J-S22010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    SHANTE BRUCE RICE                            :
                                                 :
                       Appellant                 :   No. 1111 MDA 2019

              Appeal from the PCRA Order Entered June 12, 2019
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0003481-2012


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                    FILED MAY 15, 2020

        Appellant, Shante Bruce Rice, appeals from an order entered June 12,

2019, which dismissed his petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The facts and procedural history of this case are as follows. On October

31, 2012, Appellant and an accomplice “broke a window and entered 1 Shiloh

Court in Mechanicsburg, Pennsylvania, wherein they took a number of items

from the residence, including jewelry, pocket knives, jars full of coins, alcohol,

and three pistols. Two of the pistols from the Shiloh Court property were sold,

but [Appellant] maintained possession of the third firearm, a Smith & Wesson

revolver.” Commonwealth v. Rice, 2017 WL 1655573, at *1 (Pa. Super.

May 2, 2017) (citation omitted).               Thereafter, on November 18, 2012,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Appellant and “three other accomplices conspired and attempted to rob a Hess

Express[ in Carlisle, Pennsylvania].”          Trial Court Opinion, 6/12/19, at 2.

During the course of the robbery, one of Appellant’s cohorts, Tyler Mitchell

Bradshaw (“Bradshaw”) fatally shot Linda Ness (“Ness”), the cashier, with the

Smith & Wesson revolver stolen from the Shiloh Court property. Id. At the

time of the aforementioned incidents, Appellant was 19-years-old.

       The Commonwealth ultimately charged Appellant with various crimes

related to the incidents at Shiloh Court and Hess Express.1 On September 11,

2014, the jury convicted Appellant of second-degree murder, criminal

conspiracy to commit criminal homicide, robbery, criminal conspiracy to

commit robbery, burglary, and criminal conspiracy to commit burglary. “On

December 16, 2014, [Appellant] received a lifetime sentence of incarceration

as a result of his conviction for [s]econd-[d]egree [c]riminal [h]omocide, with

all lesser sentences imposed running concurrently therewith.” Id. at 1. No

direct appeal followed.

       On June 1, 2015, [however,] Appellant filed a pro se [PCRA]
       petition[.]   The trial court appointed counsel, who filed an
       amended PCRA petition. On December 10, 2015, the trial court
       held a hearing on Appellant's amended PCRA petition. The trial
       court determined that trial counsel was ineffective for failing to file
       a direct appeal as directed by Appellant. Accordingly, by order
       entered on December 11, 2015, the trial court reinstated
       Appellant's direct appeal rights nunc pro tunc.

Rice, 2017 WL 1655573 at *3.
____________________________________________


1Appellant also committed two additional burglaries but these crimes are not
at issue on the present appeal. Trial Court Opinion, 6/12/19, at 2.

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       Appellant then filed a direct appeal to this Court. On May 2, 2017, a

panel of this Court vacated Appellant’s conviction and sentence for the charge

of criminal conspiracy to commit criminal homicide, but otherwise affirmed

Appellant’s judgment of sentence.              Id.   Our Supreme Court subsequently

denied allocatur on November 22, 2017. Commonwealth v. Rice, 174 A.3d

1025 (Pa. 2017).

       Thereafter, Appellant filed a pro se PCRA petition on September 28,

2018. The PCRA court then appointed counsel, who filed an amended PCRA

petition on Appellant’s behalf. In his PCRA petition, Appellant raised various

claims of trial counsel’s ineffectiveness. In addition, Appellant claimed that

his sentence of life without parole violated the Eighth Amendment of the

United States’ Constitution in view of the United States Supreme Court’s

decision in Miller v. Alabama, 567 U.S. 460 (2012) and the Equal Protection

Clause of the Fourteenth Amendment. The PCRA court held an evidentiary

hearing on January 14, 2019 during which trial counsel, Allen C. Welch, Esq.,

testified. On June 12, 2019, the PCRA court dismissed Appellant’s petition.

This timely appeal followed.2

       Appellant raises the following issues on appeal:


____________________________________________


2 Appellant filed a notice of appeal on July 10, 2019. On August 9, 2019, the
PCRA court entered an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on October 8, 2019, expressly incorporating its opinion dated June
12, 2019.

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        I.   Whether the PCRA court erred in denying Appellant relief
             based upon Appellant’s claim that trial counsel was
             ineffective for failing to object to the trial court’s jury
             instruction on second[-]degree murder which failed to
             define “in furtherance” [for] the jury?

       II.   Whether the PCRA court erred in denying Appellant relief
             based upon Appellant’s claim that trial counsel was
             ineffective for failing to contest at sentencing the
             constitutionality of Appellant’s life without parole sentence
             given the [United States] Supreme Court’s decision in
             Miller[?]

      III.   Whether the PCRA court erred in denying Appellant relief
             based upon Appellant’s claim that [his] sentence of life
             without parole is unconstitutional and constitutes
             disproportionate punishment in violation of the Eighth
             Amendment of the United States Constitution pursuant to
             [Miller] and Montgomery v. Louisiana, 136 S.Ct. 718
             (2016)?

      IV.    Whether the PCRA court erred in denying Appellant relief
             based upon Appellant’s claim that [his] sentence of life
             without parole constitutes a violation of the Equal Protection
             Clauses of the United States and Pennsylvania
             Constitutions?


Appellant’s Brief at 5.

       As a general matter, we “review a denial of PCRA relief to determine

whether the PCRA court’s findings are supported by the record and free of

legal error.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

“The court's scope of review is limited to the findings of the PCRA court and

the evidence on the record of the PCRA court's hearing, viewed in the light

most favorable to the prevailing party.” Commonwealth v. Hammond, 953

A.2d 544, 556 (Pa. Super. 2008).




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      In Appellant’s first two appellate issues, he argues that trial counsel

provided ineffective assistance. As this Court previously explained,

      To prevail on a claim that counsel was constitutionally ineffective,
      the [petitioner] must overcome the presumption of competence
      by showing that: (1) his underlying claim is of arguable merit; (2)
      the particular course of conduct pursued by counsel did not have
      some reasonable basis designed to effectuate his interests; and
      (3) but for counsel's ineffectiveness, there is a reasonable
      probability that the outcome of the challenged proceedings would
      have been different. A failure to satisfy any prong of the test for
      ineffectiveness will require rejection of the claim.

Id. at 556 (citations and quotations omitted).

      Appellant first argues that trial counsel was ineffective for failing to

object to the trial court’s jury instruction for second-degree murder.

Appellant’s Brief at 11. Specifically, Appellant claims that the trial court’s “jury

charge as to murder in the second degree, taken as a whole, was inadequate

as it failed to define [the term] ‘in furtherance.’” Id. at 15. Per Appellant,

“the omission of this definition amounted to a fundamental error because it

failed to define an essential element of proof required for a jury to return a

verdict of guilty.” Id. Appellant’s claim lacks merit.

      Generally, a court's jury instructions must be read in their entirety to

determine if they are fair and complete. The trial court has broad discretion

in phrasing the charges. Commonwealth v. Daniels, 963 A.2d 409, 410

(Pa. 2009). Jury instructions will not be found in error if, taken as a whole,

they adequately and accurately set forth the applicable law. Id.




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        A trial court, however, “should not instruct a jury on legal principles

which     bear   no    relationship   to    the   evidence   presented    at      trial.”

Commonwealth v. Arrington, 86 A.3d 831, 850 (Pa. 2014). Rather, there

“must be some relationship between the evidence presented and the law upon

which an instruction is requested.”         Commonwealth v. Taylor, 876 A.2d

916, 923 (Pa. 2005) (citation omitted).           “The reason for this rule is that,

‘instructing the jury on legal principles that cannot rationally be applied to the

facts presented at trial may confuse them and place obstacles in the path of

a just verdict.’” Id. (citation omitted).

        Herein, Appellant contends that the trial court needed to include the

following definition in its jury instructions for second-degree murder.

        [The meaning of the “in furtherance” element is as follows]:

        A partner's act that kills is not in furtherance of the felony if the
        partner does the act for his or her own personal reasons that are
        independent of the felony.

        A partner's act that kills is in furtherance of the felony if he or she
        does the act while fleeing from the scene and if there is no break
        in the chain of events between the felony and the act. However,
        even though the partner's act that kills may seem to meet these
        requirements, it is not in furtherance of the felony if the partner
        does the act for his or her own personal reasons that are
        independent of the felony and the effort to flee.

Pa.S.S.J.I. §15.2502B. Upon review, however, the definition as set forth in

Section 15.2502B is inapplicable because, at trial, no evidence was presented

that Bradshaw killed Ness for reasons unrelated to the robbery.                To the

contrary, the evidence demonstrated that



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      Bradshaw brandished the weapon at [Ness to] induce her to hand
      over the money, and whether or not the gun was discharged
      purposefully or accidently after that (as the defense contended),
      the slaying was in furtherance of the felony as the use of the gun
      was a vital part of the scheme to rob the store. The evidence also
      showed that [Appellant] knew that the gun was loaded and
      operational, [that] he gave the gun to [Bradshaw] for the purpose
      of using it in the robbery, and [that Appellant] knew that
      [Bradshaw] took it into the Hess Express[.]

Trial Court Opinion, 6/12/19, at 6-7. Because no evidence was presented to

show that Bradshaw killed Ness for personal reasons, trial counsel was not

ineffective for failing to object to the trial court’s jury instructions.   Thus,

Appellant’s claim lacks merit.

      Moreover, Appellant’s ineffective assistance claim fails for the additional

reason of lack of prejudice. Indeed, Appellant’s only allegation of prejudice is

that the trial court’s failure to define “in furtherance” deprived the jury of an

“essential element of proof required for a jury to return a verdict of guilty.”

Appellant’s Brief at 15. Appellant does not even argue that the inclusion of

the requested jury instructions would have been so influential that it would

have likely changed the outcome of his trial. Consequently, Appellant's claim

fails for this additional reason.

      Next, Appellant argues that trial counsel provided ineffective assistance

because he failed to challenge Appellant’s sentence of life without parole as

unconstitutional in view of the United States Supreme Court’s decision in

Miller. Appellant’s claim lacks merit.

      We note:



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       In 2012, the United States Supreme Court decided Miller, supra,
       which held [that] mandatory life without parole sentences for
       those under the age of 18 at the time of their crimes violate[s]
       the Eighth Amendment's prohibition on “cruel and unusual
       punishments.” Miller, 567 U.S. at 465[.] The Supreme Court
       held that a juvenile homicide defendant could only be sentenced
       to life without the possibility of parole if he or she is determined
       to be permanently incorrigible, irreparably corrupt, or irretrievably
       depraved. [Id.] at 471[.]


Commonwealth v. Lee, 206 A.3d 1, 2–3 (Pa. Super. 2019), appeal denied,

218 A.3d 851 (Pa. 2019). As explicitly stated in Miller and repeatedly held

by this Court, the ban on mandatory sentences of life without parole “applies

to only those defendants who were ‘under the age of 18 at the time of

their crimes.’” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016) (emphasis added) (citation omitted).

       Herein, it is undisputed that, at the time of the commission of the crime,

Appellant was 19-years-old. As such, “Pennsylvania law holds that [Appellant]

is not entitled to the rights established under [Miller] as he was not a juvenile

at the time of his offenses.” Trial Court Opinion, 6/12/19, at 9. Accordingly,

Appellant’s ineffective assistance claim fails for lack of merit.3

       Finally, Appellant argues that his sentence of life without parole violates

the Equal Protection Clause of the United States’ Constitution.4        Appellant
____________________________________________


3 Due to our disposition of this claim, we need not address Appellant’s third
appellate issue because it sets forth the same challenge to the constitutionality
of his sentence.

4 While Appellant stated in his question presented that his sentence violates
the Equal Protection Clause of Pennsylvania’s Constitution, he advances no



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claims that Pennsylvania draws an “arbitrary distinction” by allowing those

who are “17 years and 364 days old” to present “mitigation evidence in

support of a sentence of less than life without parole” but then, prevents

18-year-old offenders from presenting the same defense. Appellant’s Brief at

25-26. Upon review, however, we conclude that Appellant waived this claim

because a freestanding constitutional challenge to the disparate treatment of

juvenile and adult offenders could have been raised on direct appeal, but was

not. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state post-conviction proceeding”); Commonwealth

v. Price, 876 A.2d 988, 992-993 (Pa. Super. 2005) (same), appeal denied,

897 A.2d 1184 (Pa. 2006), cert. denied, 549 U.S. 902 (2006). Based upon

the foregoing, we affirm the order of the PCRA court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/15/2020

____________________________________________


such argument in his appellate brief and, as such, it is waived.
Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015)
(citation omitted) (“The failure to develop an adequate argument in an
appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.”).

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