing:
After 10 years as a prosecutor, [and] 17½ [years] as a judge, I have both tried many cases and presided over many cases. I can't think of one case that is more troubling than this one[,] or very few cases that have caused me nightmares. This one has. I thought after I presided over [Marinucci's] first trial [] that, well, now I've heard it[,] I'm used to it. But[,] you don't get used to it. You hear it again and it's traumatic the second time. It's traumatic the third time. And then because I sentenced all six defendants, then I had to go through the sentencing of each one. And, you know, we hear about post-traumatic stress, and that word is thrown around lightly, but I think if ever there was a case that I could imagine myself having post-traumatic stress from[,] it's this case.Id. at 18 (citing N.T., 7/1/15, at 127). Marinucci also points to the trial judge's comment that, while at the hospital after sustaining an injury to her knee, the judge had physically recoiled at the sight of the crutches she was given to use, because a metal crutch had been used by Marinucci and her co-defendants as a weapon to strike the victim. Id. at 18 (citing N.T., 7/1/15, at 127-28). Marinucci claims that these comments demonstrate that the trial judge allowed her personal bias, and evidence presented in the co-defendant's cases, to influence her sentencing decision. Brief for Appellant at 18-19. Marinucci argues that, "[w]hile it is certainly appropriate to consider the effect of a crime on a victim with respect to sentencing, the personal effect on the judge should never be a consideration." Id. at 19.
We review Marinucci's challenge to the trial court's weighing of sentencing factors, including those age-related ones, as a challenge to the discretionary aspects of her sentence. See Batts II , 125 A.3d at 43 (wherein this Court reviewed a juvenile appellant's challenge to a life without parole prison sentence, re-imposed on remand following Miller , as a challenge to the discretionary aspects of sentencing); see also Commonwealth v. Seagraves , 103 A.3d 839, 842 (Pa. Super. 2014) (wherein this Court reviewed a juvenile appellant's challenge to a life without parole prison sentence, re-imposed on remand following Miller and Batts I , for an abuse of discretion).
A challenge to the discretionary aspects of a sentence is not appealable as of right; instead, an appellant must petition for permission to appeal. See Commonwealth v. Colon , 102 A.3d 1033, 1042 (Pa. Super. 2014). We evaluate the following factors to determine whether to grant permission to appeal a claim pertaining to the discretionary aspects of sentencing:
Before we reach the merits of this issue, we must engage in a four[-]part analysis to determine: (1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue [at sentencing or in a motion to reconsider and modify sentence];
(3) whether [a]ppellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [as required by Pennsylvania Rule of Appellate Procedure 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because [a]ppellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his [Rule 2119(f)] concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.Commonwealth v. Edwards , 71 A.3d 323, 329-30 (Pa. Super. 2013) (citations omitted).
In the instant case, Marinucci filed a timely Notice of Appeal and preserved some of her discretionary aspects claims in a timely post-sentence Motion. However, Marinucci failed to include in her appellate brief a separate Pa.R.A.P. 2119(f) statement. See Pa.R.A.P. 2119(f) (stating that "[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence."). Because the Commonwealth has objected to this defect, we are precluded from addressing Marinucci's discretionary aspects claim. See Batts II , 125 A.3d at 44 (declining to review a discretionary aspects claim where the appellant's brief did not include a Rule 2119(f) statement, and the Commonwealth objected to this defect); see also Commonwealth v. Roser , 914 A.2d 447, 457 (Pa. Super. 2006) (holding that, if a defendant fails to include an issue in his Rule 2119(f) statement, and the Commonwealth objects, then the issue is waived, and this Court may not review the claim).
Marinucci failed to raise her claim of bias before the trial court, either at sentencing or in her post-sentence Motion. Therefore, her bias claim is waived. See Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal).
Even if Marinucci's second issue had not been waived, we would conclude that it lacks merit for the reasons set forth by the trial court. See Trial Court Opinion, 10/28/15, at 23-25; see also id. at 19-23 (wherein the trial court explained the numerous factors that it considered when re-sentencing Marinucci).
In her third issue, Marinucci contends that, although there is no provision in Pennsylvania law to utilize a sentencing jury in non-capital cases, "the trend of [] United States Supreme Court jurisprudence suggests that utilizing a jury is necessary in the instant case to determine the appropriate sentence." Brief for Appellant at 20-21. Marinucci points to the United States Supreme Court decisions in Apprendi v. New Jersey , 530 U.S. 466 (2000), Ring v. Arizona , 536 U.S. 584 (2002), and Alleyne v. United States , 133 S. Ct. 2151 (2013), and asserts that, "when this line of cases is interwoven with Miller [] and Batts [ I ], it becomes apparent that using a jury to determine the sentence in the instant matter is necessary to avoid running afoul of the Constitution, along with Apprendi and its progeny." Brief for Appellant at 23. Marinucci claims that "any of the factors listed in Miller and Batts I can cause the minimum sentence to be increased" and, therefore, should be treated as elements of the offense which must be determined by a jury rather than by a trial court judge. Id. at 24-25. Marinucci argues that "[a]llowing a sentencing judge to make such important determinations of fact, such as deciding whether a person has capacity for change or potential for rehabilitation, usurps the role of the jury, which violates the Constitution." Id. at 26.
The trial court addressed Marinucci's third issue, set forth the relevant law, and determined that it lacks merit. See Trial Court Opinion, 10/28/15, at 26-27. We agree with the reasoning of the trial court, and affirm on this basis as to Marinucci's third issue. See id.
In her final issue, Marinucci concedes that "neither the United States Supreme Court nor the Pennsylvania Supreme Court have categorically precluded the possibility of life without parole for juvenile offenders." Brief for Appellant at 26; see also id. at 28 (wherein Marinucci concedes that the United States Supreme Court has "declined to hold that a life without parole sentence [is] per se unconstitutional" in juvenile homicide cases). Nevertheless, Marinucci contends that, based on "the Eighth Amendment's prohibition against cruel and unusual punishment, coupled with the Appellate Courts' trend recognizing that juvenile offenders are fundamentally different from adult offenders, [] any sentence of life without the possibility of parole imposed against a juvenile offends the Constitutions of the United States and the Commonwealth of Pennsylvania." Id. at 26-27. Marinucci asserts, that over the past decade, the United States Supreme Court has continually recognized that, because juvenile offenders are fundamentally different from adult offenders, they require different treatment and increased protections under the law. Id. at 27-28. Marinucci's counsel indicates his belief that, in light of this trend, the Supreme Court will ultimately rule that the Eighth Amendment bans all life without parole sentences for juvenile offenders. Id. at 29.
Notably, the Miller Court specifically declined to consider the appellants' alternative argument that the Eighth Amendment requires a categorical bar on life without parole sentences for juveniles. See Miller , 132 S. Ct. at 2469.
Although framed as a challenge to the constitutionality of her sentence, Marinucci concedes that, under the current state of the law, her sentence of life in prison without the possibility of parole is not unconstitutional. See Batts I , 66 A.3d at 294-96 (wherein our Supreme Court ruled that Miller did not categorically bar the imposition of a life-without-parole sentence on a juvenile); see also Batts II , 125 A.3d at 46 (holding that the trial court's sentence of life without the possibility of parole, imposed on a juvenile after consideration of his individual circumstances and age-related characteristics, was a legal sentence under Miller and Batts I ). Although the United States Supreme Court may ultimately deem such sentences unconstitutional, at present, they are not. See Miller , 132 S. Ct. at 2469 (wherein the Court stated that "[a]lthough we do not foreclose a sentencer's ability to [impose a sentence of life without the possibility of parole] in [juvenile] 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."). Accordingly, pursuant to controlling case law, including Miller , Batts I and Batts II , we are constrained to reject Marinucci's final issue, and affirm the judgment of sentence imposed by the trial court.
We observe that, on April 19, 2016, our Supreme Court granted allowance of appeal of Batts II.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/17/2016
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