J-A18016-18

                                2018 PA Super 346


 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 TRISTAN STAHLEY                            :
                                            :
                    Appellant               :   No. 3109 EDA 2017

                Appeal from the PCRA Order August 28, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0005026-2013


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

OPINION BY STEVENS, P.J.E.:                      FILED DECEMBER 19, 2018

      Appellant, Tristan Stahley, appeals from the order entered in the Court

of Common Pleas of Montgomery County dismissing his petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 1941-1946. Herein, he

contends the PCRA court erroneously denied his ineffective assistance of trial

counsel claims and his legality of sentencing claim based on the Pennsylvania

Supreme Court’s recent decision in Commonwealth v. Batts, 163 A.3d 410

(Pa. 2017) ("Batts II") (devising procedural safeguards to ensure proper

implementation of Miller v. Alabama, 567 U.S. 460 (2012) in the

consideration of life without parole sentences for juvenile offenders).   We

affirm.

      The PCRA court aptly provides a comprehensive recitation of relevant

facts and procedural history, as follows:



____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-A18016-18


        [Appellant’s stipulated non-jury trial] established that on May 25,
        2013, Appellant murdered Julianne Siller, who was 17 years-old.
        N.T. (trial), 9/29/14, at 13. Appellant was 16 years of age at the
        time of the murder. Id.

        On the night of the incident, a dispatch came into the State Police
        of a stabbing in Palmer Park. Id. The two responding troopers
        went to Appellant’s house, where they saw Appellant and his
        father on the ground fighting. Id. After separating the two,
        Appellant [made] a statement that he stabbed his girlfriend
        because she broke up with him and that he thought she would
        hook up with other people. Id.

        The troopers took Appellant to Palmer Park and he directed them
        to the trail where [ ] Ms. Siller was [lying]. Id. There was blood
        on the trail and a trail of blood [leading] into the woods of the
        park. Id. Appellant’s DNA was found at the scene. There was
        DNA on the knife used to kill Ms. Siller. Id. at 13-14. The handle
        of the knife contained Appellant’s DNA and on the blade was [DNA
        belonging to] Ms. Siller. Id. at 14. In addition, one of the troopers
        found blood in the bathroom at Palmer Park that was genetically
        matched to Appellant. Id.

        At the scene of the crime the troopers found Ms. Siller’s jean
        jacket with a stab wound in it, a shirt that had blood on it, stab
        wounds on Ms. Siller, and the murder weapon, 10 feet from Ms.
        Siller’s body. Id.

        Trooper Barry Bertolet took custody of Appellant at the scene
        when Ms. Siller’s body was found. Id. Trooper Bertolet went
        through the Miranda[1] warnings form with Appellant while in the
        presence of his mother. Id. Appellant and his mother both signed
        the form, indicating they understood all of his rights. Id.

        Appellant gave the troopers a statement. During this statement
        Appellant told the trooper that he was sober and that he
        understood what was going on. Id. In the statement, Appellant
        gave a rendition of the facts, wherein he said that he and Ms. Siller
        were in a relationship, but they were on-again, off-again and that
        she would always come back. Id. at 15. Additionally, he told the
        troopers that they got into a fight that night about her going out
____________________________________________


1   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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     and that he stabbed her in the neck with the knife. Id. The
     trooper asked Appellant, “When did you make the decision in your
     mind?” [Appellant] replied, “About two seconds before I did it.”
     Id.

     An autopsy was performed on Ms. Siller and the cause of death
     was determined to be multiple stab and cutting wounds, and the
     manner of death was homicide. Id. Ms. Siller suffered over 75
     stab wounds to her body, including 27 to her head and neck and
     45 to her torso and shoulders. Id.

     At the conclusion of trial, [the trial court] found Appellant guilty
     beyond a reasonable doubt of murder in the first degree. Id. at
     19.

     On December 17, 2014, a sentencing hearing was held. After
     considering the Miller v. Alabama, [567 U.S. 460 (2012)] factors
     as codified in 18 Pa.C.S.A. § 1102.1 and stating its reasons on the
     record, including the finding of irreparable corruption, [the trial
     court] imposed a sentence of life imprisonment without parole.
     No appeal was filed.

     On December 22, 2015, Appellant filed a pro se PCRA petition.
     Counsel was appointed, and after multiple extensions of time,
     PCRA counsel filed an Amended PCRA Petition on February 13,
     2017.

     A PCRA Hearing was conducted on July 25, 2017. Appellant’s trial
     counsel, Timothy Barton, a seasoned defense attorney of 29
     years, provided credible testimony as follows.

     Attorney Barton’s involvement in this case began when he had
     been privately retained by the Stahleys. Id. at 4. In his initial
     meeting with the Stahley family, he discussed the scope and
     nature of his representation and he also interviewed Mr. and Mrs.
     Stahley regarding anything they might know about the incident.
     N.T., (PCRA hearing), 7/25/17, at 5.

     Both Mr. and Mrs. Stahley had been present the night that
     Appellant was arrested. Id. Mrs. Stahley accompanied Appellant
     to the police station and was present during the custodial
     interrogation when Appellant, then a minor, gave a statement to
     police. Id. at 5-6.


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     Attorney Barton estimated that he met with Appellant over a
     dozen times, “if not more.” Id. at 6. He met with him on a weekly
     basis for a period of time at Montgomery County Correctional
     Facility. Id. In addition, Attorney Barton testified that he met
     with Appellant’s parents “[o]ften” and were in frequent contact,
     although he was unable to estimate on how many occasions. Id.
     at 6-7.

     Since Appellant admitted to the murder in his statement to police,
     Attorney Barton’s initial strategy was to focus on whether at the
     time of the crime Appellant could have formed a specific intent to
     kill and what degree of guilt it might be. Id. at 7.

     Prior to trial, Attorney Barton in part prepared a decertification
     motion, for which he retained two psychiatrists, Dr. John O’Brien
     and Dr. Steven Samuel for the purpose of interviewing Appellant
     to ascertain what defenses there might be at trial. Id. at 25-27.
     In part, Attorney Barton wanted to use Dr. Samuel’s report to
     show the [District Attorney] that there should be some sort of plea
     negotiations. Id. at 27. In addition, he had several conversations
     with the assigned Assistant District Attorney, Jeremy Lupo, who
     had been assigned the case and with the then District Attorney,
     Risa Ferman, about possible resolutions. Id. at 8. ADA Lupo
     informally suggested that if Appellant were to plead guilty, the
     Commonwealth would recommend a sentence of 40-80 years’
     imprisonment. Id. at 28. Attorney Barton testified that Appellant
     was not interested in that deal in large part because he believed
     that in 40 years his mom and/or dad would be deceased. Id. That
     was very important to Appellant, the hope that he would be able
     to unify with his parents. Id.

     Attorney Barton testified that in his conversations with Appellant,
     they spoke about whether he actually formed the intent to kill. Id.
     at 9. Attorney Barton also testified that Appellant had described
     his state of mind the evening of the murder, telling him that he
     intended to kill the victim. Id. at 32. Appellant told Attorney
     Barton this at various meetings at the Montgomery County
     Correctional Facility. Specifically, Appellant told Attorney Barton
     that it was not his intent to kill Miss Siller when they were home
     or left the home or went to the park, but at some point while at
     the park he decided to kill her. Id.

     Attorney Barton stated that he had reviewed discovery, which
     included a property receipt for a search that was executed at the

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     Stahleys’ home. Id. at 9-10. In that property receipt was a
     “nearly empty bottle of raspberry vodka.” Id. at 11.

     Attorney Barton also reviewed various witness statement, and in
     particular the statement of Todd Evans, a paramedic who treated
     Appellant the evening of the murder, wherein Appellant told Mr.
     Evans that he was under the influence of alcohol. Id. at 12.
     Appellant had also told police in his statement that he had been
     under the influence of alcohol. Id.

     According to Attorney Barton, he had also received an expert
     report from Dr. O’Brien which opined “It is my opinion that
     [Appellant’s] records and the psychological testing performed by
     Dr. Samuel reflect him to have been a troubled adolescent with a
     combination of both psychiatric symptoms and characterological
     difficulties which rendered him susceptible to the disinhibiting
     effects of alcohol on the night of the offense.” Id. at 13, 15. The
     report concluded “It is my opinion that as a result of his
     psychiatric, psychological and characterological impairments, and
     his degree of intoxication at the time of the offense, [Appellant]
     was not able to premeditate, deliberate and formulate the intent
     to kill Julianne Siller, notwithstanding his response to police
     questioning about the timing of his ‘decision’ to kill Julianne Siller
     at the time of the offense.” Id. at 17.

     Attorney Barton had this report prior to the trial; however, he did
     not call Dr. O’Brien to testify at the time of trial or at the
     suppression hearing.        Id. at 17-18.   On cross-examination,
     Attorney Barton explained that Dr. O’Brien had been privately
     retained by the Stahley family for an opinion regarding Appellant’s
     ability to form the specific intent to kill, in anticipation of him
     testifying at a jury trial. Id. at 29.

     At some point, Attorney Barton had concerns about Dr. O’Brien’s
     opinion. Id. at 30. He elaborated that in speaking with Dr. O’Brien
     after the Commonwealth had an expert examine Appellant and
     prepare a report, and some of the statements Appellant made
     after Dr. O’Brien’s report was prepared, that Dr. O’Brien’s opinion
     was weakened, if not invalidated. Id. at 30. More specifically,
     Attorney Barton had the expert report prepared by Dr. Barbara
     Ziv, the expert retained by the Commonwealth to examine
     Appellant. Id. at 31. He reviewed the report himself and with
     Appellant at the prison. Id.


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J-A18016-18


     At the PCRA hearing, Attorney Barton detailed the events on
     September 29, 2014, the day of the scheduled trial, that occurred
     causing Appellant’s decision to proceed with a stipulated bench
     trial instead of a jury trial. That morning Attorney Barton was
     prepared to proceed to a jury trial, and would have presented Dr.
     O’Brien, Mrs. Stahley and possibly Appellant along with an
     intoxication defense. Id. at 19, 21-22. Mrs. Stahley requested
     that she speak to her son. Id. at 19. Both Mr. and Mrs. Stahley
     were permitted to meet with Appellant in the robing room, where
     there was a conversation mainly between Mrs. Stahley and
     Appellant about whether he should proceed with a jury trial or
     plead guilty. Id.

     Mrs. Stahley and Attorney Barton had had many conversations
     about the merits of the Commonwealth’s case, the defenses, and
     the options. Id. Specifically, Attorney Barton explained the
     defense of intoxication. Id. He explained that to present a
     defense of diminished capacity by intoxication, [the intoxication]
     had to be so overwhelming as to render him unable to process
     what was going on. Id. at 20. Attorney Barton actually copied
     the law on first and third degree murder and diminished capacity
     and reviewed them with both Appellant and his mother. Id.
     Attorney Barton also discussed Dr. O’Brien’s report with them. Id.
     at 21.

     Additionally, Attorney Barton testified that they discussed jury
     trial, waiver of a jury trial, and what each entailed. Id. They
     discussed “degree of guilt” hearings.      Id.    Attorney Barton
     elaborated that whether to proceed to a stipulated non-jury trial
     was an evolving conversation. He stated that the consideration
     had been an ongoing conversation for weeks or months. As
     Attorney Barton explained it, “it was all part of the fabric of our
     conversations during probably the later parts of my
     representations.” Id. at 33.

     The Commonwealth asked trial counsel why . . . Appellant
     proceed[ed] to a stipulated non-jury trial if Appellant elected to
     plead guilty. Id. Attorney Barton recollected that [the trial court]
     did not want to accept a guilty plea because that would allow
     Appellant to at least attempt to file a motion to withdraw the guilty
     plea within ten days and, therefore, a stipulated non-jury trial was
     elected to go forward. Id. at 33-34. Attorney Baron fully advised
     Appellant that it would be a stipulated non-jury trial instead of a
     guilty plea. He also advised Appellant that it would be the

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     functional equivalent of a guilty plea, but that he had to be
     absolutely certain he wanted to proceed in that manner because
     unlike a guilty plea, Appellant would not have the option to file a
     motion to withdraw [a] guilty plea. Id. at 34.


     It was Attorney Barton's opinion that the advantage to Appellant
     in waiving a jury trial and essentially pleading guilty wold be that
     the sentencing court would take this into consideration when
     fashioning a sentence to impose, that Appellant showed some
     remorse, took some accountability and spared the Siller's a
     prolonged jury trial with graphic testimony and exhibits. Id. at
     35. He believed these factors would be considered at the time of
     sentencing. Id.

     Regarding intoxication as an issue in this case, Attorney Barton
     did file a suppression motion[.] [I]n part included therein was the
     argument that the statements that Appellant gave to police were
     not knowing and voluntary due to his level of intoxication. Id. at
     35-36. There were several statements that Appellant made to
     troopers who responded to the original scene, those made when
     Appellant voluntarily accompanied the troopers to the park and
     those he made during his custodial interrogation. Id. at 36. The
     trooper asked some questions to elicit some response about his
     condition, including his level of intoxication. Id. at 37. Mrs.
     Stahley was present during this questioning and signed off on
     each answer. Id.

     There were audio/video recordings that cut against an intoxication
     defense. Id. Specifically, there was a video directing the troopers
     back to the park and you could hear Appellant in the audio being
     conversational with the troopers, directing them through the park,
     talking to them about certain things that happened. From
     Attorney Barton's perspective, he believed this evidence, which to
     him showed that Appellant did not seem intoxicated, would be well
     below the standard required to suppress a statement due to
     involuntary intoxication. Id. at 38. He also believed that this
     evidence also undercut an intoxication defense at trial. Id.

     Next to testify on behalf of Appellant was Todd Evans, who was
     employed by Skippack Emergency Medical Services as a
     paramedic and responded to the scene at Palmer Park. Id. at 47-
     48. Mr. Evans provided emergency help to Appellant for some
     lacerations to his legs and an abrasion on his forehead. id. at

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     48. While transporting Appellant to the hospital, Mr. Evans
     observed that Appellant had different mood swings. Id. One
     minute he would be calm and able to talk, but then he would break
     down crying and sobbing uncontrollably and verbalizing
     inappropriately. Id. Under questioning by PCRA counsel he said
     that Appellant's behavior "possibly" indicated intoxication. Id. at
     49. However, Mr. Evans was able to communicate with
     Appellant. Id. at 50. He was able to ask Appellant questions, and
     Appellant was able to provide some answers. Id. at 51. Mr. Evans
     testified Appellant seemed emotionally upset. Additionally, Mr.
     Evans stated that Appellant was able to walk on his own. Id. at
     51.

     Next     to    testify   was     Heather   Stahley,   Appellant's
     mother. According to Mrs. Stahley, she relayed to Attorney
     Barton that her son told her that he had been drinking and taken
     Molly the night of the incident. Id. at 54. It was Mrs. Stahley's
     testimony that Attorney Barton had advised her that voluntary
     intoxication is not a defense to murder. Id.

     Mrs. Stahley testified that on the morning of the scheduled trial,
     Attorney Barton spoke to her about the possibility of pleading
     open or a stipulated non-jury trial, explaining that Attorney Barton
     suggested it because he believed it was the best chance to obtain
     a more favorable sentence. Id. at 59. Mrs. Stahley relayed this
     information to her son in the robing room. Id. [Concerning] the
     degrees of murder, Attorney Barton had explained the difference
     between first degree and third degree murder. Id. at 61. He had
     also talked to Mrs. Stahley about calling Dr. O'Brien as a witness
     at trial. Id. Additionally, Mrs. Stahley could only recall that
     Attorney Barton had met with her son four or five times over the
     course of his representation. Id. at 62.

     Upon cross-examination, Mrs. Stahley recollected that in the
     statement she gave to troopers the night of the murder she did
     not tell the troopers that Appellant was intoxicated. Mrs. Stahley
     was with her son on the day and night of the murder. According
     to her statement to the troopers, at around 2:00 p.m., Appellant
     went into her room wanting to go to Target where he bought a
     video game. Id. at 64-65. Appellant knew that his mom was
     upset about a fight she had with a friend, so he bought her favorite
     drink from Starbucks to cheer her up. Id. at 65. After Target,
     Mrs. Stahley and her son went to Rita's for water ice. Id. at 65-
     66. The two of them went home afterwards and watched

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J-A18016-18


     TV. Id. Appellant was still trying to cheer up his mom. Id. at
     66. Mrs. Stahley admitted at the PCRA hearing that Appellant did
     not appear intoxicated during the time they spent together. Id.
     at 66.

     At some point that evening, Appellant went upstairs to his
     room. Later around 7:00 p.m., he asked his mom to take him to
     Wawa. Id. at 67. Mrs. Stahley told the troopers in her statement
     that Appellant did not appear intoxicated between the time they
     got home from Rita's and went to Wawa. Id. at 68. After Wawa,
     Appellant spent some time in the living room, and later went up
     to his room again. Id. Around 8:20, Appellant went down and
     asked his mom to use her phone to call Julianne two
     times. Id. He then went up to his room with the phone. Id. Still,
     Appellant did not appeal intoxicated. Id. at 69.

     About 10 to 15 minutes later after Appellant [returned his
     mother's phone to her], Ms. Siller came over her house. Id. Ms.
     Siller said, "hi," and went upstairs. Id. Mrs. Stahley heard
     bickering coming from upstairs and she went to check on
     them. Id. She asked them if they were okay, and they said they
     were fine. Id. at 69-70. Around 8:56 p.m., Mrs. Stahley spoke
     to her husband on the phone. Id. at 70. Ms. Siller and Appellant
     came downstairs around 9:01 p.m. Id. Mrs. Stahley saw them
     briefly, and she did not see any signs of intoxication in her
     son. Id.

     Ms. Siller and Appellant went for a walk and sometime later
     Appellant returned to his home and asked his mom to go for a
     walk with him. id. Mrs. Stahley immediately knew that her son
     was crying. Id. at 71. She also noticed some blood or dirt on his
     legs, which Appellant explained away telling her he had
     fallen. Id. Mrs. Stahley tried to persuade her son to sit down and
     talk right there, but Appellant insisted they go for a walk. Id. at
     71.

     On their walk, Appellant told her that he and Ms. Siller broke up
     and that he stabbed her. Id. at 72. Appellant said he did not
     know yet whether he had killed her. Id. Appellant started crying
     and pulled out a knife from his pocket and threatened to kill
     himself. Id. at 73. Mrs. Stahley convinced her son to come back
     to the house with her. Id. When she got there she went inside
     and spoke to her husband. Id. Mr. Stahley came out to ask
     Appellant what was going on. Id. He confessed to his father that

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J-A18016-18


     he stabbed Ms. Siller and that she was on the trial. Id. At the
     PCRA hearing, Mrs. Stahley stated that although Appellant was
     upset and bawling she was still able to communicate with him. Id.
     at 73-74.

     Mrs. Stahley also testified that she had told police in her statement
     that Appellant had been drinking and that she knew that because
     her husband smelled alcohol on Appellant. Id. at 74-75. The
     police officer asked her whether Appellant had been drinking
     alcohol at the home prior to the event. Id. at 75-76. She
     responded by saying, "Not that I'm aware of. I didn't see the
     water bottle before they started wrestling. No. I mean, he was
     fine all day. He seemed fine when they left." Id. at 76. At the
     PCRA hearing, upon examination, Mrs. Stahley admitted that she
     never told the police on the night of the murder that Appellant had
     been drinking and took Molly, despite the officer's question
     specifically inquiring as to whether Appellant had been drinking
     that night. Id. at 76-77.

     Next, the Commonwealth cross-examined Mrs. Stahley on the
     formal statement that he son gave to police when police asked her
     son whether he was under the influence of anything that might
     impair his ability to understand. Id. at 77. Appellant denied this,
     saying he understood what was going on. Id. The trooper
     followed up asking Appellant whether he would consider himself
     to be sober, buzzed or drunk to which Appellant answered,
     "Sober." Mrs. Stahley initialed those answers and agreed with
     Appellant. Id.

     The third witness presented by PCRA counsel was Brian Stahley,
     Appellant's father. On direct examination, Mr. Stahley testified
     that the night of the incident his son was inebriated. Id. at 86-
     87. He also testified that Attorney Barton told him that
     intoxication is not a defense to murder in Pennsylvania. Id. at 87-
     88. On cross-examination, Mr. Stahley admitted that he was not
     with Appellant all day and would not have known when he started
     drinking. Id. at 94.

     Finally at the PCRA hearing, Appellant testified. He testified that
     on the night of the incident he had been drinking and took the
     drug Molly. Id. at 98. Appellant stated that he had been drinking
     since 4:00 or 5:00 in the afternoon and took Molly, a form of
     Ecstasy, at about 7:00 p.m. Id. at 99. In relevant part, Appellant
     stated that when he spoke to Attorney Barton he had informed

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     him that he had been drinking and doing drugs the evening of the
     murder. Id. at 102. Appellant related that Attorney Barton told
     him that intoxication is not a defense to murder. Id. Appellant
     also said that he only met with Attorney Barton five or six
     times. Id. at 103.

     Further, Appellant told [the PCRA court] that he wanted to go to
     trial, and that he had told this to his attorney. Id. at
     103. Appellant denied that Attorney Barton reviewed with him
     how jury selection would work, what the Commonwealth had to
     prove to find him guilty, that there are different degrees of
     homicide in Pennsylvania and what third degree murder or
     voluntary manslaughter means. Id. at 104-104. Appellant
     further testified that Attorney Barton told him that the only
     [possible way to avoid] a life sentence was to proceed with a
     stipulated non-jury trial. Id. at 105. Moreover, Appellant denied
     that Attorney Barton ever reviewed appellate options, despite
     having competed and signed a post-sentence rights form. Id. at
     106.

     After the defense concluded its case, the Commonwealth called
     Attorney Barton to testify as a rebuttal witness. Id. at 112. On
     rebuttal, Attorney Barton categorically denied advising Appellant,
     his mother or father that voluntary intoxication was not a defense
     to murder. Id. at 113. Additionally, he denied telling Appellant,
     his mother or his father that Appellant's only chance for a non-life
     sentence was a guilty plea or a stipulated non-jury trial. Id. at
     113-114.

     On August 23, 2017, PCRA counsel and the Commonwealth
     provided argument on the PCRA petition including the recent case
     of Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts
     II"). Relief was denied on August 28, 2017.

Trial Court Opinion, 11/15/17, at 1-15.


     On appeal, Appellant presents the following issues for review:

     I.    DID THE PCRA COURT ERRONEOUSLY DENY
           [APPELLANT’S INEFFECTIVENESS CLAIM, WHERE
           TRIAL COUNSEL FAILED TO INTRODUCE READILY
           AVAILABLE EVIDENCE, FROM BOTH LAY AND EXPERT
           WITNESSES, WHICH WOULD HAVE ESTABLISHED

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            [APPELLANT’S] INTOXICATION AT THE TIME OF THE
            CRIME AND WHICH WOULD HAVE SUPPORTED A
            DEFENSE             OF            VOLUNTARY-
            INTOXICATION/DIMINISHED-CAPACITY?

      II.   DID THE PCRA COURT ERRONEOUSLY DENY
            [APPELLANT’S] INEFFECTIVENESS CLAIM, WHERE
            TRIAL COUNSEL FAILED TO INTRODUCE READILY
            AVAILABLE   EVIDENCE   WHICH    WOULD   HAVE
            ESTABLISHED [APPELLANT’S] INTOXICATION AT THE
            TIME OF HIS POST-ARREST STATEMENT AND WHICH
            WOULD HAVE PROVIDED THE BASIS FOR A
            SUCCESSFUL    MOTION    TO    SUPPRESS    THE
            STATEMENT?

      III. DID THE PCRA COURT ERRONEOUSLY DISMISS
           [APPELLANT’S] CHALLENGE TO THE LEGALITY OF HIS
           SENTENCE UNDER BATTS II?

Appellant’s brief, at 5.

      Initially, we recite our standard of review:

      This Court's standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by the evidence of record and is free of legal
      error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795,
      799 n. 2 (2005). The PCRA court's findings will not be disturbed
      unless there is no support for the findings in the certified record.
      Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007).

      “To prevail on a claim alleging counsel's ineffectiveness, Appellant
      must demonstrate (1) that the underlying claim is of arguable
      merit; (2) that counsel's course of conduct was without a
      reasonable basis designed to effectuate his client's interest; and
      (3) that he was prejudiced by counsel's ineffectiveness.”
      Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999),
      citing Commonwealth v. Howard, 645 A.2d 1300, 1304 (Pa.
      1994) (other citation omitted). 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

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J-A18016-18


      been different.’” Commonwealth v. Kimball, 724 A.2d 326, 331
      (Pa. 1999), quoting Strickland v. Washington, 466 U.S. 668,
      694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A “‘[r]easonable
      probability’ is defined as ‘a probability sufficient to undermine
      confidence in the outcome.’” [Kimball], 724 A.2d at 331, quoting
      Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective assistance of counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa.Super. 2005).

      “We presume counsel is effective and place upon Appellant the burden

of proving otherwise. Counsel cannot be found ineffective for failing to pursue

a baseless or meritless claim.”     Commonwealth v. Poplawski, 852 A.2d

323, 327 (Pa.Super. 2004) (citations omitted). If the record supports a post-

conviction court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011).

      In Appellant's first claim of ineffective assistance of counsel, he contends

counsel ineffectively failed to present the testimony of his mother and Mr.

Evans, the ambulance driver, during the suppression hearing to establish his

intoxication at and around the time he provided his post-arrest statement to

police. Such testimony, he maintains, would have undermined the credibility

of the officers' claims that Appellant was not intoxicated when he gave his

statement.

      Regarding a claim of trial counsel ineffective assistance for failure to call

witnesses, this Court has stated the following:

                                      - 13 -
J-A18016-18



      In order to demonstrate counsel's ineffectiveness for failure to call
      a witness, a petitioner must prove that “the witness existed, the
      witness was ready and willing to testify, and the absence of the
      witness' testimony prejudiced petitioner and denied him a fair
      trial.” [Commonwealth v.] Johnson, 27 A.3d [244,] 247
      [(Pa.Super. 2011)] (internal citation omitted). In particular, when
      challenging trial counsel's failure to produce expert testimony,
      “the defendant must articulate what evidence was available and
      identify the witness who was willing to offer such evidence.”
      Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004)
      (internal citation omitted).

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa.Super. 2013).

      Here, the notes of testimony from Appellant’s PCRA hearing belie his

claim that Mrs. Stahley and Mr. Evans would have advanced his defense that

he was intoxicated at the time he gave his statement to police. Specifically,

Appellant's mother testified that he did not appear intoxicated during his time

with her in the afternoon, and he seemed fine when he left the house with his

girlfriend. "[H]e was fine all day. He seemed fine when they left," she

testified.   N.T. (PCRA) at 76-77.

      As noted, Mrs. Stahley did testify Appellant was swaying when he

returned home after the incident. Proximate to the time Appellant gave his

statement to police, however, Mrs. Stahley told police that Appellant “knew

what was going on,” and she agreed with Appellant when he claimed to be

“sober” when police asked him to give a formal statement. N.T. at 76-77.

      Similarly, Mr. Evans indicated Appellant's emotional behavior after the

event "possibly" indicated intoxication. His testimony, however, also included




                                     - 14 -
J-A18016-18



his observations that Appellant communicated clearly during Mr. Evans’

interactions with him and was able to walk on his own.

         Finally, the record shows Attorney Barton zealously cross-examined the

arresting officers and the interviewing trooper regarding their assertions that

Appellant was sober when he gave his statement. N.T. (Suppression) at 41,

55, 95-97.

         Given the content of Mrs. Stahley's and Mr. Burns' respective PCRA

testimonies, we discern no prejudice from Attorney Barton's failure to call

them to testify at Appellant's suppression hearing, as they would not have

supported Appellant's theory of intoxication to the degree necessary to

preclude admission of his statement. Accordingly, this ineffectiveness claim

fails.

         Next, Appellant contends Attorney Barton ineffectively failed to advise

his parents and him properly regarding the defense of voluntary intoxication.

Ordinarily, voluntary intoxication, or diminished capacity, is not a defense in

Pennsylvania. 18 Pa.C.S.A. § 308. In cases of murder, however, a defendant

may offer evidence of intoxication if it is “relevant to reduce murder from a

higher degree to a lower degree of murder.” Id. “Thus, a defendant asserting

a diminished capacity defense admits responsibility for the underlying action,

but contests the degree of culpability based upon his inability to formulate the

requisite mental state.” Commonwealth v. Williams, 980 A.2d 510, 527

(Pa. 2009).




                                      - 15 -
J-A18016-18



         According to Appellant and his parents, Attorney Barton asserted that

voluntary intoxication is not a defense to first-degree murder. It follows that

Attorney Barton never explained Pennsylvania decisional law holding that

voluntary intoxication can negate the element of specific intent to kill required

for a first-degree murder conviction, Appellant claims.       For his part, Attorney

Barton denied the Stahleys’ claims in this regard.

         The PCRA court determined Attorney Barton provided the credible

testimony on this contested point. The court opines:

         Attorney Barton's credible testimony established that in his
         conversations with [Appellant], they spoke about whether he
         actually formed the intent to kill. Specifically, Attorney Barton
         explained the defense of intoxication. He explained that to
         present a defense of diminished capacity by intoxication, the
         intoxication had to be so overwhelming as to render him unable
         to process what was going on. Attorney Barton actually copied
         the law on first and third degree murder and diminished capacity
         and    reviewed    them     with  both    [Appellant]   and    his
         mother. Accordingly, Attorney Barton cannot be found to be
         ineffective when he did, in fact, explain to [Appellant] and his
         parents the defense of voluntary intoxication.

Trial Court Opinion, at 24.       As noted above, credibility determinations are

within the sole province of the finder of fact, which in this case is the PCRA

court.    As there appears nothing in the record giving cause to disturb the

court's findings of fact, Appellant's issue merits no relief.

         Relatedly,   Appellant   also   asserts   Attorney   Barton   ineffectively

proceeded to a stipulated non-jury trial instead of introducing evidence of

Appellant's intoxication at the time of the crime. Evidence of his intoxication

included: Appellant's post-arrest statement that he had drunk a half-gallon of


                                         - 16 -
J-A18016-18



vodka at the time of the crime; the recovery of an empty vodka bottle from

his bedroom; the testimony of Mr. Evans that Appellant was crying

uncontrollably during his transport to the hospital; emergency room admission

records containing a diagnosis of "alcohol intoxication"; Mrs. Stahley's

testimony that Appellant was swaying when he returned from the park; Mr.

Stahley's testimony that Appellant smelled of alcohol when he returned home;

and the testimony of Dr. John O'Brien, a psychologist who concluded Appellant

was unable to formulate the intent to kill Julianne Siller due to a number of

factors including intoxication.

      In response, the Commonwealth argues there was compelling evidence

demonstrating Appellant's specific intent to kill:

      [Appellant] brought the victim to a secluded trail in a park, argued
      with her, and decided to kill her. He stabbed her first in the neck
      and then stabbed her over 75 more times. While he continued to
      stab her, he dragged her by her arms and hair into a wooded
      area. Hours later, he gave a detailed statement to police about
      the killing, in which he admitted that he intended to kill the victim
      and that he attempted to conceal her body. He also attempted to
      clean himself up after the murder.

Appellee's brief, at 19.

      Most problematic for Appellant is that the evidence he presents to

sustain his claim does not show he was “so intoxicated as to be overwhelmed

to the point of losing his faculties and sensibilities and unable to formulate a

specific intent to kill.” See Commonwealth v. Spotz, 47 A.3d 63, 92-93

(2012) (citing Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011))

(citations omitted).   In fact, the testimonies of those who saw Appellant


                                     - 17 -
J-A18016-18



shortly before and shortly after the murder in question indicate he ably

directed his actions and communicated his thoughts during all relevant times.

Though he was emotional that evening, he nevertheless demonstrated no

difficulty in leading investigators to the crime scene, describing to authorities

the events leading up to his killing of Ms. Siller, or confirming that he formed

the intent to kill just seconds before he stabbed her. Such evidence, therefore,

refutes Appellant’s claim that counsel’s failure to make a voluntary intoxication

presentation denied him a worthwhile guilt-phase defense. See Spotz, 47

A.3d at 94-95 (holding evidence of defendant’s directed, intentional, goal-

oriented activity at or near time of murder argues strongly against assertion

that diminished capacity would have been viable trial defense had counsel

only done further investigation).

       In Appellant’s remaining claim, he contends that his 2014 discretionary

sentence of life without parole (“LWOP”) imposed in conformity with Miller v.

Alabama, 567 U.S. 460 (2012)2 has since been rendered illegal by the

Pennsylvania Supreme Court decision in Commonwealth v. Batts, 163 A.3d

410 (Pa. 2017) (“Batts II”), which, Appellant maintains, applies retroactively

to his collateral appeal. We review legality of sentencing claims “pursuant to




____________________________________________


2 On June 25, 2012, the United States Supreme Court held in Miller v.
Alabama 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.’” Id., 567 U.S. at 465.


                                          - 18 -
J-A18016-18



a de novo standard and plenary scope of review.” Batts II, 163 A.3d at 434-

36.

      Initially, we note Appellant properly predicates his claim of an illegal

sentence on the argument that Batts II presents a new rule of law that is

retroactively applicable to his present PCRA claim.          With respect to the

interplay   between   the   legality   of   sentence   and   retroactivity   claims,

jurisprudence of this Commonwealth has stated:

      A new rule of law does not automatically render final, pre-existing
      sentences illegal.      A finding of illegality, concerning such
      sentences, may be premised on such a rule only to the degree
      that the new rule applies retrospectively. In other words, if the
      rule simply does not pertain to a particular conviction or sentence,
      it cannot operate to render that conviction or sentence illegal.
      (Accord Welch v. United States, ––– U.S. ––––, ––––, 136
      S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (alluding to the
      “general bar on retroactivity” for new constitutional rules of a
      procedural dimension); Montgomery, ––– U.S. at ––––, 136
      S.Ct. at 730 (“[A] trial conducted under a procedure found to be
      unconstitutional in a later case does not, as a general matter, have
      the automatic consequence of invalidating a defendant's
      conviction or sentence.”).

Commonwealth v. Washington, 142 A.3d 810, 814-815 (Pa. 2016).

      “[N]ew constitutional procedural rules generally pertain to future cases

and matters that are pending on direct review at the time of the rule’s

announcement.” Id., at 815. Per Teague v. Lane, 489 U.S. 288 (1989)

(plurality) and its progeny, “[a] new rule applies retroactively in a collateral

proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed

rule of criminal procedure’ implicating the fundamental fairness and accuracy




                                       - 19 -
J-A18016-18



of the criminal proceeding.”         Commonwealth v. Ross, 140 A.3d 55, 59

(Pa.Super. 2016) (citation and quotation omitted).3

       Batts II involved a juvenile defendant who had originally received a

mandatory LWOP sentence in 2007 for first-degree murder. While defendant

Batts’ direct appeal was pending, the United States Supreme Court issued its

decision in Miller, invalidating mandatory LWOP sentences for juveniles and

further indicating that discretionary LWOP sentences for juveniles should be a

rarity. In Commonwealth v. Batts, 66 A.3d 286 (2013), (“Batts I”), the

Pennsylvania Supreme Court directed that defendant Batts be resentenced in

light of Miller. Upon resentencing, however, Batts received a discretionary


____________________________________________


3On the topic of choosing a test to decide retroactivity issues, this Court has
said:

       While state courts are free to adopt more liberal standards in
       determining whether a decision is to be accorded full retroactivity,
       our Supreme Court has utilized the Teague test in examining
       retroactivity   issues    during     state   collateral     review.
       Commonwealth v. Bracey, 986 A.2d 128 (Pa. 2009);
       Commonwealth v. Hughes, 865 A.2d 761 (Pa. 2004)
       (discussing Teague and whether a new rule was a watershed
       procedural rule); see also Commonwealth v. Cunningham,
       622 Pa. 543, 81 A.3d 1, 8 (2013) (“This Court, however, generally
       has looked to the Teague doctrine in determining retroactivity of
       new federal constitutional rulings.”). In Cunningham, the Court
       acknowledged that “this practice is subject to potential
       refinement” and “is not necessarily a natural model for
       retroactivity jurisprudence as applied at the state level.”
       Cunningham, supra at 8. However, it ultimately applied the
       Teague formulation.

Commonwealth v. Riggle, 119 A.3d 1058, 1065 (Pa.Super. 2015).


                                          - 20 -
J-A18016-18



LWOP sentence. This Court affirmed, and Batts appealed to the Pennsylvania

Supreme Court, which granted his petition for allowance of appeal.

      In reversing Batts’ judgment of sentence and remanding, our Supreme

Court devised a procedural scheme by which to implement Miller.

Specifically, the scheme adopted a presumption against sentencing a juvenile

to life in prison without the possibility of parole, and it imposed a burden upon

the Commonwealth to prove a juvenile was incapable of rehabilitation beyond

a reasonable doubt.

      Importantly, the central concepts of Miller informed the Batts II

procedures:

      Under Miller and Montgomery [v. Louisiana, ––– U.S. ––––,
      136 S.Ct. 718, 193 L.Ed.2d 599 (2016)], a sentencing court has
      no discretion to sentence a juvenile offender to life without parole
      unless it finds that the defendant is one of the “rare” and
      “uncommon”        children    possessing      the      above-stated
      characteristics, permitting its imposition. Montgomery, 136
      S.Ct. at 726, 734; Miller, 567 U.S. at 479, 132 S.Ct. 2455; see
      Graham, 560 U.S. at 73, 130 S.Ct. 2011; Roper[ v. Simmons],
      543 U.S. [551,] 572–73, 125 S.Ct. 1183, 161 L.Ed.2d 1 [(2005)].
      A sentence of life in prison without the possibility of parole for a
      murder committed when the defendant was a juvenile is otherwise
      disproportionate and unconstitutional under the Eighth
      Amendment. Montgomery, 136 S.Ct. at 734, 735.

      Thus, in the absence of the sentencing court reaching a
      conclusion, supported by competent evidence, that the defendant
      will forever be incorrigible, without any hope for rehabilitation, a
      life-without-parole sentence imposed on a juvenile is illegal, as it
      is beyond the court's power to impose. See [Commonwealth
      v.] Vasquez, 744 A.2d [1280,] 1282 [(Pa. 2000)];
      [Commonwealth v.] Shiffler, 879 A.2d [185] 189 [(Pa. 2005)];
      In re M.W., 725 A.2d [729,] 731 [(Pa. 1999)].

Batts II, 163 A.3d at 435-36.

                                     - 21 -
J-A18016-18



      Our Supreme Court went on to conclude, therefore, that “a faithful

application of the holding in Miller, as clarified in Montgomery, requires the

creation of a presumption against sentencing a juvenile offender to life in

prison without the possibility of parole.”      Batts II, 163 A.3d at 452.

Supporting this conclusion were the following reflections on Miller:

      [A]ny suggestion of placing the burden on the juvenile offender is
      belied by the central premise of Roper, Graham, Miller and
      Montgomery—that as a matter of law, juveniles are categorically
      less culpable than adults. This central premise arises from “a
      conclusion firmly based upon the generally known results of wide
      human experience,” which is that the vast majority of adolescents
      change as they age and, despite their involvement in illegal
      activity, do not “develop entrenched patterns of problem
      behavior.” Miller, 567 U.S. at 471, 132 S.Ct. 2455 (referring to
      this conclusion as “common sense” and “what any parent knows”)
      (citing Roper, 543 U.S. at 569–70, 125 S.Ct. 1183); Watkins,
      173 A. at 648. The Miller Court reiterated the High Court's
      longstanding conclusion that the distinctive attributes of youth
      generally preclude a finding that a juvenile will forever be
      incorrigible, especially in light of the great difficulty even
      professional psychologists have in making that determination
      during a person's youth. See Miller, 567 U.S. at 472–73, 479–
      80, 132 S.Ct. 2455.

      Miller's holding, “that life without parole is an excessive sentence
      for children whose crimes reflect transient immaturity,” is a
      “substantive rule of constitutional law.” Montgomery, 136 S.Ct.
      at 735. This, according to Montgomery, means that only “the
      rarest of juvenile offenders” are eligible to receive a sentence of
      life without the possibility of parole. Id.

      Only in “exceptional circumstances” will life without the possibility
      of parole be a proportionate sentence for a juvenile.[ ] Id. at 736.
      Thus, there can be no doubt that pursuant to established Supreme
      Court precedent, the ultimate fact here (that an offender is
      capable of rehabilitation and that the crime was the result of
      transient immaturity) is connected to the basic fact (that the



                                     - 22 -
J-A18016-18


     offender is under the age of eighteen). See Childs, 142 A.3d at
     830.

     The United States Supreme Court expressly left it to the States to
     determine how the holding in Miller was to be implemented in
     state court proceedings. Montgomery, 136 S.Ct. at 735.

Batts II, 163 A.3d at 452 (emphasis added).

     The Court further held the Commonwealth could rebut the presumption

against the imposition of LWOP punishment with proof beyond a reasonable

doubt that the juvenile falls under the exception to the general rule deeming

juvenile offenders rehabilitable. Id. at 453. On this point, again, the Court

drew upon the Miller decision:

     The United States Supreme Court has clearly and unambiguously
     instructed that the decision that an offender is one of the rare and
     uncommon juveniles who may constitutionally receive a sentence
     of life without the possibility of parole must be made with near
     certainty. The sentencer must determine that the offender is and
     “forever will be a danger to society,” a finding that the High Court
     found to be in direct conflict with a child's inherent capacity to
     change. Miller, 567 U.S. at 472, 132 S.Ct. 2455. To protect
     youthful offenders from erroneous decisions that foreclose their
     ability to ever be released from prison, the Supreme Court
     therefore held that a sentence of life without parole is
     disproportionate and illegal for a juvenile offender unless that
     defendant “exhibits such irretrievable depravity that rehabilitation
     is impossible.” Montgomery, 136 S.Ct. at 733 (citing Miller,
     567 U.S. at 479–80, 132 S.Ct. 2455) (emphasis added).

     Pursuant to our consideration of the attendant due process
     concerns and the definitive language used by the Supreme Court,
     we conclude that to overcome the presumption against the
     imposition of a sentence of life without parole for a juvenile
     offender, the Commonwealth must prove that the juvenile is
     constitutionally eligible for the sentence beyond a reasonable
     doubt. In an effort to satisfy this burden, the Commonwealth may
     present evidence relating to the factors announced in Miller and
     the factors appearing in section 1102.1(d).


                                    - 23 -
J-A18016-18



Batts II, 163 A.3d at 454–55 (emphasis added).

      At the time Batts II was decided, Appellant’s judgment of sentence was

final, and his present collateral appeal was pending. Under the general rule

of retroactivity cited supra, therefore, the new constitutional procedural rule

announced in Batts II would not apply to Appellant’s matter. Acknowledging

this fact, Appellant argues Batts II qualifies as an exception to the general

rule, as it announced either a substantive rule or, in the alternative, a

“watershed rule of criminal procedure” implicating the fundamental fairness

and accuracy of the criminal proceeding.” Ross, 140 A.3d at 59.

      Differentiating substantive from procedural rules, the Pennsylvania

Supreme Court has explained:

      [S]ubstantive rules are those that decriminalize conduct or
      prohibit punishment against a class of persons.                See
      Montgomery, ––– U.S. at ––––, 136 S.Ct. at 729–30.
      Concomitantly, the Supreme Court has made clear that “rules that
      regulate only the manner of determining the defendant's
      culpability are procedural.” Id. at ––––, 136 S.Ct. at 730 (quoting
      Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 2523,
      159 L.Ed.2d 442 (2004)) (emphasis in original).

      As to watershed rules, to date, the Supreme Court of the United
      States has discerned only one, arising out of the sweeping
      changes to the criminal justice system brought about by the
      conferral of the right to counsel upon indigent defendants charged
      with felonies in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
      792, 9 L.Ed.2d 799 (1963). See Beard v. Banks, 542 U.S. 406,
      417, 124 S.Ct. 2504, 2513–14, 159 L.Ed.2d 494 (2004).

Washington, 142 A.3d at 813.




                                    - 24 -
J-A18016-18



      Specifically, Appellant offers alternative arguments for retroactive

application of Batts II to his collateral appeal, asserting Batts II announced

either a substantive rule of constitutional law or a watershed procedural rule:

      [Appellant] was never placed in the class of individuals eligible to
      receive life without parole. After [his] sentence was final, the
      Pennsylvania Supreme Court, in Batts II, corrected the prevailing
      jurisprudence in the state and adopted due process protections to
      ensure unconstitutional sentences were not imposed. The Court
      established that life without parole imposed in the absence of key
      due process protections was an illegal sentence beyond the state’s
      authority to impose, creating a substantive rule that must be
      applied on collateral review [pursuant to Teague].

      ...

      Alternatively, . . . [e]ven if Batts II is deemed procedural, it
      satisfies Teague’s second exception as a “watershed rule[ ] of
      criminal procedure” [so as to require retroactive application]. . . .
      [Batts II] requir[es] a sentencing court to presume the attendant
      characteristics of youth and how they counsel against a life
      without parole sentence[, as is] necessary to avoid an
      unacceptable risk that the facts of the case will overpower the
      inherent mitigation of youth. . . .         The presumption also
      constitutes a “bedrock procedural element” as it ensures the court
      conducts its analysis from the proper starting point, favoring
      parole-eligibility, and the presumption shifts the burden to the
      Commonwealth. “[A]ny suggestion of placing the burden on the
      juvenile offender is belied by the central premise of Roper,
      Graham, Miller, and Montgomery—that as a matter of law,
      juveniles are categorically less culpable than adults.”

      Further, Batts II affirms the need for the Commonwealth to prove
      irreparable corruption [of the juvenile] beyond a reasonable
      doubt. . . . The Court selected the highest burden of proof due to
      its assessment that the “risk of an erroneous decision against the
      offender would result in the irrevocable loss of that liberty for the
      rest of his or her life,” which outweighed the minimal risk of a
      parole-eligible sentence[, with parole likely to be denied if the
      juvenile later proved to be incapable of rehabilitation after all]. . .
      . Requiring a sentencer to shift from weighing various factors to

                                      - 25 -
J-A18016-18


        the Commonwealth having to prove irreparable corruption beyond
        a reasonable doubt creates a fundamentally different hearing.

        ...

        [In the case sub judice,] [t]he lack of a presumption, failing to
        assign the burden of proof to the Commonwealth, and the absence
        of a beyond the reasonable doubt standard left the sentencing
        court in a position of merely weighing various factors against one
        another rather than answering Miller’s central question: whether
        the juvenile is capable of rehabilitation.

Appellant’s brief at 26, 33, 34-35, 36.

        The Commonwealth counters that Batts II expressed neither a

substantive new rule nor a watershed rule of criminal procedure implicating

the fundamental fairness and accuracy of the criminal proceeding. Instead,

the Pennsylvania Supreme Court in Batts II identified that it was merely

imposing new “procedural safeguards . . . required to ensure that life-without-

parole sentences are meted out only to ‘the rarest of juvenile offenders’ whose

crimes    reflect   ‘permanent   incorrigibility,’   ‘irreparable   corruption’   and

‘irretrievable depravity,’ as required by Miller and Montgomery.” Batts II,

at 416. As the procedures simply advanced the Miller concepts of juvenile

sentencing, the Commonwealth submits, they affected only the manner in

which the court determined sentence, and do not amount to a substantive

rule.

        Nor do the Batts II procedures reach “watershed status,” argues the

Commonwealth. This is hardly surprising, the Commonwealth continues, as

the United States Supreme Court has effectively limited the class of cases

establishing watershed rules to a class of one—Gideon v. Wainwright, 372


                                       - 26 -
J-A18016-18



U.S. 335 (1963) (requiring the appointment of counsel to indigent defendants

charged with felonies). See Whorton v. Bockting, 549 U.S. 406, 417-18

(2007) (“in the years since Teague, we have rejected every claim that a new

rule satisfied the requirements for watershed status”) (collecting cases).

      Further undercutting Appellant’s claim that Batts II announces a

watershed procedural rule, the Commonwealth posits, is that Miller and

Montgomery anticipated states would create procedural rules to implement

Miller’s new substantive rule. It insists this is all the Pennsylvania Supreme

Court did in its Batts II decision, as the Superior Court has since recognized.

Appellee’s brief at 28 (citing Commonwealth v. Foust, 180 A.3d 416, 429

(Pa.Super. 2018) (“After deciding the merits of Batts’ appeal, our Supreme

Court ‘exercise[d its] constitutional power of judicial administration to devise

a procedure for the implementation of the Miller and Montgomery decisions

in Pennsylvania.’”) (quoting Batts II).

      Appellant first submits that Batts II expresses a substantive rule, as he

claims it forbids imposition of a LWOP sentence upon a defined class of

individuals, namely, those whom the Commonwealth cannot prove beyond a

reasonable doubt are incapable of rehabilitation.     In other words, he says

Batts II protects a class of individuals from a discretionary LWOP sentence

beyond the Commonwealth's authority. Appellant's brief at 29. We disagree.

      It was Miller, not Batts II, that announced the relevant substantive

rule requiring retroactive application when it held sentencing a juvenile to life

without parole is excessive for all but "the rare juvenile offender whose crime

                                     - 27 -
J-A18016-18



reflects irreparable corruption[.]" Id., at 479-480. See also Montgomery,

136 S.Ct.. at 734 (recognizing Miller issued a new substantive rule requiring

retroactive application to collateral appeals).     Indeed, the Pennsylvania

Supreme Court specifically announced it was providing with its Batts

II decision a procedural overlay to Miller in order to advance implementation

of Miller.   As such, Batts II did not represent an extension of Miller by

defining an additional class of juvenile offenders capable of rehabilitation and,

thus, insulated from LWOP sentencing. Instead, it only developed procedures,

rooted in Miller’s principal considerations of juvenile sentencing, that would

optimize accurate identification of rehabilitable juveniles coming under

Miller’s protection.

      This conclusion aligns with the precept in Schriro and its progeny that

whether a new rule is substantive or procedural is largely driven by a

consideration of the function of the rule at issue, we discern that the new rule

in Batts II may fairly be said to regulate only the procedures for determining

a juvenile offender’s capacity for rehabilitation.       As such, the rule is

procedural, not substantive. See Welch, 136 S.Ct. at 1265-66. For these

reasons, we conclude Batts II announced no substantive rule qualifying for

retroactive application to cases pending on collateral review.

      Alternatively, Appellant argues, Batts II created a "watershed rule of

criminal procedure requiring retroactive application." Appellant's brief at 33

(emphasis omitted). "Even if Batts II is deemed procedural, it satisfies

Teague's second exception as a "watershed rule[ ] of criminal procedure[,]"

                                     - 28 -
J-A18016-18



Appellant    posits,   because     the    change   is   "necessary   to   prevent   an

impermissibly large risk" of inaccuracy in a criminal proceeding and also

"alter[s] our understanding of the bedrock procedural elements essential to

the fairness of a proceeding." Appellant's brief at 33 (acknowledging standard

expressed in Whorton, 549 U.S. at 418 (internal quotations omitted)).

Appellant also claims that "[t]he requirements under Batts II upend juvenile

homicide sentencing hearings, recognizing the distinct nature of life without

parole and protecting against such a sentence for a certain class of

youth." Appellant's brief at 34.

       We discern no "impermissibly large risk" of inaccuracy in LWOP

proceedings when Miller repeatedly emphasized how rare it is for a juvenile's

crime to reflect incorrigibility and admonished that a LWOP sentence should

be an uncommon occurrence. 4 Clearly, the aim of the Batts II procedural
____________________________________________


4To our earlier discussion of such references in Miller, we add the following
principled insights from the seminal decision that served as a template for the
Batts II procedural scheme:

       “[G]iven all we have said in Roper, Graham, and this decision
       about children’s diminished culpability and heightened capacity for
       change, we think appropriate occasions for sentencing juveniles
       to this harshest possible penalty will be uncommon. That is
       especially so because of the great difficulty we noted in Roper and
       Graham of distinguishing at this early age between “the juvenile
       offender whose crime reflects unfortunate yet transient
       immaturity, and the rare juvenile offender whose crime reflects
       irreparable corruption.” Roper, 543 U.S. at 573, 125 S.Ct. 1183;
       Graham, 560 U.S. at 68, 130 S.Ct., at 2026-2027. Although we
       do not foreclose a sentencer’s ability to make that judgment in
       homicide cases, we require it to take into account how children



                                          - 29 -
J-A18016-18



scheme is to reduce misapplications of Miller in juvenile sentencing, and its

specific requirements regarding presumptions and burdens are well-designed

toward that end.

       Yet, precedent teaches that “the chance of a more accurate outcome

under the new procedure normally does not justify the cost of vacating a

conviction whose only flaw is that its procedures ‘conformed to then-existing

constitutional standards.’” Teague, supra, at 310. In this regard, Miller’s

standards, embracing as they did a clear repudiation of not only mandatory

LWOP sentencing schemes but also the notion of commonplace discretionary

LWOP sentences, did much to clarify how sentencing courts should view

evidence of a juvenile’s capacity to rehabilitate.   While Batts II provides a

delineation of procedures that aid in this evidentiary review, we stop short of


____________________________________________


       are different, and how those differences counsel against
       irrevocably sentencing them to a lifetime in prison.” Miller, at
       479-480.

       “‘[o]nly a relatively small proportion of adolescents’ who engage
       in illegal activity ‘develop entrenched patterns of problem
       behavior.’” Miller at 471 (at 570) (citation omitted).

       “We reasoned that those findings—of transient rashness,
       proclivity for risk, and inability to assess consequences—both
       lessened a child’s ‘moral culpability’ and enhanced the prospect
       that, as the years go by and neurological development occurs, his
       ‘deficiencies will be reformed’” Miller, at 570 (citation omitted).

       Incorrigibility is inconsistent with youth.      Life without the
       possibility of parole forswears altogether the rehabilitative ideal.
       It is “at odds with a child’s capacity for change.” Miller, at 473
       (citation omitted).

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declaring it to have altered our understanding of Miller’s bedrock elements

informing a fair proceeding.

      Indeed, in Batts II, our Pennsylvania Supreme Court distilled Miller’s

essential observations—appropriate occasions for LWOP sentences will be

uncommon; it will be the rare juvenile offender whose crime reflects

irreparable corruption; and fundamental differences between children and

adults counsel against LWOP sentences for juveniles—into a procedural

scheme requiring sentencing courts to presume juveniles can rehabilitate and

placing upon the Commonwealth the burden to prove otherwise beyond a

reasonable doubt.   To be sure, our Supreme Court acknowledged Miller’s

pivotal role in the formulation of the Batts II presumption and burden of proof

assignment where it noted “any suggestion of placing the burden on the

juvenile offender is belied by the central premise of Roper, Graham, Miller,

and Montgomery. . . .” Batts II, 163 A.3d at 452.

      Such a scheme, therefore, represents the manifestation of Miller’s clear

charge for mitigated sentencing with the opportunity for parole in the vast

majority of juvenile cases.

      Rather than including Batts II among the ranks of Gideon—the only

decision recognized by the United States Supreme Court as issuing a

watershed procedural rule—we understand Batts II as announcing a new rule

that nevertheless rests largely on the Miller precedent. As such, Batts II

provides a most salient directive regulating the manner in which sentencing

courts are to implement Miller’s governing considerations.

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      We, therefore, decline to find Batts II established a watershed

procedural rule necessitating retroactive application to collateral proceedings.

Accordingly, Appellant’s final challenge fails.

      Order affirmed.

      Judge Stabile has joined the Opinion.

      Judge Strassburger files a Concurring/Dissenting Opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/18




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