J-S24003-17


                                  2017 PA Super 173

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEVON KNOX

                            Appellant                 No. 1937 WDA 2015


          Appeal from the Judgment of Sentence September 30, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010088-2007


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY PANELLA, J.                                   FILED JUNE 5, 2017

        In 2007, Appellant, Devon Knox, then 17 years old, and his twin

brother, Jovon, attempted to carjack Jehru Donaldson. Donaldson drove

away from the attempt, but one of the brothers fatally shot Donaldson

before the two fled the scene. A jury ultimately convicted Devon of second-

degree murder, and he was sentenced to life imprisonment without

possibility of parole. In 2012, this Court vacated the sentence pursuant to

Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that sentencing a

juvenile to life without parole constituted cruel and unusual punishment and

was therefore unconstitutional. The trial court subsequently sentenced

Devon to a term of imprisonment of 35 years to life.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      In this appeal from his judgment of sentence, Devon argues that prior

appellate counsel was ineffective for failing to challenge the sufficiency of the

evidence to support his conviction for second-degree murder. He also

contends that the trial court’s sentence was an abuse of its discretionary

powers. We conclude that Devon has failed to establish that his claim of

ineffectiveness of prior appellate counsel is entitled to unitary review on

direct appeal. Furthermore, we cannot conclude that the trial court abused

its discretion in imposing sentence. We therefore affirm.

      In his first issue on appeal, Devon asserts that the evidence at trial

was insufficient to sustain his verdict for second-degree murder. While we

conclude that we cannot reach this issue on direct appeal, a brief review of

the standards involved in addressing this issue and the evidence presented

by the Commonwealth at trial are necessary to understand Devon’s claim.

      Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes   charged    is   established   beyond    a   reasonable    doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial




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evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “unless the evidence is so weak and inconclusive that as

a matter of law no probability of fact may be drawn from the combined

circumstances.” Bruce, 916 A.2d at 661 (citation omitted).

      At   trial,   the   Commonwealth     presented   testimony   from    two

eyewitnesses to the attempted carjacking. Two juvenile witnesses identified

the twin brothers as the carjackers. The witnesses’ testimony on which

brother fired the fatal shots, however, was inconsistent. The younger

witness first testified that Jovon was the shooter. See N.T., Jury Trial, 6/3-

4/08, at 154-156. This identification was based off his perception that Jovon

had a lighter complexion than his brother. See id. However, he conceded

that he had previously identified Devon as the shooter, and that “it [was]

real hard to tell the difference between” the twins. Id., at 180-181.

      The older eyewitness was unable to differentiate between the twins at

trial. See id., at 298-299. This witness also believed that the lighter-skinned


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twin was the shooter. See id., at 300. However, he identified Devon as the

lighter-skinned twin. See id.

      During closing arguments, the prosecutor noted that the eyewitnesses

had presented conflicting testimony as to which one of the twins was the

shooter. See id., at 427-428. He argued, however, that the issue was only

relevant to the charge of first-degree murder. See id., at 428. He told the

jury that the identity of the shooter was irrelevant to the charge of second-

degree murder, so long as the jury believed that both brothers were

engaged in the act of robbing Donaldson. See id., at 436.

      On appeal, Devon concedes that, if the jury had convicted him of being

the shooter, the evidence at trial was sufficient to sustain his conviction. He

contends, however, that the evidence was insufficient to establish his

conviction for second-degree murder according to the following chain of

logic. Devon contends that, given the lack of a specific jury finding on the

issue of the identity of the shooter, we cannot assume that he was the

shooter. If he was not the shooter, Devon argues that he could only be

convicted of second-degree murder if the jury found that Jovon’s action in

bringing the gun and shooting Donaldson were natural and foreseeable

consequences of the twins’ plan to carjack Donaldson. He believes that they

were not.

      However, Devon acknowledges that this issue has been waived for

purposes    of   this   direct   appeal   from   re-sentencing.   See,    e.g.,


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Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002). He

thus argues that his original appellate counsel, who secured the vacation of

his original sentence on direct appeal, was ineffective for failing to raise this

issue in the prior appeal. Devon further acknowledges that the issue of

appellate counsel’s ineffectiveness raises new issues regarding our ability to

entertain the issue on direct appeal.

      Generally, claims of ineffectiveness of counsel are not ripe until

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013). However, in extraordinary cases where the trial court determines that

the claim of ineffectiveness is “both meritorious and apparent from the

record,” it may exercise its discretion to consider the claim in a post-

sentence motion. Id., at 577.

      In Holmes, the Supreme Court of Pennsylvania explicitly identified

ineffectiveness claims as “presumptively reserved for collateral attack[.]”

Id., at 577 n.10. The Court warned against trial courts appointing “new

counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while

the trial court retains discretion in addressing such claims, the presumption

weighs heavily in favor of deferring such claims to collateral review.

      Further, the Court justified the creation of the “meritorious and

apparent from the record” exception by explaining that “[t]he administration

of criminal justice is better served by allowing trial judges to retain the

discretion to consider and vindicate such distinct claims of ineffectiveness[.]”


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Id., at 577 (emphasis added). Most importantly, the Court required an

express waiver of the right to file a first, timely PCRA petition. See id., at

579.

       Here, Devon argues that his claim is both meritorious and apparent

from the record. However, he has failed to expressly forgo his right to file a

timely, first PCRA petition. He raised this issue for the first time in his

Pa.R.A.P. 1925(b) statement. And the trial court declined to review the issue

on its merits, noting that this claim should await resolution on collateral

review. See Trial Court Opinion, 7/14/16, at 8. We cannot conclude that this

reasoning was an abuse of the trial court’s discretion. This claim of prior

counsel’s ineffectiveness is not ripe in this direct appeal. Devon’s first

argument on appeal merits no relief.

       In his second issue, Devon argues that the trial court imposed a

“manifestly excessive” minimum sentence of 35 years. He concedes that this

claim implicates the discretionary aspects of his sentence. See Appellant’s

Brief, at 12. “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:

       [W]e conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902

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       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence,
       see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
       defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
       question that the sentence appealed from is not appropriate
       under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

       Here, Devon preserved his issue through a timely motion for

reconsideration of the sentence imposed after remand,1 and filed a timely

appeal. He has included the required Rule 2119(f) statement. We therefore

review his Rule 2119(f) statement to determine if he has raised a substantial

question.

       We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for

which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.” Id. (citation

omitted); see also Pa.R.A.P. 2119(f).

____________________________________________


1
  The Commonwealth contends that Devon did not preserve his challenge
based upon the alleged excessiveness of the sentence in his post-sentence
motion. However, the Commonwealth concedes that Devon has preserved
his argument that the trial court imposed the sentence without considering
any factor other than the seriousness of the crime. After reviewing the Rule
2119(f) statement, we conclude that Devon is raising only the single issue
that we address below and that he has properly preserved it under the
specific circumstances of this case.



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     Devon “must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

849 A.2d at 274 (citation omitted). That is, “the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.”

Tirado, 870 A.2d at 365. Devon’s claim that the trial court focused

exclusively on the seriousness of the crime while ignoring other, mitigating

circumstances, such as his mental health history and difficult childhood,

raises a substantial question. See Commonwealth v. Caldwell, 117 A.3d

763, 770 (Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa.

2015).

     As a prefatory matter, we must address Devon’s assertion that there

were no relevant guidelines in place at the time of re-sentencing. Once

again, this issue requires some context. When this Court vacated and

remanded his initial sentence of life without parole, there were no

sentencing guidelines in place for his conviction of second-degree murder;

life without parole was mandated under the then-existing scheme. The

legislative and sentencing commission’s responses to Miller were both

effective only for convictions that occurred after June 24, 2012; Devon was

convicted in June 2008.

     Therefore, the sentencing guidelines provide no guidance regarding

the appropriate minimum sentence or the factors that were to be considered


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at re-sentencing. Nor was there any direct statutory guidance. The trial

court’s   discretion   was   thus   to    be   exercised   in   accordance   with

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). In Batts, the

Pennsylvania Supreme Court held that a trial court,

       [a]t a minimum … should consider a juvenile’s age at the time of
       the offense, his diminished culpability and capacity for change,
       the circumstances of the crime, the extent of his participation in
       the crime, his family, home and neighborhood environment, his
       emotional maturity and development, the extent that familial
       and/or peer pressure may have affected him, his past exposure
       to violence, his drug and alcohol history, his ability to deal with
       the police, his capacity to assist his attorney, his mental health
       history, and his potential for rehabilitation.

Id., at 297.

       At re-sentencing, the trial court was provided with a pre-sentence

investigation report (“PSI”). Furthermore, Devon conceded that he had an

extensive juvenile delinquency history, including incidents where he had

possessed firearms. See N.T., Sentencing Hearing, 9/30/2015, at 2. He did

not respond well to supervision in the juvenile system. See id. Devon

admitted that he had not had an exemplary record while imprisoned on this

conviction, but argued that his record improved as he had matured. See id.,

at 4. In response, the Commonwealth presented the testimony of the

victim’s father, Jay Donaldson, who testified to the severe impact of the

crime.

       Where the sentencing court had the benefit of reviewing a PSI, we

must


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          presume that the sentencing judge was aware of relevant
          information regarding the defendant's character and weighed
          those considerations along with mitigating statutory factors. A
          pre-sentence report constitutes the record and speaks for itself.
          In order to dispel any lingering doubt as to our intention of
          engaging in an effort of legal purification, we state clearly that
          sentencers are under no compulsion to employ checklists or any
          extended or systematic definitions of their punishment
          procedure. Having been fully informed by the pre-sentence
          report, the sentencing court's discretion should not be disturbed.
          This is particularly true, we repeat, in those circumstances where
          it can be demonstrated that the judge had any degree of
          awareness of the sentencing considerations, and there we will
          presume also that the weighing process took place in a
          meaningful fashion. It would be foolish, indeed, to take the
          position that if a court is in possession of the facts, it will fail to
          apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted).

          In addition to the PSI, the trial court had the benefit of testimony from

Devon, as well as the victim’s father. Devon does not point to any deficiency

in the content of the PSI. While it is clear that Devon had mental health

issues and suffered an extremely difficult childhood, there is no indication

that the trial court completely disregarded these circumstances when

imposing sentence. We therefore conclude that the trial court considered the

age-appropriate factors when re-sentencing Devon, and therefore did not

abuse its discretion. Under all the circumstances, the sentence imposed was

not unreasonable, and Devon’s second and final issue on appeal merits no

relief.

          Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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