J-A29016-15



                              2016 PA Super 53

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

WILLIAM MITCHELL,

                         Appellant                    No. 913 WDA 2013


        Appeal from the Judgment of Sentence November 27, 2012
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0007519-2007


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

OPINION BY BOWES, J.:                             FILED FEBRUARY 29, 2016

      William Mitchell appeals from the aggregate judgment of sentence of

one hundred and nineteen years to two hundred and thirty-eight years

imprisonment imposed by the trial court after a jury found him guilty of

second-degree murder, robbery, and conspiracy to commit robbery.         After

careful review, we vacate Appellant’s judgment of sentence and remand for

resentencing, but affirm in all other respects.

      Appellant, a juvenile at the time of the commission of the underlying

crimes, and Lance Dempster were involved in the shooting and robbery of

Boston Smithwick, a Vocelli’s Pizza delivery driver.     On April 19, 2007,

Vocelli’s Pizza in Swissvale received a delivery order for pizza and soda from

an individual named Lance. That person provided a cell phone number and
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asked that the order be delivered to 565 Campbell Street, Wilkinsburg.

Smithwick drove to the address.        Appellant, armed with a sawed-off

shotgun, and Dempster attempted to rob Smithwick.         Smithwick tried to

grab the weapon, and was shot in the leg. The shotgun blast severed the

femoral artery in his leg, causing Smithwick to bleed to death. Police later

recovered a hacksaw blade with Appellant’s fingerprints on it and learned

from another individual that Appellant and Dempster had sawed the barrel

off a shotgun on the day of the shooting.

     A witness, Doreen Parker, informed police that she saw Appellant,

Warren Irvin, and Dempster on the porch of 565 Campbell Street, which had

been converted into an apartment building, shortly before the shooting. Ms.

Parker lived in one of the apartments herself.   Appellant was the son of her

next door neighbor. According to Ms. Parker, Irvin was dealing drugs from

the porch and the group refused to leave the porch. Ms. Parker also testified

at trial that another neighbor, who lived across the street from 565 Campbell

Street, and who was deceased at the time of trial, called her and told her

that the pizza delivery man had been shot.

     The   Commonwealth      charged   Appellant   with   criminal   homicide,

robbery, conspiracy to commit murder and robbery, and possession of a

prohibited offensive weapon.   Appellant unsuccessfully litigated a pre-trial

suppression motion, contending that he did not voluntarily or knowingly and

intelligently waive his Miranda rights when he provided police with a


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statement. The matter proceeded to a jury trial. The jury found Appellant

guilty of second-degree murder, robbery, and conspiracy to commit robbery

on April 30, 2012. The court sentenced Appellant on November 27, 2012,

after the United States Supreme Court decision in Miller v. Alabama, 132

S.Ct.    2455   (2012),   which   declared   mandatory    sentences   of   life

imprisonment without parole for juvenile homicide offenders violated the

Eighth Amendment.       The court imposed a sentence of ninety-nine to one

hundred and ninety-eight years incarceration for the felony murder crime. It

also sentenced Appellant to consecutive sentences of ten to twenty years

each for robbery and conspiracy to commit robbery.

        Appellant timely filed a post-sentence motion.   After a hearing, the

court denied that motion.       Appellant timely appealed.     The trial court

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.      Appellant complied, and the trial court

authored its Rule 1925(a) opinion. The matter is now ready for this Court’s

consideration. Appellant raises seven issues for our review.

        I.   Whether the Trial Court erred or, abused its discretion or
             had the legal authority to sentence Appellant, upon
             conviction of Second Degree Murder, to a period of
             incarceration of ninety-nine (99) to one hundred and
             ninety eight (198) years, effectively a life sentence, in
             violation of the mandates of the Supreme Court of the
             United States pursuant to Miller v. Alabama, 132 S.Ct.
             2455 (2012) and with no sentencing provision in effect
             pursuant to the Pennsylvania Crimes Code on November
             27, 2012 to address Appellant’s unique situation?




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      II.    Whether the Trial Court erred or abused its discretion in
             sentencing Appellant to consecutive periods of ten (10) to
             twenty (20) years at the counts for Robbery and
             Conspiracy to Commit Robbery, and specifically in failing to
             provide a proper and sufficient statement of reasons for
             these sentences as required by 42 Pa.C.S. § 9721(b)
             and/or 204 Pa.Code § 303.1(d)?

      III.   Whether the Commonwealth presented sufficient evidence
             to prove beyond a reasonable doubt that the Appellant
             committed the crimes of Murder in the Second Degree and
             Criminal Conspiracy to Commit Robbery?

      IV.    Whether the Trial Court erred by admitting, over objection,
             a statement allegedly made by Diane Davidson, deceased,
             through the testimony of Doreen Parker, when said
             statement was inadmissible hearsay and not subject to the
             excited utterance exception to hearsay?

      V.     Whether the Trial Court erred by admitting, over objection,
             a statement alleged to have been made by Diane
             Davidson, deceased, through the testimony of Detective
             Defelice, when said statement was inadmissible hearsay
             within hearsay and not subject to the excited utterance or
             the inconsistent statement exceptions to hearsay.

      VI.    Whether the Trial Court erred in denying a pre-trial Motion
             to Suppress Statement, regarding statements that were
             made by the Appellant during a May 1, 2007 police
             interrogation, and allowing them to be played in court over
             objection, because the Appellant’s waiver of Miranda and
             subsequent statements were not voluntary, knowing, and
             intelligent?

      VII.   The trial court erred when denying Appellant’s post-
             sentence motion regarding the allowance of putting before
             the jury the crime of Conspiracy to Commit Robbery,
             effectively requiring Appellant to defend on an uncharged
             offense after the jury was empaneled?

Appellant’s brief at 9-10.




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       Appellant’s initial two claims pertain to sentencing. It would, however,

be unnecessary to reach these issues if Appellant is entitled to relief on any

of his remaining claims. Accordingly, we will address issues three through

seven before considering his sentencing claims. Further, it is settled that a

sufficiency of the evidence claim entitles a person to discharge as to the

crime in question.   Hence, we address Appellant’s sufficiency claim at the

outset regardless of the order of his claims. Commonwealth v. Stokes, 38

A.3d 846 (Pa.Super. 2011).    Appellant    argues   that   the   Commonwealth

failed to introduce sufficient evidence to prove beyond a reasonable doubt

that   he   committed   second-degree     murder.    He    maintains   that   the

Commonwealth did not establish that he killed Smithwick while facilitating,

attempting, or committing a robbery or that he was an accomplice to the

robbery that resulted in Smithwick’s death.      Appellant contends that it is

speculation and conjecture that he possessed the shotgun during the

robbery since none of the Commonwealth’s witnesses testified to seeing him

shoot Smithwick.

       In addition, Appellant asserts that the evidence was insufficient to

establish that he committed robbery or conspired to commit a robbery,

thereby rendering both his second-degree murder and conspiracy to commit




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robbery convictions infirm.1         He submits that the Commonwealth did not

prove an agreement between Appellant and Dempster to rob Smithwick.

Appellant posits that there was no evidence that he was aware that

Dempster and his girlfriend called Vocelli’s Pizza.               He argues that the

Commonwealth’s evidence only established his presence when Dempster

“acted     independently      and     spontaneously     in     robbing   and   shooting

Smithwick[.]” Appellant’s brief at 32.

       In reviewing a sufficiency claim, we consider the entirety of the

evidence       introduced,        including      improperly      admitted      evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We consider that evidence in a light most favorable to the Commonwealth,

drawing all reasonable inferences in favor of the Commonwealth.                 Id. The

evidence “need not preclude every possibility of innocence and the fact-

finder is free to believe all, part, or none of the evidence presented.” Id.

Only where “the evidence is so weak and inconclusive that, as a matter of

law,     no   probability    of     fact   can    be   drawn     from    the   combined

circumstances[,]” is a defendant entitled to relief. Id. We do not “re-weigh

the evidence and substitute our judgment for that of the fact-finder.”              Id.

As the question of the sufficiency of the evidence is one of law, we consider
____________________________________________


1
   Appellant does not distinguish between the separate and distinct concepts
of accomplice and conspiratorial liability.      See Commonwealth v.
Roebuck, 32 A.3d 613 (Pa. 2011) (highlighting differences between the two
vicarious liability standards).



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the evidence de novo. Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa.

2011).

       Second-degree       murder,     commonly   known   as   felony   murder   in

Pennsylvania, requires a homicide committed while the “defendant was

engaged as a principal or an accomplice in the perpetration of a felony.” 18

Pa.C.S. § 2502(b). The Crimes Code further defines the perpetration of a

felony, relevant herein, as, “[t]he act of the defendant in engaging in or

being an accomplice in the commission of, or an attempt to commit, or flight

after committing, or attempting to commit robbery[.]”              18 Pa.C.S. §

2502(d).2 The General Assembly has further provided that,

       A person is an accomplice of another person in the commission
       of an offense if:


____________________________________________


2
  The Crimes Code does not expressly set forth that one can be found guilty
of second-degree murder as a conspirator.           Other jurisdictions have
determined that one cannot conspire to commit felony murder. Evanchyk
v. Stewart, 340 F.3d 933, 939-40 (9th Cir. 2003) (holding that, under
Arizona law, one cannot conspire to commit felony murder); see also
Evanchyk v. Stewart, 47 P.3d 1114, 1119 (Ariz. 2002); State v. Wilson,
30 Kan.App.2d 498, 43 P.3d 851, 853-54 (2002) (opining that Kansas does
not recognize the crime of conspiracy to commit felony murder because
conspiracy requires a specific intent). This Court has also repeatedly noted
that one cannot attempt to commit felony murder because an attempt is a
specific intent crime, as is conspiracy.       Commonwealth v. Spells, 612
A.2d 458, 460 n. 5 (Pa.Super. 1992); Commonwealth v. Griffin, 456 A.2d
171, 177 (Pa.Super. 1983). We note, however, that our Supreme Court has
concluded that one can conspire to commit third-degree murder, which does
not require proof of a specific intent to kill. Commonwealth v. Fisher, 80
A.3d 1186 (Pa. 2013).




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          (1) with the intent of promoting             or   facilitating   the
          commission of the offense, he:

            (i) solicits such other person to commit it; or

             (ii) aids or agrees or attempts to aid such other person in
            planning or committing it; or

          (2) his conduct is expressly declared by law to establish his
          complicity.

      (d) Culpability of accomplice. --

      When causing a particular result is an element of an offense, an
      accomplice in the conduct causing such result is an accomplice in
      the commission of that offense, if he acts with the kind of
      culpability, if any, with respect to that result that is sufficient for
      the commission of the offense.

18 Pa.C.S. § 306(c)-(d). Accomplice liability “may be established wholly by

circumstantial evidence. Only 'the least degree of concert or collusion in the

commission of the offense is sufficient to sustain a finding of responsibility

as an accomplice.' No agreement is required, only aid.” Commonwealth v.

Knox, 50 A.3d 732, 739 (Pa.Super. 2012). Thus, Appellant could have been

found guilty of second-degree murder based on the jury finding that

Appellant aided in the robbery that resulted in Smithwick’s death without

establishing a conspiracy to commit that robbery. Accordingly, Appellant’s

argument that the Commonwealth failed to prove a conspiracy to commit

robbery is immaterial to our sufficiency review for purposes of Appellant’s

felony murder conviction.




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      With respect to the charges of robbery and conspiracy to commit

robbery,   Appellant     was     charged     with    robbery    under   18   Pa.C.S.     §

3701(a)(1)(i) and (ii). Under those provisions, a person is guilty of robbery,

“if, in the course of committing a theft, he: (i) inflicts serious bodily injury

upon another; (ii) threatens another with or intentionally puts him in fear of

immediate serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(i)-(ii).                     A

defendant also may be guilty of robbery as an accomplice or co-conspirator

as long as the defendant possessed the requisite mens rea to commit the

criminal   act   and    the    additional    elements      of   accomplice   liability   or

conspiratorial liability are established. We have previously outlined the

definition of an accomplice. A person is a conspirator if “the defendant: 1)

entered into an agreement to commit or aid in an unlawful act with another

person or persons; 2) with a shared criminal intent; and 3) an overt act was

done in furtherance of the conspiracy.”              Commonwealth v. Devine, 26

A.3d 1139, 1147 (Pa.Super. 2011).

      In Commonwealth v. Lambert, 795 A.2d 1010 (Pa.Super. 2002),

this Court set forth four factors to consider in deciding if a conspiracy

existed.    Those      factors   were:      “(1)    an   association   between    alleged

conspirators; (2) knowledge of the commission of the crime; (3) presence at

the scene of the crime; and (4) in some situations, participation in the object

of the conspiracy.” Id. at 1016. A “conspiratorial agreement can be inferred

from a variety of circumstances including, but not limited to, the relation


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between the parties, knowledge of and participation in the crime, and the

circumstances and conduct of the parties surrounding the criminal episode.”

Commonwealth v. Feliciano, 67 A.3d 19, 26 (Pa.Super. 2013) (en banc).

“The conduct of the parties and the circumstances surrounding such conduct

may create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.”           Id. (quoting Devine, supra at 1147).            A

person guilty of robbery as a co-conspirator is necessarily guilty of

conspiracy to commit robbery.

        The Commonwealth posits that the following evidence is sufficient to

establish    second-degree      murder         and   conspiracy   to   commit   robbery.

Dempster and his girlfriend telephoned several local pizza shops before

Dempster ordered pizza and a two-liter of soda from Vocelli’s in Swissvale.3

He gave the address of the delivery as 565 Campbell Street in Wilkinsburg.

Dempster’s girlfriend testified that she knew that Dempster intended to rob

a pizza delivery man. A resident of the 565 Campbell Street address, Ms.

Parker observed Dempster, Appellant, and Warren Irvin sitting on the porch

at that address shortly before Smithwick, Vocelli’s pizza delivery person,

arrived. The Commonwealth introduced evidence that Appellant, Dempster,

and Irvin sawed off the barrel of a shotgun with a hacksaw in an abandoned

house several doors down from 565 Campbell Street earlier that same day.

____________________________________________


3
    The calls were three-way calls.



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Police recovered a hacksaw blade with Appellant’s fingerprints on it.

Appellant admitted to police that he did saw off a gun barrel, but denied

being involved in the robbery and shooting.

      Irvin testified that although he did not see the shooting, he observed

Appellant and Dempster hiding in the bushes when Smithwick arrived at 565

Campbell Street.    The Commonwealth introduced evidence that Appellant

and   Dempster     then   confronted    Smithwick     armed     with   a     shotgun.

Specifically, Irvin acknowledged hearing the shotgun being cocked, and

asserted that he ran away as Smithwick ran toward Appellant, before he

heard a shot fired. Shortly thereafter, police arrived to find Smithwick shot.

      These facts, viewed in a light most favorable to the Commonwealth,

establish beyond a reasonable doubt that Appellant is guilty of second-

degree murder, robbery, and conspiracy to commit robbery.                  Appellant’s

claim that he was merely present at the scene ignores our standard of

review. The evidence establishes that Appellant both aided Dempster in the

robbery and agreed to take part in the robbery.               Here, Appellant and

Dempster attempted to hold up and rob Smithwick. In the process of this

robbery, Smithwick was shot and killed.         Appellant’s sufficiency claims are

devoid of merit.

      Appellant’s next two claims are that the trial court erred in admitting

into evidence a statement by a deceased witness, Diane Davidson.

Evidentiary rulings are governed by an abuse of discretion standard.


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Commonwealth v. Moser, 999 A.2d 602 (Pa.Super. 2010).                   First,

Appellant attacks the admission of Davidson’s statement through Doreen

Parker.    Appellant contends that the statement was inadmissible hearsay

and did not fall within the ambit of the excited utterance exception to

hearsay. The relevant testimony is as follows.4

       Prosecutor: What did she tell you?

       Ms. Parker: She told me that the pizza man was laying on the
       ground.

       Prosecutor: What exactly did she say to you?

       Ms. Parker: Doreen, I’m calling the police, too. Somebody shot
       the pizza man. He is laying on the ground.

       Prosecutor: Doreen, do you remember speaking to myself and
       Detective DeFelice last week?

       Ms. Parker: Yes, that was April 17th.

       Prosecutor: Right.

       Ms. Parker: Yes.

       Prosecutor: Do you remember what you told us Diane told you?

       Ms. Parker: She just told me he had been shot.

       Prosecutor: Would it help you remember if I showed you your
       report?
____________________________________________


4
    Appellant objected to Ms. Parker being permitted to testify as to
statements made to her by Ms. Davidson prior to Ms. Parker’s testimony.
The Commonwealth invoked the excited utterance exception and Appellant
argued that Ms. Davidson’s statement to Ms. Parker did not sufficiently
evince that Ms. Davidson observed the shooting. The trial court overruled
the objection. Appellant again objected immediately before the testimony.



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       Ms. Parker: Yes.[5]

       ....

       Prosecutor: I’m going to show you this report. Tell me if it
       refreshes your memory. Read it to yourself as to what Diane
       told you, okay. Did you read this paragraph?

       Ms. Parker: Yes.

       Prosecutor: Does that refresh your recollection as to what you
       told the detective exactly what Diane told you on the phone?

       Ms. Parker: Yes.

       Prosecutor: What did Diane tell you on the phone?

       Ms. Parker: He shot the pizza man.

       Prosecutor: Who shot the pizza man?

       Ms. Parker: She didn’t know who.

       Prosecutor: What was the word she used?

       [objection overruled]

       Prosecutor: Ms. Parker, would it help you to read the report
       again? Read this report to yourself beginning with Davidson
       stated to Parker.

       Ms. Parker: This is what she told me.

       Prosecutor: Does that refresh your memory as to what she told
       you?

       Ms. Parker: Yeah.

____________________________________________


5
   Appellant raised an objection and the court allowed the prosecution to
proceed in order to refresh the witness’ recollection.



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     Prosecutor: What did she say to you exactly?

     Ms. Parker: This.

     Prosecutor: You have to testify to it. What did she tell you?

     Ms. Parker: She said he shot the pizza man.

     Prosecutor: Exactly what did she tell you?

     Ms. Parker: I’m calling 911. He is laying out on the ground on
     the sidewalk and the curb. She could see better than me.

     Prosecutor: Did she say who shot him?

     Ms. Parker: No.

     Prosecutor: How did she describe who shot him?

     Ms. Parker: She really didn’t. She was scared.

     Prosecutor: Did she say gender?

     Ms. Parker: She knew it was a male.

     Prosecutor: The people that shot the pizza man, Ms. Parker, did
     Diane say what gender they were?

     Ms. Parker: No.

     Prosecutor: She didn’t describe them as men or women?

     Ms. Parker: We already knew who it was out there.

     Prosecutor:   She didn’t describe anybody.     She just said they
     shot him.

N.T., 4/25/12, 99-103. Appellant argues that Ms. Davidson’s statement to

Ms. Parker does not indicate that Ms. Davidson witnessed the shooting.

     The Commonwealth rejoins that the context of the statement is

sufficient to establish that Ms. Davidson saw the shooting.   It adds that a

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shooting is a startling event and that Ms. Davidson made her statements to

Ms. Parker within seconds to three minutes of the shooting. Thus, it posits

that Ms. Davidson’s statement was an excited utterance and admissible.

      We agree.    The entire context of Ms. Davidson’s statements to Ms.

Parker indicate that she witnessed the shooting. Appellant does not dispute

that a shooting is a startling event. The trial court did not err in allowing Ms.

Parker’s   testimony    regarding    Ms.      Davidson’s   statements.      See

Commonwealth v. Douglas, 737 A.2d 1188, 1195 (Pa. 1999) (unavailable

witness’ statement provided after seeing a shooting was admissible as an

excited utterance); Commonwealth v. Washington, 692 A.2d 1018, 1022

(Pa. 1997).

      Relatedly, Appellant asserts that the trial court erred in permitting

Detective DeFelice to read into evidence Ms. Parker’s statement to him

recounting what Ms. Davidson told her.            Appellant contends that this

testimony was double hearsay not falling within any recognized exception to

the bar against such evidence. Specifically, over objection, the prosecution

asked Detective DeFelice, “what did Ms. Parker say that Ms. Davidson told

her?” N.T., 4/25/12, at 118. Detective DeFelice answered, “Them boys shot

the pizza delivery man. Now he is laying out there on the curb.” Id. at 119.

      The trial court permitted the testimony based on the Commonwealth’s

argument that the statement read by Detective DeFelice was an inconsistent

prior statement to Ms. Parker’s in-court testimony related above. Appellant


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argues that the trial court failed to appreciate the distinction between an

inconsistent statement and one that is merely dissimilar. Appellant’s brief at

40 (citing McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006)

(quoting Commonwealth v. Bailey, 469 A.2d 604, 611 (Pa.Super. 1983))).

He points out that Ms. Parker stated that Ms. Davidson said, “Somebody

shot the pizza man,” and that this declaration is not inconsistent with “Them

boys shot the pizza man.”          In addition, we are cognizant that Ms. Parker

repeatedly stated that Ms. Davidson told her that “he shot the pizza man[,]”

although at one point she said that Ms. Davidson did not say what gender

they were.

       We find that the court erred in permitting Detective DeFelice to testify

as to what Ms. Parker relayed to him regarding Ms. Davidson.                The

difference between Ms. Parker’s testimony is not, when considered in

context, inconsistent with, “Them boys shot the pizza man.” N.T., 4/25/12,

at 119. Although Ms. Parker did state that Ms. Davidson did not describe the

assailants, she acknowledged that Ms. Davidson knew it was men who

robbed the victim.6 Viewed in its entirety, the testimony related above was



____________________________________________


6
    The Commonwealth in its brief does not contend that this was the
inconsistency. Rather, it asserts that the statement “he shot the pizza man”
is inconsistent with “Them boys shot the pizza man[,]” because the latter
quote indicates that more than one person was involved. Commonwealth’s
brief at 33.



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consistent. Nonetheless, we agree with the Commonwealth’s argument that

the error was harmless.

      Harmless error exists if there is no reasonable possibility that the error

could have contributed to the verdict. Commonwealth v. Green, 76 A.3d

575, 583 (Pa.Super. 2013). In this respect, an error is harmless if it

      did not prejudice the defendant or the prejudice was de minimis;
      or (2) the erroneously admitted evidence was merely cumulative
      of other untainted evidence which was substantially similar to
      the erroneously admitted evidence; or (3) the properly admitted
      and uncontradicted evidence of guilt was so overwhelming and
      the prejudicial effect of the error so insignificant by comparison
      that the error could not have contributed to the verdict.

Id.   Here, the evidence was merely cumulative of properly admitted

evidence. Appellant is not entitled to a new trial on this basis.

      Appellant’s next contention is that the trial court erred in denying his

suppression motion. We consider an order denying a motion to suppress by

reviewing   the   evidence   of   the    Commonwealth’s   witnesses,     and   the

uncontradicted evidence presented by the defendant. In re T.B., 11 A.3d

500, 505 (Pa.Super. 2010).        Where the factual findings of the court are

supported by that evidence, we are bound by those findings. Id. However,

the suppression court’s legal conclusions are not binding. Id. The question

of whether a confession is constitutionally admissible is one of law. Id. We

evaluate Appellant’s waiver considering the totality of the circumstances.

      The Commonwealth was required to prove by a preponderance of the

evidence that Appellant’s Miranda waiver was constitutionally valid.           Id.


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This “inquiry has two distinct dimensions.” Id. First, Appellant must have

voluntarily waived his right to remain silent. This Court has opined that a

voluntary waiver is one that is “the product of a free and deliberate choice

rather than intimidation, coercion or deception.” Id. In addition, a person

must be fully aware “of the nature of the right being abandoned and the

consequences of the decision to abandon it.” Id.

      When the Miranda waiver is performed by a juvenile, we have set

forth that we consider the juvenile’s age, experience, comprehension, the

presence or absence of an interested adult, the duration and means of the

interrogation, the juvenile’s physical and psychological state, the conditions

attendant to the detention, the attitude of the official conducting the

interview, and any other factors that might drain a juvenile’s ability to

withstand coercion and suggestion. Id. at 506.

      Appellant maintains that his Miranda waiver was not knowing,

intelligent, and voluntary because the adult present for his statement was

not an interested adult. Appellant’s uncle, with the consent of Appellant and

Appellant’s   mother,   was   present   when   Appellant   spoke   with   police.

Appellant argues, however, that because his uncle cooperated with police,

he had a conflict of interest.     According to Appellant, his uncle, Harry

Mitchell, previously provided police with information that incriminated

Appellant.    Appellant submits that his lack of experience with police




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interrogation, combined with the lack of an interested adult being present,

resulted in his waiver being invalid.

      The Commonwealth responds by initially setting forth that Appellant

did not confess to the crime. Rather, Appellant denied involvement in the

robbery and shooting, although he did admit to taking part in sawing off a

shotgun.     It continues by highlighting that Appellant voluntarily turned

himself into police with his mother and uncle on May 1, 2007.                  The

Commonwealth does acknowledge that Appellant’s uncle was interviewed on

April 20 and April 26, 2007.         In the later interview, Appellant’s uncle

informed police that Appellant was back in town or available for questioning.

Appellant’s uncle thereafter helped to facilitate Appellant turning himself in

to police.

      When     Appellant   arrived      at   the   Allegheny   County    Homicide

headquarters, he was told that he was under arrest for homicide. He, his

mother, and uncle were taken into a conference room. Appellant was not

handcuffed at that time.    After initially indicating that he did not wish to

speak with police, Appellant informed a sergeant that he was willing to

discuss the matter with police but not with his mother present.                The

sergeant spoke with Appellant’s mother about Appellant being more

comfortable talking with police without her being in the room. Appellant, his

mother, and uncle then were permitted to speak together.                Appellant’s

mother agreed to allow Appellant to speak with police but asked that


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Appellant’s uncle be present. Police agreed and then informed Appellant of

his Miranda rights in the presence of both his mother and uncle. Appellant

answered questions on the Miranda waiver form, waiving his rights.

Appellant, his mother, and Appellant’s uncle, each signed the form. At that

point, Appellant’s mother exited the conference room. Appellant’s uncle did

not ask any questions and Appellant was permitted to speak uninterrupted.

The police did not discuss the April 20 and April 26 interviews with

Appellant’s uncle, but the interview ended after Appellant told police that he

did not wish to speak with them after they began to ask questions.

      There is no evidence in the suppression record that Appellant’s uncle

had a conflict of interest.   The evidence only indicates that he spoke with

police, helped facilitate Appellant turning himself in voluntarily, and had told

Appellant that he had talked with police previously.       The totality of the

circumstances evinces a sound waiver. Appellant was informed of his rights

in the presence of both his mother and his uncle. Appellant, along with both

adults, signed a Miranda waiver form, after Appellant completed answering

that form.     Appellant was not handcuffed, there is no evidence of

intimidation, nor was the interview conducted at an unreasonable hour or for

an extended period. Appellant’s claim is meritless.

      Appellant’s final issue is that the trial court erred in denying the claim

in his post-sentence motion that the court erred in putting before the jury

the crime of conspiracy to commit robbery because that crime was not


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included in the criminal information. This claim is frivolous and belied by the

record.     In count two of the criminal information, the Commonwealth

charged Appellant with robbery.                In count three, the Commonwealth

expressly delineated that Appellant,

       with the intent of promoting or facilitating the crime(s) charged
       above, conspired and agreed with Lance Dempster that they or
       one or more of them would engage in conduct constituting such
       crime(s) or attempt or solicitation to commit such crime(s), and
       in furtherance thereof did as a principal or an accomplice,
       commit one or more of the following overt acts: shooting the
       victim, Boston Smithwick, Jr.

See Criminal Information at 1, count 3.              Thus, the criminal information

referred to the crime of robbery charged in count two in setting forth the

conspiracy offense. Appellant is entitled to no relief.7

       Having disposed of Appellant’s claims pertaining to his trial, we now

consider his sentencing challenges.            Appellant’s initial sentencing issue is

that he was illegally sentenced to the equivalent of a life sentence without

parole based on Miller v. Alabama, supra.                The Commonwealth agrees

that Appellant is entitled to resentencing on this basis and the trial court in

its opinion acknowledged that its sentence was unlawful.                    Instantly,

____________________________________________


7
  We caution counsel against advancing claims that are patently contradicted
by the record. Further, we add that trial counsel did not object to the
criminal information being inadequate prior to trial or to the Commonwealth
proceeding on a theory at trial that Appellant conspired to commit robbery,
nor did counsel object to the court instructing the jury on that crime. Only
at sentencing did Appellant object to the criminal information regarding the
conspiracy count.



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Appellant was found guilty on April 30, 2012, and sentenced on November

27, 2012. The Miller decision was decided on June 24, 2012. Miller held

that mandatory sentences of life imprisonment without parole for juvenile

homicide     offenders     violate    the      Eighth    Amendment.          Accordingly,

Pennsylvania’s     mandatory       sentencing        structure   for   juvenile   homicide

defendants was rendered unconstitutional.               After Appellant was sentenced,

the General Assembly passed sentencing legislation to address the Miller

case. See 18 Pa.C.S. § 1102.1 (effective October 25, 2012). However, that

statute does not apply to Appellant.             Id.; see also Commonwealth v.

Batts, 66 A.3d 286 (Pa. 2013) (citing Commonwealth v. Lofton, 57 A.3d

1270, 1272 (Pa.Super. 2012)).8

       While Appellant was not sentenced under a mandatory sentencing

scheme, the sentencing court did not state that it considered various factors
____________________________________________


8
   Contrary to Appellant’s argument at sentencing, there did exist statutory
authority to sentence him. Specifically, under the then-applicable version of
18 Pa.C.S. § 1102(b), Appellant was to be given life imprisonment.
However, that statute’s interplay with 61 Pa.C.S. § 6137(a), which
mandated no opportunity for parole, was no longer constitutionally sound.
Thus, Appellant should have been provided the opportunity for parole during
his life sentence. See Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013)
(discussing sentencing for juvenile found guilty of first-degree murder in
light of Miller v. Alabama, 132 S.Ct. 2455 (2012)). Admittedly, there was
no express statutory provision setting forth a specific time in which a
juvenile homicide defendant in Appellant’s situation would be eligible for
parole. Our Supreme Court in Batts expressly rejected the argument that a
juvenile homicide defendant could only be sentenced to a term of years of
twenty to forty years incarceration or that a trial court was without authority
to impose a life sentence with a term of parole for those found guilty of first-
degree murder.



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that both this Court and our Supreme Court have set forth for sentencing

those juvenile homicide offenders who did not come within the ambit of 18

Pa.C.S. § 1102.1.     See Knox, supra at 745; Lofton, supra; see also

Batts, supra 296 (internal citations omitted) (“Miller neither barred

imposition of a life-without-parole sentence on a juvenile categorically nor

indicated that a life sentence with the possibility of parole could never be

mandatorily imposed on a juvenile. Rather, Miller requires only that there

be judicial consideration of the appropriate age-related factors set forth in

that decision prior to the imposition of a sentence of life imprisonment

without the possibility of parole on a juvenile.”).   Accordingly, we vacate

Appellant’s judgment of sentence and remand for re-sentencing consistent

with the aforementioned decisions.      Since we are vacating Appellant’s

judgment of sentence on this ground, we need not reach his second

sentencing issue.

      Judgment of sentence vacated. Case remanded for re-sentencing.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




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