J-S39023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD GEORGE CUNNINGHAM

                            Appellant                 No. 1821 WDA 2013


               Appeal from the PCRA Order of November 7, 2013
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0015297-2006


BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                            FILED OCTOBER 03, 2014

       Richard Cunningham (“Cunningham”) appeals the November 7, 2013

order that denied his petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Cunningham’s counsel has filed a

petition to withdraw as counsel and a Turner/Finley1 brief. After review,

we affirm the order and grant counsel’s petition.

       On direct appeal, this Court summarized the factual and procedural

history of this case as follows:

       On the evening of February 19, 2005, Kevilin Middleton hosted a
       birthday party for T.C. Lyerly. Toward the end of the party, Mr.
       Middleton made arrangements for exotic dancers to come to his
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
   Commonwealth v. Turner,          544    A.2d   927   (Pa.            1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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     residence and perform in exchange for two hundred dollars
     ($200). The exotic dancers, Angel Potter and Helen McCorkle,
     arrived at Mr. Middleton’s residence along with Geneva Burrell.
     At this time, Mr. Middleton, Mr. Lyerly, and Chaoe Davis were
     the only people still at the party.        Before the dancers’
     performance, however Mr. Middleton insulted Ms. Potter’s
     appearance and refused to provide payment. Mr. Middleton, Ms.
     Potter, and Ms. Burrell began to argue. The argument escalated,
     and Ms. Potter reached into Mr. Middleton’s pocket and removed
     money. Ms. Burrell advised Ms. Potter to return the money, and
     Ms. Potter eventually complied. Shortly thereafter, Ms. Potter
     and Ms. Burrell telephoned [Cunningham] and his co-defendants
     to come to Mr. Middleton’s home and help secure payment.

     Approximately thirty (30) minutes later, a van arrived at Mr.
     Middleton’s house. [Cunningham], Alfon Brown, Ramone Coto,
     and Eric Surratt exited the van and approached the residence.
     The men carried guns, and [Cunningham] wore a hooded
     sweatshirt and ski mask. Upon their arrival, at least three (3) of
     the men entered Mr. Middleton’s house without permission and
     demanded payment for the dancers. Before Mr. Middleton had
     an opportunity to comply, the men began firing at Mr. Middleton,
     Mr. Lyerly, and Mr. Davis.     Mr. Lyerly and Mr. Davis died
     instantly.  Mr. Middleton sustained critical injuries from the
     gunshots.

     The Commonwealth charged [Cunningham] with two (2) counts
     of criminal homicide, criminal attempt, burglary, aggravated
     assault, carrying a firearm without a license, and criminal
     conspiracy. On June 18, 2007, [Cunningham] proceeded to a
     bench trial. The court tried [Cunningham] and his co-defendants
     jointly.

     At trial, the Commonwealth presented testimony from Ms.
     McCorkle, Ms. Burrell, and Ms. Potter. Ms. McCorkle testified
     that she saw four (4) men exit a van and walk towards Mr.
     Middleton’s house carrying guns. She identified Mr. Brown, Mr.
     Coto, and Mr. Surratt, but did not recognize the fourth gunman.
     Ms. Burrell, however, positively identified [Cunningham] as the
     fourth man, who entered the house wearing a ski mask and
     carrying a gun. Ms. Potter also testified she heard Ms. Burrell
     direct [Cunningham] to Mr. Lyerly’s location inside the house.
     Further, a latent fingerprint examiner conclusively established
     the fingerprints lifted from the front storm door at Mr.
     Middleton’s residence matched [Cunningham’s] fingerprints.

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       Following numerous continuances, the court scheduled closing
       arguments for February 8, 2008. After the defense rested its
       case, however, [Cunningham’s] counsel became seriously ill and
       died. Consequently, the court appointed replacement counsel to
       represent [Cunningham]. On February 8, 2008, replacement
       counsel appeared before the court and explained that he was
       unprepared to proceed. As a result, the court rescheduled
       [Cunningham’s] closing argument for July 7, 2008, giving
       replacement counsel five (5) months to consult with
       [Cunningham], review the file, and prepare to close for the
       defense.

       On July 7, 2008, replacement counsel delivered closing
       argument. Subsequently, the court found [Cunningham] guilty
       of two (2) counts of second degree murder and one (1) count
       each of burglary and criminal conspiracy.[2] On September 22,
       2008, the court sentenced [Cunningham] to concurrent terms of
       life imprisonment for his second degree murder convictions. The
       court also imposed concurrent terms of thirty (30) to sixty (60)
       months’ imprisonment for his burglary conviction and eighteen
       (18) to thirty-six (36) months’ imprisonment for his conspiracy
       conviction. On October 2, 2008, [Cunningham] timely filed a
       post-sentence motion, which the court denied on December 9,
       2008. [Cunningham] did not pursue a direct appeal with [the
       Superior Court].

       On April 6, 2009, [Cunningham] timely filed a pro se petition
       pursuant to [the PCRA]. Thereafter, the PCRA court appointed
       counsel. On July 8, 2009, counsel filed an amended PCRA
       petition, requesting reinstatement of [Cunningham’s] appellate
       rights nunc pro tunc. On August 20, 2009, the PCRA court
       granted the requested relief.

       On September 18, 2009 [Cunningham] timely filed his notice of
       appeal.

Commonwealth v. Cunningham, 1614 WDA 2009, slip op. at 1-4 (Pa.

Super. July 30, 2010) (footnote omitted).

____________________________________________


2
       18 Pa.C.S.A. §§ 2502(b), 3502(a), and 903(a), respectively.



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       This Court affirmed Cunningham’s judgment of sentence in part, but

vacated the thirty to sixty month sentence for burglary. The panel held that

the sentencing court erred in imposing a separate sentence for burglary

because that conviction was the predicate felony for the felony murder

conviction. Id. at 14. Cunningham filed a petition for allowance of appeal

with the Pennsylvania Supreme Court, but the petition was denied on March

30, 2011. Commonwealth v. Cunningham, 20 A.3d 484 (Pa. 2011).

       On December 27, 2011, Cunningham timely filed a pro se PCRA

petition. Counsel was appointed, and she filed an amended PCRA petition on

June 11, 2012.       On August 21, 2012, Cunningham filed a pro se motion

seeking to terminate PCRA counsel’s representation. On August 29, 2012,

Cunningham filed a pro se motion to amend the PCRA petition to add new

claims. On September 24, 2012, PCRA counsel filed a motion for a Grazier3

hearing to determine whether Cunningham knowingly and voluntarily wished

to proceed pro se. On October 12, 2012, PCRA counsel filed a supplement

to the amended PCRA petition, raising three additional claims that

Cunningham included in his motion to amend.

       On April 25, 2013, the PCRA court held a hearing on the PCRA petition.

The PCRA court first asked Cunningham whether he still wished to represent

himself and he declined.        Notes of Testimony (“N.T.”), 4/25/2013, at 2-3.


____________________________________________


3
       Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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Counsel then presented argument. No testimony was taken. Following the

hearing, on May 20, 2013, the PCRA court granted Cunningham’s motion to

appoint a fingerprint expert.   On November 6, 2013, PCRA counsel filed a

“Notice of Status of Defense Expert’s Review of Print Evidence.”       In that

filing, PCRA counsel averred that the copy of the evidence had been

provided to the defense expert and that “[n]o further argument or

supplemental matter [would] be submitted by the defense regarding the

print evidence.”   Notice of Status of Defense Expert’s Review of Print

Evidence, 11/6/2013, at 1.

     On November 7, 2013, the PCRA court denied Cunningham’s petition.

On November 15, 2013, Cunningham filed a notice of appeal and concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On December 17, 2013, the trial court filed its Pa.R.A.P. 1925(a) opinion.

On January 30, 2014, PCRA counsel filed a petition to withdraw as counsel.

     In the Turner/Finley brief, counsel identifies four potential issues:

     1. Whether [trial counsel] was ineffective for failing to file a
        motion to sever, for purposes of trial, [Cunningham’s] case
        from Co-Defendant Surratt’s case?

     2. Whether [trial counsel] was ineffective by failing to present an
        expert to challenge the reliability of the fingerprint/hand-print
        evidence?

     3. Whether [Cunningham’s] mandatory sentences of life in
        prison without parole, which prohibits the court from
        considering mitigating factors, is unconstitutional under
        Article I, Section 13 of the Pennsylvania Constitution, the
        Eighth and Fourteenth Amendments to the United States
        Constitution, Article 5 of the Universal Declaration of Human
        Rights and/or Article 7 of the International Covenent on Civil

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        and Political Rights and whether failure to apply the decision
        of Miller v. Alabama, --- U.S. ---, 132 S. Ct. 2455 (2012) to
        the instant matter constitutes a violation of the equal
        protection clauses of the United Stated and Pennsylvania
        Constitutions?

     4. Whether [Cunningham’s] convictions and sentences are illegal
        and must be vacated and [Cunningham] discharged where
        the statutes defining the offenses and authorizing sentence
        are void for failure to contain the enacting clause set forth
        and mandated by/under 1 Pa.C.S. § 1101(a)?

Turner/Finley Brief at 3.

     First, we must consider whether PCRA counsel has complied with the

requirements for appointed counsel to withdraw pursuant to Turner and

Finley. We previously have explained this procedure as follows:

     Counsel petitioning to withdraw from PCRA representation must
     proceed under [Turner/Finley and] . . . must review the case
     zealously. Turner/Finley counsel must then submit a “no-
     merit” letter to the trial court, or brief on appeal to this Court,
     detailing the nature and extent of counsel’s diligent review of the
     case, listing the issues which petitioner wants to have reviewed,
     explaining why and how those issues lack merit, and requesting
     permission to withdraw.

     Counsel must also send to the petitioner: (1) a copy of the “no
     merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
     and (3) a statement advising petitioner of the right to proceed
     pro se or by new counsel.

     Where counsel submits a petition and no-merit letter that satisfy
     the technical demands of Turner/Finley, the court — trial court
     or this Court — must then conduct its own review of the merits
     of the case. If the court agrees with counsel that the claims are
     without merit, the court will permit counsel to withdraw and
     deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations

omitted).


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      Here, PCRA counsel has filed a Turner/Finley brief.            Counsel listed

the issues Cunningham wished to raise. Turner/Finley Brief at 3. Counsel

attested to her diligent review of the record.        Id. at 19.     Counsel then

thoroughly reviewed each issue and concluded that each was without merit.

Id. at 22-35.     Counsel also sent a letter to Cunningham, stating that she

had   filed   a   petition   to   withdraw   and   enclosing   the   petition   and

Turner/Finley brief. Letter, 1/30/2014. In the letter, counsel also advised

Cunningham of his right to proceed pro se, hire new counsel, and/or file a

supplemental brief. Id. Counsel has attached the letter to her petition to

withdraw.

      We conclude that PCRA counsel has complied substantially with the

Turner/Finley requirements. However, before passing upon PCRA counsel’s

motion to withdraw, we must conduct our own independent review of the

record.

      Our standard of review of a PCRA court order is as follows:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford
      no such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.




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Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)

(internal citations omitted).

       Here, Cunningham’s first two issues are ineffective assistance of

counsel (“IAC”) claims. IAC claims are governed by the following standard:

       In Pennsylvania, counsel is presumed effective, and a defendant
       bears the burden of proving otherwise. In order to be entitled to
       relief on a claim of ineffective assistance of counsel, the PCRA
       petitioner must plead and prove by a preponderance of the
       evidence that (1) the underlying claim has arguable merit;
       (2) counsel whose effectiveness is at issue did not have a
       reasonable basis for his action or inaction; and (3) the PCRA
       petitioner suffered prejudice as a result of counsel’s action or
       inaction.   When determining whether counsel’s actions or
       omissions were reasonable, we do not question whether there
       were other more logical course of actions which counsel could
       have pursued: rather, we must examine whether counsel’s
       decisions had any reasonable basis.         Further, to establish
       prejudice, a petitioner must demonstrate that but for the act or
       omission in question, the outcome of the proceedings would
       have been different. Where it is clear that a petitioner has failed
       to meet any of the three, distinct prongs . . ., the claim may be
       disposed of on that basis alone, without a determination of
       whether the other two prongs have been met.

Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and

internal quotation marks omitted; emphasis in original).

       The first issue raised is that trial counsel was ineffective for failing to

seek   to   sever   Cunningham’s     trial   from   that   of   his   co-defendants.

Turner/Finley Brief at 22. With regard to when defendants may be tried

together, Rule 582 states in pertinent part:

       Defendants charged in separate indictments or informations may
       be tried together if they are alleged to have participated in the



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      same act or transaction or in the same series of acts or
      transactions constituting an offense or offenses.

Pa.R.Crim.P. 582(A)(2).

      Whether to grant a motion for severance is within the trial
      court’s sound discretion and “should not be disturbed absent a
      manifest abuse of discretion.” [Commonwealth v. Chester,
      587 A.2d 1367, 1372 (Pa. 1991)]. Chester noted joint trials are
      preferred where conspiracy is charged.       Severance may be
      proper where a party can establish the co-defendants’ defenses
      are so antagonistic that a joint trial would result in prejudice.
      Id., at 1372–73. However, the party seeking severance must
      present more than a mere assertion of antagonism:

      [T]he fact that defendants have conflicting versions of what took
      place, or the extents to which they participated in [the crime], is
      a reason for rather than against a joint trial because the truth
      may be more easily determined if all are tried together. . . .
      Defenses become antagonistic only when the jury, in order to
      believe the essence of testimony offered on behalf of one
      defendant, must necessarily disbelieve the testimony of his co-
      defendant.

Commonwealth v. Housman, 986 A.2d 822, 834 (Pa. 2009) (some

citations omitted).

      Here, the crimes for which all of the defendants were charged arose

from the same series of acts that resulted in the illegal entry into Mr.

Middleton’s house and the deaths of Mr. Lyerly and Mr. Davis. Further, the

defenses offered were not so antagonistic as to require severance.          The

defendants offered conflicting versions as to who entered the house, who

shot the victims, and what each intended upon arrival at Mr. Middleton’s

house. All questioned Ms. Burrell’s credibility. However, conflicting versions

as to what took place or the extent of involvements are not a reason to



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sever trial.    See Housman, supra.           Because the decision to try the

defendants jointly was supported by law and not an abuse of the trial court’s

discretion, there is no arguable merit to the underlying claim. Further, for

the same reasons, there was a reasonable basis for trial counsel not to

pursue a motion to sever the trials. Because there is no proof of either of

those prongs of the IAC claim, this issue has no merit.

      Counsel next raises the issue that trial counsel was ineffective for

failing to present an expert witness to challenge the Commonwealth’s

fingerprint evidence.     Turner/Finley Brief at 26.       However, there is no

indication Cunningham suffered any prejudice, such that the outcome of the

proceeding would have been different. See Steele, supra.

      Wayne Reutzel, a latent fingerprint examiner with the Allegheny

County crime lab, testified that a latent fingerprint and palm print were

found on the interior of the front storm door of Mr. Middleton’s home. Mr.

Reutzel was able to match the prints to a set of known prints from

Cunningham.      N.T., 8/16-17/2007, at 13-14.         Mr. Reutzel was unable to

match the prints to copies of Cunningham’s prints that were already in the

fingerprint    index   database.   However,      Mr.     Reutzel   explained   that

Cunningham’s prior prints lacked sufficient detail, while the prints taken

after Cunningham’s arrest provided sufficient detail to make a reliable

comparison. Id. at 14, 16. There is no evidence to suggest that any other




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expert could have disputed the fingerprint evidence.4                      Further, the

fingerprint evidence was not the only evidence that placed Cunningham at

the scene. While Ms. Burrell’s credibility was challenged, she testified that

Cunningham entered Mr. Middleton’s house. Absent evidence that a second

fingerprint expert could establish material doubt regarding Mr. Reutzel’s

testimony, Cunningham cannot satisfy the prejudice prong of the IAC

standard. Thus, this issue is also without merit.

       PCRA counsel next addresses Cunningham’s contention that his

mandatory life sentence was prohibited for various reasons. Turner/Finley

Brief at 29-34.       First, Cunningham argues that the court in sentencing

should have applied Miller v. Alabama, 132 S.Ct. 2455 (2012), which held

that   mandatory       life   sentences        without   parole   for   juveniles   were

unconstitutional.     However, we have previously held that Miller does not

extend to adults or apply retroactively.            Commonwealth v. Cintora, 69

A.3d 759, 764 & n.4 (Pa. Super. 2013).               Here, Cunningham was twenty-

three years old at the time of the homicides and Miller was decided after his

conviction. This issue is without merit.

       Cunningham next states that the failure to extend Miller was an equal

protection violation. However, we have often found that juveniles may be
____________________________________________


4
      The PCRA Court provided Cunningham with an expert to evaluate the
fingerprint match in its May 20, 2013 order. PCRA counsel averred that the
expert received the information required to perform his evaluation.
However, Cunningham chose not to present that evaluation.



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treated differently than adults without violating the Constitution.            See

Commonwealth v. Berry, 785 A.2d 994, 997 (Pa. Super. 2001) (“We are

mindful of the public policy that requires that juveniles be treated differently

from adult offenders.”); Commonwealth v. Sadler, 447 A.2d 625, 627 (Pa.

Super. 1982) (“[W]e believe that our Supreme Court could rationally adopt a

rule of criminal procedure . . . without applying that rule to juvenile

delinquency proceedings [and] we conclude that the equal protection clause

does not mandate that the rule [be applied to juveniles].”); see also

Commonwealth v. Batts, 66 A.3d 286, 290 (Pa. 2013) (quoting Miller for

“[t]he ‘foundational principle’. . . that ‘imposition of a State’s most severe

penalties on juvenile offenders cannot proceed as though they were not

children’”).     Because the law may treat juveniles and adults differently

without implicating equal protection, this argument is without merit.

      Cunningham also alleges a violation of Article 1, Section 13 of the

Pennsylvania Constitution, which prohibits cruel punishments, and the Eighth

and Fourteenth Amendments to the United States Constitution.              First, we

have held that the rights under Article 1, Section 13 are co-extensive with,

and   no       broader   than,   those    of   the   United   States   Constitution.

Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013), appeal

denied, 94 A.3d 1007 (Pa. 2014).          The United States Supreme Court has

held that mandatory life sentences for adults do not run afoul of the Eighth

Amendment.         See Rummel v. Estelle, 445 U.S. 263, 285 (1980)




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(upholding life sentence without parole under recidivist statute). This issue

also has no merit.

      Finally, Cunningham cites the Universal Declaration of Human Rights.

However, the Supreme Court has recognized that the Declaration, while

stating principles, is not a treaty or international agreement and therefore

imposes no legal obligations.        Sosa v. Alvarez-Machain, 542 U.S. 692,

734-35    (2004).      Hence,   it   provides   no   legal   authority   to   render

Cunningham’s sentence unconstitutional.

      The last issue raised by PCRA counsel on behalf of Cunningham asserts

that his conviction and sentence are illegal because the statutes upon which

the conviction and sentence are based are void for failure to contain an

enacting clause.     Turner/Finley Brief at 34.      However, the Crimes Code

does contain the required enacting clause (“The General Assembly of the

Commonwealth of Pennsylvania hereby enacts as follows:”) prior to Section

1 of the Code. See 1972, P.L. 1482, No. 334. Therefore, this argument is

also meritless.

      We have conducted our review of the record and find no issues of

merit.   Therefore, we grant counsel’s petition to withdraw and affirm the

PCRA court’s order.

      Order affirmed. Petition to withdraw granted.



Judgment Entered.



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Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2014




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