J-S63021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAFIK STILES                               :
                                               :
                       Appellant               :   No. 497 EDA 2018

                 Appeal from the PCRA Order January 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001997-2013,
                           CP-51-CR-0005681-2013

BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 10, 2019

        Rafik Stiles (Appellant) appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The PCRA court summarized the pertinent facts and procedural history:

           On October 24, 2014, a jury found [Appellant] guilty of two
        counts of first-degree murder, and two counts of Violation of the
        Uniform Firearms Act (VUFA) § 6106. On April 28, 2015, after a
        hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012),
        [Appellant] was sentenced to forty years to life imprisonment for
        the first-degree murder of Kyle Featherstone; [40] years to life
        imprisonment for the first-degree murder of Barbara Crowder;
        and a concurrent sentence of two-and-one half to five years for
        each VUFA conviction. [Appellant] was sentenced to an aggregate
        sentence of forty years to life.

           On July 19, 2016, the Superior Court affirmed this [c]ourt’s
        judgment of sentence. [See Commonwealth v. Stiles, 143 A.3d
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S63021-19


     968 (Pa. Super. 2016)]. On December 6, 2016, the Pennsylvania
     Supreme Court denied allocatur.

        On May 25, 2017, [Appellant] filed a timely pro se PCRA
     petition. PCRA counsel was appointed to represent [Appellant].
     On October 26, 2017, PCRA counsel filed [a petition to withdraw
     as counsel and a no-merit letter pursuant to Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v.
     Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)].

                               *     *     *

        On December 21, 2017, this [c]ourt . . . sent [Appellant] a
     Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907
     of Intent to Dismiss. On January 09, 2018, [Appellant] filed
     “Petitioner’s Pro Se Motion for Leave to Amend and Objections to
     the Notice of Intent to Dismiss.”

        . . . On January 22, 2018, this [c]ourt denied [Appellant]’s
     motion, formally dismissed the PCRA and permitted PCRA counsel
     to withdraw. On February 17, 2018, [Appellant] filed a [pro se]
     notice of appeal to the Superior Court. On March 12, 2018, the
     Petitioner filed a 1925(b) Statement of Matters Complained of on
     Appeal. On May 18, 2018, this [c]ourt filed its Opinion.

        On January 24, 2019, the Superior Court issued an Order (1)
     directing this [c]ourt to provide [Appellant] with copies of the
     notes of testimony and other documents; (2) permitting the
     [Appellant] to file a supplemental 1925(b) Statement; and (3)
     directing this Court to file a supplemental Opinion. All documents
     were sent to [Appellant] on February 5, 2018.

         On February 25, 2019, [Appellant] filed a “Final Statement of
     Matters Complained of on Appeal Pursuant to Pa.R.Crim.P. Rule
     1925(b).” In that 1925 (b) Statement, [Appellant] directs: “that
     no claim from his March 12, 2018, 1925(b) Statement will be
     litigated and that his amended claims were all contained in his
     amended 1925 (b) statement dated 10/29/18.”




                                   -2-
J-S63021-19


PCRA Court Supplemental Opinion, 4/16/19, at 1-3 (footnotes omitted).1

       On appeal, Appellant presents the following issues for review:

       I.    Trial Counsel was ineffective pursuant to the Strickland
       standard for failing to request/file a Motion to Remove From
       Criminal Proceedings and request for an expert witness to
       evaluate [Appellant] since he was seventeen (17) years of age at
       the time of the crime and pursuant to 42 Pa.C.S.A. § 6322. Such
       proceedings can be instituted, thus, the failure violated
       [Appellant]’s Sixth and [Fourteenth] Amendment Rights.

       II.  Pursuant to the compulsory process of the Sixth
       Amendment, trial counsel rendered ineffective for failing to
       request that an expert witness evaluate [Appellant] since he was
       a juvenile at the time of the crime and was eligible for such
       proceedings pursuant to 42 Pa.C.S.A. § 6322.

       III. Pursuant to the Eighth and Fourteenth Amendments,
       [Appellant] posits that 18 Pa.C.S.A. § 1102.1 is unconstitutional
       on its face as it violates the fundamental principles of Miller v.
       Alabama, 567 U.S. 460 (2012). Moreover, the sentence imposed
       in light of Section 1102.1 (forty (40) to Life) violates the
       prohibition of Miller regarding a mandatory sentencing scheme
       since the plain language of Section 1102.1 contains mandatory
       language that forces the sentencer [sic] to impose a mandatory
       minimum sentence, thus, violating Miller and creating an illegal
       sentence.

       IV.   Direct Appeal Counsel was ineffective for failing to properly
       develop, in [Appellant]’s first direct appeal as of right, the claim
       challenging the sufficiency of the evidence to sustain the
       conviction of First[-]Degree Murder when he failed to include the
       specific elements he was challenging in the initial 1925(b)


____________________________________________


1  On February 17, 2018, Appellant filed a single notice of appeal from the
two, separate judgments of sentence, which the trial judge entered at two,
separate docket numbers. In Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), the Supreme Court of Pennsylvania held that a single notice of appeal
does not suffice for appeals from multiple dockets. The Walker Court,
however, applied its decision only prospectively. Here, Appellant’s appeal
predates Walker by several months. Thus, Walker is inapplicable.

                                           -3-
J-S63021-19


      Statement, thus, allowing the Superior Court to deem the claim
      waived and not address the merits.

      V.    Trial Counsel was ineffective, pursuant to the Strickland
      standard, when he failed to request, pursuant to Commonwealth
      v. Walker, 92 A.3d 766 (Pa. 2014)[,] an identification expert to
      establish whether under the circumstances of the identification of
      at least four (4) witnesses, the procedures were duly suggestive.

Appellant’s Brief at 6.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Appellant’s first, second, and fifth issues each allege ineffective

assistance of Trial Counsel. As the PCRA court, the Commonwealth, and the

record indicate, Appellant did not raise these issues in his PCRA petition or his

response to the PCRA court’s Rule 907 notice, and thus, he raises them for

the first time on appeal. See PCRA Court Supplemental Opinion, 4/16/19, at

13-14; Commonwealth’s Brief at 5; PCRA Petition, 5/25/17; [Appellant]’s Pro

Se Motion for Leave to Amend and Objections to the Notice of Intent to

Dismiss, 1/9/18. “It is well-settled that issues not raised in a PCRA petition

cannot be considered on appeal.” Commonwealth v. Ousley, 21 A.3d 1238,

1242 (Pa. 2011) (quotations and citations omitted); see also Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

                                      -4-
J-S63021-19


for the first time on appeal.”). Accordingly, as Appellant did not raise his first,

second, and fifth issues before the PCRA court, he has waived them on appeal.

      For his third issue, Appellant argues that 18 Pa.C.S.A. § 1102.1, the

statute pursuant to which the trial court sentenced Appellant to 40 years to

life imprisonment, is unconstitutional. Appellant asserts that Section 1102.1

is unconstitutional because it sets forth a mandatory sentencing scheme for

juveniles who commit murder in violation of Miller v. Alabama, 567 U.S. 460

(2012). Consequently, Appellant contends that his sentence is illegal.

      Section 1102.1 governs the sentencing of individuals under the age of

18 for murder and states, in pertinent part, as follows:

      § 1102.1. Sentence of persons under the age of 18 for
      murder, murder of an unborn child and murder of a law
      enforcement officer

      (a) First degree murder.--A person who has been convicted
      after June 24, 2012, of a murder of the first degree, first degree
      murder of an unborn child or murder of a law enforcement officer
      of the first degree and who was under the age of 18 at the time
      of the commission of the offense shall be sentenced as follows:

         (1) A person who at the time of the commission of the offense
         was 15 years of age or older shall be sentenced to a term of
         life imprisonment without parole, or a term of imprisonment,
         the minimum of which shall be at least 35 years to life.

18 Pa.C.S.A. § 1102.1(a)(1).

      In Miller, the United States 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 punishments.’”

Miller, 567 U.S. at 465. This Court, however, has held that Section 1102.1

                                       -5-
J-S63021-19


is not unconstitutional under Miller. See Commonwealth v. Lawrence, 99

A.3d 116, 122 (Pa. Super. 2014).

      In Lawrence, we explained:

          Miller is limited to legislative schemes which “require[ed] that
      all children convicted of homicide receive lifetime incarceration
      without possibility of parole, regardless of their age and age-
      related characteristics and the nature of their crimes[.]” Miller,
      supra. Section 1102.1 does not contain such a sentencing
      scheme. In fact, Section 1102.1(d) does require the trial court to
      consider various age-related factors before the trial court may
      impose a sentence of life without parole. See 18 Pa.C.S.A. §
      1102.1(d).

         We do not read Miller to mean that the Eighth Amendment
      categorically prohibits a state from imposing a mandatory
      minimum imprisonment sentence upon a juvenile convicted of a
      crime as serious as first-degree murder.

                                 *     *     *

         Even under Miller, a state still may impose life without parole
      for homicide offenses, preventing a juvenile like Appellant, from
      ever obtaining any hope of release from confinement. Based on
      these considerations, we conclude that Section 1102.1 does not
      offend the Cruel and Unusual Punishment Clause of the Eighth
      Amendment.

Id. at 121-22 (footnotes and some citations omitted).

      Thus, because this Court has held that Section 1102.1 is not

unconstitutional under Miller, Appellant’s sentence of 40 years to life

imprisonment is not illegal. Accordingly, Appellant’s third issue fails.

      Finally, for his fourth issue, Appellant argues that Appellate Counsel was

ineffective for failing to preserve his challenge to the sufficiency of the

evidence for his first-degree murder convictions for review on direct appeal.


                                      -6-
J-S63021-19


Appellant asserts that there was insufficient evidence to prove that he was the

individual who shot and killed both Featherstone and Crowder.

      With respect to ineffective assistance of counsel claims, our Supreme

Court has stated:

      It is well-settled that counsel is presumed to have been effective
      and that the petitioner bears the burden of proving counsel’s
      alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
      655, 664 (Pa. 2007). To overcome this presumption, a petitioner
      must establish that: (1) the underlying substantive claim has
      arguable merit; (2) counsel did not have a reasonable basis for
      his or her act or omission; and (3) the petitioner suffered
      prejudice as a result of counsel’s deficient performance, “that is,
      a reasonable probability that but for counsel's act or omission, the
      outcome of the proceeding would have been different.” Id. A
      PCRA petitioner must address each of these prongs on appeal.
      See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
      2007) (explaining that “appellants continue to bear the burden of
      pleading and proving each of the Pierce elements on appeal to
      this Court”). A petitioner’s failure to satisfy any prong of this test
      is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations

modified).

      In reviewing a challenge to the sufficiency of the evidence, we

recognize:

         As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak


                                      -7-
J-S63021-19


      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

          The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is circumstantial
      does not preclude a conviction where the evidence coupled with
      the reasonable inferences drawn therefrom overcomes the
      presumption of innocence. Significantly, we may not substitute
      our judgment for that of the fact finder; thus, so long as the
      evidence adduced, accepted in the light most favorable to the
      Commonwealth, demonstrates the respective elements of a
      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).     Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

33 A.3d 602, 607 (Pa. 2011).

      Section 2502 of the Pennsylvania Crimes Code defines murder of the

first degree as follows: “A criminal homicide constitutes murder of the first

degree when it is committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a).

To obtain a conviction of first-degree murder, the Commonwealth must

demonstrate:

      “[A] human being was unlawfully killed, the defendant perpetrated
      the killing, and the defendant acted with malice and a specific
      intent to kill.” Commonwealth v. Montalvo, M., 986 A.2d 84,
      92 (Pa. 2009) (quoting Commonwealth v. Kennedy, 959 A.2d
      916, 921 (Pa. 2008)); accord 18 Pa.C.S.[A.] § 2502(a) & (d)
      (defining first degree murder as an “intentional killing,” which is
      further defined as a “[k]illing by means of poison, or by lying in
      wait, or by any other kind of willful, deliberate and premeditated
      killing.”). The Commonwealth may prove the specific intent to kill

                                      -8-
J-S63021-19


      necessary for first[-]degree murder wholly through circumstantial
      evidence. Commonwealth v. Rega, 933 A.2d 997, 1009-10 (Pa.
      2007).

Com. v. Ovalles, 144 A.3d 957, 969 (Pa. Super. 2016) (some citations

omitted or modified).

      Rather than challenge the sufficiency of the evidence to support any of

the applicable elements of the offense, Appellant contends that the evidence

was insufficient to prove that he was the individual that shot and killed both

Featherstone and Crowder. Consequently, we do not review the evidence to

determine whether it can support a finding that the Commonwealth proved all

of the elements of first-degree murder, but focus on the specific sufficiency

issue raised by Appellant – whether the evidence was sufficient to establish

that Appellant was the shooter.

      Instantly, the Commonwealth presented sufficient evidence to identify

Appellant as the individual who shot Featherstone and Crowder. With respect

to Featherstone, the Commonwealth introduced the statement Appellant’s

sister, Katrina Session (Session), gave to police. In her statement, Session

told police that she directly observed her brother (Appellant) shoot and kill

Featherstone.     N.T., 10/17/14, at 74-75.         Regarding Crowder, the

Commonwealth introduced the statement Appellant’s girlfriend, Sapphia

Pressley (Pressley), gave to police. Pressley also told police that she directly

observed Appellant kill Crowder. N.T., 10/21/14, at 13-14. Although both

witnesses recanted these statements at trial, the record contains sufficient


                                     -9-
J-S63021-19


evidence, if believed by the finder of fact, establishes beyond a reasonable

doubt that Appellant was the individual who shot and killed both Featherstone

and Crowder.     See Commonwealth v. Brown, 52 A.3d 1139, 1171 (Pa.

2012) (holding that witnesses’ out-of-court statements to police may be

sufficient to sustain a conviction even if the statements were recanted at trial).

      Appellant’s challenge to the sufficiency of the evidence supporting his

first-degree murder convictions lacks merit. Thus, Appellate Counsel was not

ineffective for failing to preserve the claim. Commonwealth v. Sneed, 45

A.3d 1096, 1115 (Pa. 2012) (“Counsel will not be deemed ineffective for failing

to raise a meritless claim.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19




                                     - 10 -
