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Commonwealth v. Seskey

Superior Court of Pennsylvania

August 25, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
REGIS SESKEY, Appellee

         Appeal from the Judgment of Sentence November 16, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013783-1992

          BEFORE: OLSON, SOLANO and RANSOM, JJ.

          OPINION

          OLSON, J.

         The 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[1] 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.

         The 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.

         On the 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.

         The relevant procedural history of this case is as follows. On March 22, 1994, Appellee was convicted of first-degree murder.[2] 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. 1996).

         On 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).

         On July 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).

         On 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.[3] 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.

         This timely appeal followed.[4]The Commonwealth presents two issues for our review:

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 life ...

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