J-S24003-17
2017 PA Super 173
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVON KNOX
Appellant No. 1937 WDA 2015
Appeal from the Judgment of Sentence September 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010088-2007
BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, J. FILED JUNE 5, 2017
In 2007, Appellant, Devon Knox, then 17 years old, and his twin
brother, Jovon, attempted to carjack Jehru Donaldson. Donaldson drove
away from the attempt, but one of the brothers fatally shot Donaldson
before the two fled the scene. A jury ultimately convicted Devon of second-
degree murder, and he was sentenced to life imprisonment without
possibility of parole. In 2012, this Court vacated the sentence pursuant to
Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that sentencing a
juvenile to life without parole constituted cruel and unusual punishment and
was therefore unconstitutional. The trial court subsequently sentenced
Devon to a term of imprisonment of 35 years to life.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S24003-17
In this appeal from his judgment of sentence, Devon argues that prior
appellate counsel was ineffective for failing to challenge the sufficiency of the
evidence to support his conviction for second-degree murder. He also
contends that the trial court’s sentence was an abuse of its discretionary
powers. We conclude that Devon has failed to establish that his claim of
ineffectiveness of prior appellate counsel is entitled to unitary review on
direct appeal. Furthermore, we cannot conclude that the trial court abused
its discretion in imposing sentence. We therefore affirm.
In his first issue on appeal, Devon asserts that the evidence at trial
was insufficient to sustain his verdict for second-degree murder. While we
conclude that we cannot reach this issue on direct appeal, a brief review of
the standards involved in addressing this issue and the evidence presented
by the Commonwealth at trial are necessary to understand Devon’s claim.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
-2-
J-S24003-17
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder.
See id. “As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.” Commonwealth v. Kinney, 863
A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “unless the evidence is so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the combined
circumstances.” Bruce, 916 A.2d at 661 (citation omitted).
At trial, the Commonwealth presented testimony from two
eyewitnesses to the attempted carjacking. Two juvenile witnesses identified
the twin brothers as the carjackers. The witnesses’ testimony on which
brother fired the fatal shots, however, was inconsistent. The younger
witness first testified that Jovon was the shooter. See N.T., Jury Trial, 6/3-
4/08, at 154-156. This identification was based off his perception that Jovon
had a lighter complexion than his brother. See id. However, he conceded
that he had previously identified Devon as the shooter, and that “it [was]
real hard to tell the difference between” the twins. Id., at 180-181.
The older eyewitness was unable to differentiate between the twins at
trial. See id., at 298-299. This witness also believed that the lighter-skinned
-3-
J-S24003-17
twin was the shooter. See id., at 300. However, he identified Devon as the
lighter-skinned twin. See id.
During closing arguments, the prosecutor noted that the eyewitnesses
had presented conflicting testimony as to which one of the twins was the
shooter. See id., at 427-428. He argued, however, that the issue was only
relevant to the charge of first-degree murder. See id., at 428. He told the
jury that the identity of the shooter was irrelevant to the charge of second-
degree murder, so long as the jury believed that both brothers were
engaged in the act of robbing Donaldson. See id., at 436.
On appeal, Devon concedes that, if the jury had convicted him of being
the shooter, the evidence at trial was sufficient to sustain his conviction. He
contends, however, that the evidence was insufficient to establish his
conviction for second-degree murder according to the following chain of
logic. Devon contends that, given the lack of a specific jury finding on the
issue of the identity of the shooter, we cannot assume that he was the
shooter. If he was not the shooter, Devon argues that he could only be
convicted of second-degree murder if the jury found that Jovon’s action in
bringing the gun and shooting Donaldson were natural and foreseeable
consequences of the twins’ plan to carjack Donaldson. He believes that they
were not.
However, Devon acknowledges that this issue has been waived for
purposes of this direct appeal from re-sentencing. See, e.g.,
-4-
J-S24003-17
Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002). He
thus argues that his original appellate counsel, who secured the vacation of
his original sentence on direct appeal, was ineffective for failing to raise this
issue in the prior appeal. Devon further acknowledges that the issue of
appellate counsel’s ineffectiveness raises new issues regarding our ability to
entertain the issue on direct appeal.
Generally, claims of ineffectiveness of counsel are not ripe until
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013). However, in extraordinary cases where the trial court determines that
the claim of ineffectiveness is “both meritorious and apparent from the
record,” it may exercise its discretion to consider the claim in a post-
sentence motion. Id., at 577.
In Holmes, the Supreme Court of Pennsylvania explicitly identified
ineffectiveness claims as “presumptively reserved for collateral attack[.]”
Id., at 577 n.10. The Court warned against trial courts appointing “new
counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while
the trial court retains discretion in addressing such claims, the presumption
weighs heavily in favor of deferring such claims to collateral review.
Further, the Court justified the creation of the “meritorious and
apparent from the record” exception by explaining that “[t]he administration
of criminal justice is better served by allowing trial judges to retain the
discretion to consider and vindicate such distinct claims of ineffectiveness[.]”
-5-
J-S24003-17
Id., at 577 (emphasis added). Most importantly, the Court required an
express waiver of the right to file a first, timely PCRA petition. See id., at
579.
Here, Devon argues that his claim is both meritorious and apparent
from the record. However, he has failed to expressly forgo his right to file a
timely, first PCRA petition. He raised this issue for the first time in his
Pa.R.A.P. 1925(b) statement. And the trial court declined to review the issue
on its merits, noting that this claim should await resolution on collateral
review. See Trial Court Opinion, 7/14/16, at 8. We cannot conclude that this
reasoning was an abuse of the trial court’s discretion. This claim of prior
counsel’s ineffectiveness is not ripe in this direct appeal. Devon’s first
argument on appeal merits no relief.
In his second issue, Devon argues that the trial court imposed a
“manifestly excessive” minimum sentence of 35 years. He concedes that this
claim implicates the discretionary aspects of his sentence. See Appellant’s
Brief, at 12. “A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
-6-
J-S24003-17
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Devon preserved his issue through a timely motion for
reconsideration of the sentence imposed after remand,1 and filed a timely
appeal. He has included the required Rule 2119(f) statement. We therefore
review his Rule 2119(f) statement to determine if he has raised a substantial
question.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. (citation
omitted); see also Pa.R.A.P. 2119(f).
____________________________________________
1
The Commonwealth contends that Devon did not preserve his challenge
based upon the alleged excessiveness of the sentence in his post-sentence
motion. However, the Commonwealth concedes that Devon has preserved
his argument that the trial court imposed the sentence without considering
any factor other than the seriousness of the crime. After reviewing the Rule
2119(f) statement, we conclude that Devon is raising only the single issue
that we address below and that he has properly preserved it under the
specific circumstances of this case.
-7-
J-S24003-17
Devon “must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” McAfee,
849 A.2d at 274 (citation omitted). That is, “the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process.”
Tirado, 870 A.2d at 365. Devon’s claim that the trial court focused
exclusively on the seriousness of the crime while ignoring other, mitigating
circumstances, such as his mental health history and difficult childhood,
raises a substantial question. See Commonwealth v. Caldwell, 117 A.3d
763, 770 (Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa.
2015).
As a prefatory matter, we must address Devon’s assertion that there
were no relevant guidelines in place at the time of re-sentencing. Once
again, this issue requires some context. When this Court vacated and
remanded his initial sentence of life without parole, there were no
sentencing guidelines in place for his conviction of second-degree murder;
life without parole was mandated under the then-existing scheme. The
legislative and sentencing commission’s responses to Miller were both
effective only for convictions that occurred after June 24, 2012; Devon was
convicted in June 2008.
Therefore, the sentencing guidelines provide no guidance regarding
the appropriate minimum sentence or the factors that were to be considered
-8-
J-S24003-17
at re-sentencing. Nor was there any direct statutory guidance. The trial
court’s discretion was thus to be exercised in accordance with
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). In Batts, the
Pennsylvania Supreme Court held that a trial court,
[a]t a minimum … should consider a juvenile’s age at the time of
the offense, his diminished culpability and capacity for change,
the circumstances of the crime, the extent of his participation in
the crime, his family, home and neighborhood environment, his
emotional maturity and development, the extent that familial
and/or peer pressure may have affected him, his past exposure
to violence, his drug and alcohol history, his ability to deal with
the police, his capacity to assist his attorney, his mental health
history, and his potential for rehabilitation.
Id., at 297.
At re-sentencing, the trial court was provided with a pre-sentence
investigation report (“PSI”). Furthermore, Devon conceded that he had an
extensive juvenile delinquency history, including incidents where he had
possessed firearms. See N.T., Sentencing Hearing, 9/30/2015, at 2. He did
not respond well to supervision in the juvenile system. See id. Devon
admitted that he had not had an exemplary record while imprisoned on this
conviction, but argued that his record improved as he had matured. See id.,
at 4. In response, the Commonwealth presented the testimony of the
victim’s father, Jay Donaldson, who testified to the severe impact of the
crime.
Where the sentencing court had the benefit of reviewing a PSI, we
must
-9-
J-S24003-17
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted).
In addition to the PSI, the trial court had the benefit of testimony from
Devon, as well as the victim’s father. Devon does not point to any deficiency
in the content of the PSI. While it is clear that Devon had mental health
issues and suffered an extremely difficult childhood, there is no indication
that the trial court completely disregarded these circumstances when
imposing sentence. We therefore conclude that the trial court considered the
age-appropriate factors when re-sentencing Devon, and therefore did not
abuse its discretion. Under all the circumstances, the sentence imposed was
not unreasonable, and Devon’s second and final issue on appeal merits no
relief.
Judgment of sentence affirmed.
- 10 -
J-S24003-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
- 11 -