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.
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). 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.
and Procedural History
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.
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). 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. This Court affirmed the Judgment
of Sentence. Commonwealth v. Clary, 820 A.2d 702
(Pa. Super. 2003) (unpublished memorandum).
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
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.
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.
filed a Post-Sentence Motion, which the trial court denied.
timely appeal followed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
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
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.
1: Rebuttal Testimony
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).
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 ...