Com. v. Ricciardi, P.

J-S59013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

PERRY SAM RICCIARDI, II,

Appellant No. 1914 WDA 2014

Appeal from the PCRA Order November 10, 2014
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0001290-2000

BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 18, 2015

Perry Sam Ricciardi, II, appeals from the order entered November 10,

2014, denying his first counseled PCRA petition filed pursuant to 42 Pa.C.S.

§§ 9541-9546.1 After careful review, we affirm.

This Court previously delineated the factual and procedural

background of this matter as follows.

On October 8, 2000, S.K. disappeared after leaving her
Youngstown, Ohio, residence. Three days later, her body was
discovered under a culvert near an access road in Mahoning
Township, Lawrence County, Pennsylvania. Investigators

____________________________________________

1
Appellant previously filed a PCRA petition that successfully reinstated his
direct appeal rights. A subsequent petition filed after the reinstatement of a
defendant’s direct appeal rights is considered a first-time petition.
Commonwealth v. Figueroa, 29 A.3d 1177 (Pa.Super. 2011).

*
Former Justice specially assigned to the Superior Court.
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determined S.K. had been sexually assaulted and had died as a
result of having her throat slashed.

At some point during the investigation, police were
informed appellant had come into possession of the murder
weapon. On October 13, 2000, Pennsylvania State Police Trooper
Barger contacted appellant at his place of employment in
Struthers, Ohio. Police had a brief discussion with appellant at
his job site. During this discussion, appellant informed police
that on the evening of October 8, 2000, he was with S.K.,
William Monday, and David Garvey, the latter two who
eventually would be charged in connection with the murder.
Appellant told police that on the evening in question the group
rode around in Monday’s car, ate cheeseburgers, and played
video games and that, at approximately 3:30 a.m. on the
morning of October 9, 2000, he was dropped off at his house.
Appellant told police he assumed S.K. was dropped off at some
point thereafter.

At approximately 10:45 p.m. on October 13th, the date of
the employment site interview, Trooper Barger telephoned
appellant’s place of employment. Barger asked appellant if he
had forgotten to disclose any information during the
conversation held earlier that day. He then asked whether
appellant had been told by Monday that he and Garvey had killed
S.K. after dropping off appellant during the early morning hours
of October 9th. At this point, appellant asked Barger if he
needed an attorney. Barger informed appellant that he did not
need an attorney unless he was present when S.K. was
murdered. After a momentary pause, appellant asked Barger a
second time if he should seek representation. Barger reiterated
his previous answer. Appellant then told Barger that Monday
had admitted to the killing. Barger arranged to have appellant
meet with investigators in person later that evening at the
Struthers, Ohio, police station.

Approximately fifteen to twenty minutes after hanging up
with Trooper Barger, appellant drove himself to the station. Once
appellant entered the station house, both Trooper Barger and
another officer—Pennsylvania State Police Corporal Melder—
informed appellant he was neither under arrest nor being
detained and, further, informed appellant he was free to leave at
any point. Appellant, without being prompted to do so, then

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reiterated he was with S.K., Monday, and Garvey on the evening
of October 8th and described observing Monday, armed with a
knife, grab S.K. from behind; he further described running out of
a tunnel where S.K. was being held hostage while ignoring her
screams; the rest of appellant’s story, however, began to
undergo drastic revision. Melder, recognizing appellant was on
the verge of giving inculpatory statements, immediately
interrupted and issued appellant Miranda warnings. The trial
court found appellant considered these warnings and, in
response thereto, stated to police that “maybe he should talk to
an attorney.” Police did not have probable cause at this point to
arrest appellant. Consequently, he was permitted to leave the
Struthers station without further discussion.

After leaving the Struthers station, appellant drove around
for awhile and, ultimately, wound up at his mother’s house.
Corporal Ryhal, the third Pennsylvania State Police investigator
assigned to the case, called appellant’s mother’s home on the
morning of October 14, 2000, and spoke with appellant about
coming to the New Castle Pennsylvania State Police Barracks for
further discussion. Shortly after the conversation ended,
appellant’s mother drove him to the barracks.

Upon arriving, appellant again was told by police that he
was free to leave. Nevertheless, appellant once again chose to
voluntarily speak with police. Appellant was escorted to an
interview room by Corporal Melder, who subsequently issued
appellant a second set of Miranda warnings. Appellant testified
at trial that, after considering the warnings, he knowingly
executed a written waiver of his Fifth Amendment rights.
Appellant then gave a harrowing account of the murder
implicating Monday and Garvey. Appellant did not withdraw his
consent at any point during the interview. At the conclusion of
this account, appellant volunteered to take police to Hamilton
Lake, where the murder weapon had been discarded.

Before driving appellant to the lake, Corporal Melder and
Corporal Ryhal stopped at the Struthers police station to wait for
the police divers to equip themselves for the impending search.
At the station, appellant, who had not been handcuffed or placed
under arrest, was given his Miranda warnings for a third time.
Appellant did not request an attorney but continued to volunteer
information. Shortly thereafter, appellant took the officers to

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Hamilton Lake and directed them to where the murder weapon
had been discarded. Police allowed appellant to freely wander
around the lake and to personally instruct the divers as to where
to search for the weapon. Appellant was not handcuffed at any
point during the search.

Corporal Melder and Corporal Ryhal then took appellant
back to the New Castle barracks. Upon arrival, appellant was
given Miranda warnings for the fourth time. Appellant once
again waived his Fifth Amendment rights. At this point, appellant
graphically recounted the conspiracy and events leading up to
S.K.’s murder and, in doing so, implicated himself in the crime.
At approximately 7:30 p.m., appellant agreed to give a tape-
recorded statement and was provided with a fifth set of Miranda
warnings. Appellant again waived his Fifth Amendment rights
and chose not to exercise his right to counsel and, instead,
proceeded with the statement. The tape-recorded statement
memorialized the everchanging and evolving statements given
by appellant to investigators throughout the evening of October
13, 2000, and the following day.

The trial court summarized the manner in which the events
leading up to and including S.K.’s murder unfolded as follows:

On Sunday, October 8, 2000, the [appellant]
returned home from work late in the afternoon. His
friends, Monday and Garvey, arrived at his residence
with [S.K.] in their vehicle. [Appellant] joined them
in the vehicle because he had a small amount of
marijuana in his possession and wished to “get high
real quick.” The men and [S.K.] began to drive
around the Lowellville, Ohio area. They were
attempting to convince [S.K.] to have oral sex with
Garvey and locate a store where these men could
purchase a “blunt” to use for smoking their
marijuana. After finally obtaining their “blunt,” the
men drove to “Zombie Land” to partake of their
marijuana.

Upon reaching their destination, Monday
parked the automobile on an old abandoned railroad
bed near the culvert where [S.K.] was ultimately
slain. [Appellant] then gave his knife, a large bladed

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survival knife that he normally carried, to Monday so
that Monday could properly prepare the “blunt” for
smoking. The three men then began to smoke the
marijuana. At this point, [appellant] and Monday
exited the vehicle to talk. [S.K.] attempted to exit
the vehicle, but Monday refused to permit her and
instructed her to stay in the vehicle with Garvey.

The [appellant] and Monday walked
approximately ten (10) feet from the vehicle and
stopped. At this time, Monday told [appellant] that
no one knew [S.K.] was with them and that this
would be the perfect time to do what they had talked
about; to rape and kill her. Monday was allowing
[appellant] to make the decision. Whether [S.K.]
was to live or die rested upon the [appellant] to
decide yes or no. [Appellant] merely smirked in
response to Monday’s inquiry, but did not say no.
The men then returned to the vehicle and proceeded
to smoke the marijuana. As they sat in the vehicle
smoking, Monday repeatedly inquired of [appellant],
“yes or no?” [S.K.] told [appellant] to say, “yes.”
[Appellant] thought, “If [S.K.] knew what Monday
meant, she would not be wanting [me] to say, ‘Yes.’”
Initially, [appellant] told Monday to wait, but
[appellant], knowing the consequences of his
response, finally told Monday “yes” and Monday
ceased to ask the question.

After a while, [S.K.] inquired of the time and
upon learning it was after seven o’clock p.m.,
informed the men that it was time for her to go
home. Monday told her that she would have to go for
a walk first. [S.K.] then told the men that she was
on house arrest and that she would tell the police
which would get them in trouble. At this point,
Monday pointed [appellant’s] knife at [S.K.] and
threatened to “gut her like a fish” if she got them in
trouble. Monday then began to drive very slowly out
of “Zombie Land” and actually reached River Road,
the main road that would lead back to Ohio.
However, after reaching River Road, Monday put the
vehicle in reverse. Monday backed the vehicle up the

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railroad bed and parked in a location very near
where the vehicle was parked initially.

Monday instructed everyone to exit the vehicle
and they then proceeded to walk down a path that
led to the culvert below the railroad bed, a distance
of approximately two hundred (200) feet. The culvert
is a half circle of concrete construction and forms a
tunnel under the railroad bed. A small stream runs
through it and covers approximately half of the area
inside of the culvert. The other half is covered with
rocks and dirt. The location of the culvert is secluded
and it is impossible to view it without actually
walking down to it. The path leading to the culvert is
a very narrow dirt footpath crowded by vegetation
and difficult to see. Even the [appellant] and his
companions, knowing of its existence and location
from previous visits to the area, had difficulty
locating it.

As they started down the path that led to the
culvert, [appellant] knew that [S.K.] was not coming
back. Monday had informed [appellant] that, “If you
tell me ‘yes,’ it’s going to happen. She’s not leaving.”
Once the group reached the culvert, Monday stopped
the [appellant] at the entrance while [S.K.] and
Garvey entered. Monday asked [appellant], “You said
‘yes,’ right?” To which the [appellant] replied, “Yes.”
The [appellant], though asked repeatedly, never
said, “No.”

The two men then entered the culvert and
Monday went to speak with Garvey. After Monday
spoke with Garvey, the three men and [S.K.] “hung
out” for a short while. Garvey then got [appellant’s]
attention and the two talked privately. Garvey
informed the [appellant] that Monday was going to
hit [S.K.] to incapacitate her and that the [appellant]
was to be ready to pull her pants down. The two
men then returned to Monday and [S.K.] and
proceeded to smoke the remaining marijuana from
the “blunt.”

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A few other conversations subsequently
ensued between the men that entailed some
modifications of the details of what was to occur. At
one point during these conversations, [S.K.] asked
the [appellant] if Monday would really gut her.
[Appellant] informed [S.K.] that Monday would not
really gut her.

Shortly after these conversations, as [S.K.]
was beginning to walk toward the [appellant],
Monday grabbed her from behind. She fell back
against Monday. He seized her and placed his left
hand over her mouth and put [appellant’s] knife to
her throat. Monday then yelled, “Go, go!” Garvey
then rushed to where Monday was and the
[appellant] also moved forward and grabbed the
waistband of [S.K.’s] pants. Monday forced [S.K.] to
the ground and the [appellant] pulled her pants
down. Garvey pulled down [S.K.’s] underpants.
Garvey and Monday held [S.K.] down and Garvey
pried her legs apart and held them open. Garvey told
[appellant], “Go ahead. Go Ahead.” [Appellant] told
Garvey, “I can’t do this. I can’t. You do it.” Garvey
then unsuccessfully attempted to have intercourse
with [S.K.]. At this time, [appellant] began to leave
the culvert.

Monday insisted that [appellant] not leave the
culvert, and [appellant] complied. Upon returning to
the scene, the [appellant] observed [S.K.] still lying
on the ground with Garvey at her feet and Monday
kneeling near her head. Monday began to rise, but
[S.K.] started to speak. Monday told her to shut up
and placed his hand over her mouth. When Monday
began to rise again, [S.K.] again began to plead with
the men, but Monday, once again, told her to shut
up and placed his hand over her mouth. A third time,
[S.K.] began to plead with the men saying that she
would willingly do what the men wanted, but Monday
pressed the knife to her throat and told her that if
she did not shut up, he would kill her. With this
threat, [S.K.] fell silent.

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[S.K.] was standing in front of Monday with
her pants still pulled down. Monday was holding the
knife to [S.K.’s] throat. Monday then pulled the knife
across [S.K.’s] throat. [Appellant] started to leave
the culvert, Monday began stabbing [S.K.].
Defendant heard [S.K.] say, “Oh, God.” [Appellant]
then heard a thump and [S.K.] whimper.

Monday told the [appellant] to return to the
culvert, this time to recover the [appellant’s] knife.
Monday had dropped [appellant’s] knife during the
course of these events and used Garvey’s knife to
murder [S.K.]. [Appellant] located his knife, and
after making sure that there was no blood on it,
picked it up and placed it in the sheath on his belt.
The men then left the scene. The men drove to a
local gas station where [appellant] entered by
himself and requested a key for the restroom. Upon
learning that the restroom was already open,
[appellant] informed Monday and Garvey of that
fact. They entered and washed themselves while
[appellant] waited in the car. The men drove to
Monday’s home where they stopped briefly. Monday
and Garvey then dropped [appellant] off at his
home. [Appellant] sat on the couch with his
girlfriend’s mother and father until his girlfriend
returned home and they went to bed. At no time did
the [appellant] attempt to contact the police.

Trial Court Opinion, Cox, J., 6/8/04, at 4-8.

After giving his tape-recorded statement, appellant was
arrested and charged. He subsequently was transferred to the
Lawrence County Prison pending arraignment. While languishing
in prison, appellant asked to meet with a prison counselor.
During a counseling session conducted shortly thereafter,
appellant offered the counselor inculpatory statements, which
the counselor noted in a report and which were passed along to
the prison warden and, eventually, were passed from the warden
to the district attorney. The counselor did not give appellant
Miranda warnings before taking these statements.

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Appellant was bound over for trial and on August 24, 2001,
he filed an omnibus pretrial motion requesting suppression of the
statements he had given to police after being issued his first set
of Miranda warnings on the evening of October 13, 2000.
Appellant’s motion was denied on June 28, 2002, and trial
commenced on January 28, 2003. On February 14, 2003, the
jury returned its guilty verdicts and three days later, judgment
of sentence was imposed.

On February 27, 2003, appellant filed a post-sentence
motion which was denied on July 28, 2003. Appellant
subsequently filed a timely notice of appeal. See generally,
Pa.R.Crim.P. 720, Post-Sentence Procedures; Appeal,
(A)(2)(a) Timing. He failed, however, to comply with the trial
court’s subsequent Pa.R.A.P. 1925 Order in a timely fashion and,
as a consequence, we dismissed the forthcoming appeal on April
25, 2006. Commonwealth v. Ricciardi, 902 A.2d 981
(Pa.Super. 2006) (unpublished Memorandum); see Pa.R.A.P.
1925, Opinion in Support of Order, (b) Direction to file
statement of errors complained of on appeal; instructions
to the appellant and the trial court.

On May 8, 2007, appellant filed a pro se Post Conviction
Relief Act (PCRA) petition requesting reinstatement of his direct
appeal rights nunc pro tunc. The PCRA court reinstated
appellant’s direct appeal rights on May, 22, 2007. Thereafter
appellant filed a timely nunc pro tunc notice of appeal, which
was amended at this Court’s request on September 18, 2007.

Commonwealth v. Ricciardi, 953 A.2d 605 (Pa.Super. 2008) (unpublished

memorandum at 1-11) (brackets in original) (internal citations omitted).

This Court affirmed Appellant’s judgment of sentence, id., and our

Supreme Court denied allowance of appeal. Commonwealth v. Ricciardi,

959 A.2d 319 (Pa. 2008). Appellant filed the underlying PCRA petition on

October 16, 2009. The court appointed counsel who filed an amended

petition. Ultimately, after multiple continuances, the PCRA court conducted

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a hearing on May 4, 2011. The court subsequently held hearings on

November 2, 2011, March 5, 2012, April 26, 2012, and February 7, 2013.

After the parties submitted briefs on the matter, the court denied Appellant’s

petition on November 10, 2014. This timely appeal ensued. The PCRA court

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant complied, and the court authored

a Rule 1925(a) opinion. The matter is now ripe for this Court’s

consideration. Appellant raises the following issues for our review.

1. The trial court committed reversible error by denying the
Petitioner’s Petition for Post-Conviction Collateral Relief as trial
counsel provided ineffective assistance of counsel that prejudiced
the rights of the Petitioner and adversely affected and
undermined the truth-determining process as demonstrated by
the following:

a. Trial counsel failed to object to the defective jury
instructions presented to the jury on the charge of
first degree murder and accomplice liability;

b. Trial counsel failed to challenge the trial court’s
jury instruction that allowed a conviction on either
theory of vicarious liability instead of demanding
that the jury unanimously agree on the theory of
liability that applied to Petitioner’s conduct;

c. Trial counsel failed to object to the instructions
provided by the trial court regarding the sentence
that could be imposed for the offense of murder
charged against the Petitioner based on the
theory of liability to the jury, or raise this issue at
the time of the sentencing hearing, thereby
allowing Petitioner to be illegally sentenced to [a]
term of incarceration of life in prison without the
possibility of parole in violation of the plain

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language and legislative intent of 18 Pa.C.S.A. §
1102(c);

d. Trial counsel was not sufficiently and adequately
qualified to represent the Petitioner and should
have been declared per se ineffective;

e. Trial counsel failed to request the appointment of
co-counsel or assemble a legal team to inspect
evidence, interview witnesses, review case law,
assist with trial preparation or provide general
assistance throughout the course of the
proceedings;

f. Trial counsel failed to request the appointment of
an expert in the field of forensics to perform
independent testing of the crime scene o[r] the
evidence and provide testimony during the trial to
rebut the testimony provided by the
Commonwealth witnesses and buttress the
theories of the defenses presented;

g. Trial counsel failed to request the appointment of
an expert in the field of psychology to perform a
review of the interview conducted on the
Petitioner by the investigating officers and provide
testimony to refute the Commonwealth’s claim
that the Petitioner made voluntary statements
during such interview(s) or confirm the
Petitioner’s claim that his psychological condition
at the time of the interview(s) was so impaired
that he could not understand his right to
terminate the interview, his right to counsel or
voluntarily waive counsel;

h. Trial counsel failed to request sequestration of the
jury during the course of the trial even though all
local media outlets continuously printed and/or
discussed the case, causing possible prejudice
and bias to the jurors which could not be detected
or learned by the Petitioner or his trial counsel
during the course of the trial;

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i. Trial counsel failed to seek out character
witnesses that Petitioner notified him of prior to
trial to aide in the establishment of a defense to
the charges; and trial counsel had no legitimate
strategy for such failure;

j. Trial counsel failed to adequately explain the
elements of the charges brought forth against the
Petitioner or provide a thorough explanation of
the possible plea resolutions presented by the
Commonwealth thereby preventing the Petitioner
from making a knowing, voluntary and intelligent
decision as to how to proceed in the case;

k. Trial counsel failed to request a change of venire
even though then-District Attorney Matthew
Mangino held a press conference providing details
of the crime and identifying those individuals
involved, and the local media outlets continued to
publish details of facts relating to the case;

l. Trial counsel failed to raise proper objections
during the course of the trial which allowed
hearsay statements and otherwise unreliable
and/or irrelevant evidence to be introduced to the
jury, which included testimony of witness police
officers referencing the statements of non-
testifying co-Defendants, thereby causing
irreparable prejudice to the Defendant;

m. Trial counsel, who also represented Petitioner on
appeal, failed to draft the appellate brief in a clear
and intelligent manner and in a form that allowed
the Superior Court to understand and properly
address the meritorious issues presented on
appeal; thereby leaving such challenges
unaddressed by the appellate court;

2. The trial court committed reversible error by denying the
Petitioner’s Petition for Post-Conviction Collateral Relief because
a categorical, mandatory sentence of Life Without the Possibility
of Parole is unconstitutional and in violation of the Eighth
Amendment of the United States Constitution, Article 5 of the

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Universal Declaration of Human Rights, and Article 1[,] section
13 of the Pennsylvania Constitution, particularly when a
defendant is over the age of 17 but younger than the age of 25
when the offense was committed;

3. The trial court committed reversible error by denying the
Petitioner’s Petition for Post-Conviction Collateral Relief because
a categorical, mandatory sentence of Life Without the Possibility
of Parole is unconstitutional and in violation of the 14th
Amendment of the United States Constitution because adult
offenders are no less entitled to have mitigating considerations
be applied to their individual cases than are their juvenile
counterparts, particularly when age is not a statutory factor;

4. The trial court committed reversible error by denying the
Petitioner’s Petition for Post-Conviction Collateral Relief because
the current statute that directs a sentence of Life Without the
Possibility of Parole must be declared unconstitutional based on
the Constitution and Laws of the United States and the
Constitution and Laws of this Commonwealth and, therefore, the
petitioner is entitled to a new trial with a “life-qualified jury” that
must consider the Petitioner’s age at the time of the offense
during the sentencing process;

5. Trial counsel [sic] committed reversible error by denying
Petitioner’s Petition for Post-Conviction Collateral Relief because
the Petitioner’s conviction of First Degree Murder and
subsequent sentence of Life Without the Possibility of Parole is
inconsistent with the Commonwealth’s theory of liability and
imposes a sentence which greater than the lawful maximum that
could be imposed against the Petitioner pursuant to 18 Pa.C.S.A.
§ 1102(c);

6. The trial court committed reversible error by denying Petitioner’s
Petition for Post-Conviction Collateral Relief because the statutes
of this Commonwealth governing the qualifications of counsel in
death penalty cases are constitutionally infirm and inconsistent
with the requirements and protections afforded by the United
States Code and the death penalty statutes of the majority of
states;

7. The trial court committed reversible error by denying Petitioner’s
Petitioner for Post-Conviction Collateral Relief because the

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statutes of this Commonwealth governing death penalty cases
are constitutionally infirm and inconsistent with the rights
afforded to capital defendants and the majority of states as
demonstrated by the lack of a capital defendant’s right to have
notice of his right to be appointed at least two attorneys to
represent his interests during the course of the proceedings.

Appellant’s brief at 7-11.2

In reviewing a PCRA appeal, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.” Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In performing this

review, we consider the evidence of record and the factual findings of the

PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.” Id. Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its

decision. Id. Where the issue presents a question of law, “our standard of

review is de novo and our scope of review is plenary.” Id.

Appellant’s issues 1(a) through 1(m) pertain to the effectiveness of

counsel. “To plead and prove ineffective assistance of counsel a petitioner

must establish: (1) that the underlying issue has arguable merit; (2)

counsel's actions lacked an objective reasonable basis; and (3) actual

____________________________________________

2
Although Appellant lists twenty issues, the argument section of his brief
conjoins various issues together and he presents no argument for issues j, k,
and l. Those issues are therefore waived.

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prejudice resulted from counsel's act or failure to act.” Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet

any of these aspects of the ineffectiveness test results in the claim failing.

Id.

A claim has arguable merit where the factual predicate is accurate and

“could establish cause for relief.” Id. at 707. A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id. In considering whether counsel acted reasonably, we do not use a

hindsight analysis; rather, an attorney’s decision is considered reasonable if

it effectuated his client’s interests. Id. Only where “no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success[,]” will counsel’s

strategy be considered unreasonable. Id. Finally, actual prejudice exists if

“there is a reasonable probability that, but for counsel's errors, the result of

the proceeding would have been different.” Id. It is presumed that counsel

renders effective representation.

Appellant’s initial claim is that trial counsel was ineffective for failing to

object to the trial court’s instructions on accomplice liability and first-degree

murder. In support, Appellant relies on Commonwealth v. Bachert, 453

A.2d 931 (Pa. 1982), Commonwealth v. Huffman, 638 A.2d 961 (Pa.

1994), and distinguishes this case from Commonwealth v. Bennett, 57

A.3d 1185 (Pa. 2012). In Bachert, the issue on appeal did not involve a

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challenge to a jury instruction, but a sufficiency of the evidence claim

relative to accomplice liability. Bachert had been found guilty of first-degree

murder and other crimes based on the shooting death of Thomas Welsh.

Bachert and Charles Webber had been picked up hitchhiking by the victim.

The men robbed the victim of his vehicle and shot him three times. After

the crimes, the men attempted to sell the vehicle and informed several

individuals that they had stolen the car and shot the driver. Three men

testified that Bachert repeatedly stated, "We shot a guy."

This Court reversed Bachert’s conviction, but the Supreme Court

reversed that decision. In doing so, it opined that Bachert’s repeated

statements that “We shot a guy” were sufficient to prove a specific intent to

kill. The Bachert Court reasoned, “[p]resented with defendant's admissions

that "We stole a car" and "We shot a guy," admissions of participation, it

was reasonable for the jury to infer that defendant's participation was, at a

minimum, with the intent of facilitating the commission of the murder.”

Bachert, supra at 936.

In contrast, Huffman did involve a jury instruction issue. Therein,

Huffman and his sole co-defendant were tried jointly for the murder of a

man that occurred during a burglary at the co-defendant’s place of

employment. At trial, Huffman objected to trial court's jury instruction on

vicarious liability, alleging that it failed to inform the jury that he must

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possess the specific intent to kill in order to be found guilty of first-degree

murder. The court had instructed the jury as follows.

in order to find a Defendant guilty of murder in the first degree,
you must find that the Defendant caused the death of another
person, or that an accomplice or co-conspirator caused the death
of another person. That is, you must find that the Defendant’s
act or the act of an accomplice or co-conspirator is the legal
cause of death of [the victim], and thereafter you must
determine if the killing was intentional.

Id. at 962. The Huffman Court held that the instruction improperly

suggested that the jury could find a defendant possessed the requisite

specific intent to kill based on the actions of an accomplice.

In Bennett, supra, our Supreme Court revisited Huffman, and

reversed a decision of this Court that had granted Bennett a new trial.

Bennett had conspired with four others to rob a jewelry store, and Bennett

supplied a loaded handgun for the crime. Two of Bennett’s cohorts entered

the jewelry store while Bennett remained in a getaway car with another

man. During the course of the robbery, one of the co-conspirators, Michael

Mayo, shot and killed the victim. Mayo and another individual pled guilty to

murder. Bennett and three other men were jointly tried in 1992, before

Huffman, and there was no dispute that he was not the shooter. The trial

court instructed the jury on first-degree murder, conspiracy and accomplice

liability. During PCRA review, Bennett alleged that trial counsel was

ineffective for not raising a Huffman-styled objection to the jury

instructions.

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After outlining the jury instructions in that case, the Bennett Court

opined, “[w]hen the entire jury charge is considered, including the clear

direction to the jury that it must find that each individual defendant had the

specific intent to kill before that defendant could be convicted of first-degree

murder, it is clear that the court complied with [Bachert].” Bennett, supra

at 1200.

Appellant maintains that the instructions herein were confusing

because they did not refer to Appellant having a specific intent to kill, and

instead focused on the specific intent of the actual killer. In his view, the

trial court’s instruction permitted the jury to find him guilty based on the

intent of William Monday, the individual who killed the victim. Appellant

further attacks the court’s instruction relative to conspiracy and highlights

the distinction between the 2005 revised suggested standard jury instruction

and the instruction the court provided in his case. Appellant points out that

the 2005 suggested jury instruction set forth that a member of a conspiracy

is not guilty of first-degree murder merely because he was part of a

conspiracy to commit another offense. Rather, a conspirator also must have

specific intent to kill in order to be found guilty of first-degree murder.

The court instructed the jury herein that it “may find the Defendant

guilty of the crimes as a conspirator if you are satisfied beyond a reasonable

doubt, first, that the Defendant agreed with Billy Monday and David Garvey

that he or one or both of them would commit the crimes.” N.T., 2/13/03, at

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226. Appellant submits that the PCRA court’s rationale that counsel could

not be ineffective for failing to anticipate the change to the 2005 suggested

jury instruction neglects to recognize that the change adopted the

requirements of Bachert and Huffman.

The Commonwealth counters that Bennett, supra, should control. It

argues that the jury was aware that Appellant did not stab the victim and

that the actual killer was William Monday. The Commonwealth adds that the

jury was not invited to infer that Appellant had specific intent to kill based on

Monday’s actions.

“[I]in reviewing a challenged jury instruction, an appellate court must

consider the entire charge as a whole, not merely isolated fragments, to

ascertain whether the instruction fairly conveys the legal principles at issue.”

Commonwealth v. Cook, 952 A.2d 594, 626-627 (Pa. 2008). Conspiracy

and accomplice liability instructions are not identical. See Commonwealth

v. Roebuck, 32 A.3d 613, 622-623 (Pa. 2011) (recognizing difference

between conspiracy and accomplice liability).

The trial court instructed the jury as to accomplice liability as follows:

You may find the Defendant guilty of a crime without finding that
he personally engaged in the conduct required for commission of
that crime or even that he was personally present when the
crime was committed. A Defendant is guilty of a crime if he is
an accomplice of another person who commits that crime. A
Defendant does not become an accomplice merely by being
present at the scene or knowing about a crime. He is an
accomplice if, with the intent of promotion or facilitating
commission of the crime, he solicits, commands, encourages,

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requests the other person to commit it or aides or agrees to aid
or attempts to aid the other person in planning or committing it.
However, a Defendant is not an accomplice if before the other
person commits the crime, he stops his own efforts to promote
or facilitate the commission of the crime and wholly deprives his
previous efforts of effectiveness in the commission of the crime.
You may find the Defendant guilty of a crime on the theory that
he was accomplice and as long as you’re satisfied beyond a
reasonable doubt that the crime was committed and that the
Defendant was an accomplice of the person who committed it.

N.T., 2/13/03, at 225-226.

Immediately thereafter, the trial court instructed the jury on

conspiracy liability. The instruction reads,

A Defendant may, by reason of being a member of a conspiracy,
become liable for a crime he did not personally commit. He may
be found guilty under this conspiracy theory in some situations
where he could not be convicted under an accomplice theory.
You may find the Defendant guilty of the crime as a conspirator
if you are satisfied beyond a reasonable doubt, first, that the
Defendant agreed with Billy Monday and David Garvey that he or
one or more of them would commit the crimes. Second, that the
Defendant so agreed with the intent of promoting or facilitating
the commission of the crime. Third, that while the agreement
remained in effect, the crimes were committed by Billy Monday
and David Garvey, and fourth, the crimes were committed by
Billy Monday and David Garvey in furtherance of their and the
Defendant’s common design. If you find the Defendant guilty of
either theory of accomplice or coconspirator, then you should
convict him. It is not necessary that all jurors agree on the
same theory or that all agree on whether this Defendant was an
accomplice or coconspirator rather than the active perpetrator.

Id. at 226-227.

The court continued by instructing the jury, “It is the theory of the

Commonwealth that the Defendant did not commit the actual act that killed

[S.K.] but did so as an accomplice and/or as a coconspirator.” Id. at 227.

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Subsequently, after providing instructions relative to malice and being a

direct cause of the victim’s death, the court set forth in pertinent part,

First degree murder is a murder in which the killer has the
specific intent to kill. You may find the Defendant guilty of first
degree murder if you are satisfied that the following three
elements have been proven beyond a reasonable doubt. These
are the three elements. First, that [S.K.] is dead; second, that
the Defendant killed her; and third, that the Defendant did so
with a specific intent to kill and with malice. A person has the
specific intent to kill if he has a fully formed intent to kill and is
conscious of his own intention.

Id. at 229-230.

Here, the trial court’s instruction on first-degree murder did not clarify

that Appellant was not required to be the actual killer. However, this inures

to Appellant’s benefit. The court’s instructions on accomplice and conspiracy

liability accurately reflected the law and in no manner violated Bachert or

Huffman. Those instructions made clear that Appellant could be guilty of

murder despite not having killed the victim, so long as he had the intent to

commit murder. We agree with the Commonwealth that this case is closely

analogous to Bennett, supra. In neither case was there a dispute as to

whether the defendant actually killed the victim. The jury was instructed

separately on conspiracy and accomplice liability. Those instructions did not

suggest that the defendant could be convicted of murder under those

theories without a specific intent to commit murder. Appellant’s claim fails.

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In his second and third issues, Appellant posits that trial counsel was

ineffective in declining to object to Appellant’s sentence of life imprisonment

and the trial court’s instruction on conspiracy. Appellant contends that the

trial court erred by instructing the jury that it was not required to

unanimously agree on the same vicarious liability theory. According to

Appellant, this instruction resulted in no specific finding of vicarious liability

in his case. Appellant extrapolates that, because the jury did not make a

specific finding regarding his vicarious liability, it inures to his benefit and it

should be presumed that he was found guilty as a conspirator. He continues

that under 18 Pa.C.S. § 1102(c),3 a defendant found guilty of conspiracy to

commit murder is only subject to a term of incarceration of twenty to forty

years.

Appellant maintains that, although conspiracy liability for first-degree

murder exists, those cases upholding a life sentence under such a theory did

not address § 1102(c). Under Appellant’s theory, § 1102(c) required him to
____________________________________________

3
18 Pa.C.S. § 1102(c) provides,

Notwithstanding section 1103(1) (relating to sentence of
imprisonment for felony), a person who has been convicted of
attempt, solicitation or conspiracy to commit murder, murder of
an unborn child or murder of a law enforcement officer where
serious bodily injury results may be sentenced to a term of
imprisonment which shall be fixed by the court at not more than
40 years. Where serious bodily injury does not result, the person
may be sentenced to a term of imprisonment which shall be
fixed by the court at not more than 20 years.

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J-S59013-15

be sentenced to no more than forty years incarceration for the murder

count. Appellant insists that permitting him to be sentenced to life

imprisonment results in § 1102(c) becoming meaningless because the

Commonwealth can charge a defendant with murder and seek a conviction

based on conspiratorial liability.

The Commonwealth responds that Appellant has offered no case law

in support of his position that his sentence should not have exceeded forty

years. It further opines that the trial court provided the then-prevailing

suggested standard jury instruction relative to vicarious criminal liability and

that instruction adequately explained the law relative to vicarious liability.

Finally, the Commonwealth maintains that trial counsel could not be

ineffective in failing to request that the court instruct the jury to specify

which theory of vicarious liability it used to determine guilt because counsel

cannot be ineffective for failing to create procedure.

It is well-settled that counsel cannot be deemed ineffective for failing

to anticipate a change in the law. Bennett, supra at 1201 (“counsel will

not be faulted for failing to predict a change in the law.”). Similarly, counsel

is not ineffective for not advancing a novel position that would result in a

significant change in the law. The reason Appellant cannot marshal any

legal support for his position is because there is none. Adult individuals

found guilty of first-degree murder are subject to at least a sentence of life

imprisonment without parole, even if the person is found guilty based on

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vicarious liability. Appellant’s argument that this renders moot the

punishment for conspiracy to commit murder overlooks that a person could

still be charged and found guilty of conspiracy to commit first-degree murder

where the victim is not killed, and the defendant conspired to commit a

murder. In that situation, a defendant would not be guilty of first-degree

murder. Hence, 18 Pa.C.S. § 1102(c) is not superfluous simply because a

person can be found guilty of murder based on conspiratorial liability.

Appellant’s position is without arguable merit.

The next argument Appellant levels on appeal encompasses his issues

1(d)-(g), as well as issue 1(i). Specifically, he argues that counsel was

ineffective in declining to secure funding for pre-trial preparation, including

for securing expert witnesses, failing to request the appointment of

additional co-counsel, and not presenting character witnesses. Appellant

first attacks his trial counsel as an inexperienced death penalty attorney

whose inexperience resulted in an unreliable adjudication of guilt.4 In his

view, counsel’s lack of experience and failure to request the appointment of

an additional attorney resulted in per se ineffectiveness.

Appellant cites a litany of rules and regulations from other states and

the federal courts regarding capital representation as well as guidelines from

____________________________________________

4
Appellant’s case was tried as a death penalty case; however, the jury did
not return a verdict in favor of death.

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J-S59013-15

the American Bar Association. According to Appellant, Pennsylvania’s

scheme for appointment of death-qualified trial attorneys is so deficient that

individuals who meet the minimum criteria for death penalty cases cannot

effectively represent his client.

With respect to Appellant’s position that trial counsel was per se

ineffective in failing to secure co-counsel, the Commonwealth notes that trial

counsel had eight years of experience as a public defender and twenty years

of litigation experience. It also asserts that the Pennsylvania Supreme Court

has upheld capital convictions where one attorney tried the case.

Counsel is considered per se ineffective "where there was an actual or

constructive denial of counsel, the state interfered with counsel's assistance,

or counsel had an actual conflict of interest." Commonwealth v. Reaves,

923 A.2d 1119, 1128 (Pa. 2007). In Commonwealth v. Britt, 83 A.3d 198

(Pa.Super. 2013), we marshalled case law discussing when counsel has been

held to be per se ineffective, stating:

In Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795
(Pa. 2005), our Supreme Court concluded that counsel who fails
to file a Pa.R.A.P. 1925(b) statement for purposes of a first as-
of-right direct appeal is per se ineffective. Compare
Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484 (Pa. 2011)
(failure to file a 1925(b) statement for purposes of capital PCRA
review resulted in waiver). Similarly, in Commonwealth v.
Burton, 2009 PA Super 87, 973 A.2d 428 (Pa.Super. 2009), this
Court determined that counsel's filing of an untimely Pa.R.AP.
1925(b) statement was per se ineffective.

In addition, the failure to file a requested petition for
allowance of appeal, Commonwealth v. Liebel, 573 Pa. 375,

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J-S59013-15

825 A.2d 630 (2003), or neglecting to file a requested direct
appeal, Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564,
572 (1999), has been considered to be a constructive denial of
the right to counsel. The Pennsylvania Supreme Court also has
opined that the failure to file an appellate brief constitutes
abandonment of counsel and is a newly-discovered fact for
purposes of PCRA timeliness considerations. In the PCRA arena,
where counsel fails to file either an amended PCRA petition or a
Turner/Finley no-merit letter, we have determined that counsel
constructively denied his client representation. See
Commonwealth v. Burkett, 2010 PA Super 182, 5 A.3d 1260,
1277 (Pa.Super. 2010) (collecting cases). These situations all
involve representation so deficient that the defendant was either
completely or constructively denied counsel or entirely denied
meaningful merits review.

Britt, supra at 202-203. The Britt Court continued, “where the arguments

involve an attorney's failure to adequately prepare based on neglecting to

substantively meet with his client, interview witnesses, or investigate the

matter, counsel is generally not considered per se ineffective.” Id. at 203.

Here, Appellant was not constructively or completely denied meaningful

representation due to having one attorney rather than two.

Appellant’s claim that trial counsel was per se ineffective for not seeking

additional representation is without arguable merit.

Additionally, Appellant faults counsel for not seeking funding to

procure an expert in psychology or forensic investigator. He submits that a

psychological expert would have aided with his assertions that his taped

confession was the product of coercion and undue influence. Appellant

posits that he was a young, emotional, sleep deprived and easily

manipulated individual, who was unfamiliar with the criminal justice system.

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J-S59013-15

Similarly, Appellant contends that a forensic investigator would have been

able to show that his tape-recorded confession had been erased and re-

recorded to reflect statements more in accordance with police directives.

The Commonwealth counters that Appellant has failed to identify any

expert who would have testified on behalf of Appellant. It points out that

counsel cannot be found ineffective for not finding an expert that has not

been shown to exist. Where the issue involves an attorney’s failure to call a

witness, the petitioner must prove: (i) the witness existed; (ii) the witness

was available to testify; (iii) counsel knew of, or should have known of, the

existence of the witness; (iv) the witness was willing to testify; and (v) the

absence of the testimony was so prejudicial as to have denied the defendant

a fair trial. Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011);

Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009).

Appellant’s argument pertaining to trial counsel’s alleged failure to call

expert witnesses or elicit funds for expert witnesses fails because he has not

established either the identity of the proposed witnesses or what testimony

they would provide. Appellant also contests trial counsel’s failure to present

character witnesses on his behalf. In support, he relies on Commonwealth

v. Weiss, 606 A.2d 439 (Pa. 1992). In Weiss, the defendant was convicted

of rape, statutory rape, incest, indecent assault, simple assault, endangering

the welfare of children and corruption of minors. The charges stemmed

from an allegation that he put his finger and penis into his four-year-old

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J-S59013-15

daughter’s vagina, put Cheerios in her vagina, and cut her in her genital

area with a plastic knife. The defendant also allegedly pointed a gun at the

victim when she screamed.

The victim’s mother, who was estranged from the father, discovered a

one-inch cut in her daughter’s vaginal area when bathing her. A doctor

testified that the cut was consistent with being caused by a plastic knife.

Two nurses also testified regarding the cut. The defendant presented his

two roommates, two children of the roommates, and himself. The

defendant’s father also testified that the victim had recanted. The defense

did not present any character evidence. On direct appeal, our Supreme

Court determined that the failure to present character witnesses was

ineffective assistance. In concluding the issue had arguable merit, the

Weiss Court stated, “where there are only two direct witnesses involved,

credibility of the witnesses is of paramount importance, and character

evidence is critical to the jury's determination of credibility. Evidence of

good character is substantive, not mere makeweight evidence, and may, in

and of itself, create a reasonable doubt of guilt and, thus, require a verdict

of not guilty.” Id. at 442.

The Court then determined that counsel’s decision not to present

character witnesses “was not a tactical one made after weighing all of the

alternatives, but was based on the fact that he had failed to interview and

prepare potential character witnesses, and consult with his client thereto.”

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J-S59013-15

Id. at 443. Finally, the Weiss Court held that the defendant established

prejudice, stating,

Whereas the defense did not attempt to refute the physical
findings, the evidence regarding the perpetrator boiled down to
appellant's word against the word of his wife and daughter. The
only issue then, was whether appellant or someone else was
responsible for what happened. Considering there was no
overwhelming evidence of guilt in this case, credibility of the
witnesses was of paramount importance, and counsel's error not
to employ character witnesses, familial or otherwise, undermined
appellant's chances of instilling reasonable doubt in the minds of
the jury and resulted in prejudice to appellant.

Id. (footnote omitted).

Appellant asserts that character witnesses were available, although he

does not identify them, and that they could have offered testimony that

would have refuted the Commonwealth’s theory that Appellant had a long-

standing and well-thought out plan to commit the crimes herein. He

concludes by stating that failing to find counsel ineffective will “leave a

twenty year old child imprisoned for the remainder of his natural life.”

Appellant’s brief at 41.

The Commonwealth responds by highlighting that Appellant did not

reference the proposed testimony of any potential character witness and did

not present in his petition or hearings such testimony. As previously

discussed, a failure-to-call-a-witness claim requires the petitioner to at least

proffer who the witnesses are and what their testimony would be. Appellant

has failed to meet even the basic elements of a failure to call a witness

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J-S59013-15

claim. Accordingly, his issue fails. Further, his reliance on Weiss, supra, is

grossly misplaced. That case involved a matter where the defendant’s guilt

hinged on the credibility of his accuser. The evidence in this matter

implicating Appellant is far more significant than that in Weiss.

Appellant’s next claim is that appellate counsel was ineffective by filing

a deficient brief in his reinstated direct appeal. Appellant highlights that the

prior panel in this matter chastised counsel for the inadequacies of his brief.

In Appellant’s view, appellate counsel’s brief was so deficient that this Court

“was unable to address the meritorious challenges available[.]” Appellant’s

brief at 41. He continues that the panel either mischaracterized his

arguments or did not address the merits of his position. Appellant maintains

that one need only read this Court’s prior opinion to determine that appellate

counsel was ineffective.

Appellant does not actually provide argument relative to the issues he

advanced on direct appeal that he believes would show that his conviction

was infirm. Instead, he chastises the PCRA court for concluding that,

because this Court addressed the issues Appellant raised, he was not

entitled to relief. Appellant argues, without legal support, that he is entitled

to the reinstatement of his direct appeal rights.

The Commonwealth rejoins that while this Court critiqued Appellant’s

brief, he was not constructively or completely denied counsel during his

direct appeal. It notes that this Court addressed the issues Appellant raised

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J-S59013-15

and decided his appeal on the merits. The Commonwealth relies on

Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), for the

proposition that where a petitioner alleges that appellate counsel

ineffectively raised certain claims, but does not develop how counsel should

have addressed the issues, he is not entitled to relief.

A petitioner is not entitled to reinstatement of his appellate rights

where this Court addressed the merits of some of his issues raised in his

direct appeal. Commonwealth v. Burkett, 5 A.3d 1260, 1271 (Pa.Super.

2010); Commonwealth v. Pulanco, 954 A.2d 639 (Pa.Super. 2008). As

we outlined in Burkett, “our Supreme Court has held that the filing of a

deficient brief does not warrant a presumption of prejudice.

Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216 (Pa. 2009).”

Burkett, supra at 1271. Only where the brief is so deficient that this Court

cannot conduct any review of the issues presented is counsel considered per

se ineffective, entitling the petitioner to reinstatement of his appellate rights

without a showing of actual prejudice. See Commonwealth v. Fink, 24

A.3d 426 (Pa.Super. 2011); Commonwealth v. Franklin, 823 A.2d 906

(Pa.Super. 2003). Since Appellant was not completely denied appellate

review and he fails to advance any argument relative to the issues that he

believes were ineffectively briefed during his appeal, he is not entitled to

relief.

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Appellant’s remaining claims, except for his final issue, all pertain to

the legality of his sentence of life imprisonment without parole. First,

Appellant asserts that a sentence of life imprisonment without parole

violates his Eighth and Fourteenth Amendment rights. Appellant argues that

the United States Supreme Court plurality decision in Woodson v. North

Carolina, 428 U.S. 280 (1976) (plurality), when read in conjunction with

Miller v. Alabama, 132 S.Ct. 2455 (2012), precludes a mandatory

sentence of life imprisonment without parole.

In Woodson, a plurality of the United States Supreme Court

determined that a mandatory sentence of death for a first-degree murder

violated the Eighth Amendment.5 In Miller, supra, the Supreme Court

held that “mandatory life without parole for those under the age of 18 at the

time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishment.’” Id. at 2460. In doing so, the Miller Court relied

on two separate lines of precedent. The Court reasoned,

The cases before us implicate two strands of precedent reflecting
our concern with proportionate punishment. The first has adopted
categorical bans on sentencing practices based on mismatches
between the culpability of a class of offenders and the severity of
a penalty. See Graham, 560 U.S., at ––––, 130 S.Ct., at 2022–
2023 (listing cases). So, for example, we have held that
imposing the death penalty for nonhomicide crimes against
____________________________________________

5
Three justices agreed in the rationale and Justices Brennan and Marshall
concurred and would have held that the Eighth Amendment prohibits the
death penalty under all circumstances.

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J-S59013-15

individuals, or imposing it on mentally retarded defendants,
violates the Eighth Amendment. See Kennedy v. Louisiana,
554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008); Atkins
v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002). Several of the cases in this group have specially focused
on juvenile offenders, because of their lesser culpability. Thus,
Roper [v. Simmons, 543 U.S. 551 (2005),] held that the Eighth
Amendment bars capital punishment for children, and Graham
concluded that the Amendment also prohibits a sentence of life
without the possibility of parole for a child who committed a
nonhomicide offense. Graham further likened life without parole
for juveniles to the death penalty itself, thereby evoking a second
line of our precedents. In those cases, we have prohibited
mandatory imposition of capital punishment, requiring that
sentencing authorities consider the characteristics of a defendant
and the details of his offense before sentencing him to death.
See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978,
49 L.Ed.2d 944 (1976) (plurality opinion); Lockett v. Ohio, 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Here, the
confluence of these two lines of precedent leads to the conclusion
that mandatory life-without-parole sentences for juveniles violate
the Eighth Amendment.

Id. at 2463-2464.

The Court reiterated its Roper and Graham observations that

juveniles are emotionally and mentally different from adults in key respects,

rendering them more amenable to rehabilitation. It then stated that the

Graham rationale “implicates any life-without-parole sentence imposed on a

juvenile[.]” Id. at 2477. It further compared mandatory life without parole

sentences for juveniles to the death penalty and considered them closely

analogous. In conclusion, the majority stated, “Graham, Roper, and our

individualized sentencing decisions make clear that a judge or jury must

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have the opportunity to consider mitigating circumstances before imposing

the harshest possible penalty for juveniles.” Id. at 2475.

Appellant relies on Miller, supra, and contends that its rationale

applies equally to adult defendants who are twenty-one years old and under.

Appellant posits that modern science demonstrates that at the time he

committed the crime, his brain was not fully developed because he had not

yet attained the age of twenty-five. He notes that a person must be twenty-

five years old to be elected to the United States House of Representatives

and the Pennsylvania State Senate. Appellant adds that a person must be

twenty-one years of age to serve as a Pennsylvania state representative and

purchase and consume alcohol. He also posits that most rental car agencies

require a person to be at least twenty-five years old to rent a car. Thus,

Appellant maintains that 42 Pa.C.S. § 9711, governing sentencing

procedures in capital cases, is unconstitutional under both the federal and

Pennsylvania constitutions.

There is little dispute that the original meaning of the cruel and

unusual punishments clause prohibited only torturous methods of

punishment. See Harmelin v. Michigan, 501 U.S. 957, 979 (1991). As

Justice Thomas noted in his dissenting opinion in Graham, that

understanding was applied “for nearly 170 years after the Eighth

Amendment’s ratification.” Graham, supra at 2044 (Thomas, J.

dissenting). There is no evidence that the clause was originally understood

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J-S59013-15

to prohibit life sentences or even the death penalty. See Harmelin, supra

at 975-985. Of course, the High Court has expanded its Eighth Amendment

jurisprudence to reflect what it has labeled as evolving standards of decency.

See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion of Warren,

C.J.).

The United States Supreme Court has delineated that a court must

consider “objective indicia of society’s standards, as expressed in legislative

enactments and state practice to determine whether there is a national

consensus against the sentencing practice at issue.” Graham, supra at

2022 (citing Roper, supra at 572 (2005)) (internal quotations omitted). In

addition, a court “must determine in the exercise of its own independent

judgment whether the punishment in question violates the Constitution.”

Id.

No state court or federal court has seen fit to reject as unconstitutional

mandatory life without parole sentences for adults convicted of homicide

because they have not yet attained the age of twenty-five. Neither

Woodson nor Miller hold that mandatory life imprisonment sentences for

adult homicide defendants are unconstitutional. Moreover, the Pennsylvania

Supreme Court has declared that “novel” Eighth Amendment claims do not

entitle PCRA petitioners to relief. Commonwealth v. Robinson, 82 A.3d

998 (Pa. 2013). Accordingly, Appellant’s issue fails.

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Appellant’s final claim is similar to arguments he advanced with

respect to trial counsel being per se ineffective. Appellant sets forth that

Pa.R.Crim.P. 801, governing death qualified attorneys, affords lesser

protections than federal law, since federal law requires a capital defendant to

be told that he has the right to two appointed lawyers. He proffers that

there is no evidence that trial counsel ever represented a person charged

with murder, yet he met the minimum Pennsylvania requirements of being

death penalty certified. In his view, Pennsylvania’s requirements for death

penalty attorneys violates the Sixth and Fourteenth Amendments as well as

Article I, § 9 of the Pennsylvania Constitution.

The Commonwealth acknowledges that federal statutory law mandates

the appointment of two attorneys in federal capital cases, but posits that the

law is not a constitutional requirement. It maintains that trial counsel

satisfied the requirements of capital counsel at the time of Appellant’s trial

and that the current version of Rule 801 does not apply retroactively.

To the extent that Appellant does not raise this issue under the rubric

of ineffective assistance of counsel, it is waived. 42 Pa.C.S. § 9544(b).

Moreover, Appellant fails to cite any legal authority for the proposition that

failure to have the assistance of multiple attorneys during a capital case

violates the federal and state constitutional requirements that counsel be

appointed. Thus, his position fails for this additional reason.

Order affirmed.

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J-S59013-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2015

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