J-S24009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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.



____________________________________
* 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
____________________________________________


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
____________________________________________


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

____________________________________________


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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