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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GIOVANNI REID :
:
Appellant : No. 1702 EDA 2017
Appeal from the Judgment of Sentence April 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0933203-1991
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MAY 24, 2019
Giovanni Reid appeals, pro se, from his judgment of sentence, imposed
in the Court of Common Pleas of Philadelphia County, after he was
resentenced pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).1 Upon review, we affirm.
In 1991, Reid and others robbed a man in South Philadelphia. During
the course of the robbery, one of Reid’s co-conspirators shot and killed the
man. At the time of the offense, Reid was 16 years, 8 months old. On January
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1 In Miller, the Supreme Court recognized a constitutional right for individuals
under the age of 18, holding that “mandatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition against ‘cruel and unusual punishments.’” Miller,
567 U.S. at 465. In Montgomery, the Court made its holding in Miller
retroactive.
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* Former Justice specially assigned to the Superior Court.
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27, 1993, Reid was convicted of second-degree murder, conspiracy, and
robbery, and on June 23, 1993, he was sentenced to life imprisonment without
the possibility of parole.2 This Court affirmed Reid’s judgment of sentence,
and Reid did not seek allowance of appeal from our Supreme Court.
Unsuccessful post-conviction proceedings in both state and federal court
followed, which are not relevant to this appeal.
On March 11, 2016, Reid filed the instant PCRA petition, in which he
sought resentencing pursuant to Miller and Montgomery. Following
negotiations with the Commonwealth, Reid agreed to accept the
Commonwealth’s recommended sentence of 25 years’ to life imprisonment.
The trial court imposed sentence in accordance with that agreement on April
20, 2017.
On May 15, 2017, Reid filed a timely pro se notice of appeal and motion
to proceed in forma pauperis. Thereafter, Reid’s counsel of record filed a
motion to withdraw as counsel. By order dated July 10, 2017, this Court
directed the trial court to conduct a Grazier3 hearing to determine whether
Reid desired to proceed pro se and, if so, whether his decision was knowing,
intelligent and voluntary. The trial court held a Grazier hearing on August 3,
2017, after which it determined that Reid “understood his right to counsel and
voluntarily, knowingly, and intelligently waived [that] right.” Trial Court
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2 Reid also received concurrent sentences of 10 to 20 years’ incarceration for
robbery and 5 to 10 years’ incarceration for conspiracy.
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Opinion, 10/6/17, at 4. Thereafter, Reid filed a timely court-ordered concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Reid raises the following issues for our review:
1. Is the imposition of a maximum sentence of life for second
[-]degree murder unconstitutional for a juvenile pursuant to the
United States Constitution and the like provisions under the
Pennsylvania Constitution?
2. Does the Commonwealth’s record admissions and the adoption
of a non-liability statement render [Reid’s] maximum life sentence
unconstitutional?
Brief of Appellant, at 4.
Reid first claims that his mandatory maximum sentence of life
imprisonment is illegal under Miller.4 When reviewing challenges to the
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4 We note that Reid presents scant original argument on this claim, instead
opting to incorporate into his brief, by reference, arguments put forth by the
Commonwealth in its Appellee’s brief in another matter. See
Commonwealth v. Ligon, -- A.3d --, 2019 PA Super 96 (Pa. Super. 2019).
Our Supreme Court has held that such “incorporation by reference” is an
unacceptable manner of appellate advocacy. See Commonwealth v.
Edmiston, 634 A.2d 1078, 1092 n. 3 (Pa. 1993) (specifying that all claims a
litigant desires court to consider are required to be set forth in appellate brief
and not just incorporated by reference). Rather, the Rules of Appellate
Procedure specifically require a party to set forth in his brief “discussion and
citation of authorities as are deemed pertinent,” as well as citations to statutes
and opinions of appellate courts and “the principle for which they are cited,”
Pa.R.A.P. 2119(a), (b), and do not allow incorporation by reference of
arguments contained in briefs filed in other matters as a substitute for the
proper presentation of arguments in the body of the appellate brief.
Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011). To the extent that
an appellant fails to develop his arguments in accordance with the rules and
instead attempts to incorporate another party’s argument by reference, we
may deem his claim waived. See id. Accordingly, we will only consider the
arguments actually set forth in the body of Reid’s appellate brief.
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legality of a sentence, our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super.
2017).
Reid argues that, because the imposition of a mandatory maximum
sentence of life imprisonment does not allow for individualized sentences that
consider all the relevant sentencing factors, his maximum sentence is
unconstitutional pursuant to Miller. The Commonwealth agrees with Reid’s
assertion.5 However, this Court, in Ligon, supra, rejected an argument
identical to Reid’s. Observing that Miller “did not hold that life sentences
without parole eligibility are unconstitutional, or that juvenile murderers must
be released at some point regardless of their fitness to rejoin society,” the
Ligon Court concluded that “a sentence with a term of years minimum and a
maximum sentence of life does not violate Miller’s individualized sentencing
requirement[.]” Ligon, supra at *3. Because we are bound by that
precedent, Reid is entitled to no relief.
Reid’s second and final claim is that his maximum sentence is illegal
because the facts relied upon by the Commonwealth during his resentencing
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5 In its brief, the Commonwealth acknowledges that our Court “has repeatedly
held that sentencing a juvenile defendant convicted of first- or second-degree
murder to a maximum term of life imprisonment is fully consistent with the
law.” Brief of Appellee, at 8. For that reason, the Commonwealth does not
argue that Reid should be resentenced on the basis that his sentence is
unconstitutional. Nevertheless, because the Commonwealth takes the
position that a mandatory maximum sentence of life imprisonment is, in fact,
unconstitutional, it presents its argument in support therof to “preserve it for
further review.” Id. at 9.
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hearing did not provide “an accurate description of the evidence as far as
[Reid’s] involvement [in the murder] is concerned.” Brief of Appellant, at 10.
Reid argues that the evidence demonstrates that the victim’s death “did not
occur in the course of, or in furtherance of[,] the underlying felony[,] i.e.,
robbery.” Id. at 12. Accordingly, because he believes his conviction for
second-degree murder is infirm, Reid asserts that his sentence is
unconstitutional under Graham v. Florida, 560 U.S. 48 (2010), in which the
United States Supreme Court held that the Eighth Amendment prohibits
imposition of life without parole sentences on juvenile offenders who did not
commit homicide. This claim is meritless.
Although Reid frames his claim as a challenge to the legality of his
sentence, the substance of his argument actually constitutes a challenge to
his underlying conviction of second-degree murder. However, Reid’s relief
under the PCRA was limited to resentencing pursuant to Miller, and did not
involve the grant of a new trial. Accordingly, because he cannot challenge his
underlying conviction in these proceedings, he is not entitled to relief under
Graham.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/19
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