J-A08035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIK R. SURRATT                            :
                                               :
                       Appellant               :   No. 469 WDA 2018

        Appeal from the Judgment of Sentence Entered January 10, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0005355-2005,
                           CP-02-CR-0005495-2005


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 26, 2019

        Erik R. Surratt appeals from the judgment of sentence entered following

a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012),

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Surratt claims that in

fashioning his sentence, the PCRA1 court erroneously considered him an adult,

failed to consider whether he was capable of rehabilitation, and failed to

consider the Miller factors. We affirm.

        Surratt was one of three individuals involved in a shooting that resulted

in the death of two victims and one victim being wounded. Surratt shot one

of the victims that died. Surratt was approximately 17 ½ years old at the time

of the murders. A jury convicted Surratt of two counts of first-degree murder

and other offenses. In 2008, the trial court sentenced Surratt to two life
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1   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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sentences without parole and 25 to 50 years’ incarceration for the remaining

charges. This Court affirmed the judgment of sentence. In 2017, the PCRA

court granted Surratt a resentencing, pursuant to Miller and Montgomery.

At the resentencing hearing, Surratt presented five witnesses. One of the

witnesses was a forensic social worker who testified to Surratt’s rehabilitation.

Following two hearings, the PCRA court resentenced Surratt to 40 years’

incarceration to life imprisonment. Surratt filed a post-sentence motion which

the trial court denied. This timely appeal followed.

      On appeal, Surratt raises the following issues:

      I.     Whether the lower court erred and abused its discretion
             in imposing a 40-year minimum sentence because the
             Court failed to acknowledge or appropriately consider the
             factors laid out in Miller v. Alabama, 567 U.S. 460
             (2012), and Montgomery v. Louisiana, 136 S.Ct. 718
             (2016), in light of the diminished capabilities and greater
             prospects for reform of the adolescent offender.

      II.    Whether the lower court erred and abused its discretion
             by placing excessive weight on the facts of the crime
             rather than focusing on Miller’s central question of
             whether the juvenile is capable of rehabilitation. The
             facts of the murder are not determinative in assessing
             permanent incorrigibility.

      III.   Whether the lower court erred and abused its discretion
             by impermissibly considering Mr. Surratt to be an adult
             at the time of the offense, repeatedly referring the
             “arbitrary line” the U.S. Supreme Court had drawn
             between offenders under the age of 18 and those who
             are 18 and older. The Court does not have the discretion
             to make a finding contrary to the United States Supreme
             Court’s “legal conclusion[s] . . . and the facts (scientific
             studies) underlying it” when it concerns the inherent
             traits associated with adolescent development. See
             Commonwealth v. Batts, 163 A.3d 410, 437 (Pa.

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             2017). Because the Commonwealth failed to introduce
             any new evidence at the resentencing hearing, the Court
             also lacked competent evidence to make the
             aforementioned finding.

Surratt’s Br. at 6-7.

      Surratt’s first two claims challenge discretionary aspects of his sentence.

See Commonwealth v. White, 193 A.3d 977, 981 (Pa.Super. 2018)

(concluding claims that trial court failed to consider Miller factors and did not

consider rehabilitative evidence are challenges to discretionary aspects of

sentence).   As such, we must first determine whether: (1) the appeal is

timely; (2) the issue is preserved; (3) appellant’s brief includes a Pa.R.A.P.

2119(f)   statement;    and   (4)   a   substantial   question   is   raised.   See

Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa.Super. 2017).

      Here, Surratt has satisfied the first three factors. We now address

whether he has raised a substantial question. Surratt maintains that the PCRA

court imposed an excessive sentence and failed to consider his mitigating

factors. He claims that the PCRA court incorrectly “considered [him] an adult

at the time of the crime, and focused on the life without parole sentences

imposed on [his] adult co-defendants.” Surratt’s Br. at 14-15. He also

maintains that the sentence imposed by the court is excessive for a crime that

was committed by a juvenile and is “contrary to the fundamental norms

underlying the sentencing process, and is inconsistent with the Sentencing

Code.” Id. at 15.




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       Surratt’s claim of an excessive sentence paired with a claim that the

court failed to consider his mitigating factors raises a substantial question.

See Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015).

Therefore, we will address the merit of his claims.

       We review a challenge to discretionary aspects of sentencing for an

abuse of discretion. See Commonwealth v. Derry, 150 A.3d 987, 997

(Pa.Super. 2016). An abuse of discretion exists where “the sentencing court

ignored or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias or ill[-]will, or arrived at a manifestly unreasonable decision.”

Id. (quoting Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa.Super.

2007)).

       Surratt claims that the PCRA court “wholly failed to consider [his]

individual, juvenile characteristics – focusing instead on the details of Surratt’s

crime, improperly considering Surratt as an adult, and weighing the life

sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18. He

argues it failed to consider his juvenile characteristics as referenced in Miller.

       To begin, the PCRA court was not required to consider the Miller factors.

The Miller2 factors must be considered “when a juvenile is exposed to a

potential sentence of life without the possibility of parole[.]” Commonwealth


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2These factors include such things as “immaturity, impetuosity, and failure to
appreciate risks and consequences; . . .” Batts II, 163 A.3d at 438 (quoting
Miller, 567 U.S. at 477-78).


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v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019); see also Batts II, 163 A.3d

at 432. Here, the Commonwealth did not seek a life-without-parole sentence,

and thus, the court was not required to consider the Miller factors.

Commonwealth v. Lekka, --- A.3d ---, 2019 WL 2064541, at *9 (Pa.Super.

filed May 10, 2019) (“In cases where the Commonwealth does not seek a life-

without-parole sentence, the application of the Miller factors is not required”).

       While Surratt maintains that the PCRA court improperly considered him

an adult, we disagree. The PCRA court conceded it had to reconsider Surratt’s

sentence pursuant to Miller and Montgomery because Surratt was under the

age of 18 at the time of the murders. However, the court observed that the

age of majority was somewhat arbitrary and concluded that, as Surratt was

17½ when he committed the murders, he was relatively mature, as

demonstrated, in part, by his actions during his crimes.3 See N.T., 12/6/17,

____________________________________________


3 The court explained why it believed that Surratt was mature at the
time of committing the murders as follows:

       The Court: And you have to understand how I feel about this
       crime. It may well be that he has completely turned his life
       around, and at least for the sake of argument I will accept that.

       And at the time this happened, we are talking - - the Supreme
       Court case talks about juveniles. There is no question in my mind
       that Mr. Surratt was an adult. I mean, he was six months away
       from 18. He was sophisticated. He had, for the very least, engaged
       in criminal activity for three or four years before this happened. I
       mean, he was running wild. He was running with a bunch of, as
       far as I can tell, criminals. He was a sophisticated person. . . . We
       are not talking about a six-year old, who accidently shoots the



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at 111-12. It went on to say, “As I said before, this was a - - for lack of a

better term - - this is the behavior of an adult.” N.T., Reconsideration Hearing,

3/7/18 at 9 (emphasis added). It did not say that he was, in fact, an adult.

This claim is thus meritless.

       Surratt’s additional claim that the court solely considered the facts of

the   crime    without     taking    into      consideration   Surratt’s   potential   for

rehabilitation or his mitigating evidence also fails. He argues that the facts

here are similar to Batts II because there was an improper “significant focus

on the facts of Surratt’s crime . . . to the exclusion of considering his personal

history and development as a juvenile.” Surratt’s Br. at 20. We disagree.

       After Miller and Montgomery, Batts was resentenced to life without

parole. Batts II, 163 A.3d at 450. The Court concluded that because there

was “ample positive support relative to Batts’ potential for rehabilitation[,]”

remand was necessary for the trial court to “‘provide [Batts] some meaningful

opportunity     to   obtain   release    based      on   demonstrated      maturity    and

rehabilitation.’” Id. (quoting Miller, 567 U.S. at 479) (brackets in Batts II).

It found that the trial court’s opinion made clear “that its conclusion that Batts’



____________________________________________


       neighbor, or even a ten-year old who accidently shoots the
       neighbor or accidently does one thing or another. This was a
       planned premeditated - - this is as premeditated as you can
       possibly get.

N.T., 12/6/17, at 111-12.


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actions were not the result of his ‘unfortunate yet transient immaturity’ was

based exclusively on the fact that the murder was ‘deliberate and

premedi[t]ated.’” Id. at 446 (quoting Sentencing Court Opinion). The facts

before us are not the same.

      First, at the resentencing, Surratt was not sentenced to life without

parole, but rather two concurrent terms of 40 years’ to life imprisonment.

Second, the PCRA court was within its rights to consider the facts of the case

in fashioning Surratt’s new sentence, as they are one of the permissible

sentencing factors. The Sentencing Code explicitly provides that when

selecting from the statutory sentencing alternatives, “the court shall follow the

general principle that the sentence imposed should call for confinement that

is consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The court’s

consideration of the facts of Surratt’s crime was not improper. See

Commonwealth v. Blount, 207 A.3d 925,937-38 (Pa.Super. 2019)

(concluding trial court properly considered Section 9721(b) factors when

resentencing juvenile pursuant to Montgomery and Miller).

      Additionally, the court was made aware of Surratt’s potential for

rehabilitation by Surratt’s sentencing memorandum and letters written in

Surratt’s support. It also heard testimony Surratt offered as mitigating

evidence and received a presentence investigation report (“PSI”). Thus, the


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trial court “consider[ed] the particular circumstances of the offense and the

character of [Surratt], with reference to [Surratt’s] prior criminal record, age,

personal characteristic, and potential for rehabilitation,” in fashioning Surratt’s

sentence. Lekka, -- A.3d --, 2019 WL 2064541, at *6 (affirming judgment of

sentence of 45 years to life imprisonment following resentencing hearing);

see also Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.Super.

2016) (stating that there is an assumption that court is aware of information

provided in PSI, including mitigating factors).

      Surratt also maintains that the PCRA court improperly “weigh[ed] the

life sentences imposed on Surratt’s adult co-defendants.” Surratt’s Br. at 18.

This claim warrants no relief. The court explained that it was concerned about

how the co-defendants’ sentences would compare with Surratt’s sentence.

      [The Court]: There is also the issue, and I brought this up the last
      time we were here, is I have three other people who are going to
      spend the rest of their lives in jail without the possibility of parole
      because of the fact that they were over 18 and they were over the
      artificial line.

N.T., 1/10/18, at 7.

      While the court acknowledged its discomfort in the disparity of

sentences,   it   nonetheless   recognized    that   Surratt   was   not   beyond

rehabilitation and therefore concluded that while his co-defendants received

life without parole, the same was not an appropriate sentence for Surratt. See

Machicote, 206 A.3d at 1115 (stating there is a presumption against a

sentence of life without parole for juvenile and may be rebutted by proving


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that juvenile is incapable of rehabilitation); see also Trial Court Opinion, filed

8/29/18, at 4 (stating it “did not find beyond a reasonable doubt, that

[Surratt] is incapable of rehabilitation”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2019




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