J-S07020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 PETER ATEM                               :
                                          :
                    Appellant             :   No. 3380 EDA 2016

        Appeal from the Judgment of Sentence September 30, 2016
           In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0001977-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED AUGUST 21, 2018

      Peter Atem appeals from the judgment of sentence of life-without-

parole (“LWOP”) entered following his first-degree murder conviction. Atem

raises multiple challenges to the trial court’s rulings during trial and to the

propriety of his LWOP sentence. We affirm.

      On February 19, 2016, Atem was arrested and charged with the murder

of his coworker, Danny Vazquez. The case proceeded to a jury trial. The

evidence presented at trial, as summarized by the trial court, is as follows:

      On February 18, 2015, around 8:00 A.M., [Atem] repeatedly
      stabbed and killed his co-worker, [ ] Vazquez [], at the JBS MOPAC
      rendering plant in Franconia Township, Montgomery County,
      Pennsylvania. After stabbing [Vazquez] in the filter room of the
      plant, [Atem] made his way to the filter room shed where he
      attempted to take his own life by stabbing his torso and slashing
      his neck. Despite his self-inflicted wounds, [Atem] survived after
      being air-lifted and receiving treatment at the Paoli Memorial
      Hospital. The “black, butterfly-style” knife used by [Atem] to stab
      [Vazquez] and himself was found near [Atem’s] torso along with
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     a handwritten suicide note that read: “You think you can
     destroyed [sic] my life in front of my family and friends and the
     all [sic] world and lived [sic]. When you set out to destroye [sic]
     people [sic] life for no reason you make sure they [sic] dead, see
     you in hell. Life for life.”

            Eye-witness and co-worker, James Artis, worked at JBS
     MOPAC rendering plant in the filter room on the day of the
     stabbing murder, February 18, 2015. [] Artis testified [Vazquez]
     was resting on a chair in the filter room when [Atem] entered,
     stood silently in the doorway, and exited the room. [Atem] then
     re-entered the room, and without warning or any obvious
     provocation, physically confronted [Vazquez]. [Vazquez] got
     [Atem] off of him, but did not otherwise get physical with [Atem].
     Instead [Vazquez] asked [Atem] what his problem was, as did []
     Artis. [] Artis specifically asked if [Atem] was “alright’ and could
     [Vazquez] have done something bad enough to cause this
     interaction, to which [Atem] nodded affirmatively. [] Artis testified
     [Atem’s] demeanor, though usually quiet, was “a tad bit off” that
     day. [Vazquez] continued to ask [Atem] why he jumped on him,
     and warned that if [Atem] continued not to answer [Vazquez’s]
     question, he would report the incident to the office where the
     supervisors are located. [] Artis went back to work but continued
     to overhear [Vazquez] questioning [Atem], and eventually heard
     [Vazquez] shrieking. [] Artis turned and saw [Atem] stabbing
     [Vazquez].

           In describing the stabbing, [] Artis demonstrated that
     [Atem] had his arms crossed over [Vazquez’s] chest while
     stabbing [Vazquez] with his right hand in the center of [Vazquez’s]
     chest and underneath [Vazquez’s] neck. [] Artis next saw
     [Vazquez] running and screaming toward the exit [and] helped
     [Vazquez] up a small hill outside the filter room leading to the
     front office, leaving [Atem] behind in the filter room. When
     [Vazquez] and [] Artis made it to the front office, [Vazquez] told
     Ralph Hendricks, a plant supervisor that JBS, that [Atem] stabbed
     him. One of the supervisors in the front office called 9-1-1, while
     another contacted JBS in-house medical unit and then attended to
     [Vazquez]. [Despite their attempts, Vazquez did not survive.] …

                                     ***

     [Atem] made several statements to police between February 19
     and 20, 2015. [Atem] stated he began working at JBS MOPAC on

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     September 8, 2004, “going on eleven [] years” before the
     stabbing-murder. At the rendering plant, [Atem] heard [Vazquez]
     tell others “he was going to destroy” [Atem] numerous times.
     Appellant explained the knife used to stab [Vazquez] was already
     in his locker before the incident, and described the knife as a
     black, “butterfly-style” knife. [Atem] admitted he did not routinely
     carry this knife on his person, but retrieved the knife from his
     locker and placed it in his jacket pocket before he confronted
     [Vazquez]. He also confessed to starting the physical
     confrontation with [Vazquez] on February 18, 2015, because he
     feared [Vazquez] was going to do something with alleged pictures
     of [Atem] that were taken and/or stored on [Vazquez’s] phone.
     Interestingly, Detective [Jack] Wittenberger searched [Vazquez’s]
     cell phone following his murder, finding no evidence of these
     alleged pictures.[] [Atem] became angry when [Vazquez] threated
     to report the confrontation to the front office, so he stepped
     outside to cool off. As [Atem] attempted to cool off, [Vazquez]
     grabbed his jacket sleeve, at which time [Atem] began stabbing
     [Vazquez]. Though [Atem] was angry, he said he did not want to
     kill [Vazquez]; yet, he admitted that after stabbing [Vazquez]
     multiple times, he went to the shed and attempted to commit
     suicide. After [Atem] stabbed himself, he wrote the suicide note
     on paper he found in the shed. [Atem] also told detectives he does
     not suffer from any illnesses, including mental illness, and that he
     is right-handed.

            On February 19, 2015, Dr. Isidore Mihalakis, Deputy
     Coroner for Montgomery County at the time, performed
     [Vazquez’s] autopsy, consisting of an internal and external
     examination.[]… [Dr. Mihalakis observed that Vazquez] had at
     least ten [] separate stab wounds, one [] of which was a four []
     inch deep neck wound severing [Vazquez’s] deep jugular vein.
     This particular wound was in the area containing all the major
     vessels from the heart to the brain. Another wound in [Vazquez’s]
     shoulder/upper left arm region cut his vital subclavian artery.
     There was yet another wound in a vital area on [Vazquez’s] body
     in the chest near the heart.

           … Dr. Mihalakis opined to a reasonable degree of medical
     certainty that the cause of [Vazquez’s] death was multiple stab
     wounds and the manner of death was homicide.[] According to Dr.
     Mihalakis, the wound to [Vazquez’s] neck and upper arm caused
     the most damage and were very likely made early on, given the
     more extensive hemorrhaging that took place. Two [] of

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     [Vazquez’s] wounds rendered his biceps almost totally useless and
     inhibited his ability to fight [Atem] off. This conclusion was
     bolstered by the lack of classic defensive wounds on [Vazquez’s]
     body – wounds resulting from attempts to ward off an assailant.
     Notably, one [] wound was upward and backward, indicating
     [Atem] came from behind to stab [Vazquez] for at least one [] of
     the stabbings. There was evidence of some physical struggle
     between [Vazquez] and [Atem]. The multiple wounds, including
     the two [] most damaging, reduced the amount of time he had to
     survive. All the wounds were consistent with the “butterfly-style”
     knife retrieved by police.

                                     ***

           … JBS employees testified that they knew both [Atem] and
     [Vazquez], and there were no obvious issues or racial tension
     between them. Moreover, all but one [] JBS employee testified
     consistently about the JBS policy at the rendering facility
     prohibiting all personal knives and authorizing only the use of a
     box-cutter within the facility.[] …

          Notably, JBS employees also testified [Atem] should not
     have been at work on February 18, 2015, the day of the stabbing-
     murder, nor did [Atem] clock-in. [Atem] also appeared uncertain
     that morning about whether he [was] coming into work when
     communicating with his co-worker, Kevin Brown.

           [Atem] did not testify in this case or call any witnesses to
     put his history into evidence, though it was a central issue in the
     case, as [Atem’s] defense was Post-Tramatic Stress Disorder
     (PTSD) resulting from his unfortunate childhood as a child soldier
     in Sudan, prevented him from forming the requisite intent for
     homicide on February 18, 2015. [Atem’s] history was analyzed
     and borne out by expert witnesses, as well as in defense counsel’s
     opening statement and closing argument, though most of the
     information was not admitted as substantive evidence.
     Consequently, the jury was specifically instructed on the factual
     bases for expert opinions.

                                     ***

            While the recitation of [Atem’s] childhood history [was]
     fairly consistent in all three [] experts’ reports, their conclusions
     varied. [Atem’s] testifying expert, Dr. [Alisa] Gutman, concluded

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      [Atem] suffered from PTSD symptoms on February 18, 2015, and
      therefore, did not form the requisite intent for murder. The
      Commonwealth’s expert, Dr. John O’Brien testified his opinion was
      not inappropriately conclusory as he believed Dr. Gutman’s
      opinion to be, and concluded [Atem] did not suffer from PTSD on
      February 18, 2015, and was capable of forming the requisite
      intent for murder. Finally, defense expert, Dr. Kenneth Weiss,
      failed to conclude whether [Atem] did or did not suffer from PTSD
      symptoms at the time of the stabbing murder; therefore his
      testimony was limited on sur[-]rebuttal, insomuch as it rebutted
      the Commonwealth’s expert’s references to his report.

Trial Court Opinion, 4/21/2017, at 1-2, 7-12 (internal citations to the record

omitted). Following the close of evidence, the jury convicted Atem of first-

degree murder and possessing an instrument of crime. The trial court later

sentenced Atem to a mandatory LWOP sentence for first-degree murder.

      Atem filed a timely post-sentence motion in which he challenged the

weight of the evidence presented at trial and the excessiveness of his LWOP

sentence. The trial court denied Atem’s motion, without a hearing. This timely

appeal follows.

      On appeal, Atem raises the following issues for our review:

      1. Whether the defense was improperly precluded from eliciting
         relevant information regarding [Atem’s] state of mind that
         would have dispelled the notion he committed first degree
         murder.

      2. Whether the trial court erred in sustaining the objection as to
         Doctor Weiss’ [sic] proposed testimony that would have
         dispelled the notion [Atem] committed first degree murder.

      3. Whether the trial court erred in refusing to give an involuntary
         manslaughter charge.




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      4. Whether the trial court erred in overruling defense counsel’s
         objection to the prosecution’s argument to the jury regarding
         voluntary manslaughter, provocation and self-defense.

      5. Whether the trial court erred in overruling the objection of
         defense counsel to the prosecution’s argument that the defense
         was nothing more than an attempt to garner sympathy.

      6. Whether the trial court erred in allowing a flight/consciousness
         of guilt instruction.

      7. Whether the prosecutor engaged in misconduct when, in
         pretrial motions, the trial court directed the prosecutor not to
         solicit any opinion evidence as to the character of the deceased
         and thus try to invoke sympathy for the deceased.

      8. Whether the verdict of first degree murder was against the
         weight of the evidence.

      9. Whether the mandatory life term received by [Atem] is
         excessive and amounts to cruel and unusual punishment in
         contradiction to the Eighth Amendment.

Appellant’s Brief, at 12 (unnecessary capitalization omitted).

      Appellant raises nine issues for our review. Raising so many issues

reminds us of Justice Robert H. Jackson’s warning about such an approach:

      Legal contentions, like the currency, depreciate through
      overissue. The mind of an appellate judge is habitually receptive
      to the suggestion that a lower court committed an error. But
      receptiveness declines as the number of assigned errors
      increases. Multiplicity hints at a lack of confidence in any one. Of
      course, I have not forgotten the reluctance with which a lawyer
      abandons even the weakest point lest it prove alluring to the same
      kind of judge. But experience on the bench convinces me that
      multiplying assignments of error will dilute and weaken a good
      case and will not save a bad one.




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Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”

at 130 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United

States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)).

      This “much quoted” advice, unfortunately, “often ‘rings hollow’….”

Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citing

Ruggero J. Aldisert, J. “The Appellate Bar: Professional Competence and

Professional Responsibility–A View From the Jaundiced Eye of the Appellate

Judge,” 11 Cap. U.L. Rev. 445, 458 (1982)). But its importance cannot be

overstated. See, e.g., Jones v. Barnes, 463 U.S. 745, 751-752 (1983)

(“Experienced advocates since time beyond memory emphasized the

importance of winnowing out weaker arguments on appeal and focusing on

one central issue if possible, or at most on a few key issues”); Howard v.

Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (“[O]ne of the most important

parts of appellate advocacy is the selection of the proper claims to urge on

appeal. Throwing in every conceivable point is distracting to appellate judges,

consumes space that should be devoted to developing the arguments with

some promise, inevitably clutters the brief with issues that have no chance …

and is overall bad appellate advocacy.”); Aldisert, supra at 129 (“When I read

an appellant’s brief that contains more than six points, a presumption arises

that there is no merit to any of them.”)

      Atem’s first two issues challenge the trial court’s rulings relating to the

admissibility of evidence during trial.


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       The admission or exclusion of evidence is within the sound
       discretion of the trial court, and in reviewing a challenge to the
       admissibility of evidence, we will only reverse a ruling by the trial
       court upon a showing that it abused its discretion or committed
       an error of law. Thus[,] our standard of review is very narrow. To
       constitute reversible error, an evidentiary ruling must not only be
       erroneous, but also harmful or prejudicial to the complaining
       party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (quotation

marks and citation omitted).

       In his first issue, Atem claims that the trial court erred in precluding him

from refuting the Commonwealth’s claim that Atem was a “bad employee” by

providing a reason for his absenteeism.1 A review of the trial transcript,

however, reveals Atem never raised this claim at trial.2 We find it waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”)


____________________________________________


1 Atem also contends in his brief that the trial court erred by admitting this
“bad employee” evidence in the first place. See Appellant’s Brief, at 19-22.
However, as the trial court concludes, and the record reflects, Atem has failed
to preserve this issue for our review. See Trial Court Opinion, 4/21/17, at 32-
33 (finding Atem’s failure to object to the introduction of evidence concerning
Atem’s absenteeism waived the issue for appellate review). See also
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”)

2 There is an indication in the record that there were two unrecorded sidebars.
Perhaps this claim was raised then. Perhaps not. There is no way to tell. And,
tellingly, Atem does not indicate where he preserved this issue for our review.
See Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(e). The burden to preserve this issue
for our review fell squarely on Atem.




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       Next, Atem challenges the trial court’s decision to limit Dr. Weiss’s

testimony on sur-rebuttal to a rebuttal of Dr. O’Brien’s statement indicating

that Dr. Weiss had concluded Atem did not have PTSD.3 Atem argues that Dr.

Weiss should have been permitted to expand her testimony and explain the

effects of “horse play” on a person with PTSD, as this issue was relevant in

supporting an argument for imperfect self-defense. However, as the

Commonwealth notes, Atem has failed to preserve this issue by failing to

object to the trial court’s ruling limiting the scope of the sur-rebuttal prior to

allowing Dr. Weiss to take the witness stand.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). “[I]t is axiomatic that issues

are preserved when objections are made timely to the error or offense.”

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (citations

omitted). Here, defense counsel did not object when the trial court indicated

the limited scope of Dr. Weiss’s testimony; in fact, the transcript reveals that

defense counsel agreed that Dr. Weiss’s testimony would be limited as such.

See N.T., Trial, 6/9/16, at 161. Therefore, we find this argument waived.

       In his fourth, fifth, and seventh issues, Atem raises claims of

prosecutorial misconduct. Specifically, Atem claims that the prosecutor’s


____________________________________________


3 Atem does not challenge the trial court’s decision to preclude Dr. Weiss’s
expert testimony, but only challenges the trial court’s decision to limit Dr.
Weiss’s testimony on sur-rebuttal. See Appellant’s Brief, at 37. Therefore, we
have limited our analysis to this specific issue.

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actions in eliciting testimony about the character of the victim, as well as

inaccurately characterizing the defense as one that relied upon sympathy for

the victim and a justification defense, constituted prosecutorial misconduct

sufficient to require a new trial. However, our review of the record reveals that

Atem has failed to preserve any of these challenges for our review.

      “It is within the discretion of the trial court to determine whether a

defendant has been prejudiced by misconduct or impropriety to the extent

that a mistrial is warranted.” Commonwealth v. Baez, 720 A.2d 711, 729

(Pa. 1998) (citation omitted). As such, if a defendant perceives prosecutorial

misconduct during the course of trial, he must allow the trial court the

opportunity to correct the error at the time it is made. See, e.g.,

Commonwealth v. Clair, 326 A.2d 272, 274 (Pa. 1974) (“[A] party may not

remain silent and afterwards complain of matters which, if erroneous, the

court would have corrected.”)

      In order to allow for this opportunity, defense counsel must not only

object to the perceived misconduct, but also request a mistrial or curative

instruction   at   the   time   the    perceived   misconduct     occurs.   See

Commonwealth v. Strunk, 953 A.2d 577, 578 (Pa. Super. 2008). Failure to

request either of these remedies waives claims of misconduct on appeal –

even where defense counsel notes his objection to the perceived misconduct.

See Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013).




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       Here, while defense counsel objected to three claims of perceived

misconduct by the prosecution, he failed to request a mistrial or curative

instruction to remedy these issues at any point during trial. 4 See N.T., Trial

6/7/16, at 117 (objecting to evidence of victim’s character); N.T., Trial,

6/9/16, at 238-239 (objecting to prosecution’s reference to sympathy during

closing); N.T., Trial, 6/9/16, at 225 (objection to prosecution’s reference to

justification defense). As Atem failed to request a new trial based upon any of

these alleged claims of misconduct with the trial court, we cannot grant him

this relief now.

       In his next two issues, Atem contests the trial court’s rulings relating to

jury instructions. First, in issue three, Atem challenges the trial court’s refusal

to instruct the jury on involuntary manslaughter. Atem asserts that because

horseplay was common at work and he did not intend to kill Vazquez, there

was evidence from which a jury could have assumed that Vazquez’s death was

simply an accident resulting from horseplay. Therefore, Atem argues, the

issue of involuntary manslaughter was fairly before the jury.




____________________________________________


4 In fact, Atem’s objection to the testimony concerning Vazquez’s character
was sustained, and a curative instruction was issued to the jury. Atem did not
object to the curative instruction. As such, we could have found Atem waived
this specific claim on this basis. See Commonwealth v. Boring, 684 A.2d
561, 568 (Pa. Super. 1996) (finding claims of prosecutorial misconduct are
waived when a defendant’s objection to a prosecutor’s statement is granted
and no additional relief is requested).

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      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citations

omitted; brackets in original). An “[involuntary] manslaughter charge shall be

given only when requested, where the offense has been made an issue in the

case, and the trial evidence reasonably would support such a verdict.”

Commonwealth v. Patton, 936 A.2d 1170, 1177 (Pa. Super. 2007)

(citations omitted). “A person is guilty of involuntary manslaughter when as a

direct result of doing an unlawful act in a reckless or grossly negligent manner

… he causes the death of another person.” 18 Pa.C.S.A. § 2504(a).

      Despite Atem’s claims to the contrary, we cannot find any evidence to

support the claim that Atem’s stabbing of an unarmed victim was a reckless

or grossly negligent result of horseplay. The evidence was uncontroverted at

trial that Atem initiated and escalated the altercation—and then proceeded to

stab an unarmed Vazquez ten times. Neither party presented any evidence

from which a jury could have inferred that this incident started out as

horseplay. Therefore, because a jury could not have reasonably found that

these actions constituted the mere recklessness or gross negligence required

to support an involuntary manslaughter conviction, we cannot find that the

trial court erred in refusing to give this instruction to the jury.




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      In his sixth issue on appeal, Atem purports to challenge the trial court’s

inclusion of the flight/consciousness of guilt instruction to the jury. However,

because Atem failed to object to the inclusion of this instruction at trial, we

agree with the trial court’s determination that Atem has waived this issue for

our review. See Trial Court Opinion, 4/21/17, at 50-51.

      We reiterate that “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). In order to

preserve a specific claim that a jury instruction was erroneous, a defendant

must object to the charge at trial. See Commonwealth v. Spotz, 84 A.3d

294, 318 n.18 (Pa. 2014). See also Pa.R.A.P. 302(b) (“A general exception

to the charge to the jury will not preserve an issue for appeal. Specific

exception shall be taken to the language or omission complained of.”)

      Here, the trial court clearly indicated its plan to instruct the jury on

flight/consciousness of guilt during the charging conference. See N.T., Trial,

6/9/16, at 167. And, as indicated, the trial court included this instruction in

its charge to the jury. See id., at 260. Atem did not object to the trial court’s

inclusion of this instruction at either of these opportunities. Therefore, he has

waived his right to challenge this aspect of the trial court’s charge on appeal.

      Next, Atem argues that his first-degree murder conviction was against

the weight of the evidence presented at trial. Specifically, Atem concludes that

several aspects of the testimony of the Commonwealth’s expert witness, Dr.




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O’Brien were defective and, therefore, improperly considered by the jury in its

deliberations.

      We do not review challenges to the weight of the evidence de novo on

appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

Rather, we only review the trial court’s exercise of its discretionary judgment

regarding the weight of the evidence presented at trial. See id. “[W]e may

only reverse the lower court’s verdict if it is so contrary to the evidence as to

shock one’s sense of justice.” Commonwealth v. Champney, 832 A.2d 403,

408 (Pa. 2003) (citations omitted). A verdict is said to be contrary to the

evidence such that it shocks one’s sense of justice when “the figure of Justice

totters on her pedestal,” or when “the jury’s verdict, at the time of its

rendition, causes the trial judge to lose his breath, temporarily, and causes

him to almost fall from the bench, then it is truly shocking to the judicial

conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.

2004) (citations omitted).

      Here, the trial court acknowledged the appropriate legal standards in

addressing Atem’s challenge and examined the record in the face of Atem’s

claim that the testimony of Dr. O’Brien was faulty. After a careful review, the

trial court concluded that Dr. O’Brien’s opinion was, in fact, proper and

supported by information of record. See Trial Court Opinion, 4/21/17, at 22-

28. After making this determination, the trial court reviewed the jury’s verdict

and concluded the verdict did not shock its conscience. Having reviewed the


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record, we cannot conclude the trial court abused its discretion. Thus, Atem’s

weight of the evidence claim fails.

      Finally, Atem contends that his LWOP sentence constitutes cruel and

unusual punishment in violation of the Eight Amendment to the United States

Constitution. Specifically, because of his childhood experiences and his PTSD,

Atem argues that a sentence of LWOP is excessive and the premise behind

the holding in Miller v. Alabama, 567 U.S. 460 (2012), “that life without

parole constitutes a cruel and unusual punishment for juvenile applies (or,

alternatively, should apply) to the instant case.” Appellant’s brief, at 74.

      Miller is unambiguously limited to juvenile offenders. See 567 U.S. at

465. Atem was thirty-one at the time of his crime. This, alone, is a basis for

rejecting Atem’s claim. However, for the sake of completeness, we will address

Atem’s implicit claim that the lack of individualized sentencing in a mandatory

LWOP sentence constitutes cruel and unusual punishment.

      In Pennsylvania, our legislature has determined that an adult convicted

of first-degree murder can only receive one of two sentences: death or LWOP.

See 18 Pa.C.S.A. § 1102(a)(1). Therefore, in situations in which the

Commonwealth does not seek the death penalty, the trial court does not have

any discretion in imposing sentence; it must impose a LWOP sentence

following a first-degree murder conviction. See id.

      The constitutionality of this sentencing statue has already come before

this Court. In Commonwealth v. Yount, 615 A.2d 1316 (Pa. Super. 1992),


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a defendant challenged the constitutionality of imposing a life sentence in a

non-capital case. In determining that a mandatory sentence of LWOP is

constitutional following a first-degree murder conviction, the court noted that

“[t]he Eighth Amendment requirement for individualized consideration of

offender and crime in capital cases has not been extended to noncapital

cases.” Id., at 1321 (citation omitted). As such, the court must impose “the

mandatory sentence of life imprisonment for first degree murder[] … [without]

consideration of aggravating or mitigating circumstances.” Id. (citations

omitted).

      As a non-individualized LWOP sentence for first-degree murder has been

deemed constitutional by our courts, Atem’s final argument on appeal, fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




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