J-S73006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

EMRU KEBEDE,

                        Appellant                  No. 1228 MDA 2014


                Appeal from the PCRA Order June 27, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0003556-2007


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

JUDGMENT ORDER BY BOWES, J.:                      FILED MARCH 16, 2016

     This matter is before the panel a second time.      On May 2, 2007,

Appellant Emru Kebede, who was then sixteen years old, participated in

events that led to the murder of Ray Diener by another actor.            On

September 10, 2010, Appellant was found guilty of second-degree murder

and was sentenced to a mandatory sentence of life imprisonment without

parole. Appellant filed a timely PCRA petition invoking Miller v. Alabama,

132 S.Ct. 2455 (2012), which held that it was unconstitutional to sentence a

juvenile homicide offender to an automatic sentence of life without parole.

Counsel was appointed and argued that Miller applied retroactively.     The

PCRA court denied relief on June 27, 2014, and this appeal was filed. PCRA

counsel petitioned to withdraw, noting that Miller has been denied

retroactive application in Commonwealth v. Cunningham, 81 A.3d 1 (Pa.
J-S73006-14


2013). We permitted counsel to withdraw in a decision filed on February 20,

2015.

        On January 25, 2016, the United States Supreme Court overruled

Cunningham, holding that Miller was to be given retroactive effect.

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). On February 17, 2016,

Appellant’s petition for allowance of appeal was granted as to the Miller

question and the case was remanded to this Court for further proceedings

consistent with Montgomery.

        Shortly after Montgomery's issuance, this Court entered a published

opinion in Commonwealth v. Secreti, 578 WDA 2015 (Pa.Super. 2/9/16).

Therein, Secreti was sentenced to automatic life imprisonment without

possibility of parole for committing first degree murder as a juvenile, and

filed a PCRA petition seeking relief under Miller. Relief was denied, and

Secreti was on appeal when Montgomery was decided.           On February 9,

2016, following issuance of Montgomery, this Court in Secreti held that

(1) Miller applied retroactively to Secreti's sentence under the PCRA's

retroactivity provision, 42 Pa.C.S. § 9545(b)(1)(iii); (2) Secreti's sentence

was unconstitutional under Miller, and (3) Secreti was entitled to a new

sentencing hearing in accordance with the dictates of our Supreme Court’s

decision in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).

        The June 27, 2014 order denying PCRA relief and the judgment of

sentence entered on September 18, 2009, in this matter are vacated and


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the case is remanded for resentencing. The trial court is directed to appoint

new counsel for Appellant. Jurisdiction relinquished.

        Judge Wecht did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2016




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