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Commonwealth v. Clary

Superior Court of Pennsylvania

January 2, 2020

COMMONWEALTH OF PENNSYLVANIA
v.
TERRELL LAMAR CLARY Appellant COMMONWEALTH OF PENNSYLVANIA
v.
TERRELL LAMAR CLARY Appellant

          Appeal from the Judgment of Sentence Entered May 31, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008066-1999, CP-46-CR-0001873-2000

          BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J. [*]

          OPINION

          DUBOW, J.

         Appellant, Terrell Lamar Clary, appeals from the May 31, 2018 Judgment of Sentence of 48 years' to life imprisonment imposed upon resentencing after the grant of post-conviction relief based on Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718 (2016).[1] Appellant challenges certain evidentiary rulings made at his resentencing hearing, as well as the discretionary aspects and legality of his sentence. After careful review, we affirm.

         Facts and Procedural History

         A detailed recitation of the procedural and factual history is unnecessary to our disposition. Briefly, in 1999, when Appellant was 16 years old, he shot Juan Watson in the chest. The next day, he shot and killed William Six. Appellant was charged, inter alia, with the murder of Mr. Six and attempted murder of Mr. Watson.

         On August 17, 2000, a jury found Appellant guilty of First-Degree Murder and related charges in the death of Mr. Six (Docket No. 8066-99) and guilty of Attempted Murder and related charges in the shooting of Mr. Watson (Docket No. 1873-00).[2] On November 6, 2000, the court sentenced Appellant, in relevant part, to a statutorily mandated sentence of life without parole ("LWOP") for the first-degree murder conviction.[3] This Court affirmed the Judgment of Sentence. Commonwealth v. Clary, 820 A.2d 702 (Pa. Super. 2003) (unpublished memorandum).

         On March 22, 2016, Appellant filed a Petition pursuant to the Post Conviction Relief Act ("PCRA") asserting that his LWOP sentence was unconstitutional under Miller and Montgomery. The PCRA court granted relief, vacated Appellant's sentence, and scheduled the case for resentencing.

         A three-day resentencing hearing commenced on May 7, 2018. The Commonwealth sought a LWOP sentence. The Commonwealth presented testimony from, inter alia, Detective Dillon, with whom Appellant had interacted when he was 16 years old. The Commonwealth also presented testimony from an expert in gang affiliation in rebuttal.

         On May 9, 2018, after providing a thorough review of the applicable sentencing factors, the court determined that Appellant was not permanently incorrigible and declined to impose a LWOP sentence. The court resentenced Appellant to a term of 42 years to life imprisonment for his First-Degree Murder conviction, a consecutive sentence of 6 to 12 years of imprisonment for his Attempted Murder conviction; and a consecutive sentence of 7 years of probation for a gun violation charge. Thus, the court sentenced him to an aggregate term of 48 years' to life imprisonment, followed by 7 years' probation.

         Appellant filed a Post-Sentence Motion, which the trial court denied.

         This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Issues Raised

         Appellant raises the following four issues on appeal, which we have reordered for ease of disposition:

1. Did the sentencing court abuse its discretion in allowing the Commonwealth to present expert testimony regarding gang affiliation and activity where no expert report or other notice was provided to the defense and [Appellant's] gang activity was one of the critical factors that shaped the court's decision?
2. Did the sentencing court abuse its discretion in denying defense counsel the right to cross-examine a Commonwealth witness on issues of [Appellant's] interactions with police where "the ability to navigate the system" is one of the enumerated factors that must be considered in Miller and the sentencing court erroneously found that [Appellant] was able to navigate the system?
3. Did the sentencing court abuse its discretion in imposing a manifestly excessive and unreasonable sentence where the court failed to follow the mandates of Miller, Montgomery, and Batts?
4. Is the sentence imposed an illegal sentence as it is a de facto life sentence when the court found that [Appellant] was not permanently incorrigible?

Appellant's Br. at 3.

         Issue 1: Rebuttal Testimony

         Appellant's first issue challenges an evidentiary ruling. The admissibility of evidence lies "within the sound discretion of the trial court, and a reviewing court will not reverse the trial court's decision absent a clear abuse of discretion." Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations omitted). See, e.g., Commonwealth v. Feflie, 581 A.2d 636, 643 (Pa. Super. 1990) (noting that the admission of rebuttal testimony is within the discretion of the trial court). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citations omitted).

         Appellant asserts that the trial court abused its discretion in permitting the Commonwealth to present as a rebuttal witness a gang expert, Lieutenant Eric Echevarria, when the Commonwealth failed to disclose this witness to ...


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