1317 WDA 2022

Superior Court of Pennsylvania

Commonwealth v. Marinucci
Decided Jan 11, 2024

1317 WDA 2022 J-A25036-23 sentencing court's discretion in imposing an

aggregate term of 60 years to life imprisonment.
01-11-2024
We affirm.
COMMONWEALTH OF PENNSYLVANIA v. 1 18 Pa.C.S. §§ 2502(a), (2502(b), 2502(c),
ANGELA MARINUCCI Appellant
903(a)(1) and 2901(a)(3), respectively.

COLINS, J. This Court, in a memorandum decision filed on

August 26, 2013, set forth the facts proven at trial:
NON-PRECEDENTIAL DECISION - SEE
SUPERIOR COURT O.P. 65.37 … Jennifer Daugherty, a mentally
handicapped young woman … was held
Appeal from the Judgment of Sentence Entered captive [from February 8 until February
May 31, 2022 In the Court of Common Pleas of 11, 2010], raped, forced to drink
Westmoreland County Criminal Division at No(s): Appellant's urine, as well as a combination
CP-65-CR-0000850-2010 of feces, urine, spices, parsley, and garlic,
BEFORE: BOWES, J., KUNSELMAN, J., and and an additional concoction of Clorox,
COLINS, J. [*] water, and cigarette ashes. She also was
beaten with a towel rack before she was
MEMORANDUM brutally stabbed in the chest, torso, and
COLINS, J. throat by one of Appellant's co-
defendant's, Melvin Knight. An additional
Appellant, Angela Marinucci, appeals from the co-defendant, Ricky Smyrnes, slit the
judgment of sentence imposed following her 2011 victim's wrists and, along with Knight,
jury convictions for murder of the first degree, used Christmas lights to choke the victim.
conspiracy to commit murder of the first degree, After the victim expired, Smyrnes and
murder of the second degree, murder of the third Knight placed her in a garbage bag,
degree, kidnapping, and conspiracy to commit covered her head with an insulation bag,
kidnapping.1 The charges arose from the torture and set her into a trashcan. The two men
and brutal murder of Jennifer Daugherty in 2010 put the trash can underneath a work truck
when Appellant was 17 years and seven months in the Greensburg Salem Middle School
old. Because this case has been caught in the parking lot.
changing law governing the sentencing of juvenile
murderers, this appeal is from the third sentencing
after two remands and was conducted when
2 Appellant was 29 years and 11 months *2 old.
Appellant challenges the exercise of the

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

Daniel Grant discovered the body after The victim had traveled by bus to
attempting to remove the trashcan from Greensburg on February 8 [2010], for a
underneath his work truck. An autopsy doctor's appointment and to spend time at
revealed seven incise wounds to the back an apartment with her alleged friends.
of the victim's head, four incise wounds to Appellant had, in fact, texted the victim
her neck, and seven stab wounds to her using Smyrnes' phone and asked her to
chest that punctured her heart and left spend the weekend at an apartment in
lung. An investigation led to Appellant, Greensburg. The victim's stepfather
Ricky Smyrnes, Melvin Knight, Amber confirmed that the victim had been on her
Meidinger, Robert Masters, and Peggy phone constantly communicating with
Miller. Knight and Meidinger were Appellant and Smyrnes. Upon arriving at
romantically involved, as were Masters the bus station, the victim met the six co-
and Miller. Smyrnes was in a relationship conspirators. Knight, Meidinger, and
with Appellant and there was evidence that Appellant initially left the group and
he also was in a relationship with the traveled to a Knights Inn. While there,
victim. It was the Commonwealth's theory Appellant spoke with Smyrnes over the
at trial that Appellant's jealousy motivated phone and told him, "I hope you're not
the horrific treatment of the victim and her with that bitch." N.T., 5/12/11, 759-760.
death. Appellant eventually left Knights Inn to
meet Smyrnes. Knight and Meidinger
On February 11, [2010], police found
ultimately were picked up … and brought
Appellant and Smyrnes walking along a
to an apartment on 428 North
road in Greensburg; Appellant indicated
Pennsylvania Avenue in Greensburg. At
Smyrnes was her boyfriend. …Appellant
the apartment were Smyrnes, Knight,
voluntarily agreed to travel to the
Meidinger, Masters, [and] Miller … the
Greensburg Police station. Although police
victim arrived at the apartment. She asked
advised her she was free to leave,
Smyrnes if he would have sex with her,
Appellant remained and answered
and he angrily refused. The next day, the
questions. Appellant informed police that
victim had a scheduled doctor's
she and the victim had argued on February
appointment for 3:00 p.m., but did not
6 and 7 … over Smyrnes. She claimed that
want to attend. Smyrnes, Knight, and the
she and the victim reconciled on February
victim then began to argue before the
8, but also indicated that the victim
victim decided to take a shower. At this
3 *3 point, Smyrnes telephoned Appellant using
was tied up with Christmas garland and the speaker function of the phone and told
that she had punched the victim. her that the victim tried to have sex with
Additionally, she admitted that Knight had him the previous night, which angered
stabbed the victim. At this juncture, police Appellant. Appellant indicated she wanted
terminated the interview. to beat up the victim and instructed
Smyrnes not to allow the victim to leave.

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

The group at the apartment then went After the shower, Smyrnes and Knight
through the victim's purse and poured forced the victim into the attic because the
toothpaste and mouthwash on her purse original tenant on the apartment lease was
and clothing. Meidinger took the victim's returning to retrieve some property. Police
cell phone and Knight took cash and a gift actually arrived outside the apartment
card. When the victim exited the shower, when that individual and Smyrnes and
Knight told her to buy him cigarettes with Knight engaged in an altercation.
the money he had taken. Initially the Subsequently, Knight and Smyrnes forced
victim refused, but ultimately she the victim to remove her pajamas and
acquiesced. Those in the apartment threw them outside onto a porch roof. The
continued to harass the victim, with two men also cut her hair and demanded
Smyrnes and Knight striking her on the that she clean it from the floor. Knight then
head with empty plastic bottles. The victim put a sock in the victim's mouth and raped
grew angry and called Knight an "asshole." her.
Id. at 780. He then pushed her into a wall
Appellant telephoned her family and
and choked her.
informed them that she intended to spend
Shortly thereafter, Appellant arrived and the night at the apartment. She, Meidinger,
confronted the victim about her attempt to Knight, and Smyrnes retreated to her home
sleep with Smyrnes. Appellant pushed the to gather some medication. While
victim into a bathroom towel rack three retrieving the medication, Miller called
times and lied to Smyrnes and told him that the victim was
attempting to leave the apartment. The
4 *4
group returned to the apartment and
Meidinger, telling her that the victim liked
Smyrnes and Knight began to assault the
Knight. Meidinger then continued the
victim. Knight was especially angered
attack on the victim. Knight and Smyrnes
because Meidinger, who was pregnant with
joined in by dragging the now crying
his child, had passed out from running
victim from the bathroom and pouring
back to the apartment after they learned
spices on her head. Appellant also poured
the victim was trying to escape. When the
water onto the victim. Smyrnes then forced
victim complained of a headache, Smyrnes
the victim to take a shower.
and Knight provided her with Appellant's
Seroquel medication, which does not treat
headaches but is for bipolar disorder.

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

The following morning, Appellant, Not satisfied with this humiliation, Knight
Smyrnes and Knight left the apartment to and Smyrnes bound the victim with
cash a check. Smyrnes instructed those left Christmas lights. Appellant insisted that
behind not to allow the victim to leave and the lights work so that the victim would
threatened them if anyone attempted to look like a Christmas tree. When the lights
help her. Upon returning, Appellant did not blink as desired by Appellant, she,
attacked the victim by pushing her to the Smyrnes, Knight and Meidinger removed
floor, sitting on top of her, and punching the bulbs and used the strands to tie the
her in the face. When the victim defended victim up. The group then conducted
herself by kneeing Appellant in the another meeting at which point Appellant
stomach, she told Smyrnes that the victim as well as the others voted to kill the
had killed her baby, although Appellant victim. Smyrnes forced the victim to write
was not pregnant. a suicide note, and when she finished,
Appellant remarked, "Just kill that bitch."
At this juncture, Smyrnes conducted a
Id. at 821.
meeting among all those present.
Appellant informed Smyrnes that he had to Smyrnes and Knight then led the victim
choose between her or the victim, and, if into the bathroom where Smyrnes told
he chose her, he had to get rid of the Knight, "You know what to do." Id. at 822.
victim. At a subsequent meeting, the group Smyrnes retrieved a steak knife and gave it
decided to provide the victim with urine to to Knight who initially hesitated before
drink. Appellant peed in a cup and entering the bathroom and stabbing the
victim in her chest, torso and throat. This
5 *5
attack did not completely kill the victim
Meidinger forced the victim to consume it
and Smyrnes went into the bathroom and
by hitting her in the head with a towel
slit the victim's wrists. When the victim
rack. An additional mixture was made of
survived, Smyrnes and Knight wrapped the
Meidinger's feces, urine, spices, parsley
Christmas lights around her neck and each
and garlic. Meidinger again repeatedly
pulled tightly to cut off her air supply. The
struck the victim with a towel rack to force
group agreed to dispose of the body, with
her to consume the disgusting concoction.
Appellant suggesting that they burn the
A third drink consisting of Clorox, water,
victim's body in front of a church. Instead,
and cigarette ashes was fed to the victim.
Smyrnes and Knight disposed of the victim
Throughout this ordeal, the victim was
as previously described.
crying and vomiting.

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

Following her arrest, Appellant made WL 11255556. The Pennsylvania Supreme Court
several incriminating statements to other denied Appellant's Petition for Allowance of
inmates at the Westmoreland County Appeal. See Commonwealth v. Marinucci, 86 A.3d
Correctional Facility. One inmate provided 7 232 (Pa., filed Feb. 25, 2014) (Table). *7
that Appellant admitted to assaulting the
On July 1, 2015, after a two-day sentencing
victim because the victim and Smyrnes
proceeding with multiple experts and other
had engaged in sexual relations, and that
witnesses, the trial court imposed an aggregate
Appellant stated that she was the one who
term of life imprisonment with no parole.2 This
wanted the victim dead. Another inmate
Court affirmed the judgment of sentence. See
testified that Appellant told her that she
Commonwealth v. Marinucci, No. 1758 WDA
wanted the victim dead because the victim
2015, 2016 WL 6081005 (Pa. Super., filed Oct.
had stolen Smyrnes and a previous
17, 2016) (non-precedential memorandum).
boyfriend from her. Appellant stated to a
Appellant filed a Petition for Allowance of
third prisoner that she had lured the victim
Appeal. While that petition was pending, the
to the apartment and commented that she
Pennsylvania Supreme Court issued
fed feces to retards.
Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)
6 *6 Commonwealth v. Marinucci, No. 909 WDA ("Batts II"), which announced a procedure for the
2012, 2013 WL 11255556, *1-4 (Pa. Super., filed implementation of Miller and required a finding of
Aug. 26, 2013) (non-precedential memorandum). permanent incorrigibility for a juvenile to be
sentenced to a term of life without parole. As a
Following trial before the Honorable Rita D.
result, the Supreme Court granted Appellant's
Hathaway of the Court of Common Pleas of
petition, summarily vacated the judgment of
Westmoreland County, the jury found Appellant
sentence and remanded for reconsideration under
guilty of murder, kidnapping and conspiracy. The
Batts II of whether the sentence imposed was
court sentenced Appellant to the mandatory term
constitutional under the Eighth Amendment. See
of life imprisonment without the possibility of
Commonwealth v. Marinucci, 170 A.3d 1010 (Pa.,
parole for murder of the first degree. The court
filed Aug. 25, 2017) (Table). On reconsideration,
also imposed concurrent terms of imprisonment
this Court concluded that the judgment of sentence
of: life without parole for felony murder, twenty to
imposed at the first resentencing was
forty years for conspiracy to commit murder, and
unconstitutional under the Eighth Amendment and
three to twenty years for conspiracy to commit
remanded to the trial court for resentencing in
kidnapping. Appellant filed a timely appeal.
light of Batts II. See Commonwealth v. Marinucci,
While Appellant's direct appeal was pending, the 8 No. 1758 WDA 2015, 2017 *8 WL 5513588 (Pa.
United States Supreme Court announced its Super, filed November 17, 2017) (non-
decision in Miller v. Alabama, 567 U.S. 460 precedential memorandum).
(2012), holding that a mandatory term of life 2 The trial court imposed the following
imprisonment without parole for juvenile
concurrent terms of imprisonment: life
offenders violated the Cruel and Unusual without the possibility of parole for murder
Punishment Clause of the Eighth Amendment. of the first degree; life without the
This Court affirmed Appellant's convictions but possibility of parole for murder of the
vacated the judgment of sentence and remanded second degree; 20 to 40 years for
for resentencing citing the Pennsylvania Supreme conspiracy to commit homicide; 3 to 20
Court's ruling in Commonwealth v. Batts, 66 A.3d years for conspiracy to kidnap. In addition,
286 (Pa. 2013) ("Batts I"). See Marinucci, 2013

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

Appellant's convictions for murder of the at the first resentencing in 2015; four letters from
third degree and for kidnapping were Appellant's fellow inmates in support of
deemed to merge for sentencing purposes. Appellant; a report dated April 26, 2022 by, and
testimony from, Appellant's expert in general and
Prior to the second resentencing, the Supreme
forensic psychiatry, Dr. Louis S. Martone, as to
Court of the United States issued its opinion in
Appellant's amenability to rehabilitation; a report
Jones v. Mississippi, 141 S.Ct. 1307 (U.S. 2021),
dated May 23, 2022, by the Commonwealth's
narrowly construing Miller and holding that the
psychiatric witness, Dr. Bruce Wright, as to
Eighth Amendment did not require a factual
Appellant's amenability to rehabilitation; and the
finding of permanent incorrigibility for a juvenile
recorded testimony of Dr. Wright and appellant's
to be sentenced to life without parole. Following
expert at the first resentencing in 2015. In
that, the Pennsylvania Supreme Court issued
addition, the trial court heard Appellant's
Commonwealth v. Felder, 269 A.3d 1232, which,
allocution and noted that it had reread the trial
relying on Jones, essentially reversed Batts II and
transcripts in 2015.
held that when sentencing juvenile homicide
offenders, "sentencing courts are required to Appellant did not suggest a specific minimum
consider only the relevant sentencing statutes, sentence, but argued to the Court that Miller
which will guarantee that the sentencer considers required a meaningful opportunity for her to
the juvenile's youth and attendant characteristics obtain release based on maturity and
as required by Miller." Felder, 269 A.3d at 1232. rehabilitation. The court sentenced Appellant to an
aggregate of 60 years to life: 40 to life for murder
The Supreme Court found that Jones
of the first degree; a consecutive term of 20 to 40
"fundamentally altered" the support for the "entire
10 years for conspiracy to commit murder; and *10
procedural framework" devised in Batts II and
concurrent terms of 40 to life for murder of the
dissolved those procedures. Felder, 269 A.3d at
second degree and 3 to 20 years for conspiracy to
1243-44. "Moving forward, the authority of a
commit kidnapping.3 N.T. 5/31/22, 75-76. The
sentencing court to impose a life-without-parole
sentence on a juvenile homicide offender is court explained its reasons for the sentence
circumscribed only to the extent set forth in 42 imposed and demonstrated its detailed knowledge
Pa.C.S. § 9721(b) and 18 Pa.C.S. § 1102.1, and by of Appellant and the case. Id. at 51-75.
Miller's command to 'consider the mitigating 3 Murder of the third degree and kidnapping
qualities of youth.'" Felder, 269 A.3d at 1245 merged for sentencing purposes.
(quoting Miller, 567 U.S. at 476). Appellant's
9 second resentencing, the *9 judgment of sentence Appellant filed a timely post-sentence motion.
under review in this appeal, was conducted Acknowledging that the court "ostensibly
pursuant to Felder. addressed each of the factors which must be
considered," she argued that it nonetheless
On May 31, 2022, the trial court conducted the "abused its discretion in disregarding the
instant resentencing. At that proceeding, the court numerous pieces of evidence showing actual
took judicial notice or admitted into the record the maturation and rehabilitation." Appellant's Post-
following evidence: a new pre-sentence Sentence Motion, ¶ 12. Appellant specifically
investigation report prepared by the probation alleged that the court: disregarded her expert's
department dated May 23, 2022; the victim impact testimony, "apparently adopting the opinions of
statements from the victim's family given in Dr. Bruce Wright," id. ¶ 13; "failed to review and
evidence at the first resentencing in 2015; consider letters of support," id. ¶ 14; and exhibited
Appellant's mother's statement given in evidence "bias in its recitation of the rationale for imposing

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

sentence," id. ¶ 15. The trial court denied the post- Challenges to the discretionary aspects of
sentence motions on November 4, 2022, with a sentence are not appealable as of right.
written opinion, which, among other things, noted Commonwealth v. Leatherby, 116 A.3d 73,
its decision was informed by a recent presentence 83 (Pa. Super. 2015). Rather, an appellant
investigation report and the sentences imposed challenging the sentencing court's
were in the standard guideline range. Trial Court discretion must invoke this Court's
Opinion, 18-21. Moreover, the court considered jurisdiction by (1) filing a timely notice of
the statutory factors as required by Felder, noted appeal; (2) properly preserving the issue at
the crime was "particularly brutal and protracted, sentencing or in a motion to reconsider and
with torture over a period of days," and found the modify the sentence; (3) complying with
sentence warranted by the facts and Pa.R.A.P. 2119(f), which requires a
circumstances. Id., 20-22. Appellant filed this separate section of the brief setting forth a
11 timely appeal. *11 concise statement of the reasons relied
upon for allowance of appeal with respect
In the Statement of Questions Involved in her
to the discretionary aspects of a sentence;
brief, Appellant rephrases her sentencing claim as
and (4) presenting a substantial question
follows:4
that the sentence appealed from is not
4 Appellant filed a Rule 1925(b) statement appropriate under the Sentencing Code, 42
mirroring the claims raised in her post- Pa.C.S. § 9781(b), or sentencing norms. Id.
sentence motion. An appellant must satisfy all four
requirements. Commonwealth v. Austin, 66
Whether the court below abused its
A.3d 798, 808 (Pa. Super. 2013).
discretion in sentencing the Appellant: in
12 failing to actually consider her youth as a *12 Commonwealth v. Miller, 275 A.3d 530, 534
factor; in rejecting expert testimony (Pa. Super. 2022), appeal denied, 302 A.3d 626
offered by Appellant, yet accepting an (Pa. 2023). Appellant satisfied the first two
outdated opinion by the Commonwealth's requirements. Thus, we turn to the Rule 2119(f)
expert; in failing to review and consider statement included in her brief to discern whether
letters of support offered on behalf of a substantial question has been raised.6
Appellant; and in exhibiting bias and ill-
6 Appellant's "youth" is included in her
will towards Appellant at the sentencing
Statement of Questions Involved as a
hearing.
factor the trial court allegedly failed to

Appellant's Brief, 5. consider. Appellant's Brief, 5. As a stand-

alone claim, this factor has been waived
Appellant's claims challenge the discretionary from further review as it was not included
aspects of her sentence:5 in the post-sentence motion.
Commonwealth v. Gibbs, 981 A.2d 274,
5 The Pennsylvania Supreme Court in Felder
282-83 (Pa. Super. 2009). It also is
left open the possibility of an as-applied
meritless. She argues that youth must be
Eighth Amendment challenge to the
considered as a mitigating factor.
proportionality of a sentence, Appellant did
Appellant's Brief, 14-15. To the contrary, it
not assert such a claim below or in her
is a requirement of Jones and Felder that
brief before this Court. Nor has Appellant
the age and attendant circumstances of an
argued that the Pennsylvania Constitution
offender are considered before sentencing
requires more protection than Felder
to a life term without possibility of parole.
mandates under the Eighth Amendment.
Felder, 269 A.3d at 1245. It is not a

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

requirement that it be considered as allegations "that the sentencing court failed to

mitigating the discretionary sentence consider mitigating factors generally does not
imposed. Here, the court plainly considered necessarily raise a substantial question."
Appellant's age and explained fully why it
Commonwealth v. Moury, 992 A.2d 162 (Pa.
did not find it mitigating. N.T. 5/31/22, 54,
Super. 2010). See also Commonwealth v. Zirkle,
57, 62-63.
107 A.3d 127, 133 (Pa. Super. 2014) ("a claim that
We determine whether there is a substantial a court did not weigh the factors as an appellant
question on a case-by-case basis. Commonwealth wishes does not raise a substantial question").
v. Crawford, 257 A.3d 75, 78 (Pa. Super. 2021).
However, we are mindful that we must evaluate
"We cannot look beyond the statement of
whether a substantial question has been presented
questions presented and the prefatory Rule 2119(f)
on a case-by-case basis, and not as a blanket rule.
statement to determine whether a substantial
In the circumstances presented, where the
question exists." Crawford, 257 A.3d at 78-79
governing law has been in flux over ten years and
(quoting Commonwealth v. Radecki, 180 A.3d
caused a juvenile murderer to have been sentenced
441, 468 (Pa. Super. 2018)) (brackets omitted). A
to a mandatory life term, then a discretionary life
substantial question is presented where:
14 term, and now to a *14 discretionary term of years,
… an appellant advances a colorable review is warranted. Such history implies that the
argument that the sentence imposed is sentence could be excessive, and, in light of
either inconsistent with a specific Appellant's allegation that the trial court was
provision of the Sentencing Code or is biased, a substantial question has been raised.
contrary to the fundamental norms which Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.
underlie the sentencing process. At a Super. 2011).7
minimum, the Rule 2119(f) statement must 7 Appellant does not delineate which
articulate what particular provision of the sentence she is challenging as excessive.
code is violated, what fundamental norms Instead, she repeatedly refers to her
the sentence violates, and the manner in aggregate term of 60 years to life without
which it violates that norm. acknowledging that the aggregate term is
two separate sentences the trial court
13 *13 Commonwealth v. Mastromarino, 2 A.3d 581,
ordered to be served consecutively. The
585-86 (Pa. Super. 2010) (quoting Commonwealth
statute through which Appellant seeks to
v. Bullock, 948 A.2d 818, 826 n. 6 (Pa. Super. state a substantial question affords the
2008)) (citation omitted). sentencing court discretion to impose
sentence concurrently or consecutively. 42
Appellant cites Commonwealth v. White, 193 A.3d
Pa.C.S. § 9721(a). As a general matter, "
977 (Pa. Super. 2018), for the proposition that a
[a]ny challenge to the exercise of this
claim that a sentence is excessive - in conjunction
discretion ordinarily does not raise a
with an assertion that the court failed to consider
substantial question." Commonwealth v.
mitigating factors - raises a substantial question. Marts, 889 A.2d 608, 612 (Pa. Super.
Appellant's Brief, 10. She then asserts four 2005). Therefore, the preliminary
mitigating factors the trial court allegedly failed to substantial question inquiry in this case is
consider. Id. at 11. Appellant did not assert her whether the decision to sentence
sentence was "excessive," much less establish how consecutively raises the aggregate to, what
the alleged failure to give sufficient weight to appears upon its face to be, an excessive
mitigating factors here constituted a substantial level in light of the criminal conduct at
question. Indeed, we have held that similar issue in the case. Mastromarino, 2 A.3d at

8
 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

588. The aggregate term was not facially defendant firsthand, "is in a superior position to
excessive in light of the murder and torture review the defendant's character, defiance or
of the victim. Moreover, the conspiracy indifference, and the overall effect and nature of
lasted for days and was an essential
the crime." Commonwealth v. Lekka, 210 A.3d
element for the escalating conduct that
343, 353 (Pa. Super. 2019); Miller, 275 A.3d at
culminated in the murder. Accordingly, our
535. Where, as here, the sentencing court had a
grant of a substantial question for review is
presentence investigation report, we can "presume
limited to the term of years sentence
that the sentencing judge was aware of relevant
imposed for murder of the first degree, 40
years to life imprisonment.
information regarding the defendant's character
and weighed those considerations along with
Our standard of review for a challenge to the mitigating statutory factors." Commonwealth. v.
discretionary aspects of sentencing is as follows: Devers, 546 A.2d 12, 18 (Pa. 1988);
Commonwealth v. Ventura, 975 A.2d 1128, 1135
Sentencing is a matter vested in the sound
(Pa. Super. 2009). This rule applies even when a
discretion of the sentencing judge, and a
sentencing court imposes a discretionary term of
sentence will not be disturbed on appeal
16 years on a juvenile murderer. See Miller, 275 *16
absent a manifest abuse of discretion. In
A.3d at 534-535; Commonwealth v. Harper, 273
this context, an abuse of discretion is not
A.3d 1089, 1098 (Pa. Super.), appeal denied, 286
shown merely by an error in judgment.
A.3d 1283 (Pa. 2022).
Rather, the appellant must establish, by
reference to the record, that the sentencing Additionally, our review of the discretionary
court ignored or misapplied the law, aspects of a sentence is confined by statutory
exercised its judgment for reasons of mandate. Johnson, 125 A.3d at 826-827. More
partiality, prejudice, bias or ill will, or specifically, here, we may only vacate and remand
arrived at a manifestly unreasonable for resentencing if the sentencing court's
decision. application of a guideline sentence was "clearly
unreasonable." 42 Pa.C.S. § 9781(c)(2). "[I]t is
15 *15 Commonwealth v. Johnson, 125 A.3d 822, 826
clear that the General Assembly intended the
(Pa. Super. 2015) (quoting other cases). In
concept of unreasonableness [for the purposes of
resentencing a juvenile murderer, who was
Section 9781(c)] to be inherently a circumstance-
initially sentenced to a mandatory term of life
dependent concept that is flexible in understanding
imprisonment, the sentencing court is obligated to
and lacking precise definition." Commonwealth v.
apply the traditional sentencing considerations
Walls, 926 A.2d 957, 963 (Pa. 2007).8
under 42 Pa.C.S. § 9721, and may consider the
factors listed in 18 Pa.C.S. § 1102.1. Miller, 275 8 In deciding whether a sentencing court

A.3d at 535. imposed a sentence that was unreasonable,

we are to be guided by the considerations
"Section 9721 provides in part that 'the sentence
listed in 42 Pa.C.S. § 9781(d) - nature and
imposed should call for confinement that is circumstances of the offense and history
consistent with the protection of the public, the and characteristics of the defendant;
gravity of the offense as it relates to the impact on opportunity of sentencing court to observe
the life of the victim and on the community, and the defendant, including any presentence
the rehabilitative needs of the defendant.'" Miller, investigation; findings upon which the
275 A.3d at 535 (quoting 42 Pa.C.S. § 9721(b)). sentence was based; and sentencing
Moreover, the sentencing court, which is present guidelines - and whether the trial court
at the hearing and observes all witnesses and the properly considered the sentencing factors
outlined in 42 Pa.C.S. § 9721(b) -

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

protection of the public, gravity of the Felder, 269 A.3d at 1245-46. See also Miller, 275
offense with respect to victim and A.3d at 533-534 (discretionary term of years
community, and rehabilitative needs of the sentence of 55 to life complies with the Eighth
defendant. Walls, 926 A.2d at 964;
Amendment); Harper, 273 A.3d at 1094-95
Commonwealth v. Velez, 273 A.3d 6, 12
(similar but applied to term of 35 years to life).
(Pa. Super.), appeal denied, 283 A.3d 792
(Pa. 2022). Turning to Appellant's challenges to the trial
court's weighing of the Section 9721 factors, she
Appellant first argues that the trial court imposed a
argues it failed to adequately consider her
de facto life sentence by not providing a
rehabilitative needs and focused too much on the
meaningful opportunity for her to obtain parole in
18 gravity of her offense. *18
her lifetime. Appellee's Brief, 12-18.
Acknowledging that such sentence is not per se Appellant's Brief, 18-26. We remain cognizant that
unreasonable, Appellant argues that court "must the balancing of the sentencing factors is the sole
17 have a rational *17 justification." Id. As a province of the sentencing court. Commonwealth
challenge to the trial court's exercise of discretion, v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).
this claim is waived. It was not encompassed Moreover, where, as here, "the sentencing court
within any of the four specific complaints raised in imposed a standard-range sentence with the
the Rule 2119(f) Statement. See Commonwealth v. benefit of a pre-sentence report, we will not
Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013) consider the sentence excessive," but will "assume
(improper to not forward an argument for each the sentencing court was aware of relevant
discretionary sentencing claim raised where they information regarding the defendant's character
are distinct claims, even though intertwined). and weighed those considerations along with
mitigating statutory factors." Corley, 31 A.3d at
As a challenge to the legality of Appellant's
298 (internal quotation marks and citations
sentence, her claim that she is subject to a de facto
omitted). As noted by the trial court, Appellant's
life term and thereby entitled to relief is meritless.
sentence, given her status as a juvenile at the time
In rejecting Felder's claim that his term of 50 years
of the torture-murder, is wholly consistent with
to life was unconstitutional as a de facto life
her culpability in the range of sentences imposed
sentence, the Pennsylvania Supreme Court held:
on her fellow conspirators; the two with whom she
It logically and necessarily follows that if a shared the most culpability received death
discretionary sentencing scheme is sentences, and the others received lesser terms
constitutionally sufficient to permit the than Appellant. N.T. 5/31/22, 54, 57-58, 60.
imposition of a life-without-parole
Appellant argues that the court "confused the
sentence on a juvenile homicide offender,
concepts of rehabilitation with the capacity for
so too can a court impose a sentence that is
rehabilitation." Appellant's Brief, 19 (emphasis in
something less than life without parole.
original). To the contrary, the required statutory
This includes a term-of-years sentence that
factor is Appellant's "needs for rehabilitation" not
may amount to a de facto life sentence.
her inherent capacity. 42 Pa.C.S. § 9721. That the
Stated differently, as long as the sentence
trial court did not view the nearly 30-years-old
was the product of a discretionary
Appellant as likely to become rehabilitated as did
sentencing system that included
her expert is not an abuse of discretion. Nor does
consideration of the juvenile's youth, the
Appellant's argument that the trial court
Eighth Amendment is satisfied.

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

erroneously gave more weight to the report written quickly during the course of the proceeding.
by the Commonwealth's expert than that prepared Indeed, the letters are not in the record available to
19 by *19 us.10

Appellant's expert and his testimony. The court 10 "It is well settled that the Appellant bears

explained its reasons for not being convinced that the burden of ensuring a completed
Appellant was amenable to rehabilitation, record." Commonwealth v. Dunkle, 932

including her continuing failure to accept A.2d 992, 996 (Pa. Super. 2007).

responsibility for the totality of her role in the

More to the point, the content of the letters was
murder. N.T. 5/31/22, 63. It was reasonable for the
not discussed by Appellant at the sentencing
court to conclude that Appellant's failure to show
proceeding, in her post sentence motion brief, or
"that she is being rehabilitated" after 12 years in
in her Appellate brief. Under these circumstances,
prison undermines her assertion she has the ability
we cannot assume that the contents of these letters
to become rehabilitated sooner rather than later.
were so compelling as to require a different result.
Id. at 74. According to the trial court, Appellant
Moreover, the letters themselves are not a
had continued to show manipulative behavior in
statutory factor the sentencing court was obligated
achieving her ultimate goals, casting doubt on the
to consider, but rather evidence - from laypersons
expert opinion that had accepted her bald
- as to Appellant's rehabilitative needs. As such,
assertions. Ultimately, Appellant's argument is
the court was free to give them no weight at all.
merely a complaint about the court's weighing of
Bricker, 41 A.3d at 876. We will not vacate the
the evidence presented by the competing experts.
sentence on the basis of the unknown content of
It does not demonstrate an abuse of discretion.
letters that the trial court may or may not have
Bricker, 41 A.3d at 876. See Miller, 275 A.3d at
been aware of, and which, under any
535.9
circumstance, would have warranted far less
9 In contrast to the competing expert reports weight than the expert reports, presentence
here, we have found an abuse of discretion investigation and the court's own experience with
where a sentencing court disregarded an Appellant.
uncontradicted report by a psychiatric
expert that concluded the juvenile was
Appellant's final claim is that the trial court
"very likely to transition successfully to the exhibited bias against her by focusing on the
community without reoffending or nature of her offenses. Appellant's Brief, 20. As a
exhibiting aggressive or violent behavior" similar bias claim was raised in her appeal from
and instead imposed the maximum term of the first resentencing, and the instant allegation
life imprisonment without the possibility of relies in part on "the court's actions and statements
parole. See Commonwealth v. Schroat, 272 during that hearing," Appellant's Brief, 22, this
A.3d 523, 529 (Pa. Super. 2022). 21 claim should have been raised as a motion *21 for
the trial court's recusal. Corley, 31 A.3d at 298
Appellant also argues that the court failed to
("We note that if Appellant believed that the trial
review four letters written in her support by fellow
court was biased when it imposed its initial
inmates. Appellant's Brief, 21. As Appellant notes,
sentence, the proper practice was to address an
there was no break in the proceedings when the
application for recusal by petition to the judge").
trial court might have read the letters fully.
Appellant did not do so, and therefore it is waived.
However, there also is no evidence that the court
20 could not *20 glean the content of the letters Even if we addressed this claim as though it were
based solely on the instant resentencing, it is
meritless. "[I]t was within the resentencing court's

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 Commonwealth v. Marinucci 1317 WDA 2022 (Pa. Super. Ct. Jan. 11, 2024)

discretion to place emphasis on the serious nature 876. "The goal to be achieved in the sentencing
of this crime. … Miller and its jurisprudence do decision must accommodate a number of different
not require that a resentencing court prioritize objectives. The trial court is required to be fair to
mitigating factors to the exclusion of all others or the offender but at the same time protect society
sentence those who committed crimes as a and vindicate the victim." Commonwealth v.
juvenile to the minimum sentence." Jones, 565 A.2d 732, 734 (Pa. 1989) ("In dealing
Commonwealth v. Summers, 245 A.3d 686, 696 with such an equation, reasonable [people] can
(Pa. Super. 2021), appeal denied, 276 A.3d 700 obviously differ"); Summers, 245 A.3d at 696 (Pa.
(Pa. 2022). Super. 2021) ("the court is permitted to hold
juveniles accountable and impose a sentence
To demonstrate the alleged bias, Appellant notes
commensurate' with a juvenile's actions").
that the trial court was personally affected by the
facts of the case, for which it was the trial court The record demonstrates that in determining
for all of the conspirators. However, this also Appellant's discretionary term of years the trial
provided a perspective for the court to fairly court thoroughly considered the totality of
evaluate the relative culpability of each of the requirements mandated by Pennsylvania law,
conspirators. The extensive discussion of the facts including the protection of the public and
of the case was in persuasive support of the court's Appellant's rehabilitative needs, in addition to the
conclusion that Appellant's participation reflected seriousness of her offenses. We find no abuse of
a heightened culpability rather than a diminished discretion.
one for the crime. Moreover, Appellant's
Judgment of sentence affirmed.
acceptance of responsibility paled in comparison
to the near-in-age Meidinger who accepted full [*]
Retired Senior Judge assigned to the Superior
responsibility for her role in the torture-murder Court.
and testified at trial. As it is for the sentencing
court to balance the relevant factors, Appellant has
not demonstrated an abuse of discretion. Bricker,
22 41 A.3d at *22

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