J. S29034/19
2019 PA Super 255
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSE E. HERNANDEZ, : No. 2210 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered June 27, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0603151-1988
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED AUGUST 21, 2019
Jose E. Hernandez appeals from the June 27, 2018 judgment of
sentence of four concurrent terms of 45 years’ to life imprisonment imposed
after a jury found him guilty of four counts of first-degree murder and one
count of possessing instruments of crime (“PIC”).1 After careful review, we
affirm the judgment of sentence.
A prior panel of this court summarized the relevant facts of this case as
follows:
Appellant’s[2] next door neighbor, Jerome Moses,
testified that on March 14, 1988, he heard loud
scuffling noises between 4:00 and 6:00 a.m. in the
Hernandez apartment. As these noises continued, he
heard Carmen Hernandez, appellant’s stepmother,
1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
2 Appellant was 17 years old at the time of this incident.
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say three times, “I love you.” He then heard three or
four popping noises that sounded like a cap gun.
Subsequently, Mr. Moses did not hear any more
voices, but he did hear dragging sounds and noises
resembling objects being replaced. He then heard
somebody leave the apartment. When he looked out
of the window, he saw one man get into the
Hernandez family van. Mr. Moses originally thought
that the man was appellant’s father, since the
individual was wearing Mr. Hernandez’s jacket and
since only the father drove the van. Once he learned
that the father was dead, the witness then concluded
that the man must have been appellant.
During the next week, friends, neighbors, and
relatives became concerned about the Hernandez
family since they had not been seen and since both of
their vehicles were not in their normal parking places.
Telephone calls to the apartment were not answered.
Meanwhile, appellant decided to stay at his girlfriend’s
house, and he told her mother that he was alone since
his family suddenly left without telling him or taking
him with them. However, the family had not told
anyone about these travel plans. Appellant attended
school regularly during the week, took his girlfriend
on a shopping spree, and moved a VCR and other
valuable items out of his family’s apartment and into
his girlfriend’s house. His girlfriend commented on
numerous deep scratches on appellant’s chest[,]
which he explained had been inflicted during a recent
robbery.
Eventually, appellant was questioned in school by his
parent[s’] friends and relatives concerning his family's
whereabouts. He escorted them back to the
apartment and allowed them to enter. When asked
about blood stains on the sofa, appellant replied that
the stains were Carmen’s blood. When questioned
about why the bathroom door was locked, the fan on,
and a towel under the door, he had no explanation.
Appellant fled when the bathroom door was broken
down and the bodies of his father, stepmother, and
two younger brothers were found in the bathtub. The
bodies were encased in plastic bags and covered with
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towels. It was determined that both parents had been
shot in the back of the head, one brother had been
asphyxiated with a plastic bag over his head, and
another brother had his skull crushed.
Appellant fled Pennsylvania in his father’s Honda. He
reached Florida and then headed west through
Tennessee. Tennessee State Troopers Richard Austin
and Joel Deal observed appellant’s Honda parked in a
rest stop. Several hours later, the officers observed
appellant’s Honda parked in the same place at the rest
stop. Trooper Austin watched appellant get out of his
automobile, stretch, and put on a long coat. Since the
weather was warm, Trooper Austin became
suspicious. He ran a computer check on appellant’s
license plate number which revealed that appellant
was wanted in Pennsylvania in connection with
multiple homicides, that the occupant of the Honda
matched the description of the suspect, and that
appellant was presumed armed and dangerous. The
troopers returned to the rest stop, surprised appellant
in the restaurant, and arrested him.
The troopers then asked for appellant’s license and
identification. Police retrieved these items after
appellant indicated that they were in his wallet in his
back pocket. When the troopers requested the keys
to the Honda, appellant indicated they were in his coat
pocket. Trooper Deal reached in and took the keys
and handed them to Trooper Austin. Trooper Austin
inspected the car, unlocked it, and retrieved a letter
sitting on the car seat in plain view. The letter was
written by appellant, and in it, he informed his
girlfriend that he had killed his family, was proud of it,
and felt better. The troopers then locked the car,
made arrangements to have it towed, read appellant
his Miranda[3] rights, and transported him to the
nearest police station.
At trial, appellant alleged that he killed his father in
self-defense and that his father continually abused
him. He claimed his father was angry that appellant’s
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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stepmother again became pregnant and that his
father frequently threatened to leave her or to kill the
whole family. In fact, appellant alleged that his father
was jealous and suspected him of impregnating his
stepmother. Appellant produced witnesses who
substantiated that his father beat him, was having
marital discord, and had been seen by one of them
threatening appellant by putting a gun to his head.
Appellant’s specific defense to the charges of
first[-]degree murder was that his father had returned
home in a drunken rage and forced appellant to kill
the others. His father then made him clean the
apartment. Later, in the car, his father again
threatened him, but appellant was able to shoot his
father. Appellant argued that the evidence supported
this version of events since the blood-stained seats in
the car matched only his father’s blood type. The
Commonwealth refuted this evidence by proving that
the barrel of the murder weapon contained only the
blood type[,] which matched his stepmother, but not
his father. Thus, appellant’s stepmother[,] rather
than his father[,] was the last one to be shot with that
gun.
Commonwealth v. Hernandez, 590 A.2d 325, 326-328 (Pa.Super. 1991),
appeal denied,
600 A.2d 534 (Pa. 1991).
The sentencing court summarized the relevant procedural history of this
case as follows:
On January 25, 1990, after a jury trial before the
Honorable Eugene H. Clarke, a jury convicted
[appellant] of four counts of First-Degree Murder and
[PIC]. On that same date, [the trial court] sentenced
[appellant] to two consecutive and two concurrent
terms of life imprisonment without the possibility of
parole for the First-Degree Murder convictions, and a
concurrent sentence of two and one-half to five years
of imprisonment for PIC.
On June 25, 2012, the Supreme Court of the United
States issued its holding in Miller v. Alabama, 567
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U.S. 460 (2012), which rendered all mandatory life
imprisonment without parole sentences for juveniles
unconstitutional. On January 27, 2016, the Supreme
Court of the United States issued its holding in
Montgomery v. Louisiana, --- U.S. ----, 136 S.Ct.
718 (2016), which held that the Miller decision
applied retroactively.
In 2016, a three-judge en banc panel for the
Philadelphia County Court of Common Pleas was
established to decide all questions of law concerning
the resentencing of juveniles previously sentenced to
life without parole.[Footnote 2] On October 28, 2016,
the en banc panel was presented with fifteen
questions of law. On April 13, 2017, the en banc
panel issued its opinion addressing each question of
law.
[Footnote 2] In 2016, the [Philadelphia
County] Court of Common Pleas, adopted
“General Court Regulation No. 1 of 2016.”
The Regulation established procedures for
juvenile lifers previously sentenced to life
without parole to have an opportunity to
show that their crimes did not reflect
irreparable corruption and that they
should be considered for release on
parole. For further discussion on what
necessitated the regulation, see Miller v.
Alabama, [567 U.S. 460] (2012) and
Montgomery v. Louisiana, 136 S.Ct.
718 (2016).
[Appellant filed a petition pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, on
February 29, 2016.] On June 27, 2018, the [PCRA
court] granted [appellant] post-conviction relief and
vacated his January 25, 1990 sentence. On that same
date [the trial court] imposed concurrent forty-five
years to life sentences on each count of First-Degree
Murder, and no further penalty on PIC. [Appellant]
did not file a post-sentence motion.
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On July 27, 2018, [appellant] filed a timely Notice of
Appeal. On July 30, 2018, [the trial court] ordered
[appellant] to file a Concise Statement of [Errors]
Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). On August 3, 2018, [appellant]
filed a timely 1925(b) Statement, and a motion for
extension of time to file a supplemental Statement.
On August 21, 2018, [the trial court] granted
[appellant’s] request. On September 14, 2018,
[appellant] filed a timely supplemental Statement.
Trial court opinion, 9/25/18 at 1-2 (additional footnotes omitted).
On March 22, 2019, the Commonwealth filed a motion to stay the
briefing schedule, based on the fact that it has taken the position in a case
currently pending before our supreme court, Commonwealth v. Felder,
2017 WL 6505643 (Pa.Super. 2017) (unpublished memorandum), appeal
granted,
187 A.3d 909 (Pa. June 19, 2018), “that a minimum sentence of
over 40 years for a resentenced juvenile is a de facto life sentence, and so
cannot be imposed unless the juvenile is proven to be incorrigible beyond a
reasonable doubt.” (Commonwealth’s brief at 2.) On April 8, 2019, this court
issued a per curiam order denying the Commonwealth’s motion to stay the
briefing schedule and permitting it to raise issues related to Felder in its brief.
On appeal, appellant raises the following issues for our review:
1. Was not the [sentencing] court’s sentence of
45 years to life imprisonment a de facto life
sentence requiring proof beyond a reasonable
doubt that [appellant] was incapable of
rehabilitation?
2. Did not the [sentencing] court err in sentencing
[appellant] to a de facto sentence of life
imprisonment without the possibility of parole
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where [appellant] has, in fact, been successfully
rehabilitated over the course of his thirty years
of imprisonment?
3. Did not the [sentencing] court err in imposing a
mandatory lifetime parole tail on [appellant] in
violation of Amendment VIII of the United
States Constitution?
Appellant’s brief at 3.
In its brief to this court, the Commonwealth avers that the trial court
did not find appellant to be “permanently incorrigible.” (Commonwealth’s
brief at 9, referencing trial court opinion, 9/25/18 at 8.) The Commonwealth
agrees with appellant “that a minimum sentence of 45 years is
unconstitutional for a redeemable juvenile offender” and “his mandatory
lifetime parole tail is unconstitutional.” (Id.) In reaching these conclusions,
the Commonwealth concedes that this court is bound by precedent,4 but
requests that we hold this matter in abeyance until the Supreme Court of
Pennsylvania addresses the threshold de facto life sentence issue in Felder.
(Id. at 9-10.) We decline to do so.
“It is axiomatic that this Court is bound by existing precedent under the
doctrine of stare decisis and continues to follow controlling precedent as long
as the decision has not been overturned by our Supreme Court.”
Commonwealth v. Martin, 205 A.3d 1247, 1252 (Pa.Super. 2019). As
4 Specifically, Commonwealth v. Bebout,
186 A.3d 462 (Pa.Super. 2018),
and Commonwealth v. Blount,
207 A.3d 925 (Pa.Super. 2019), discussed
infra.
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discussed below, our decisions in Bebout and Blount are controlling in this
matter and render appellant’s claims meritless.
Appellant first contends that his aggregate judgment of sentence of
45 years to life imprisonment “constituted a de facto life sentence requiring
that the Commonwealth establish beyond a reasonable doubt that [appellant]
is incapable of rehabilitation.” (Appellant’s brief at 18.) In a related claim,
appellant further avers that, “the Commonwealth failed to show that [he] was
incapable of being rehabilitated as required to support a de facto life sentence
because the record reflects that [appellant] has, in fact, been rehabilitated.”
(Id. at 28.)
Appellant’s claims implicate the legality of his sentence. “[A] claim
challenging a sentencing court’s legal authority to impose a particular
sentence presents a question of sentencing legality.” Commonwealth v.
Batts, 163 A.3d 410, 434-435 (Pa. 2017) (citations omitted). “The
determination as to whether a trial court imposed an illegal sentence is a
question of law; an appellate court’s standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Crosley,
180 A.3d 761, 771
(Pa.Super. 2018) (citation omitted), appeal denied,
195 A.3d 166 (Pa.
2018).
Here, appellant’s aggregate judgment of sentence of 45 years’ to life
imprisonment is consistent with this court’s recent holding in Bebout, 186
A.3d 462. Bebout involved a 15-year-old defendant who was resentenced to
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45 years’ to life imprisonment for second-degree murder and related offenses,
pursuant to Miller and Montgomery. Bebout, 186 A.3d at 468. The Bebout
court concluded that “[t]he key factor in considering the upper limit of what
constitutes a constitutional sentence,” as opposed to a de facto sentence of
life in prison without parole for a juvenile who was not deemed incapable of
rehabilitation, is whether there is “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.”
Id. (citation
omitted). “To be meaningful or, at least, potentially meaningful, it must at
least be plausible that one could survive until the minimum release date with
some consequential likelihood that a non-trivial amount of time at liberty
awaits.”
Id. In reaching this conclusion, the Bebout court reasoned that
although the 45-years-to-life sentence “falls between the ‘clearly’
constitutional and unconstitutional parameters suggested by the Foust5
Court[,]” the defendant failed to show that a sentence which authorized his
release at age 60 was the functional equivalent of a life-without-parole
sentence.
Id. at 467.
5 Commonwealth v. Foust,
180 A.3d 416 (Pa.Super. 2018). In Foust, a
panel of this court held that “a trial court may not impose a term-of-years
sentence on a juvenile convicted of homicide if that term-of-years sentence
equates to a de facto [life-without-parole] sentence unless it finds, beyond a
reasonable doubt, that the juvenile is incapable of rehabilitation.”
Id. at 433.
The Foust court determined that term-of-years sentence of 30 years’
imprisonment did not constitute a de facto sentence of life without parole
[“LWOP”].
Id. at 438. In reaching this conclusion, the Foust court explicitly
“decline[d] to draw a bright line in this case delineating what constitutes a
de facto LWOP sentence and what constitutes a constitutional term-of-years
sentence[,]” and instead limited itself to the facts of the case before it.
Id.
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Likewise, in the instant matter, appellant has failed to demonstrate that
he has no plausible chance of survival until his minimum release date. While
appellant will not be eligible for parole until age 62, albeit two years longer
than the defendant in Bebout, appellant has not shown any significant
difference between the ages at the earliest possible point of release that would
distinguish his case from Bebout. Accordingly, we decline to find that
appellant’s sentence constituted a de facto life sentence, necessitating a
finding by the sentencing court that appellant is “incapable of rehabilitation.”
See Foust, 180 A.3d at 433.
Appellant next argues that the sentencing court illegally sentenced him
to “a maximum sentence with a mandatory lifetime parole tail[,]” which he
avers does not comport with the holdings in Miller and Montgomery that
resentenced juveniles be given individualized sentences, and violates the
prohibition against “cruel and unusual punishments” contained in the Eighth
Amendment to the United States Constitution. (Appellant’s brief at 33, 37.)
In support of this contention, appellant avers that “there is no relevant statute
or appellate case law requiring the imposition of a lifetime parole tail.” (Id.
at 33.) We disagree.
This issue was addressed by our supreme court in Commonwealth v.
Batts, 163 A.3d 410 (Pa. 2017), and more recently by this court in Foust and
Blount, which was decided April 8, 2019. Specifically, the Blount court
stated as follows:
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For those defendants [convicted of first or
second-degree murder prior to June 25, 2012,] for
whom the sentencing court determines a [life without
parole] sentence is inappropriate, it is our
determination here that they are subject to a
mandatory maximum sentence of life imprisonment
as required by Section 1102.1(a), accompanied by a
minimum sentence determined by the common pleas
court upon resentencing[.]
Blount, 207 A.3d at , citing Commonwealth v. Seskey, 170 A.3d 1105,
1108 (Pa.Super. 2017), quoting Batts,
163 A.3d at 421 (brackets in original).
As noted by the Foust court, in light of our supreme court’s decision in
Batts, “there was valid statutory authority to impose a maximum sentence of
life imprisonment for [a] first-degree murder conviction.” Foust, 180 A.3d at
430. Contrary to appellant’s contention, this court has explicitly held that
such mandatory maximums do not violate the Eighth Amendment’s ban on
cruel and unusual punishment or the mandates of individualized sentencing.
See Commonwealth v. Olds,
192 A.3d 1188, 1197-1198 (Pa.Super. 2018)
(holding that, the imposition of mandatory maximum sentence of life
imprisonment for a juvenile defendant convicted of second-degree murder
prior to Miller was constitutional and did not violate Eighth Amendment’s ban
on cruel and unusual punishment), appeal denied,
199 A.3d 334 (Pa. 2018);
Seskey,
170 A.3d at 1107-1108 (holding that, the trial court was required to
impose a mandatory maximum sentence of life imprisonment when it
resentenced a juvenile defendant convicted of first-degree murder prior to
Miller). Accordingly, appellant’s second claim fails.
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For all the foregoing reasons, we affirm appellant’s June 27, 2018
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2019
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