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Commonwealth v. Clary

Superior Court of Pennsylvania

January 2, 2020

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.

          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-0001873-2000.

         COUNSEL:

          Katherine E. Ernst, Public Defender, Norristown, for appellant.

          Adrienne D. Jappe, Assistant District Attorney, Norristown, for Commonwealth, appellee.

          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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718, 193 L.Ed.2d 599 (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, 573 Pa. 663, 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 Super. 2003) (unpublished memorandum).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 ...

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