J-A01039-19

                                   2019 PA Super 157


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRANDON SMITH                              :
                                               :
                       Appellant               :   No. 3573 EDA 2017

      Appeal from the Judgment of Sentence Entered September 19, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004956-2015


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                                FILED MAY 14, 2019

       Brandon Smith appeals from the judgment of sentence entered following

his jury trial convictions for second-degree murder, robbery, and related

offenses.1 Smith argues that the court erred in denying his motion to suppress

his statement to the police and in sentencing him to a mandatory minimum

sentence of 30 years’ incarceration. We affirm.

       Just before 8:30 p.m. on March 12, 2015, James Stuhlman was shot

and killed while he was walking his dog. Six days later, on March 18, 2015,

police arrested Smith, who was 15 years old at the time, and took him to the

homicide unit for questioning. Smith made a statement in which he confessed

that he, Alston Zou-Rutherford, and Tyfine Hamilton had planned to commit a

robbery and split the proceeds. They walked around for 20 minutes while
____________________________________________


1 Smith was convicted of committing second-degree murder, robbery,
conspiracy to commit robbery, and possession of an instrument of crime. See
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1), 903, and 907, respectively.
J-A01039-19



looking for someone to rob. Hamilton had a firearm. When they saw Stuhlman,

they decided to rob him, because “even the dog looked weak and small.”

Statement, 3/18/15, at 2. Smith and Hamilton approached Stuhlman while

Zou-Rutherford stood behind as a lookout. Hamilton instructed Stuhlman to

give them his belongings, and Smith instructed him to put his belongings on

the ground. When Stuhlman reached for Hamilton’s gun, Hamilton shot him.

     The police filed charges against Smith. Prior to trial, Smith moved to

suppress his statement. The testimony presented at the suppression hearing

was as follows.

     Detective    Thomas   Gaul   testified   that   Smith   was   arrested   at

approximately 6:30 p.m., and Detective Gaul met him approximately three

hours later, around 9:25 or 9:30 p.m. By that time, other law enforcement

officers had already questioned Smith’s brother, Zou-Rutherford. Zou-

Rutherford had confessed that both he and Smith were involved in the

shooting, and Detective Gaul had learned the substance of Zou-Rutherford’s

confession.

     Detective Gaul initially spoke with Smith for approximately ten or 15

minutes, during which time he introduced himself and told Smith he was a

suspect in the shooting. Shortly thereafter, Detective Gaul attempted to

contact Victoria Zou, Smith’s legal guardian, who Smith refers to as his

mother. He left her a voicemail message.




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        Detective Gaul then read Smith his Miranda2 rights, and Smith

completed, initialed, and signed a form reflecting that he was waiving his

Miranda rights. The form, which was introduced into evidence at the hearing,

stated that the police were questioning Smith in relation to a murder/robbery.

Detective Gaul testified that Sergeant Robert Wilkins was also present during

the administration of the Miranda warnings.

        Detective Gaul testified that four or five minutes after he left Zou a

voicemail, she returned his call and spoke with Detective Thorsten Lucke.

Detective Lucke thereafter communicated to Detective Gaul that Zou had

given her permission for the detectives to question Smith.

        Detective Gaul testified that after Smith waived his Miranda rights, he

and Smith had a discussion wherein Smith confessed to his involvement in the

shooting. Detective Gaul stated that Sergeant Wilkins and Detective Lucke

were also present during the questioning, intermittently.

        Detective Gaul testified that he did not promise Smith anything in

exchange for his cooperation or tell Smith that he would be permitted to go

home if he made a statement. Detective Gaul stated he told Smith that his

involvement in a murder could potentially result in life imprisonment.

Detective Gaul claimed he encouraged Smith to cooperate by telling him the

following:

        [Y]ou know all of the people that have been brought in within
        these last few hours and if you are confident enough if they are
____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966).

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      going to be able to stand all this pressure that is going on—
      because it is pressure—everyone is brought in, everything is
      coming together[.]

N.T., 4/18/17, at 173. Detective Gaul stated, “that is the only thing I laid upon

him.” Id.

      Detective Gaul testified that Smith did not ask to speak with anyone the

entire evening, and was “adamant” that he did not want a lawyer or Zou

present. Id. at 168, 172. Detective Gaul testified that Smith “was very clear

as to everything that was going on” and “[t]he whole time [he was] dealing

with him, he understood clear and concise everything that was going on.” Id.

at 13-14, 170. Detective Gaul stated, “You could tell he knew exactly what he

was doing.” Id. at 168. Detective Gaul testified that Smith said he had prior

experience within the criminal justice system, and that he had previously been

detained for a robbery and that he gave a statement to the police after waiving

his Miranda rights.

      Detective Gaul testified that his discussion with Smith was reduced to a

written statement in question and answer form beginning approximately four

hours after Smith’s arrest, at 10:20 p.m. The written statement was

introduced as evidence at the hearing. In the statement, Smith confirmed that

he was not under the influence of drugs, does not suffer from mental illness,

and was given the opportunity to eat, drink, and use the bathroom. Smith

acknowledged he was being interviewed in reference to the murder, that he

understood his Miranda warnings, and that he understood Zou had given

permission for him to be interviewed.

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      Smith signed the statement, and at 11:50 p.m., signed a form in which

he consented to give a video-recorded statement. Detective Gaul testified that

he and Detective Lucke made a video-recording of Smith’s confession around

12:30 a.m. The prosecution played the video during the hearing. Detective

Gaul testified that Smith’s demeanor on the video was similar to his demeanor

when they were preparing the written statement.

      Detective Lucke testified that he spoke with Zou when she returned

Detective Gaul’s phone call, around ten or 15 minutes after Detective Gaul

had left her a message. Detective Lucke said that he told Zou that Detective

Gaul was “busy,” but that he would take a message, and that “we had reached

out to her in an effort to gain her permission to speak with Mr. Smith in

reference to the ongoing investigation that he was at our office for.” Id. at

184. Detective Lucke told Zou that they were investigating a murder that

occurred during a robbery, and that Smith was one of several young men the

police were talking to “in effort to determine everybody’s involvement[.]” Id.

at 185. Detective Lucke testified that he told Zou,

      [W]hen Detective Gaul has a minute, when he is done speaking
      to your son, I can let him know he can call you or you can call
      here to speak with him later on and when your son is able, I would
      have him call you, if he desires to do so.

Id. at 194. According to Detective Lucke, Zou did not ask to speak to Smith,

and gave the detectives her permission to question Smith. Detective Lucke

testified that after the call was finished, he walked across the building to seek

out Detective Gaul, and relayed to him that Zou had given her permission for


                                      -5-
J-A01039-19



the interview. Detective Lucke testified that he did not put Zou on hold while

he went to find Detective Gaul because he was not sure where Detective Gaul

was, and he believed Detective Gaul could call Zou back again if necessary.

       In addition to the testimony of Detectives Gaul and Lucke, the

Commonwealth introduced, by stipulation, a statement made by Smith to the

police in 2013 during an unrelated robbery investigation. The statement

indicated that during that investigation, Zou had given the police permission

to question Smith, and Smith had waived his Miranda rights.

       Smith introduced, by stipulation, a psychologist’s report showing that

Smith’s I.Q. on the Wechsler Abbreviated Scale of Intelligence (“WASI”) test

was 81, putting him the tenth percentile. That report also reflected that

Smith’s “cognitive abilities are somewhat lower than would be expected for

the majority of the individuals in the population,” and that Smith “performed

mildly more poorly than would be expected for an average individual of his

age and grade level.” Id. at 203-04.

       Zou testified that she was present when Smith was taken into custody,

at a house where the police were executing a search warrant, and that at that

time, she told Smith she would get him a lawyer. Zou testified that she called

the police at 9:37 p.m. and spoke with a detective for seven minutes,3 mainly

in order to locate Zou-Rutherford. Zou testified that the detective who

answered told her Smith was with another detective, who would call her back.
____________________________________________


3 Smith submitted Zou’s phone records as evidence, but these were not
included in the certified record.

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Zou testified that the police did not offer to let her speak to Smith. According

to Zou, she did not tell the police they could not talk to Smith, but also did

not give them permission to speak with him. Zou testified that she has an

associate’s degree in criminal justice, and understands Miranda rights.

      Finally, Smith testified. He stated that he cried throughout the interview,

had asked Detective Gaul if he could speak to a lawyer or to Zou, and that

Detective Gaul told him he could go home if he cooperated. However, Smith

also testified that he had understood his Miranda rights and wanted to waive

them, and that no one had threatened him or forced him to make a statement.

Smith testified that he would have waived his Miranda rights even if Zou had

not given her permission to the detectives, because he had wanted to confess.

Smith testified that he was being “hardheaded,” because Zou had advised him

to get an attorney. Id. at 266. Smith stated that when he was previously

questioned, in relation to another robbery, he had told the truth about his

involvement, and the detectives had released him. Smith believed if he came

clean about his involvement in the instant case, he would receive similar

treatment. Smith stated, “I believe the truth will set you free. So that is why

I was there, to tell the truth and hopefully I will get a second chance but that

is just my belief.” Id. at 271. Smith also testified that he made a statement

because he did not know he could be tried as an adult.

      The court denied the motion to suppress the statement. At Smith’s jury

trial, the Commonwealth introduced into evidence both Smith’s written




                                      -7-
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statement and the video-recording of Smith adopting the content of his written

statement.

      Smith’s brother, Zou-Rutherford, testified for the defense, and verified

that he, Smith, and Hamilton had committed the robbery, and that Hamilton

had pulled the trigger. Zou-Rutherford also testified that after Hamilton

pointed a gun at Stuhlman, Smith told Hamilton to “chill,” and that Smith’s

body language and facial expression at the time indicated that he did not want

Hamilton to shoot Stuhlman. N.T., 4/20/17, at 43, 67, 78.

      The jury found Smith guilty. The court thereafter sentenced Smith to

serve 30 years to life imprisonment for the second-degree murder conviction,

pursuant to 18 Pa.C.S.A. § 1102.1(c)(1). The court also sentenced Smith to a

consecutive term of ten years’ probation for conspiracy to commit murder,

and to no further penalty on the remaining convictions.

      Smith appealed, and presents two issues for our review:

      A. Did not the lower court err and abuse its discretion by denying
      the defense motion to suppress the statement of Mr. Smith, a
      juvenile, because it was taken in violation of his rights to due
      process under the Fifth and Fourteenth Amendments to the United
      States Constitution, Article I, Section 9 of the Pennsylvania
      Constitution, and his Fifth Amendment right to remain silent
      pursuant to the requirements of Miranda v. Arizona, 384 U.S.
      436 (1966), and its progeny[?]

      B. Did not the sentence of thirty (30) years to life, that was
      statutorily required in this case by 18 Pa.C.S. § 1102.1(c)(1),
      violate the Eighth Amendment to the United States Constitution,
      in that application of the statute (1) presents a mismatch between
      the liability of a class of offenders (children) and the severity of
      penalty; (2) precludes consideration of the general and specific
      mitigation qualities of youth, making them irrelevant to the
      imposition of the mandatory minimum sentence[;] and (3) due in

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      part  significantly   reduced   life   expectancy    in   prison,
      unconstitutionally impairs the rehabilitative ideal enshrined in
      Graham v. Florida, 560 U.S. 48, 74 (2010) and Miller v.
      Alabama, 567 U.S. 460, 473 (2012)[?]

Smith’s Br. at 4 (answers below omitted).

                           I. Motion to Suppress

      Smith argues the court erred in denying his motion to suppress the

statement he made to the police for three reasons. First, Smith contends that

the interrogation was coercive because Detective Gaul told Smith that the

other people the police were questioning would not be able to withstand police

pressure and might confess before Smith did. Specifically, Smith complains

that Detective Gaul advised Smith,

      [Y]ou know all of the people that have been brought in within
      these last few hours and if you are confident enough if they are
      going to be able to stand all this pressure that is going on—
      because it is pressure—everyone is brought in, everything is
      coming together[.]

N.T. 4/18/17, at 173. Smith contends these words were designed to interfere

with his evaluation of his need for counsel and to induce him to confess. Smith

additionally argues that the Commonwealth’s evidence “did not disprove” that

Detective Gaul said these words to Smith before he administered the Miranda

warnings. Smith’s Br. at 28.

      Second, Smith argues the police actively prevented him from consulting

with Zou, an interested adult, prior to the interrogation. Smith points out that

Detective Gaul testified he started speaking with Smith before calling Zou and

before reading Smith his Miranda warnings. According to Smith, during that


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J-A01039-19



time, Detective Gaul had already begun pressuring Smith. Smith also argues

that Detective Gaul administered the Miranda warnings and began

interrogating Smith before they received permission from Zou. Smith

additionally argues that when Zou called and asked to speak with Detective

Gaul, Detective Lucke told her Detective Gaul was “busy” and that she could

not speak to him until the interrogation was over. Smith argues that Detective

Lucke’s testimony that he did not put Detective Gaul on the phone because

he did not know where to find Detective Gaul was incredible. Smith also

complains that Detective Lucke did not tell Zou that Smith was a murder

suspect, or explain to her Smith’s rights under Miranda.

      Finally, Smith argues that his age, experience, psychological state, and

comprehension level all demonstrate that his waiver of his Miranda rights

was not intelligent. Smith was fifteen and one-half years old at the time. He

claims he was “cognitively compromised,” as he received the same score on

the WASI test, 81, as the defendant in Commonwealth v. Williams, 61 A.3d

979, 980 (Pa. 2013), whom the Supreme Court deemed mentally retarded

and ineligible for the death penalty. Smith argues he clearly did not

understand the gravity of his situation, as he believed he would not get into

trouble if he admitted his involvement in the robbery, and there was no

testimony that Smith was told he was being charged with murder before he

made the oral confession. In addition, Smith claims the fact that he waived

his Miranda rights and questioned once before, at age 13, does not indicate

he had enough experience to understand the criminal system, as there was

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no   evidence   regarding   the   coerciveness   of   that   questioning   or   his

understanding at that time.

      When reviewing an order denying a suppression motion, we reverse only

if the trial court’s factual findings are not supported by the record or the court

erred in its legal conclusions. Commonwealth v. Knox, 50 A.3d 732, 746

(Pa.Super. 2012). We consider only the Commonwealth’s evidence and the

uncontradicted evidence of the defense. Id.

      When a defendant challenges the admission of a statement made during

a custodial interrogation, the Commonwealth bears the burden to prove by a

preponderance of the evidence that the defendant’s Miranda waiver was

knowing, intelligent, and voluntary. In re T.B., 11 A.3d 500, 505 (Pa.Super.

2010). We engage in a two-part inquiry:

      First[,] the relinquishment of the right must have been voluntary
      in the sense that it was the product of a free and deliberate choice
      rather than intimidation, coercion or deception. Second, the
      waiver must have been made with a full awareness both of the
      nature of the right being abandoned and the consequences of the
      decision to abandon it. Only if the “totality of the circumstances
      surrounding the interrogation” reveal both an uncoerced choice
      and the requisite level of comprehension may a court properly
      conclude that Miranda rights have been waived.

Id. at 505-06 (quoting Commonwealth v. Cephas, 522 A.2d 63, 65

(Pa.Super. 1987)).

      An examination of the totality of the circumstances includes a

consideration of “(1) the duration and means of an interrogation; (2) the

defendant’s physical and psychological state; (3) the conditions attendant to


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the detention; (4) the attitude of the interrogator; and (5) ‘any and all other

factors that could drain a person’s ability to withstand suggestion and

coercion.’” Id. at 506 (quoting Commonwealth v. Nester, 709 A.2d 879,

882 (Pa. 1998)). When the defendant is a juvenile, the inquiry also includes

“a consideration of the juvenile’s age, experience, comprehension and the

presence or absence of an interested adult.” id. (quoting In Interest of N.L.,

711 A.2d 518, 520 (Pa.Super. 1998)).

      We first address Smith’s contention that Detective Gaul coerced Smith

to waive his rights and confess by stressing to him the likelihood that one of

his friends would confess first. This argument is waived by Smith’s failure to

argue it at the suppression hearing or otherwise raise it before the trial court.

See Pa.R.A.P. 302(a); N.T., 4/18/17, at 283-99. Further, in his Rule 1925(b)

statement, Smith complains the statement was involuntary “based on the

totality of circumstances, which include but are not limited to, [Smith’s] youth

and that he was not given the chance to consult with an interested adult.”

Rule 1925(b) Statement at 1-2. Because Smith failed to raise this aspect of

his argument with specificity in his Rule 1925(b) statement, the trial court’s

Rule 1925(a) opinion does not refer to this particular statement by Detective

Gaul. This challenge is therefore also waived by Smith’s failure to include it in

his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule

1925(b) statement to “concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for the

judge”).

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     Even if Smith had properly preserved this issue, it would not merit relief.

Police may make coercive statements when questioning suspects, so long as

the totality of the circumstances suggests the confession was voluntary.

Commonwealth v. Roberts, 969 A.2d 594, 601 (Pa.Super. 2009); see also

Commonwealth v. Jones, 322 A.2d 119, 126 (Pa. 1974). Police may even

tell a juvenile defendant they have other evidence of his guilt—whether or not

they do—in order to induce a Miranda waiver and confession. See Jones,

322 A.2d at 126-27 (affirming denial of suppression where police falsely

informed 17-year- old defendant that another suspect had inculpated him

before   defendant    waived    his     Miranda    rights   and    confessed);

Commonwealth v. Fogan, 296 A.2d 755, 757-58 (Pa. 1972) (affirming

denial of suppression where police told 17-year-old defendant with an 84 I.Q.

that his fellow gang-member implicated him as the shooter, and defendant

waived his Miranda rights and confessed). Here, even assuming Detective

Gaul made the complained-of statement in the ten or 15 minutes before he

advised Smith of his Miranda rights, it is uncontested that Smith did not

confess his involvement in the murder until after he waived his Miranda

rights. And, the information imparted by Detective Gaul—that the police were

questioning other suspects in relation to the crime—was not of the sort so

coercive as to render Smith’s waiver involuntary. See Jones, 322 A.2d at

126-27; Fogan, 296 A.2d at 757-58.

     We next address Smith’s second contention, that the police prevented

him from speaking with an interested adult. His argument has no basis in law

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or fact. A juvenile has no per se right to speak with an interested adult prior

to questioning by the police. See T.B., 11 A.3d at 507. Rather, whether a

juvenile defendant was afforded the opportunity to speak with an interested

adult before waiving Miranda rights is but one factor in the totality-of-the-

circumstances analysis the court must apply when determining whether the

waiver was knowing, intelligent, and voluntary. Id.

      Because the totality of the circumstances varies from case to case, we

have both affirmed and reversed orders denying suppression where a juvenile

defendant waived Miranda without first consulting with an interested adult.

Compare Knox, 50 A.3d at 747 (affirming denial of suppression in murder

trial where 17-year-old defendant’s father declined to come to police station,

court credited detective’s testimony that defendant understood what was

happening, defendant had a prior adjudication for robbery, questioning was

brief, and statement was exculpatory) with T.B., 11 A.3d at 507-09 (holding

waiver not knowing and intelligent where 15-year-old defendant had I.Q. of

67, no prior experience with legal system, and no consultation with an

interested adult prior to his Miranda waiver; although defendant’s mother

gave police consent to question him, police did not apprise her of defendant’s

Miranda rights).

      Here, the trial court found as a fact that Zou gave the police her

permission to speak to Smith. Trial Court Opinion, filed February 26, 2018, at

14. The court also found that Zou understood that Smith was being questioned

in relation to a murder, and credited Zou’s own testimony that she understood

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Smith’s Miranda rights. N.T., 4/18/17, at 322. In addition, the court credited

Smith’s testimony that he understood his Miranda rights because he had

previously waived them when he was questioned in connection to a prior

robbery, and that he intended to waive his rights and make a statement

regardless of whether Zou granted the police permission. Id. at 323, 326; Tr.

Ct. Op. at 14. We add that Detective Lucke testified Zou gave her permission

even though he told her that the interrogation would not proceed without it,

and that Zou did not ask to see Smith. Detective Gaul testified Smith was

adamant he did not want Zou or an attorney present during questioning. We

cannot conclude that the police violated Smith’s constitutional rights by

questioning him even though he had not consulted with Zou.

     Moreover, the trial court considered the totality of the circumstances in

concluding that Smith’s waiver was knowing, intelligent, and voluntary. The

court found that the questioning was not protracted and that Smith was not

under the influence of any substance or deprived of food, drink, or use of a

bathroom. Tr. Ct. Op. at 14; N.T., 4/18/17, at 324-25. The court found no one

threatened Smith or otherwise forced him to make a statement. Tr. Ct. Op. at

15; N.T., 4/18/17, at 324. The court credited Detective Gaul’s testimony that

he did not promise Smith he could go home if he made a statement. N.T.,

4/18/17, at 324. The court recounted Detective Gaul’s testimony that Smith

“appeared to understand what was going on, that his answers were clear and

concise, [and] that he told [Smith] what [Smith] is implicated in had the

potential to get [him] a life sentence.” Id. at 312. The court found that

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although Smith had an I.Q. of 81, “he has a certain amount of intelligence,”

id. at 325, and that he was self-motivated to tell the police that he was not

the shooter and explain his version of events. Tr. Ct. Op. at 14-15. The court

stated that it had observed Smith’s demeanor on the video-recorded

statement, and noted that Smith voluntarily made an additional statement of

remorse at the end of the recording. Tr. Ct. Op. at 14; N.T., 4/18/17, at 326.

The record supports the court’s factual findings, and the totality of

circumstances indicates that Smith made a knowing, intelligent, and voluntary

waiver of his Miranda rights.

      We are unpersuaded by Smith’s third contention, that his cognitive

impairment and his stated motivation for confessing evince that his Miranda

waiver was unintelligent. A defendant’s low I.Q. does not necessarily establish

that a Miranda waiver was made unintelligently. Commonwealth v.

Hughes, 555 A.2d 1264, 1275 (Pa. 1989); see also Commonwealth v.

Crosby, 346 A.2d 768, 772 (Pa. 1975) (collecting cases). We have previously

held that a defendant with an I.Q. of 81 was capable of making a valid

Miranda waiver where he had prior experience with Miranda warnings. See

Hughes, 555 A.2d at 1274-75. Although the defendant in Williams scored

an 81 on the WASI test, the Supreme Court noted “the test cannot be used

diagnostically because it is solely a screening tool.” Williams, 61 A.3d at 992.

The Court’s actual holding in Williams was to affirm the lower court’s

determination that the defendant was mentally retarded, such that his

sentence of death could not stand. Id. The Court did not hold that the

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defendant’s I.Q. rendered a Miranda waiver per se unenforceable. Williams

is thus inapposite.

      Smith’s further claim that his statement was unintelligent because he

was unaware that he could face murder charges is similarly unavailing. The

record reflects that Smith knew he was being questioned in relation to the

murder and robbery, and the trial court concluded that Smith’s ignorance that

his involvement in the shooting could subject him to a finding of second-

degree murder did not render his Miranda waiver unintelligent. N.T.,

4/18/17, at 326-27. We agree. There is no requirement that police advise a

defendant at the time of administering Miranda warnings, prior to taking a

defendant’s statement, as to his level of culpability and what charges might

be filed against him. Rather, as we have explained,

      [A]n accused must be aware of the nature of the investigation at
      the time of the questioning before a waiver of Miranda rights can
      be held to be effective. It does not mean that an accused must be
      aware of all the consequences which might flow from a waiver of
      his Miranda rights before he can effectively waive them. . . . We
      also hold that a defendant need not be aware of every conceivable
      consequence which might flow from a waiver of his Miranda
      rights in order to effectuate such a waiver as it is impossible to
      foresee every such possible consequence. We merely hold that the
      defendant must be informed that his statements can and will be
      used against him in a court of law as required in Miranda.

Commonwealth v. Gotto, 452 A.2d 803, 807 (Pa.Super. 1982) (quoting

Commonwealth v. Reaves, 421 A.2d 351, 354 (Pa.Super. 1980)).

      Accordingly, there is no requirement that police administering Miranda

warnings explain whether the defendant could be liable under the felony


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murder rule or whether a juvenile defendant could be tried as an adult. See

Commonwealth v. Weeden, 322 A.2d 343, 346 (Pa. 1974) (finding

defendants knowingly waived Miranda although the police did not explain

that they could be liable under the felony murder rule); Reaves, 421 A.2d at

354 (finding officers’ Miranda warning that defendant’s statements could be

used against him in a juvenile proceeding did not constitute a promise that

defendant would be treated as a juvenile, and resulting waiver effective). We

affirm the court’s order denying Smith’s motion to suppress.

                                II. Sentence

      In his second issue, Smith argues that the 30-year mandatory minimum

sentence imposed by the court pursuant to 18 Pa.C.S.A § 1102.1(c)(1)

violates the Eighth Amendment to the United States Constitution. Smith

contends that the statute is unconstitutional for three interrelated reasons.

First, the imposition of the mandatory 30-year sentence “presents a mismatch

between the culpability of a class of offenders (children) and the severity of

penalty.” Smith’s Br. at 43. Second, he argues it “precludes consideration of

the general and specific mitigating qualities of youth, making them irrelevant

. . . and thus poses too great a risk for disproportionate punishment.” Id.

Third, he maintains that because of the “significantly reduced life expectancy

in prison, [the mandatory minimum sentence] unduly circumscribes the

rehabilitative idea enshrined in Graham v. Florida, 560 U.S. 48 (2010) and

Miller v. Alabama, 567 U.S. 460 (2012).” Id.




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      Smith acknowledges, as he must, that in Commonwealth v.

Lawrence, 99 A.3d 116, 121 (Pa.Super. 2014), we held the 35-year

mandatory minimum sentence imposed upon juveniles who commit first-

degree murder did not violate the Eighth Amendment. See 18 Pa.C.S.A. §

1102.1(a)(1). However, he argues we should not extend this holding to the

30-year mandatory minimum sentence for juveniles who commit second-

degree murder, because the degree of culpability significantly varies between

those who commit first- and second-degree murder. Specifically, Smith claims

his 30-year mandatory sentence is disproportionate to his crime as he never

possessed the murder weapon, he had no specific intent to kill, he did not

agree to a plan that explicitly involved killing, and he even attempted to

prevent Hamilton from firing.

      Although Smith did not raise this issue in the court below, he may do so

now, as it is a challenge to the legality of his sentence, and thus unwaivable.

See Lawrence, 99 A.3d at 123-24. We review the legality of a sentence de

novo standard. Commonwealth v. Foust, 180 A.3d 416, 422 (Pa.Super.

2018). Our scope of review is plenary. Id.

      “[D]uly enacted legislation carries with it a strong presumption of

constitutionality.” Lawrence, 99 A.3d at 118. We will not find a statute

violative of the Eight Amendment’s prohibition on cruel and unusual

punishment unless it calls for a sentence “so greatly disproportionate to an

offense as to offend evolving standards of decency or a balanced sense of




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justice.” Knox, 50 A.3d at 741 (quoting Commonwealth v. Ehrsam, 512

A.2d 1199, 1210 (Pa.Super. 1986)).

     In Miller, the United States Supreme Court held that the imposition of

a mandatory minimum sentence of life imprisonment upon a juvenile

defendant violated the Eighth Amendment. Commonwealth v. Brooker, 103

A.3d 325, 334 (Pa.Super. 2014). In response, the Pennsylvania General

Assembly enacted a new sentencing statute, 18 Pa.C.S.A. § 1102.1.

Commonwealth v. Batts, 163 A.3d 410, 419 (Pa. 2017). The statute

outlines the penalties for juvenile defendants convicted of first- and second-

degree murder. 18 Pa.C.S.A. § 1102.1. It distinguishes between defendants

convicted   of   first-degree   murder   and   second-degree   murder,    and

differentiates those who were younger than 15 years old at the time of the

offense from those who were 15 years old and older. Id. The subsection under

which the court sentenced Smith, subsection (c)(1), applies to juvenile

defendants, like Smith, convicted of second-degree murder who were at least

15 years old at the time of the murder, and requires a minimum sentence of

30 years, with a maximum sentence of life imprisonment. Id. at (c)(1).

     As Smith points out, we previously considered the constitutionality of

the subsection that mandates a sentence of 35 years to life for juveniles

convicted of first-degree murder, subsection (a)(1). See Lawrence, 99 A.3d

at 121. Like the subsection under which Smith was sentenced, it applies to

juveniles who committed their crime when they were at least 15 years old. 18

Pa.C.S.A. § 1102.1(a)(1). In Lawrence, the defendant argued, based on the

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U.S. Supreme Court’s holding in Miller, that subsection (a)(1) was

unconstitutional   under   the   Eighth   Amendment      because    it   precludes

consideration of a defendant’s age, his role in the crime, or other factors in

determining the juvenile’s minimum sentence. See Lawrence, 99 A.3d at

121. We declined to extend Miller to subsection (a)(1) because, unlike the

statute at issue in Miller, it does not require a flat sentence of life

imprisonment. Id. We also specifically rejected the argument that the Eighth

Amendment prohibits all mandatory minimum sentences for juveniles as

beyond the rule of Miller. We pointed out that mandatory minimum

sentences, whether measured in days or years, by their nature preclude

consideration of a defendant’s individual circumstances. Id.

      Similarly, in Brooker, we rejected a claim that the mandatory minimum

35-year sentence that subsection (a)(1) requires is essentially a life sentence.

We concluded that such a sentence “still provides a ‘meaningful’ opportunity

for release.” 103 A.3d at 339. We also disagreed that the sentence violated

Miller because it is not sufficiently tailored to a juvenile’s individual level of

culpability. Id.

      Given the foregoing, we reject Smith’s claims that imposition of a

mandatory minimum sentence under Section 1102.1(c)(1) is unconstitutional

because such a sentence precludes consideration of the offender’s youth,

rehabilitative needs, or level of culpability. See Brooker, 103 A.3d at 338-

40; Lawrence, 99 A.3d at 121. We also reject Smith’s argument that due to

diminished life expectancy in prison, a 30-year sentence imposed on a juvenile

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J-A01039-19



equates to a sentence of life imprisonment. See Brooker, 103 A.3d at 338-

40.

      We additionally decline Smith’s invitation to invalidate his sentence

because he was convicted under the felony-murder rule. In Commonwealth

v. Olds, 192 A.3d 1188 (Pa.Super.) appeal denied, 199 A.3d 334 (Pa. 2018),

we held that the imposition of a mandatory maximum sentence of life

imprisonment on a juvenile convicted of second-degree murder is not cruel

and unusual, provided there is an opportunity for parole. Id. at 1191.

Although the defendant in Olds was convicted prior to the enactment of

Section 1102.1, and was therefore not sentenced under that statute, and

although Smith does not challenge his mandatory maximum sentence of life

imprisonment, we find the discussion in Olds instructive.

      In Olds, the defendant was found guilty of second-degree murder under

the felony-murder rule. Id. at 1192 n.12. On appeal, he argued that the intent

to kill should not be inferred for juveniles convicted under the felony-murder

rule, as “they have diminished capacity to appreciate outcomes,” and that a

maximum sentence of life imprisonment is cruel and unusual when imposed

mandatorily on juveniles who had not killed or intended to kill. Id. at 1192,

1192 n.12. We rejected these arguments, and noted that the Eighth

Amendment allows for imposition of a mandatory maximum sentence of life




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imprisonment, even upon juveniles convicted of non-homicide offenses. Id.

at 1196. Relevant to the felony-murder rule, we stated the following:

     In the future, our nation’s standards of decency may evolve to the
     point where sentencing a juvenile convicted of second-degree
     murder under an accomplice or co-conspirator theory of liability is
     considered disproportionate and, therefore, cruel and unusual
     punishment. Appellant does not cite a single appellate case, and
     we are unaware of any, which have extended the Eighth
     Amendment this far. . . .

     Our society deems the taking of a life, either directly or as an
     accomplice or co-conspirator, sufficiently grievous as to require
     that the defendant not be entitled to release without first going
     through the parole process. Accordingly, we hold that the Eighth
     Amendment permits imposition of [a] mandatory maximum term
     of life imprisonment for juveniles convicted of second-degree
     murder, who did not kill or intend to kill.

Id. at 1197–98 (footnotes and citations omitted).

     Here, despite Smith’s protestations regarding his level of intent, he

admitted that he prowled the streets for 20 minutes, intending to help his

companions commit an armed robbery, and that he decided to rob Stuhlman,

who was out walking his dog, because “even the dog looked weak and small.”

Statement, 3/18/15, at 2. Considering that our precedent has established the

Eighth Amendment permits the imposition of mandatory minimum sentences

under Section 1102.1 – sentences that necessarily preclude a consideration of

an individual’s level of culpability – and because Smith was appropriately

convicted of second-degree murder under the facts of this case, we do not




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find that the imposition of the 30-year mandatory minimum sentence was

cruel and unusual.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19




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