J-S13021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :               IN THE SUPERIOR COURT OF
                              :                    PENNSYLVANIA
                              :
            v.                :
                              :
                              :
 LESLIE L. BROWN              :
                              :
                Appellant     :               No. 1053 WDA 2017
                              :

                 Appeal from the PCRA Order June 22, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0008030-2009



BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED APRIL 2, 2018

      Appellant, Leslie L. Brown, appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      This Court previously summarized the facts of the crime and initial

procedural history as follows:

             At approximately 12:00 a.m. on the morning of September
      29, 2006, 16-year-old [Appellant] was in the Swissvale
      neighborhood of Allegheny County with friends Lamar Meggison
      (“Meggison”), Keith Smith (“Smith”), and Daniel Holmes. As the
      group proceeded to a local convenience store, [Appellant]
      approached Michael Stepien (“Stepien” or “the victim”), who was
      walking in a nearby alley, and demanded money, holding a gun to
      Stepien’s head. Stepien told [Appellant] he had no money.
      [Appellant] fired two warning shots—one in the air and one into
      the ground—and demanded money a second time. When Stepien
      again told him he did not have any money, [Appellant] shot him
      in the head. [Appellant] and his friends, who were still in the area,
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     ran to the home of Terico Ross, another friend who lived in the
     neighborhood. While there, in the presence of his friends,
     [Appellant] said that he killed someone.

           Paramedics responded to a call of a man lying in the alley
     between Nied’s Funeral Home and the volunteer fire department
     and transported the victim to the hospital.       Stepien was
     pronounced dead from the gunshot wound to his head at
     approximately 3:00 a.m. on September 29, 2006.          Medical
     personnel removed a badly damaged .22 caliber bullet from
     Stepien’s head.

           On October 6, 2006, at a bus stop in Swissvale several
     blocks from where the murder occurred, [Appellant] approached
     Francis Yesco (“Yesco”) from behind, put a gun to his head, told
     him not to move, and reached into Yesco’s pants pocket. Yesco
     brushed [Appellant’s] hand away and turned to strike [Appellant],
     at which [Appellant] fled, still holding the gun. Yesco and
     Swissvale Police Officer Justin Keenan, who was patrolling in the
     area and observed what happened, chased [Appellant] for
     approximately half a block, during which [Appellant] discarded the
     firearm over a fence. Officer Keenan ultimately caught [Appellant]
     and arrested him, and recovered the gun shortly thereafter.

            A ballistics expert for the Commonwealth test-fired
     [Appellant’s] gun, a .22 caliber revolver, and compared the test
     bullet with the bullet removed from the victim. The bullet
     recovered from Stepien’s head was so badly damaged it could not
     be matched, but because it shared certain similarities with the test
     bullet, [Appellant’s] gun could not be excluded as the murder
     weapon.

           The police had no further evidence linking [Appellant] to
     Stepien’s murder until 2008, when they arrested Carl Smith,
     Smith’s brother, who told police that Smith was present at the
     time [Appellant] shot Stepien. This led police to interview other
     witnesses, who also implicated [Appellant] in Stepien’s murder. A
     grand jury was subsequently convened, and ultimately [Appellant]
     was arrested.

            The Commonwealth charged [Appellant] by information with
     criminal homicide, robbery, carrying a firearm without a license,
     and possession of a firearm by a minor.1 Following a three-day
     trial, a jury convicted [Appellant] of second-degree murder,2

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      robbery, carrying a firearm without a license, and possession of a
      firearm by a minor. On May 23, 2011, the trial court sentenced
      [Appellant] to a mandatory term of life in prison without the
      possibility of parole for second-degree murder and to a
      consecutive term of three to six years of imprisonment for
      carrying a firearm without a license. The court imposed no further
      penalty on the remaining convictions.

            1 18 Pa.C.S.A. §§       2501(a), 3701(a)(1),      6106,
            6110.1(a).

            2   18 Pa.C.S.A. § 2502(b).

             Following sentencing, the trial court granted trial counsel’s
      motion to withdraw. The trial court did not appoint new counsel
      until July 14, 2011. On September 30, 2011, [Appellant] filed a
      counseled petition pursuant to the Post Conviction Relief Act
      seeking reinstatement of his post-sentence rights. The trial court
      granted his request on December 1, 2011, ordering the filing of
      post-sentence motions nunc pro tunc within 10 days of its order.
      [Appellant] complied on December 7, 2011, raising a challenge to
      the weight of the evidence and two claims of trial court error. On
      January 20, 2012, the trial court granted [Appellant] permission
      to file amended post-sentence motions, which [Appellant] did on
      March 30, 2012, raising an additional claim of trial court error. On
      May 16, 2012, [Appellant’s] post-sentence motions were denied
      by operation of law.

             Brown filed a timely notice of appeal, and complied with the
      trial court’s request for a concise statement of matters complained
      of on appeal pursuant to Pa.R.A.P. 1925(b). He then filed a
      supplemental 1925(b) statement, raising for the first time a claim
      that his mandatory sentence of life in prison without the possibility
      of parole is unconstitutional.

Commonwealth v. Brown, 71 A.3d 1009, 1011–1012 (Pa. Super. 2013).

      This Court rejected both Appellant’s claim that his convictions were

against the weight of the evidence and an evidentiary issue, but it vacated the

judgment of sentence and remanded to the trial court for resentencing in light

of Miller v. Alabama, 567 U.S. 460 (2012), and Commonwealth v. Knox,

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50 A.3d 749 (Pa. Super. 2012). Brown, 71 A.3d at 1017. Our Supreme Court

denied Appellant’s petition for allowance of appeal.        Commonwealth v.

Brown, 77 A.3d 635, 346 WAL 2013 (Pa. filed October 10, 2013).

      The trial court held a sentencing hearing on November 19, 2014,

following which it sentenced Appellant to forty years to life in prison for murder

and a consecutive term of three to six years of imprisonment for carrying a

firearm without a license.    Appellant filed a timely post-sentence motion,

which the trial court denied. Appellant filed a timely notice of appeal.

      On appeal to this Court, Appellant challenged the discretionary aspects

of his sentence, claiming it was both excessive and unreasonable.             We

disagreed and affirmed the judgment of sentence.            Commonwealth v.

Brown, 133 A.3d 81, 535 WDA 2015 (Pa. Super. filed September 28, 2015)

(unpublished memorandum). Our Supreme Court denied Appellant’s petition

for allowance of appeal. Commonwealth v. Brown, 128 A.3d 218, 396 WAL

2015 (Pa. filed December 1, 2015).

      On December 11, 2015, Appellant filed the instant, timely, pro se PCRA

petition.   The PCRA court appointed counsel, who filed an amended PCRA

petition on December 22, 2016. The PCRA court issued its notice of intent to

dismiss the petition pursuant to Pa.R.Crim.P. 907 on May 19, 2017, and

dismissed the petition on June 22, 2017. Appellant filed a timely notice of

appeal on July 21, 2017. The PCRA court did not order the filing of a Pa.R.A.P.

1925(b) statement. In lieu of a Rule 1925(a) opinion, the PCRA court refers


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us to its explanation in the Notice of Intention to Dismiss Pursuant to

Pa.R.Crim.P. 907.

      Appellant raises the following issues for our review:

        I.    Are [Appellant’s] claims for relief are [sic] properly
              cognizable under the Post-Conviction Relief Act?

       II.    Did the lower court abuse its discretion in denying the PCRA
              petition, as amended, without a hearing insofar as
              [Appellant] established the merits of the claim that
              appellate counsel was ineffective for failing to raise a claim
              on appeal that the trial court abused its discretion in denying
              [Appellant’s] request for new counsel to represent him at
              trial upon failing to hold a full and meaningful hearing
              regarding [Appellant’s] allegation that his court-appointed
              attorney had a conflict of interest regarding his case, and
              that he and his court-appointed trial counsel had
              irreconciliable differences?

      III.    Did the lower court impose[] an illegal sentence insofar as
              the only authorized sentence for a second degree murder
              committed by a juvenile in 2006 is unconstitutional, and that
              defect cannot be remedied by either severance or judicial
              revision of the statute, as a result, [Appellant] must be
              resentenced for a lesser offense?

Appellant’s Brief at 5 (full capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.


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2016).    The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

       Our Supreme Court has held that “PCRA hearings are not discovery

expeditions, but are conducted when necessary to offer the petitioner an

opportunity to prove his explicit assertion of ineffectiveness raising a colorable

claim about which there remains an issue of material fact.” Commonwealth

v. Cousar, 154 A.3d 287, 299 (Pa. 2017) (citing Commonwealth v. Sneed,

45 A.3d 1096, 1107 (Pa. 2012). Moreover, “the PCRA court has discretion to

dismiss a petition without a hearing when the court is satisfied ‘there are no

genuine issues concerning any material fact, the defendant is not entitled to

post-conviction collateral relief, and no legitimate purpose would be served by

further proceedings.’” Cousar, 154 A.3d at 297 (citing Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013).              “[S]uch a decision is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

       We first address Appellant’s Issue II, asserting ineffective assistance of

his prior counsel.1 When considering an allegation of ineffective assistance of

counsel, counsel is presumed to have provided effective representation unless

the PCRA petitioner pleads and proves that: (1) the underlying claim is of


____________________________________________


1 Appellant’s first issue merely is a recitation of case law and does not pose
an issue for this Court’s disposition.

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arguable merit; (2) counsel had no reasonable basis for his action or inaction;

and (3) petitioner was prejudiced          by counsel’s action or omission.

Commonwealth v. Johnson, ___ A.3d ___, ___, 2018 PA Super 28, *5 (Pa.

Super. 2018) (citing Commonwealth v. Pierce, 527 A.2d 973, 975–976 (Pa.

1987)). “In order to meet the prejudice prong of the ineffectiveness standard,

a defendant must show that there is a ‘reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

A claim of ineffective assistance of counsel will fail if the petitioner’s evidence

fails to meet any one of the three prongs. Commonwealth v. Simpson, 66

A.3d 253, 260 (Pa. 2013). Because courts must presume that counsel was

effective, Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015), the

burden of proving ineffectiveness rests with the petitioner. Commonwealth

v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Appellant argues that the PCRA court erroneously denied Appellant’s

PCRA petition without a hearing regarding Appellant’s claim that appellate

counsel was ineffective for failing to challenge the trial court’s refusal to

appoint Appellant new counsel at trial. Appellant’s Brief at 16, 23. If it had

done so, Appellant alleges, he would have proven that the trial court failed to

engage in a “meaningful inquiry” involving Appellant’s reasons for the request

for new counsel.       Id. at 20.       In support, he cites and contrasts




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Commonwealth v. Tyler, 360 A.2d 617 (Pa. 1976), and Commonwealth

v. Floyd, 937 A.2d 494 (Pa. Super. 2007). Appellant’s Brief at 20–22.

      The PCRA court concluded that this claim did not present a genuine issue

of material fact; thus, an evidentiary hearing would serve no purpose. Notice

of Intention to Dismiss Pursuant to Pa.R.Crim.P. 907, 5/19/17, at 1.            As

Appellant is asserting appellate counsel’s ineffectiveness, not that of trial

counsel, Appellant must demonstrate that if appellate counsel had raised the

underlying claim, “there is a reasonable probability that appellate counsel

would have been successful in litigating this claim before the Superior Court.”

Id. In order to meet his burden, Appellant must prove that this Court would

conclude that the trial court abused its discretion in failing to grant Appellant’s

request for new counsel.

      We begin by noting that “the right to appointed counsel does not include

the right to counsel of the defendant’s choice.” Commonwealth v. Albrecht,

720 A.2d 693, 709 (Pa. 1998). This Court has stated:

      Rather, the decision to appoint different counsel to a requesting
      defendant lies within the discretion of the trial court.
      Commonwealth v. Grazier, 391 Pa. Super. 202, 570 A.2d 1054,
      1055 (1990). Before new counsel is appointed, “a defendant must
      show irreconcilable differences between himself and his court-
      appointed counsel before a trial court will be reversed for abuse
      of discretion in refusing to appoint new counsel.” Id.; see also
      Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a
      defendant for whom counsel has been appointed shall not be
      granted except for substantial reasons.”).

Commonwealth v. Smith, 69 A.3d 259, 266 (Pa. Super. 2013). Moreover,

it is well established that “an indigent defendant is not entitled to free counsel

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of his choice; that appointed counsel may only be rejected for ‘good cause

shown’; and that a ‘mere dissatisfaction’ with appointed counsel does not

constitute good cause.” Id. at 267 (citing Commonwealth v. Knapp, 542

A.2d 546, 549 (Pa. Super. 1988)); see also Grazier, 570 A.2d at 1056 (mere

averment that in a separate, unrelated proceeding another member of the

public defender’s staff rendered ineffective assistance, without more, does not

incapacitate the entire staff of the public defender from representing the

appellant); Commonwealth v. Chew, 487 A.2d 1379 (Pa. Super. 1985)

(mere difference of opinion concerning trial strategy or brevity of pretrial

communications does not compel the appointment of new counsel);

Commonwealth v. Johnson, 454 A.2d 1111 (Pa. Super. 1983) (defendant’s

asserted lack of confidence in court appointed counsel’s attitude was not

sufficient reason for appointment of new counsel).

      Appellant contends that the trial court failed to engage in a meaningful

inquiry into the basis for Appellant’s dissatisfaction with defense counsel

throughout trial. Due to the court’s failure in that regard, if appellate counsel

had raised the issue, Appellant submits it is likely that this Court would have

found that the trial court abused its discretion in failing to appoint new counsel

for Appellant. For the reasons that follow, we disagree, and we further discern

that Appellant’s asserted case law in support is distinguishable.

      Appellant suggests “there is no clear record with respect to whether the

judge understood why [Appellant] was attempting to have counsel replaced.”


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Appellant’s Brief at 22. The record simply does not support such a claim. The

trial court inquired about Appellant’s dissatisfaction with trial counsel and

explained its perception to Appellant.        During a pretrial discussion of

preliminary matters, Appellant told the court he felt “like I have ineffective

counsel,” and Appellant did not have “full discovery.” N.T., 2/22/11, at 6.

The trial court inquired what was missing, but Appellant repeated “there is

basic[] discovery that I don’t have that I should have and I don’t want to

proceed with this trial.” Id. at 6–7. Upon inquiry, trial counsel told the court,

“My client has every piece of discovery that I have.” Id. at 6. Despite the

trial court’s further inquiry, Appellant did not specify what discovery he lacked

but instead, vaguely asserted, “There is definitely stuff missing from my

discovery.” Id. at 7. The trial court acknowledged Appellant’s objection for

the record, it apparently was satisfied with trial counsel’s representations, and

it concluded that the trial would proceed. Id. at 6–7.

      The trial court continued to entertain Appellant’s complaints about trial

counsel, out of the presence of the jury. On the second day of trial, February

23, 2011, during the lunch break, Appellant asserted his displeasure regarding

allegedly inconsistent statements by some witnesses that trial counsel did not

expose. The following exchange occurred:

            [APPELLANT]: I have certain questions. They are not
      questions that have no relevance, questions that I want him to
      ask about evidence entered into the proceeding that he flat-out
      refused. At the beginning I explained I have ineffective counsel
      and stated the reasons, the phone calls. I feel like I have


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      ineffective counsel and I would not like to proceed with the lawyer
      that I have.

            THE COURT: He is an experienced attorney. He has tried as
      many homicides as anybody in this courthouse, Mr. Brown. I did
      notice this morning that you were writing things down and he
      consulted with you about [them] and obviously felt that those
      questions were not appropriate questions and did not ask.

            [APPELLANT]: Your Honor–

            THE COURT: Wait. So in that regard as an officer of the
      court and consistent with his knowledge of the Rules of Evidence
      and his experience he did not pose the questions perhaps that you
      wanted asked or posing them in the way that you wanted them
      asked but that is a matter of his judgment again consistent with
      his experience and knowledge of the Rules of Evidence.

             [APPELLANT]: Your Honor, I understand that he has prior
      experience, I definitely understand that, but what seemed like him
      consulting with me was really him blowing me off. We don’t even
      get along. I feel like I do not want to proceed with the lawyer that
      I have basically and the questions that I have are definitely
      relevant. If I would bring them up to you, you would understand.
      They are definitely relevant, statements that are made that are
      inconsistent. Statements that are made that he testified as grand
      juror, they should have been brought up and he refuses to do it.

N.T., 2/23/11, at 172–173. The trial court considered Appellant’s position and

replied:

             THE COURT: He certainly demonstrated, Mr. Brown, this
      morning a very intimate knowledge of the record, prior
      inconsistent statements of the grand jury and police proceedings
      and he confronted Mr. Smith about that pointedly from my
      perception so your motion for discharging [trial counsel] is denied
      if it amounts to any of those things. Thank you.

N.T., 2/23/11, at 174.

      Near the end of trial, after the jury was removed, Appellant complained

about trial counsel’s handling of tapes of jail telephone calls, and he asserted

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that he never learned of the tapes until the day of trial. N.T., 2/23/11, at 261.

The trial court listened to Appellant’s concerns and advised, “I will give you

overnight to consult with [trial counsel] about that matter if you need time.”

Id. at 262. The Commonwealth then clarified the discovery regarding the

tapes, trial counsel explained his opinion, and Appellant was again given the

opportunity to assert his concern. Id. at 262–264.

      Finally, following the court’s charge to the jury, Appellant once again

averred that he continued to believe defense counsel was ineffective and that

“there is a conflict of interest between me and my attorney.” N.T., 2/24/11,

at 323.   The trial court responded that Appellant had clearly asserted his

dissatisfaction with trial counsel for the record. Id.

      We begin our analysis by examining Smith, supra, wherein the

appellant also asserted that the trial court failed to engage in meaningful

inquiry into the expressed desire for new counsel. In Smith, a remand was

necessary because the trial court therein made no attempt to ascertain

whether the appellant desired to represent himself or merely sought the

appointment of new counsel. The Smith trial court told the defendant to “suck

it up” and that it was “not interested” in the defendant’s rights and that he

should “[t]ake it up to the Superior Court.” Smith, 69 A.3d at 266. In the

present case, the record is clear that Appellant sought different court-

appointed counsel. Indeed, there has never been an allegation in the instant

case that Appellant sought to represent himself. Appellant’s Brief at 20, 23.


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      Moreover, as noted supra, the cases Appellant cited are distinguishable.

In Tyler, 360 A.2d 617, the defendant asserted an irreconcilable difference of

opinion from his court-appointed counsel regarding how the defendant’s trial

should be conducted. Id. at 618. Because trial counsel “acknowledged the

existence of such a difference of opinion but advised the court that he was

precluded by the attorney-client privilege from further explaining the nature

of the difficulties,” the trial court was unable to conduct an inquiry into the

nature of the dispute. Id. Thus, in Tyler, the trial court had no information

about the specific conflict between the defendant and his attorney before it

denied the defendant’s request for new counsel.      Id.   Our Supreme Court

concluded in Tyler that the refusal to appoint new counsel was an abuse of

discretion. Id. at 619. See also Floyd, 937 A.2d at 499 (discussing Tyler

and noting that the trial court in Tyler was “essentially prevent[ed] . . . from

inquiring into the underpinnings of the defendant’s complaints”).

      The case at bar is in stark contrast to the above cases.      The record

reflects that the instant trial court allowed Appellant to express his

dissatisfaction on multiple occasions, probed the nature of Appellant’s specific

complaints, asked questions of trial counsel about the nature of the conflict in

each instance, and concluded there was not a breakdown in the relationship

that warranted appointment of new counsel. Accordingly, we discern no abuse

of the PCRA court’s discretion in determining that no genuine issue of material

fact existed to warrant a hearing. “As counsel is not deemed to be ineffective


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for failing to preserve a meritless issue for appellate review, Appellant is not

entitled to relief on this claim.” Johnson, ___ A.3d at ___, 2018 PA Super

28 at *7 (citing Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc)). Thus, we conclude Appellant’s ineffective-assistance-of-

counsel claim does not warrant relief.

       In his final issue, referencing Miller v. Alabama, 567 U.S. 460 (2012),

Appellant avers that “the lower court imposed an illegal sentence insofar as

the only authorized sentence for a second degree murder committed by a

juvenile in 2006 is unconstitutional. . . .” Appellant’s Brief at 25. Thus, he

posits that he “must be resentenced for a lesser offense.”      Id.   Appellant

continues that he could “not be subjected to a ‘Miller resentencing’ because

under settled Pennsylvania law . . . there is no valid[] constitutional penalty

provided in Pennsylvania’s criminal sentencing laws for a second degree

murder committed by a youth under 18 prior to 2012.” Appellant’s Brief at

26.

       When reviewing the legality of a sentence, “our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Brown, 159

A.3d 531, 532 (Pa. Super. 2017) (citation omitted). As noted supra, Appellant

committed the murder in 2006, when he was sixteen years old.2 On May 23,

2011, the trial court imposed a sentence of life imprisonment without the



____________________________________________


2   Appellant was born on July 22, 1990. Complaint, 6/2/09.

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possibility of parole. While Appellant’s direct appeal was pending, the United

States Supreme Court decided Miller on June 25, 2012. The Miller Court

stated 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 [460] 132 S.Ct at 2460; see

also Knox, 50 A.3d at 769 (“[A] mandatory sentence of a term of life

imprisonment without the possibility of parole for a juvenile offender convicted

of second-degree murder is cruel and unusual punishment and a violation of

the Eighth Amendment. . . .”). Therefore, on July 17, 2013, this Court vacated

Appellant’s judgment of sentence and remanded to the trial court for

resentencing. Brown, 71 A.3d at 1017.

      In remanding the case for resentencing, this Court acknowledged that

the newly enacted statute intended to address Miller, 18 Pa.C.S. § 1102.1,

was inapplicable to Appellant’s case in that the new legislation explicitly stated

that it applied only to defendants convicted after June 24, 2012. Accordingly,

upon remand, this Court issued the following guidance to the trial court:

             It is uncontested that the trial court sentenced [Appellant]
      to a mandatory term of life in prison without the possibility of
      parole for second-degree murder that he committed when he was
      16 years old. The United States Supreme Court has spoken clearly
      on this issue: “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, 132 S.Ct.at 2460; see also Knox, 50 A.3d at 769 (holding
      that “a mandatory sentence of a term of life imprisonment without
      the possibility of parole for a juvenile offender convicted of
      second-degree murder is cruel and unusual punishment and a
      violation of the Eighth Amendment of the United States

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       Constitution and Article I, Section 13 of the Pennsylvania
       Constitution,” and setting forth a non-exhaustive list of factors to
       be considered upon resentencing); Commonwealth v. Batts,
       [620] Pa.[115], [66] A.3d [286], 2013 WL 1200252, *6 (Mar.26,
       2013) (life sentence without the possibility of parole
       unconstitutional for first-degree murder committed when the
       defendant was 14 years old). We therefore agree that we must
       vacate the judgment of sentence and remand for resentencing
       pursuant to Miller and Knox.7

              [FN 7] On October 25, 2012, the Pennsylvania
              Legislature passed new legislation setting forth the
              sentence for persons who commit murder, murder of
              an unborn child and murder of a law enforcement
              officer prior to the age of 18. 18 Pa.C.S.A. §1102.1.
              This statute expressly applies only to defendants
              convicted after June 24, 2012. Id. As the trial court
              sentenced [Appellant] on May 23, 2011, this statute
              is inapplicable to the case at bar.

Brown, 71 A.3d at 1016–1017.3

       Upon remand, at the November 19, 2014 resentencing, the trial court

explained the reasons for this Court’s remand, the applicable law, and the

sentencing factors the court intended to consider in resentencing Appellant.

N.T. (Resentencing), 11/19/14, at 3–11.4           The court weighed the various

standard sentencing factors and age-related factors and, as noted supra,

resentenced Appellant to forty years to life incarceration for second-degree


____________________________________________


3  In response to Miller and the codification of 18 Pa.C.S. § 1102.1, the
Sentencing Commission “created a basic sentencing matrix specifically for
juvenile first-and second-degree homicide offenders where the offense
occurred after June 24, 2012. Commonwealth v. Melvin, 172 A.3d 14, 21–
22 (Pa. Super. 2017) (emphasis in original) (citing 204 Pa. Code § 303.16(b)).

4 The November 19, 2014 notes of testimony are erroneously labeled “PCRA
Transcript.”

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murder. Id. at 61–72; see also Trial Court Opinion Following Resentence,

5/26/15, at 8, 8 n.6 (docket entry 65). Appellant challenged the discretionary

aspects of his new sentence in his ensuing direct appeal. We ultimately denied

relief on Appellant’s claim, concluding that he “failed to present this Court with

a substantial question worthy of appellate review.” Brown, 535 WDA 2015

(unpublished memorandum at 8).

       We reject Appellant’s contention that his sentence is illegal because

there is “no valid, constitutional penalty provided in Pennsylvania’s criminal

sentencing laws for a second degree murder committed by a youth under 18

prior to 2012.” Appellant’s Brief at 26. In Commonwealth v. Machicote,

172 A.3d 595 (Pa. Super. 2017), relying principally upon Commonwealth v.

Batts, 163 A.3d 410, 421 (Pa. 2017) (Batts II),5 we determined that “a trial

court, in resentencing a juvenile offender convicted [of second-degree

murder] prior to Miller, was constitutionally permitted to impose a minimum

term-of-years sentence and a maximum sentence of life imprisonment, thus

‘exposing these defendants to parole eligibility upon the expiration of their

minimum sentences.’” Machicote, 172 A.3d at 601.




____________________________________________


5  In Batts II, we explained that the trial court has discretion to impose a life
sentence without the possibility of parole upon juvenile offenders convicted of
first-degree murder prior to Miller as long as the court follows the criteria
identified in Miller. If, however, the court elects not to impose a life sentence
without the possibility of parole, it must impose both a minimum sentence and
a maximum sentence of life imprisonment with the possibility of parole.

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      Similarly, in Melvin, 172 A.3d 14, we addressed the appellant’s

challenge to the legality of his resentence for the crime of second-degree

murder. Therein, the appellant’s sentence for life imprisonment without the

possibility of parole, imposed when he was a juvenile, was vacated pursuant

to Miller, and he was resentenced to a term of incarceration of thirty years to

life in prison.   Melvin, 172 A.3d at 18.     On appeal from the judgment of

sentence, the appellant asserted the sentencing court lacked any “valid

statutory authority to impose a term-of-years sentence with a maximum term

of life imprisonment at his resentencing . . . because the crime at issue . . .

was committed before June 24, 2012,” and thus, “the only possible legal

sentence is on the lesser included offense of third-degree murder or the

underlying felony of robbery.” Id. (footnote omitted). This is essentially the

same claim as asserted herein.

      In rejecting the appellant’s issue, we stated:

      [T]he Court [in Batts II] expressly rejected the claim of Batts and
      his amici, which [the a]ppellant herein now argues, that there is
      no legislatively authorized sentence for juveniles convicted of
      first-degree murder prior to 2012. [Batts II] at 435–41. The
      Court also rejected Batts’ contentions that the forty year
      maximum penalty for third-degree murder is the only legal
      alternative and that severance of the statute is impossible. [Batts
      II] at 441–48. Importantly, the Court held, inter alia, that a trial
      court, in resentencing a juvenile offender convicted prior to
      Miller, was constitutionally permitted to impose a minimum term-
      of-years sentence and a maximum sentence of life imprisonment,
      thus “exposing these defendants to parole eligibility upon the
      expiration of their minimum sentences”. Batts II, 163 A.3d at
      439. We are bound by our Supreme Court’s decision. Thus, we
      disagree with [the a]ppellant that his resulting thirty-years-to-life
      sentence is illegal. . . .

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J-S13021-18



Id. at 22 (footnote omitted).

       The instant trial court followed the guidance set forth in Miller, Knox

and Batts II. Notice of Intention to Dismiss Pursuant to Pa.R.Crim.P. 907,

5/19/17, at 2.      In conjunction with our consideration of Machicote and

Melvin,6 we conclude the trial court’s imposition of sentence of forty years to

life in prison was not an illegal sentence.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018




____________________________________________


6  We note that neither Appellant nor the Commonwealth acknowledged
Machicote or Melvin, both of which preceded the filing of briefs in this case
by three months.

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