J-A05006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
              v.                               :
                                               :
                                               :
MONIQUE ROBINSON,                              :
                                               :
                     Appellant                 :   No. 642 EDA 2017

                  Appeal from the PCRA Order January 9, 2017
                In the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0000157-2012

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                  FILED JUNE 28, 2018

        Appellant, Monique Robinson, appeals from the Order entered in the

Chester County Court of Common Pleas dismissing her first Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

        The PCRA court set forth the underlying facts and we need not repeat

them in detail. See PCRA Court Opinion, filed 6/27/17, at 1-3. Briefly, on

April 4, 2013, a jury convicted Appellant of, inter alia, Second-Degree

Murder1 in connection with the September 14, 2011 shooting of Selvin Lopez

in Phoenixville during a robbery.          Appellant was 18 years, 3 months’ old

when the crime was committed. On July 11, 2013, the trial court sentenced


____________________________________________


1   18 Pa.C.S. § 2502(b).


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05006-18


Appellant to the mandatory term of life imprisonment without parole.                18

Pa.C.S. § 1102(b).

       Appellant filed a timely direct appeal, and this Court affirmed

Appellant’s Judgment of Sentence.              Commonwealth v. Robinson, No.

2174      EDA   2013     (Pa.     Super.   filed   March   6,     2014)   (unpublished

memorandum). On July 15, 2014, our Supreme Court denied allowance of

appeal.    Commonwealth v. Robinson, No. 170 MAL 2014 (Pa. filed July

15, 2014).

       On April 20, 2015, Appellant filed a counseled PCRA Petition, her first,

which Appellant’s counsel amended twice. Appellant claimed, inter alia, that

(1) her trial counsel was ineffective for (a) failing to object to prosecutorial

misconduct, (b) failing to impeach Commonwealth witnessesAppellant’s

accomplicesadequately about their plea agreements, and (c) failing to call

available character witnesses; and (2) her sentence was illegal pursuant to

the    reasoning    in   Miller    v.   Alabama,     567   U.S.    460    (2012),   and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2

       The PCRA court conducted an evidentiary hearing on May 6, 2016, at

which Appellant’s trial counsel, Appellant’s sister, and Appellant’s two

____________________________________________


2 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole
upon a homicide defendant for a murder committed while the defendant was
a juvenile. The United States Supreme Court held in Montgomery that its
decision in Miller applies retroactively.



                                           -2-
J-A05006-18


character witnesses testified.    The Commonwealth called two rebuttal

witnesses, Chester County Detective Harold Dutter and Phoenixville Police

Officer Brad Droby.

      On January 10, 2017, the PCRA court dismissed Appellant’s PCRA

Petition.

      Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Did trial counsel provide ineffective assistance of counsel
      where he [(a)] failed to challenge prosecutorial misconduct,
      [(b)] failed to properly impeach the Commonwealth’s accomplice
      witnesses for bias[,] and [(c)] failed to present character
      witnesses?

                             *     *         *

      2. Was the Appellant’s sentence illegal as it violated the
      principles expressed by the United States Supreme Court
      regarding sentencing of a youth to life in prison without
      possibility of parole, thereby denying this Appellant her federal
      and state constitutional rights to due process of law, equal
      protection of the law and the right to be free from cruel and
      unusual punishment?

Appellant’s Brief at 3-4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,


                                       -3-
J-A05006-18


515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      The   law   presumes   counsel   has   rendered   effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).              The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003).

      Failure to satisfy any prong of the test will result in rejection of the

appellant’s ineffective assistance of counsel claim.     Commonwealth v.

Jones, 811 A.2d 994, 1002 (Pa. 2002). “If a petitioner cannot prove that

trial counsel was ineffective, then petitioner’s derivative claim of appellate

counsel ineffectiveness must also fail[.]” Commonwealth v. Hutchinson,

25 A.3d 277, 286 (Pa. 2011).

      We will address seriatim the merits of the three issues on which

Appellant bases her ineffective assistance of counsel claims.




                                    -4-
J-A05006-18


                Failure to Object to Prosecutorial Misconduct

      Appellant first contends that her trial counsel was ineffective for failing

to   object    to    prosecutorial   misconduct      during     the   closing   argument.

Specifically, she asserts that: (1) the prosecutor’s claims that certain

testimony     was      “uncontradicted”     was   an    impermissible      comment      on

Appellant’s silence since she was the only person who could contradict the

evidence and she did not testify; (2) the prosecutor’s comment that a

certain witness could not look him in the eye was an improper comment on

demeanor; and (3) the prosecutor’s statements about Appellant’s crying only

during certain parts of the trial but not others was also an improper

comment on Appellant’s demeanor.             Appellant’s Brief at 12-22.         Appellant

also claimed the prosecutor improperly vouched for the credibility of certain

witnesses. See Appellant’s Brief at 22-38.

      “[N]ot        every   inappropriate   remark     by   a   prosecutor      constitutes

reversible error.” Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super.

2012) (citation omitted).         “It is [] well established that a trial court may

grant a mistrial only where the incident upon which the motion is based is of

such a nature that its unavoidable effect is to deprive the defendant of a fair

trial by preventing the jury from weighing and rendering a true verdict.”

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (quotation marks

and citation omitted).




                                            -5-
J-A05006-18


      “While it is improper for a prosecutor to offer any personal opinion as

to the guilt of the defendant or the credibility of the witnesses, it is entirely

proper for the prosecutor to summarize the evidence presented, to offer

reasonable deductions and inferences from the evidence, and to argue that

the evidence establishes the defendant’s guilt[.]”         Commonwealth v.

Burno, 94 A.3d 956, 974 (Pa. 2014) (citation omitted).

      Moreover, “[i]n determining whether the prosecutor engaged in

misconduct, we must keep in mind that comments made by a prosecutor

must be examined within the context of defense counsel’s conduct. It is well

settled that the prosecutor may fairly respond to points made in the defense

closing.” Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super.

2012) (citation omitted); see also Commonwealth v. Carson, 913 A.2d

220, 236 (Pa. 2006) (stating that a prosecutor is entitled to fairly respond to

arguments made by defense counsel in closing argument). In fact, “[e]ven

an otherwise improper comment may be appropriate if it is in fair response

to defense counsel’s remarks.” Burno, supra at 974 (citation omitted).

      The Honorable James P. MacElree II, sitting as the PCRA court, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing the

record and relevant case law in addressing this ineffectiveness claim. The

record supports the PCRA court’s findings and the Order is otherwise free of

legal error. We, thus, affirm on the basis of the PCRA court’s June 27, 2017

Opinion. See PCRA Court Opinion, filed 6/27/17, at 3-5 (concluding that (1)


                                      -6-
J-A05006-18


Appellant’s claims lacked arguable merit because the prosecutor’s comments

during closing argument were within the permissible range of zealous

advocacy and did not unavoidably prejudice the jury; (2) Appellant’s counsel

had a reasonable strategic basis for refusing to object to these portions of

the prosecutor’s closing argument; and (3) the outcome would not have

been different had counsel raised these objections in the lower court).

                    Failure to Properly Impeach Witnesses

      Appellant next claims that her trial counsel was ineffective for failing to

cross-examine two witnessesAppellant’s two accomplices who had each

entered    guilty     pleas   to   Third-Degree     Murder     to   avoid    life

imprisonmentregarding the details of their plea agreements with the

Commonwealth. Appellant’s Brief at 22-38.

      Where the petitioner alleges counsel failed to cross-examine a witness

regarding impeachment evidence that would have been merely cumulative of

other evidence or topics explored during counsel’s cross-examination, the

petitioner is not entitled to relief because she has failed to demonstrate

prejudice. Commonwealth v. Tharp, 101 A.3d 736, 760 (Pa. 2014).

      After careful review, we conclude that the PCRA court ably addressed

this second ineffectiveness claim. Accordingly, we affirm on the basis of the

PCRA court’s Opinion. See PCRA Court Opinion, 6/27/17, at 5-6 (concluding

that: (1) counsel’s cross-examination of these two witnesses was “vigorous

and diligent[;]” (2) counsel explored the nature of the plea agreements,


                                      -7-
J-A05006-18


which the witnesses entered in exchange for their cooperation to avoid a life

sentence; and (3) counsel had a reasonable strategic basis for the extent of

his cross-examination; moreover, any additional questions regarding the

plea agreements would have been cumulative, so Appellant is unable to

demonstrate prejudice).

                 Failure to Present Character Witnesses

      Appellant claims that counsel was ineffective for failing to call

witnesses to testify about her good character, i.e., that she was peaceful and

law abiding. Appellant’s Brief at 38-44.

      To obtain relief on a claim that counsel was ineffective for failing to call

a potential witness, the PCRA petitioner must establish that:

      (1)   the witness existed;

      (2)   the witness was available to testify for the defense;

      (3) counsel knew of, or should have known of, the existence of
      the witness;

      (4)   the witness was willing to testify for the defense; and

      (5) the absence of the testimony of the witness was so
      prejudicial as to have denied the defendant a fair trial.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).

      We affirm on the basis of the PCRA court’s Opinion. See PCRA Court

Opinion, 6/27/17, at 6 (concluding that: (1) Appellant failed to show that

counsel was informed of the existence of the witnesses or should otherwise




                                      -8-
J-A05006-18


have known about them; and (2) the absence of their testimony did not

prejudice Appellant).3

                                 Legality of Sentence

       In her final claim, Appellant, who acknowledges that she was 18 years

and 3 months old at the time of the murder and “not technically a juvenile,”

contends that she is serving an illegal sentence of life imprisonment and

entitled to relief in light of Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Appellant’s Brief at 44-

49. Appellant contends that “under equal protection, it is arbitrary to deny

relief to [Appellant] while granting it to another who was age 17 years and

364 days at the time of the crime.”              Appellant’s Brief at 48.   Appellant

argues that she “was not capable of conforming her conduct as an adult

would and was not an ‘adult’ across a broad range of developmental and

cognitive areas.” Appellant’s Brief at 45.4


____________________________________________


3 Moreover, we note that counsel had a reasonable strategic basis for
refusing to call these witnesses: had counsel sought to present such good
character evidence, the Commonwealth would have been entitled to present,
and would have presented, additional damaging evidence that was otherwise
inadmissible, including: (1) negative character/reputation evidence from a
police officer that Appellant was not law abiding; and (2) evidence of
Appellant’s prior adjudication for Criminal Trespass.

4  We note that on April 4, 2018, Appellant filed a Post-Submission
Communication pursuant to Pa.R.A.P. 2501(b) to bring to this Court’s
attention the slip opinion in Cruz v. United States, No. 11-CV-787 (JCH),
2018 WL 1541898 (D. Conn. Mar. 29, 2018) (granting habeas relief to
(Footnote Continued Next Page)


                                           -9-
J-A05006-18


      This Court has previously ruled that Miller does not apply to

individuals who were 18 or older at the time they committed murder. See

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding

that petitioners who were eighteen or older at the time they committed

murder are not within the ambit of the Miller decision), abrogated in part by

Montgomery, supra; see also Commonwealth v. Furgess, 149 A.3d 90

(Pa. Super. 2016) (holding that Miller did not apply to a 19–year–old

appellant convicted of homicide, even though that appellant claimed he was

a “technical juvenile” and relied on neuroscientific theories regarding

immature brain development to support his claim; acknowledging that

Cintora’s additional holding, that Miller had not been applied retroactively,

was “no longer good law” after Montgomery).

      Appellant was 18 years old, not younger than 18 years old, when she

and her accomplices robbed and murdered Selvin Lopez on September 14,

2011. Thus, Miller and Montgomery are inapplicable to Appellant at this

time.5 Accordingly, we are constrained to find that the PCRA court properly


(Footnote Continued) _______________________

defendant 18 years and 20 weeks old at the time of crime, concluding that
Miller applies to 18-year-olds).

5 This “panel is not empowered to overrule another panel of the Superior
Court.” Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013). We
note that this Court recently certified Commonwealth v. Lee, No. 1891
WDA 2016 for en banc review regarding similar issues involving the
application of the reasoning in Miller and Montgomery to young adults.



                                         - 10 -
J-A05006-18


concluded that Appellant was not entitled to relief. See PCRA Court Opinion

at 6-7.

      The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      The parties are instructed to attach a copy of the PCRA court’s June

27, 2017 Opinion to all future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




                                     - 11 -
                                                                        Circulated 05/29/2018 03:54 PM




 COMMONWEALTH OF PENNSYLVANIA                        :   IN THE COURT OF COMMON PLEAS

                                                     :   CHESTER COUNTY, PENNSYLVANIA
                 V.
                                                     :   CRIMINAL ACTION

MONIQUE ROBINSON                                     :   NO. 157-2012

Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney
Burton A. Rose, Esquire, Attorney for Appellant

                          OPINION PURSUANT TO Pa.R.A.P. 1925(a)

        Monique Robinson has filed an appeal to the Superior Court          f   Pennsylvania from our

order of January 9, 2017, which dismissed her petition for post-conviciion collateral relief. We

write now pursuant to the mandate of Pa.R.A.P. 1925(a).

                                  Factual and Procedural History

        At approximately midnight on the morning of September 14, 2011, twenty -one -year -old

Selvin Lopez stood talking to his uncle on Prospect Street in Phoenixville, Pennsylvania. Mr.

Lopez had worked the late shift at Wendy's Restaurant and was on his way home. He was

carrying his backpack, which contained his paycheck, some cash, and his fast-food dinner.

        Saleem Williams, Stephan Reidler, and Appellant Monique Robinson were out on a

"mission" to rob someone. Appellant was carrying a gun. They noticed Mr. Lopez, approached

him, beat him, and robbed him of his backpack.            When Mr. Lopez attempted to fight back,

Appellant handed Saleem Williams the gun and said "shoot him." Saleem Williams then shot

Mr. Lopez.     The three robbers fled the scene and returned to a friend's apartment.            At the

apartment they went through the backpack, retrieved the cash, and ate Mr. Lopez's dinner. Mr.

Lopez, left in the street, died from his injuries.
        Police subsequently arrested Saleem Williams, Stephan Reidler and Appellant and

charged them with Mr. Lopez's murder. Saleem Williams and Stephen Reidler both entered into

negotiated guilty pleas to third-degree murder. Appellant herein refused a plea offer and insisted

on going   t   trial against her experienced counsel's advice.

        On April 4, 2013, a jury found Appellant guilty              f   murder of the second degree,

aggravated assault, robbery, criminal conspiracy and related offenses. On July 11, 2013, we

sentenced her to a mandatory sentence       f    life in prison.   Appellant appealed, and on March 6,

2014, the Superior Court affirmed her judgment of sentence. The Pennsylvania Supreme Court

denied her petition for allowance of appeal on July 15, 2014.

        On April 20, 2015, Appellant filed a timely petition under the Post Conviction Relief Act.

On October 22, 2015, Appellant was granted permission to file an amended Post Conviction

Relief Act petition, and on April 28, 2016, she was granted leave to file a second amended Post

Conviction Relief Act petition.      In her petitions Appellant claimed that her trial counsel was

ineffective for failing to effectively challenge several instances       f   prosecutorial misconduct, for

failing to adequately cross-examine two Commonwealth witnesses, and for failing to call

character witnesses. Appellant also asserted that we should apply the principles set forth by

United States Supreme Court in Miller       v.   Alabama, 132 S.Ct. 2455 (2012), to her case even

though she was not a juvenile at the time of the killing.

       We held a hearing on Appellant's petition on May 6, 2016, at which time Appellant

presented evidence in support of her claims. Defense counsel and the Commonwealth were then




                                                     2
allowed time to review the notes of testimony of the PCRA hearing prior to filing their post -

hearing briefs. Appellant also filed a response to the Commonwealth's post -hearing brief. After

reviewing the file, the record, the testimony offered at the PCRA hearing, and the briefs of

counsel, we found no issue that entitled Appellant to post -conviction relief. Accordingly, we

dismissed her petition on January 9, 2017. This appeal followed.

                                        Legal Analysis

        In her statement of matters complained of on appeal, Appellant first claims that trial

counsel was ineffective when he failed to challenge several instances of misconduct during the

prosecutor's closing argument. Specifically, Appellant claims that the prosecutor repeatedly

characterized the testimony of the victim's uncle as "uncontradicted," in violation of Appellant's

right to remain silent; improperly commented on the demeanor of witness Caitlyn Schierenbeck

when she "couldn't look [him] in the eye;" and improperly commented on Appellant's demeanor

and her "dry-eyed"I appearance during testimony about the murder of Selvin Lopez. See: N.T.

4/4/13, pp. 48, 55, 62-63, 70, 76. Appellant claims that the prosecutor's comments about the

demeanor of Ms. Schierenbeck and of Appellant improperly invaded the province of the jury to

determine those factors.

       Recognizing that a prosecutor is free to present his or her arguments with "logical force

and vigor," Commonwealth       v.   Hutchinson, 25 A.3d 277, 306 (Pa. 2011), we reviewed the


 Appellant previously raised this specific "dry-eyed" claim on direct appeal. Both this Court and the
Superior Court found it without merit. See: Comm. v. Robinson, No 2174 EDA 2013 (Pa.Super. 3/6/14).




                                                  3
prosecutor's entire closing argument with particular emphasis on the challenged comments. We

found that the prosecutor, while vigorously arguing his case, nevertheless did so within the law.

Even had we not so found, even improper comments by a prosecutor require relief "only where

their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility

toward the defendant such that they could not weigh the evidence objectively and render a fair

verdict." M at 307 (citation omitted).

        In addition, Appellant presented her assertions of prosecutorial misconduct in the context

of an ineffectiveness claim. Since counsel      is   presumed effective, to obtain relief Appellant

would have had to establish that her counsel's performance was deficient and that this deficiency

prejudiced her. Commonwealth v Charleston, 94 A.3d 1012, 1019 (Pa.Super. 2014) (citation

omitted).   Specifically, as a PCRA petitioner, she would have had to plead and prove "(1) that

the claim is   of arguable merit; (2) that counsel had no reasonable strategic basis for his or her

action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different." Commonwealth           v.


Kimball, 724 A.2d 326, 333 (Pa. 1999).

       First, because we found that the prosecutor's statements were not improper, Appellant

could not establish factor (1) of the above -stated test. Second, at the PCRA hearing, trial counsel

reasonably explained the strategic decisions that he made during the prosecutor's closing

argument, negating factor (2). See: N.T. 5/6/16, pp. 14-16, 19-20, 21-24, 46, 49. Finally, even

were we to accept that these claims were of arguable merit, and counsel had no reasonable basis




                                                 4
for his action (which we did not), we did not find that there was any reasonable probability that

the outcome of this case would have been different had trial counsel objected and pursued these

claims.     Thus, factor (3) could not have been met, and these claims entitled Appellant to no

relief.

          Next, Appellant claims that counsel was ineffective when he failed to adequately cross-

examine and impeach Commonwealth witnesses Stephen Reidler and Saleem Williams regarding

specific details   f   their plea bargains with the Commonwealth. Appellant also claims that the

prosecutor improperly vouched for the credibility of these witnesses during his closing argument

to the jury.

          We start with the second claim. We previously reviewed the entirely of the prosecutor's

closing argument and found no misconduct. The prosecutor presented his arguments with force

and vigor, but did so within permissible limits. Thus, there was no prosecutorial misconduct on

which to base an ineffectiveness claim and Appellant could not rely on this claim for any relief.

          Nor did we find that trial counsel was ineffective in his cross-examination of witnesses

Reidler and Williams. Our review of the notes of testimony        f   Appellant's trial revealed that

trial counsel's cross-examination of these witnesses was vigorous and diligent.         Counsel also

explored with the witnesses the fact that they were allowed to plead guilty to third degree murder

in return for their cooperation. See: N.T. 4/2/13, pp. 117-189, 195-97; 250-284. Trial counsel's

testimony at the PCRA hearing revealed the reasonable and strategic decisions he made

concerning the extent     t   which he cross-examined these witnesses. N.T. 5/6/16, pp. 24-35, 49-




                                                   5
 62. Counsel was not ineffective in his cross-examination of these witnesses, and Appellant was

 entitled to no relief on this claim.

        Appellant also claims that her counsel was ineffective for failing to present character

witnesses to testify regarding her good reputation as a peaceful and law abiding citizen.

        At Appellant's PCRA hearing potential character witnesses Kenneth Wilson and Karen

Murphy testified. After hearing their testimony, and trial counsel's testimony regarding this

issue, we found that counsel had not been ineffective when he failed to call any character

witnesses on Appellant's behalf.

        To establish ineffectiveness for failure to call a witness, an appellant must establish that:

            (1) the witness existed; (2) the witness was available; (3) counsel was
            informed of the existence of the witness or should otherwise have known of
            him/her; (4) the witness was prepared to cooperate and testify for appellant at
            trial; and, (5) the absence of the testimony prejudiced appellant so as to deny
            him [or her] a fair trial.

Commonwealth        v.   Gonzalez, 608 A.2d 528, 532 (Pa.Super. 1992). Our rereading of the notes of

testimony     f   Appellant's PCRA hearing confirms our finding that Appellant was unable to

establish these elements, specifically elements three and five, and that she was entitled to no

relief on these claims. See: N.T. 5/6/16, pp. 35-41, 122, 126.

        In her final claim, Appellant asserts that her sentence of life in prison without parole was

illegal, as applied to her, and should be reassessed in light of the United States Supreme Court

decisions in Miller      v.   Alabama, 132 S.Ct. 2455 (2012) and Montgomery   v.   Louisiana, 136 S.Ct.

718 (2016).




                                                    6
        In Miller, the Supreme Court held that mandatory life sentences without parole for those

defendants under the age of eighteen at the time of their crimes violated the Eighth

Amendment's prohibition on cruel and unusual punishments. Miller, at 2460. In Montgomery,

the Supreme Court ruled that Miller was entitled to retroactive application to cases on collateral

review. However, Appellant herein was eighteen years and three months old at the time of her

crime, the holding in Miller simply has no application to her case, and she cannot rely on Miller

for any post-conviction relief.

        For the reasons stated above we dismissed Appellant's petition under the Post Conviction

Relief Act.



                                            BY THE COURT:


                                                          04.
DATE:           1-7 2-011
                                            JA       i
                                                     S   P. MacELREE H

                                             Certified From                    Record
                                                                                               J.



                                         This            .=7"   may                  20   //
                                                           O
                                           Deputy Clery/of Common Pleas Court




                                                 7
