from the Judgment of Sentence November 16, 2016 In the Court
of Common Pleas of Allegheny County Criminal Division at
BEFORE: OLSON, SOLANO and RANSOM, JJ.
Commonwealth of Pennsylvania appeals from the judgment of
sentence entered on November 16, 2016, as made final by the
disposition of Regis Seskey's
("Appellee's") post-sentence motion on December
5, 2016. In this case, we hold that our Supreme Court's
recent decision in Commonwealth v. Batts, 163 A.3d
410 (Pa. 2017) ("Batts II") requires that
an individual convicted of first or second-degree
murder for a crime committed as a minor be
sentenced to a maximum term of life imprisonment. As the
trial court in this case sentenced Appellee, who was
convicted of first-degree murder for a crime committed as a
minor, to a maximum term of 26 years' imprisonment, we
affirm in part, vacate in part, and remand for the sole
purpose of resentencing.
factual background of this case is as follows. Appellee and
Marc Bova ("Victim") were partners in a drug
dealing operation. At some point, Appellee became angry at
Victim for using too much of the crack cocaine supply.
Appellee was also unhappy that Victim owed him several
hundred dollars. Appellee expressed his frustration to Scott
Thorton ("Thorton"). Thorton suggested that they
scare Victim by inviting him to a field, with the promise of
crack cocaine, and confronting him with a sawed-off shotgun.
night of October 12, 1992, Appellee and Thorton lured Victim
to the field. Instead of scaring Victim, Appellee fired five
shots at Victim using the sawed-off shotgun. Victim died as a
result of the gunshot wounds he sustained. Appellee then
proceeded to eat at a local establishment where he stated
that killing Victim was like killing a rabbit. At the time of
the murder, Appellee was a minor.
relevant procedural history of this case is as follows. On
March 22, 1994, Appellee was convicted of first-degree
murder. The trial court immediately sentenced him
to the then-mandatory term of life imprisonment without the
possibility of parole ("LWOP"). On direct appeal,
this Court affirmed his judgment of sentence and our Supreme
Court denied allowance of appeal. Commonwealth v.
Seskey, 676 A.2d 286 (Pa. Super. 1996) (unpublished
memorandum), appeal denied, 681 A.2d 1342 (Pa.
August 15, 1997, Appellee filed a petition pursuant to the
Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.
§§ 9541-9546. On August 11, 1998, the PCRA court
dismissed the petition without an evidentiary hearing. This
Court affirmed that dismissal and our Supreme Court denied
allowance of appeal. Commonwealth v. Seskey, 816
A.2d 334 (Pa. Super. 2002) (unpublished memorandum),
appeal denied, 828 A.2d 350 (Pa. 2003).
19, 2010, Appellee filed his second PCRA petition. On May 1,
2012, the PCRA court dismissed the petition without an
evidentiary hearing. This court affirmed that dismissal and
our Supreme Court denied allowance of appeal.
Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super.
2014), appeal denied, 101 A.3d 103 (Pa. 2014),
overruled, Montgomery v. Louisiana, 136
S.Ct. 718 (2016).
January 27, 2016, Appellee filed his third PCRA petition. The
Commonwealth conceded that, because Montgomery made
the rule against mandatory LWOP sentences for minor offenders
retroactive, Appellee was entitled to
resentencing. It argued, however, that he must receive a
maximum term of life imprisonment. On November 16, 2016, the
PCRA court granted Appellee's PCRA petition. The trial
court then immediately sentenced him to a term of 13 to 26
years' imprisonment. On November 17, 2016, Appellee filed
a post-sentence motion. On December 5, 2016, the trial court
granted Appellee's post-sentence motion and recommended
that Appellee be immediately paroled.
timely appeal followed.The Commonwealth presents two issues for
1. Whether the [trial] court erred in imposing an illegal
sentence when it refused to sentence [A]ppellee to a maximum
sentence of life imprisonment with the chance for parole?
2. Whether the [trial] court abused its discretion in not
imposing a sentence which had, as its maximum, a sentence of