J-S63037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JEFFRY MCBRIDE

                              Appellant               No. 2187 EDA 2015


                   Appeal from the PCRA Order June 26, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0013114-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 25, 2017

        Appellant, Jeffry McBride, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his first petition filed

pursuant to the Post Conviction Relief Act1 (“PCRA”).          Appellant contends

trial counsel was ineffective and that his mandatory sentence of life without

parole (“LWOP”) is unconstitutional under Miller v. Alabama, 132 S. Ct.

2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We

affirm in part, reverse in part, vacate Appellant’s judgment of sentence, and

remand for resentencing.

        In its opinion, the PCRA court summarizes the relevant facts of this

case as follows:


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S §§ 9541-9546.
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          On April 21, 2007, approximately twenty (20) to fifty
       (50) people were in the Kenderton Elementary playground.
       Demond Brown (decedent/victim, also identified on the
       record as “Demond”) had recently finished a game of
       basketball and was standing on the sideline.          The
       decedent’s cousin, Anthony Harris (also identified on the
       record as “Tony”), and best friend, Hassan Durant, were
       standing on the basketball court.

          Armel Baxter and [Appellant] were in the backseat of
       their friend Rachel Marcelis’ car, driving to their friend
       Daryl Mack’s (also identified on the record as “Mack”)
       aunt’s house. Either, Baxter or [Appellant] said they saw
       someone on the playground and told Rachel Marcelis to go
       back so they could be sure. Rachel Marcelis drove around
       the block, and Baxter and [Appellant] exited the car.

          Anthony Harris and Hassan Durant saw Baxter and
       [Appellant] enter the playground with ‘hoodies’ on. People
       on the playground noticed Baxter and [Appellant] because
       both men were wearing hoodies on a very hot day. The
       decedent turned around, noticed Baxter and [Appellant],
       and began to run. Baxter and [Appellant] began shooting,
       and continued to shoot as they walked together side by
       side. The decedent ran in a “zigzag” pattern towards the
       15th Street exit.     The decedent stumbled out of the
       playground and fell in the middle of the street.

          Baxter and [Appellant] ran out of the playground, and
       headed east on Ontario Street, then south on 15th Street.
       Rachel Marcelis saw Baxter and [Appellant] running in her
       direction, and let them back in her car. While in the car,
       Rachel Marcelis heard Baxter and [Appellant] talking about
       how [Appellant’s] gun did not work and he could “not get
       any rounds off”. When they arrived at Daryl Mack’s aunt’s
       house, Rachel Marcelis asked [Appellant] “if that was the
       person who shot De-Nyce.” [Appellant] answered “Yes.”
       After they left the house, Rachel Marcelis, Baxter and
       [Appellant] drove to Wilkes-Barre for the weekend, but
       only Rachel Marcelis returned the following Monday.

          An arrest warrant was issued for both Baxter and
       [Appellant] on May 4, 2007. [Appellant] was arrested in
       Wilkes-Barre on May 7, 2007, after police were informed of


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           his outstanding warrant. Baxter was found at a motel in
           Wilkes-Barre on July 10, 2007 . . . .

PCRA Ct. Op., 10/21/15, at 2-3.

        A jury convicted Appellant on February 5, 2009, of first-degree

murder2, criminal conspiracy3, and possessing an instrument of crime4

(“PIC”). That same day, the court sentenced Appellant to LWOP for murder

and concurrent sentences of ten to twenty years’ imprisonment and one to

two years’ imprisonment for conspiracy and PIC, respectively.         This Court

affirmed Appellant’s judgment of sentence on March 22, 2010, and our

Supreme Court denied allowance of appeal on September 16, 2010.             See

Commonwealth v. McBride, 440 EDA 2009 (Pa. Super. March 22, 2010),

appeal denied, 163 EAL 2010 (Pa. Sept. 16, 2010).

        On April 14, 2011, Appellant timely filed his first PCRA petition pro se.

The PCRA court appointed counsel on December 19, 2011.            PCRA counsel

subsequently filed several amended petitions, which raised Appellant’s

claims of trial counsel’s ineffectiveness and the constitutionality of his LWOP

sentence pursuant to Miller. The PCRA court dismissed without a hearing

Appellant’s claims regarding Miller and trial counsel’s failure to call several

character witnesses at trial.    However, the PCRA court ultimately held an


2
    18 Pa.C.S. § 2502(a).
3
    18 Pa.C.S. § 903(a)(1).
4
    18 Pa.C.S. § 907(a).



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evidentiary hearing on Appellant’s claims regarding trial counsel’s failure to

call several exculpatory witnesses at trial and to cross-examine Rachel

Marcelis on her immunity agreement.        The PCRA court denied Appellant’s

petition on June 26, 2015. Appellant timely filed a notice of appeal on July

9, 2015, and complied with the court’s order to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

         I. The PCRA Court erred for failing to grant PCRA relief
         because trial counsel was ineffective for failing to
         investigate, interview, and call Darryl Mack, Stephan
         Studivant, Zan’ea Jones, Ikenia Harris and Deborah
         McBride, who would be exculpatory eyewitnesses at trial.

         II. The PCRA Court erred for failing to grant PCRA relief
         because trial counsel was ineffective for failing to
         investigate, interview, and call Kyle Carter, Derrick
         McMillan, Gregory Blackmon, Shawn Lowry, Theresa
         Brown, Tyrone Lewis, Malik Wooden and McCoy Matthews
         and the PCRA judge failed to grant an evidentiary hearing
         for these witnesses.

         III. The PCRA Court erred for failing to grant PCRA relief
         because trial counsel was ineffective because he received
         the Commonwealth’s Petition for Immunity and the Order
         for Immunity and failed to cross-examine Rachel Marcelis
         concerning     this   favorable     treatment   by    the
         Commonwealth.

         IV. The PCRA Court erred for failing to grant PCRA relief
         because Appellant’s sentence of mandatory [LWOP] is
         “cruel punishment” under Article 1, §§ 1, 9, and 13 of the
         Pennsylvania Constitution and “cruel and unusual
         punishment”    under   the     Eighth   and    Fourteenth
         Amendments to the U.S. Constitution.

         V. The PCRA Court erred for failing to grant PCRA relief
         because Appellant’s sentence of mandatory sentence of


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         [LWOP] is unconstitutional under both Article 1, §§ 1, 9,
         and 13 of the Pennsylvania Constitution and under the
         Eighth and Fourteenth Amendments to the U.S.
         Constitution because two classes of prisoners sentenced to
         mandatory [LWOP] are treated differently.

         VI. The Pennsylvania Code therefore does not establish a
         constitutional sentence for first degree murder committed
         by a juvenile. It would violate [A]ppellant’s rights under
         the ex post facto clause to inflict “punishments, where the
         party was not, by law, liable to any punishment” or to
         inflict “greater punishment, than the law annexed to the
         offense.[”] Stogner v. California, 539 U.S. 607, 612
         (2003).

         VII. The PCRA Court erred for failing to grant PCRA relief
         because Miller v. Alabama, 132 S. Ct 2455 (2012),
         applies retroactively to . . . [A]ppellant who has exhausted
         his appeal rights and is proceeding under the [PCRA]
         because: (1) Miller’s companion case, Jackson v. Hobbs,
         132 S. Ct. 548 (2011) was decided on collateral review
         and (2) cases from both strands of precedent relied upon
         by the Court in Miller have been applied retroactively.

Appellant’s Brief at 3-4.

      We address Appellant’s issues regarding trial counsel’s ineffectiveness

together.       Appellant argues trial counsel was ineffective for failing to

investigate, interview, and call several character witnesses and exculpatory

witnesses at trial. Specifically, Appellant claims he submitted to trial counsel

a list of several eyewitnesses who were available to testify that Appellant

was not involved in decedent Brown’s shooting.                 Appellant alleges trial

counsel’s failure to call these witnesses prejudiced Appellant and denied him

a fair trial.      Moreover, Appellant contends trial counsel failed to call

witnesses   who      were   willing   to   testify   to   Appellant’s   reputation   for



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peacefulness.   Appellant further claims the PCRA court erred in failing to

conduct an evidentiary hearing on Appellant’s claim regarding these

character witnesses.     Additionally, Appellant argues trial counsel was

ineffective for failing to cross-examine Rachel Marcelis regarding her

immunity. Appellant maintains Rachel Marcelis received favorable treatment

from the Commonwealth in exchange for her testimony against Appellant.

Appellant concludes he is entitled to a new trial. We disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the    evidence    of   record    supports    the     court’s

determination    and   whether    its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011). This Court

grants great deference to the findings of the PCRA court if the record

contains any support for those findings.        Commonwealth v. Boyd, 923

A.2d 513 (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). Traditionally, credibility issues are resolved by the trier

of fact who had the opportunity to observe the witnesses’ demeanor.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998), cert. denied,

120 S. Ct. 41 (1999).         Where the record supports the PCRA court’s

credibility resolutions, they are binding on this Court. Id.

      Nevertheless, “a PCRA petitioner is not automatically entitled to an

evidentiary hearing.    We review the PCRA court’s decision dismissing a



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petition without a hearing for an abuse of discretion.” Commonwealth v.

Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted).          Further,

when the PCRA court denies relief without an evidentiary hearing, this Court

must examine each of the issues raised in light of the record to determine

whether the PCRA court erred in concluding there were no genuine issues of

material fact. Id. (citation omitted).

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) [a]ppellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation

marks and citations omitted).

      “In order to prevail on a claim of ineffectiveness for failing to call a

witness, a defendant must prove, in addition to meeting the three

[ineffectiveness] requirements, that: (1) the witness existed; (2) the witness

was available to testify for the defense; (3) counsel knew 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 witness’s testimony was so

prejudicial as to have denied him a fair trial.” Commonwealth v. Walls,



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993 A.2d 289, 302 (Pa. Super. 2010) (quoting Commonwealth v. Wright,

961 A.2d 119, 155 (Pa. 2008)).

      Instantly, the PCRA court addressed Appellant’s ineffectiveness claims

as follows:

              1. Failing to Call Darryl Mack, Stephan Studivant,
                 Zan’ea Jones, Ikenia Harris, and Deborah McBride

             [Appellant] first asserts that trial counsel was
         ineffective for failing to “investigate, interview and call”
         Darryl Mack, Stephan Studivant, Zan’ea Jones, Ikenia
         Harris, and Deborah McBride as exculpatory witnesses at
         trial. This claim is without merit. . . . Here, the evidence
         presented at the hearing clearly established that trial
         counsel, Michael Wallace, was not ineffective as he had a
         reasonable basis for not calling the above witnesses to
         testify on [Appellant’s] behalf.

            Regarding witness Darryl Mack, [Appellant] alleged that
         Mack would have testified at trial that he was present with
         Rachel Marcelis at the time of the shooting, that Mack was
         driving―not Marcelis, and that Marcelis was heavily under
         the influence of drugs. At the PCRA hearing, Mr. Wallace
         testified that, after questioning Mack, he determined that
         Mack’s testimony would not be helpful at trial. Mr. Wallace
         also testified that he had information that what Mack was
         saying was not truthful, so that his testimony at trial would
         be false. Finally, Mr. Wallace testified that he consulted
         with [Appellant] regarding Mack’s testimony and
         [Appellant] agreed to not call Mack at trial. The [PCRA
         c]ourt found Mr. Wallace’s testimony to be credible and
         that Mr. Wallace’s belief that Mack was not helpful and
         would lie on the stand was a reasonable basis for not
         calling Mack at trial. Because this finding is supported by
         the record, [Appellant] cannot show that [trial] counsel’s
         actions lacked a reasonable basis. Therefore, the [PCRA
         c]ourt did not err in dismissing [Appellant’s] claim of [trial]
         counsel[’s] ineffectiveness for failing to call Mack at trial.

             Regarding witness Stephan [Studivant], [Appellant]
         alleged that [Studivant] was present at the scene of the


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J-S63037-16


       shooting, that he could not see the shooters[’] faces as
       they were concealed by hoodies, but that he heard
       Anthony Harris inform police that Malik Ware was the
       shooter. Mr. Wallace testified at the PCRA hearing that
       [Studivant] told Wallace’s investigator that he was not
       even at the scene of the shooting, and only later claimed
       to have been a witness. The [PCRA c]ourt found Mr.
       Wallace’s testimony to be credible and that not presenting
       fabricated testimony was a reasonable basis for not calling
       [Studivant] to testify at trial. As [Appellant] cannot show
       that [trial] counsel’s actions lacked a reasonable basis, the
       [PCRA c]ourt did not err in dismissing [Appellant’s] claim
       of [trial] counsel[’s] ineffectiveness for failing to call
       [Studivant] at trial.

           Regarding witnesses Zan’ea Jones, Ikenia Harris, and
       Deborah McBride, [Appellant] sought to establish through
       these witnesses that Rachel Marcelis had animosity
       towards [Appellant] stemming from her failed relationship
       with [Appellant’s] brother and because [Appellant] took
       advantage of her. [Appellant] alleged that this evidence
       would have demonstrated that Marcelis was biased against
       [Appellant] and therefore incredible.        However, at the
       PCRA hearing, Mr. Wallace testified that he believed that
       none of these witnesses would have supported an
       argument that Marcelis was biased against [Appellant].
       Jones, Harris, and McBride were all family members of
       [Appellant].     Wallace testified that all three of these
       witnesses were close with Marcelis, that Marcelis ate with
       them, that Marcelis stayed overnight with them, and that
       all of them partied together as recently as the very night
       before the shooting. Therefore, it was Wallace’s view that
       these witnesses would have established a close
       relationship among Marcelis, [Appellant] and [Appellant’s]
       family, rather than any bad feelings that would have
       caused Marcelis to be biased. As [trial] counsel had a
       reasonable basis for not calling the above three women,
       the [PCRA c]ourt did not err in dismissing [Appellant’s]
       claim of [trial] counsel[’s] ineffectiveness.

          2. Failing to Call Kyle Carter, Derrick McMillan, Gregory
             Blackmon, Shawn Lowry, Theresa Brown, Tyrone
             Lewis, Malik Wooden, and McCoy Matthews



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          [Appellant] next asserts that trial counsel was
       ineffective for failing to investigate, interview, and call Kyle
       Carter, Derrick McMillan, Gregory Blackmon, Shawn Lowry,
       Theresa Brown, [Tyrone] Lewis, Malik Wooden, and McCoy
       Matthews at trial and that the [PCRA c]ourt erred in failing
       to grant an evidentiary hearing on these witnesses. This
       claim is without merit.

           Regarding Kyle Carter, [Appellant] alleged that Carter
       would have testified that he was present at the shooting,
       and that he heard “Tone” (Anthony Harris) say that Malik
       Ware, not [Appellant], shot [decedent] Brown. However,
       the record establishes that, while Carter was subpoenaed
       to appear at trial, Carter was not present in court when he
       would have been called to testify.           While Wallace
       attempted to request a continuance to attempt to compel
       Carter to appear, the trial judge would not agree to a
       continuance for that purpose. The trial judge’s decision to
       refuse the continuance request was upheld by the Superior
       Court on [Appellant’s] direct appeal. As Carter failed to
       appear in court, despite having been properly subpoenaed,
       and since the trial court refused to continue the case to
       allow further efforts to secure his appearance, Carter was
       unavailable to testify on [Appellant’s] behalf. Therefore,
       [Appellant’s] claim of [trial] counsel’s ineffectiveness for
       failing to call Carter at trial is without arguable merit.
       Accordingly, the [PCRA c]ourt did not err in denying
       [Appellant’s] claim without an evidentiary hearing.

           Regarding witness Derrick McMillan, [Appellant] alleged
       that McMillan would testify that [Appellant] “did not have a
       reputation for fighting or shooting.”      At trial, counsel
       stipulated that five different family members would testify
       at trial that [Appellant’s] reputation “for being peaceful
       and nonviolent [was] excellent.”        Because McMillan’s
       testimony regarding [Appellant’s] character would have
       been cumulative, merely repeating the stipulated
       testimony of five other character witnesses, [trial] counsel
       cannot be ineffective for not calling him as a witness.
       Therefore, the [PCRA c]ourt did not err in failing to grant
       an evidentiary hearing on this claim.

          Regarding Gregory Blackmon, [Appellant] alleged that
       Blackmon would have testified that [decedent] Brown was


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       shot by individuals who were taller and slimmer than
       [Appellant]. As with witness Kyle Carter, . . . Blackmon
       was subpoenaed for trial but failed to appear, and the trial
       judge refused to continue the case to allow further efforts
       to secure his appearance. For the reasons stated above
       regarding Carter, [Appellant’s] claim regarding witness
       Blackmon was properly rejected without an evidentiary
       hearing.

          Regarding Shawn Lowry, [Appellant] alleged that Lowry
       would testify that he “had knowledge of who was present
       on the playground when the shooting took place.”
       However, [Appellant] did not assert anywhere in his
       Amended Petition how this testimony would have been
       relevant or exculpatory. Indeed, [Lowry’s] statement to
       police . . . does not provide any reason to believe that
       [Lowry] saw the actual shooting or could testify that
       [Appellant] did not shoot [decedent] Brown. Moreover,
       the record demonstrates that both trial counsel and
       counsel for co-defendant Baxter attempted to locate
       [Lowry], but that these attempts were unsuccessful and
       [Lowry] never appeared at trial.              Accordingly, as
       [Appellant] failed to aver the existence of evidence that
       could establish that he was prejudiced by the lack of
       [Lowry’s] testimony, and since the record demonstrates
       that [Lowry] was unavailable, [trial] counsel was not
       ineffective for failing to call him at trial.

          Regarding Theresa Brown, [Appellant] alleged that
       [Theresa] Brown would have testified that she saw “two
       males wearing light colored hoodies and the ‘hoodies’ were
       up.” As with [Lowry], . . . [Appellant] does not allege that
       this testimony would, in any way, exculpate [Appellant] or
       provide any additional, relevant testimony.       Moreover,
       [Appellant] cannot demonstrate that he was prejudiced by
       the lack of this testimony, since both Hassan Durant and
       Anthony Harris both testified that the shooters were
       wearing hoodies, with the hoods up, but that they could
       see enough of [Appellant’s] face to identify him as a
       shooter.     Harris additionally testified that he saw
       [Appellant’s] face before [Appellant] raised the hood. As
       [Appellant] could not have been prejudiced by the lack of
       [Theresa] Brown’s testimony, [Appellant] cannot establish



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       that counsel was ineffective for failing to call [her] to
       testify at trial.

           Regarding Tyrone Lewis, [Appellant] alleged that Lewis
       “had knowledge of who was present on the playground
       when the shooting took place.” As with [Lowry], . . .
       [Appellant] does not allege that this testimony would, in
       any way, exculpate [Appellant] or provide any additional,
       relevant testimony. Further, the record indicates that both
       trial counsel and counsel for co-defendant Baxter
       attempted to locate Lewis, but that these attempts were
       unsuccessful and Lewis never appeared at trial.
       Accordingly, as [Appellant] failed to aver the existence of
       evidence that could establish that he was prejudiced by the
       lack of [Lowry’s] testimony, and since the record
       demonstrates that [Lowry] was unavailable, counsel was
       not ineffective for failing to call him at trial.

           Regarding Malik Wooden, [Appellant] alleged that
       Wooden would have testified that one of the two shooters
       “had a dark complexion and this was not consistent with
       [Appellant] or his co-defendant Armel Baxter.” [Appellant]
       fails to demonstrate how this additional testimony would
       have exculpated [him]. Even assuming arguendo that
       [Appellant’s] complexion could not properly be described
       as “dark,” Wooden did not describe the complexion of both
       shooters. Moreover, . . . [Appellant] was identified by two
       individuals, one of whom testified that he saw [Appellant]
       before [he] covered his face with his hoodie. Further,
       [Appellant] failed to allege anywhere that Wooden was
       available to testify on his behalf. As [Appellant] was not
       prejudiced by the lack of Wooden’s testimony, and as
       there is no reason to believe that Wooden was available to
       testify at trial, [trial] counsel was not ineffective for failing
       to call Wooden as a witness.

          Regarding McCoy Matthews, [Appellant] asserts that
       Matthews “had knowledge of who was present on the
       playground when the shooting took place.”         For the
       reasons set forth above for witnesses Lowry and Lewis,
       [Appellant] fails to establish how Matthews[’] testimony
       would have been relevant or exculpatory at trial.
       [Matthews’] statement to police . . . does not provide any
       reason to believe that Matthews saw the actual shooting or


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        could testify that [Appellant] did not shoot [decedent]
        Brown. Further, [Appellant] never alleges that Matthews
        was available to testify on his behalf. As [Appellant] was
        not prejudiced by the lack of Matthews’ testimony, and as
        there is no reason to believe that Matthews was available
        to testify at trial, [trial] counsel was not ineffective for
        failing to call Matthews as a witness.

           3. Failing to Cross-Examine Rachel Marcelis Regarding
              Immunity

            [Appellant] next asserts that trial counsel was
        ineffective for failing to cross-examine Rachel Marcelis
        concerning the Commonwealth’s Petition for Immunity and
        the Order for Immunity which counsel received prior to
        trial. This claim is without merit.

            At trial, defense counsel conducted an extensive cross-
        examination of Marcelis concerning her involvement in the
        playground shooting.       However, Mr. Wallace did not
        question Marcelis concerning the immunity granted to her
        by the Commonwealth. At the PCRA hearing, Mr. Wallace
        testified that he was fully aware of the immunity, but
        declined to question [Marcelis] about it since he believed it
        would hurt [Appellant’s] case. The [PCRA c]ourt found Mr.
        Wallace’s testimony to be credible.              Under the
        Commonwealth’s theory, Marcelis drove [Appellant] to and
        from the murder, and therefore could have been charged
        as an accomplice. Under the defense theory, Marcelis and
        [Appellant] were in a car together, but had nothing to do
        with the murder. Accordingly, Marcelis only had criminal
        exposure if the Commonwealth’s contentions were correct.
        Bringing out the immunity agreement under those
        circumstances could tend to support the Commonwealth’s
        version of the facts. Under these circumstances, Wallace’s
        strategic decision to not bring out the immunity had a
        reasonable basis.       Therefore, [trial] counsel was not
        ineffective for choosing to omit this testimony.

PCRA Ct. Op. at 5-12 (citations and footnotes omitted). We agree with the

PCRA court’s conclusions.    Furthermore, regarding the immunity claim,

Appellant has failed to demonstrate he was prejudiced by trial counsel’s


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failure to cross-examine Marcelis on her immunity agreement. See Perry,

959 A.2d at 936. At trial, Hassan Durant and Anthony Harris both testified

to seeing Appellant and co-defendant shoot decedent Brown. See N.T. Trial,

1/29/09, at 76-77; N.T. Trial, 1/30/09, at 4-6.      Thus, Appellant has not

proven there is a reasonable probability the outcome of his trial would have

been different but for trial counsel’s alleged ineffectiveness. See Perry, 959

A.2d at 936. Accordingly, Appellant’s claims of trial counsel’s ineffectiveness

merit no relief, and we affirm the PCRA court’s dismissal of these claims.

      Appellant’s remaining issues challenge his LWOP sentence; therefore,

we will address them together. Appellant argues his mandatory sentence of

LWOP constitutes “cruel and unusual punishment” under the Pennsylvania

and United States Constitutions because he was a juvenile when the crimes

were committed.     Appellant contends he was seventeen-years-old at the

time of the offense and, therefore, his mandatory LWOP sentence is

unconstitutional pursuant to Miller and Montgomery. Appellant concludes

he is entitled to resentencing under Miller and Montgomery. We agree.

      On January 25, 2016, while the instant appeal was pending,5 the

United States Supreme Court issued its decision in Montgomery and held,

“Miller announced a substantive rule of constitutional law.         Like other

substantive rules, Miller is retroactive[.]” Montgomery, 136 S. Ct. at 734.

5
 Appellant filed his pro se PCRA petition on April 14, 2011, prior to the
United States Supreme Court’s decision in Miller on June 25, 2012.




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Thereafter, this Court issued its decision in Commonwealth v. Secreti, 134

A.3d 77 (Pa. Super. 2016) and held the decision in Montgomery renders

Miller retroactive “effective as of the date of the Miller decision.” Secreti,

134 A.3d at 82.        Therefore, pursuant to     the decisions in Miller,

Montgomery, and Secreti, we reverse the PCRA court’s order denying

relief on this claim, vacate Appellant’s judgment of sentence, and remand for

resentencing.

      Order affirmed in part and reversed in part.     Judgment of sentence

vacated. Remand for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/25/2017




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