J. S55001/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                     v.                      :
                                             :
AKEEM PAGE-JONES,                            :        No. 1581 WDA 2013
                                             :
                          Appellant          :


         Appeal from the Judgment of Sentence, August 26, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0004298-2011


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER,* J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 16, 2015

     Following a jury trial, Akeem Page-Jones was convicted of first degree

murder, two counts of arson, one count of possession of a firearm by a

minor, one count of theft by unlawful taking and six counts of recklessly

endangering another person.           On August 26, 2013, the Honorable Jill E.

Rangos sentenced appellant to an aggregate term of 60 years to life in

prison. We affirm.

     The facts as summarized by the trial court are as follows:

                 Theresa Williams Dawson, mother of the victim
           Teesa Williams, testified that on March 22, 2011,
           Dawson left her home at 6:15 a.m. to go to work.
           Dawson’s seventeen year old mentally retarded
           daughter, Teesa, remained at home to await the
           school bus, per their normal routine. At 6:25 a.m.,
           Teesa called Dawson to say she was on the bus.
           Dawson did not believe her because she could not
           hear in the background any other children’s voices.


* Retired Senior Judge assigned to the Superior Court.
J. S55001/15


          Later that morning she received a call from Teesa’s
          school indicating that a neighbor had reported the
          Dawson’s house was on fire. Although one of the
          police officers on scene originally told Dawson that
          Teesa was fine, Teesa did not survive the fire.

                 Dawson further testified that her living room
          television had [a] cable box, a DVD player, and a
          month old PlayStation 3 video game system.
          Dawson was shown pictures of her home after the
          fire and she testified that the television was moved
          away from the wall and some dried flowers and twigs
          were missing from a vase near the front door.
          Dawson was later shown a picture of a purse and
          identified it as belonging to her and located in her
          home prior to the fire.

                 Penn Hill[s] Police Officer Andrew Kolek
          testified that he was dispatched to 11276 Azalea
          Street at 9:47 a.m. for a report of heavy smoke
          coming out of a house. Officer Kolek was the first to
          arrive at the scene and he attempted to determine if
          anyone was inside. Although the front door was
          locked, the officer gained entry via a side door that
          was left a few inches ajar. Officer Kolek entered the
          kitchen, yelled 3-4 times to determine if anyone was
          further inside, but was quickly forced to retreat due
          to the intense heat of the fire and his lack of
          protective equipment.

                Greg Renko, a volunteer firefighter for fifteen
          years, most recently with the Penn Hills Fire
          Department, testified that he was dispatched at 9:48
          a.m. to Azalea Drive and he arrived at the scene
          seven minutes later, at 9:55. While searching the
          home for individuals who may have been trapped
          inside, he found the victim, Teesa Williams, face
          down on the floor of the last bedroom on the first
          floor. He testified to observing an increased heat
          intensity and very dark, thick smoke emanating from
          that room. Teesa had visible burn marks on her
          back and shoulder blade and her underwear had
          been pulled down to her thighs. Renko carried her
          out of the building, and once safely outside, laid her


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          down on her back. He then observed trauma to
          Teesa’s face. Teesa appeared to be unconscious and
          not breathing when Renko got her outside and
          turned her over to medics for treatment.

                Renko returned to the bedroom and observed
          a bloody pillow on [the] floor where Teesa had been
          and a bloody handprint on a dresser nearby. Renko
          observed charring on a rug on the floor, and embers
          smoldering on the floor to the right hand side of the
          bed closest to the closet door. As he extinguished
          the smoldering item, he observed it to be a roll of
          paper towels. Shortly thereafter, Renko secured the
          room with yellow “Caution” tape.

                Sean Gongaware, a volunteer firefighter with
          the North Bessemer Community Volunteer Fire
          Department, testified that he also went inside the
          Azalea Street residence and entered the bedroom at
          the end of the hall. As part of his secondary search,
          he found a pile of debris in the bedroom. While he
          was moving around the pile, which appeared to be
          clothing and blankets, a roll of paper towels
          spontaneously reignited.

                Deputy Fire Marshall Michael Liko of the
          Allegheny County Fire Marshall’s Office testified as
          an expert witness in the field of fire origination and
          fire investigation.   He determined that the fire
          originated in the kitchen on the right hand side of
          the natural gas stove, specifically on the countertop
          towards the back part of the backsplash wall. He
          further determined that the cause of the fire was
          incendiary, meaning that it was intentionally set. In
          his expert opinion, the fire was set with some sort of
          combustible material on the countertop, such as
          paper towels, napkins or a dishtowel.

                 Chief Deputy Fire Marshall Donald Brucker
          testified that he was in charge of overseeing the
          processing of the back bedroom. Looking into the
          bedroom, he observed remnants of burned paper
          towels and twig material. He described the twigs as
          consistent with stems of flowers or some similar type


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          of decoration.    A burned afghan blanket and a
          bloodstained pillow were also on the floor.        He
          determined that the origin of the fire in the bedroom
          was the floor, and the cause was incendiary. Chief
          Brucker’s expert opinion was that the dried flower
          arrangement Dawson noted was missing from the
          vase by the front door[,] i.e. the twig material, was
          used to facilitate movement of fire.        He further
          determined that the kitchen and bedroom fires were
          remote and unconnected to each other. He testified
          that the fire damage to the bedroom was a result of
          an open flame being applied to material which was
          subsequently applied to the victim.

                Detective Timothy Langan testified that he was
          called to the scene after the victim was found in the
          home. While processing the scene, Detective Langan
          observed a spent .22 caliber casing on a crumpled
          pair of women’s jeans on the bedroom floor next to
          the victim’s bed. He also found a small bullet hole in
          the lower portion of the closet door. A projectile was
          located in a shoe box inside a bag in the closet. In
          addition, Detective Langan recovered a cell phone
          from on top of the bed.

                 Linda Beaudry, a neighbor of the victim,
          testified that on the day of the fire, she saw a boy
          walking down an adjacent driveway carrying a purse
          that had a video game system sticking out the top.
          She identified Commonwealth Exhibit #7 as the
          same or very similar to the purse she saw that day.
          She described the boy as clean cut, somewhat large
          build and approximately in his late teens.       She
          further testified that she saw no one with him.

                Detective Anthony Perry with the Allegheny
          County Police Department, homicide section, testified
          that, with the consent of Carolyn Page-Jones
          (Appellant’s adoptive mother, biological maternal
          grandmother and the owner of the house, hereafter
          referred to as Grandmother) he and other officers
          searched Appellant’s residence.          Specifically,
          Detective Perry searched the finished basement area
          and found a four drawer metal file cabinet Detective


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          Perry found a tan Dolce and Gabanna purse inside
          the file cabinet and stated that Commonwealth
          Exhibit #7 was the bag retrieved from inside the file
          cabinet. Both Appellant and his Grandmother denied
          knowledge or ownership of the purse.

                Nathan Hoye testified that he had been
          involved in an online relationship with Teesa for a
          few weeks and had met her in person just a couple
          of days prior to her death.     When they met in
          person, another individual was present, a light
          skinned, heavy set male with a cast on his arm. The
          day Teesa died, Hoye tried to text and call her
          between 9:00 a.m. and 12:00 p.m. but Teesa did not
          answer.

                Joseph King testified that in 2011 he owned a
          .22 caliber pistol which he had purchased off the
          streets. He and Appellant were friends, and took
          pictures of themselves with the gun. The day before
          Teesa died, King and Appellant were trying to repair
          the gun. Appellant volunteered to test fire the gun
          in the woods. After Appellant left King’s house with
          the gun, Appellant called King and told him that
          Appellant had fired two shots and then the gun
          jammed.      Instead of returning the gun to King,
          Appellant told King via cell phone that someone had
          seen him shoot the gun so he would return it in the
          morning.

                 The following day, King first found out about
          the fire and Teesa’s death at approximately 2:00
          p.m. when a friend called him. King called Appellant
          to tell him about Teesa because Appellant had told
          King the day before that he was having a sexual
          relationship with Teesa. Appellant responded, “that’s
          crazy.” An hour or two later, Appellant went to
          King’s home and sold him a PlayStation 3 video
          game system for $100.00. From there, King’s uncle
          took the PlayStation to his girlfriend’s house, where
          the police eventually recovered it.[Footnote 3] When
          he brought over the PlayStation, Appellant also
          returned the gun and told King that one of the
          bullets was missing. Later that same day, King sold


                                  -5-
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          the gun to Maclain Cupid. Cupid confirmed in his
          testimony that he purchased a gun and ammunition
          from King that day. Cupid gave the gun to one of
          the homicide detectives after the detective informed
          him that the gun had been used to kill Teesa.

                [Footnote      3]     Detective      Miller
                subsequently testified that he recovered
                the PlayStation from King’s uncle’s house
                after King told him that Appellant sold
                King the PlayStation between 12:30 and
                2:30 p.m. on the day Teesa died.

                 At approximately 9:00 p.m. on the night of the
          fire and Teesa’s death, Detective Gregory Matthews
          conducted an interview with Appellant who was
          accompanied by his grandparents. Appellant initially
          stated that he became aware of the fire and Teesa’s
          death at around 2:00 p.m., when he was calling
          people to try to get a ride. After Appellant’s arrest
          two days later, Detective Matthews conducted a
          second interview of Appellant.             This time
          Appellant[’]s grandparents and his biological mother
          were present. At this interview, Appellant admitted
          that he had bragged to King about having a sexual
          relationship with Teesa.    He further admitted to
          having King’s gun and firing it twice the night before
          Teesa’s death.

                 During    Detective   Matthews’     interview,
          Appellant agreed to let the detective download the
          contents of his phone.     One of the pictures on
          Appellant’s cell phone showed him holding a .22
          caliber gun. In the same photo, which Appellant
          testified was him, Appellant has a cast or
          bandage[Footnote 4] on his hand.            Detective
          Matthews stated that Appellant adamantly denied
          any phone calls or text messages between himself
          and Teesa. Appellant later testified at trial that he
          had called and/or texted Teesa both the day before
          and the day of Teesa’s death.        Appellant also
          admitted at trial that he deleted everything on his
          phone relative to Teesa.



                                   -6-
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                [Footnote 4] Nathan Hoye, whom Teesa
                had introduced as her new boyfriend the
                day before her death, testified that when
                he saw Teesa the day before she died,
                she was talking with a light-skinned
                heavy-set male with a cast or something
                on his arm.

                Detective Matthews testified that Appellant told
          him during this interview that on the morning of
          Teesa’s death, shortly before 7:00 a.m., Appellant
          knocked on King’s door with the intent to return the
          gun. When King did not answer, Appellant went to
          Teesa’s home. Appellant said that Teesa let him in,
          and a black male in his 20’s who Appellant did not
          know was already in Teesa’s living room. Appellant
          claimed this unknown individual somehow obtained
          the gun, shot Teesa in the hallway outside of
          Appellant’s line of sight, dropped the gun and ran out
          of the house. Appellant said he then pick[ed] up the
          gun, placed it in a purse and left the residence as
          well.

                When Detective Matthews informed Appellant
          that the evidence did not correspond to Appellant’s
          explanation, Appellant offered another version of
          events.    Appellant said that when he arrived at
          Teesa’s house, an unknown male was already in the
          home. Appellant took off his coat, sat down in the
          living room and started watching TV. Next, the
          unknown male followed Teesa down the hallway, and
          Appellant followed the unknown male. Appellant
          said that the unknown male shot and killed Teesa in
          the hallway outside the bedroom door.

                Detective Matthews then told Appellant that
          the ballistic evidence did not support the location of
          the shooting as described by Appellant. Appellant, in
          his third explanation to police, indicated he had
          acted alone and no unknown black male had been in
          the residence.     Appellant told the detective that
          Teesa was obsessed with wanting to hold the gun,
          that a struggle ensued, and the gun went off one
          time. Appellant decided to set her on fire, so he


                                  -7-
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          took an afghan and laid it across the right side of her
          body. He said that he took some dried weeds or
          flowers and used the stove in the kitchen to ignite
          them. He specifically indicated that he used the
          back right burner to ignite the dried flowers and also
          piled some flammable items on the stove to try to
          burn the house down. He said that it took several
          attempts to light the afghan on fire, and that he
          observed Teesa flinch as she felt the pain of the
          flames from the torch-like dried flowers against her
          skin. He said that he found a purse in the mother’s
          bedroom and used it to carry the PlayStation and a
          few video games out of the residence when he left.

                 Homicide Detective Patrick Miller obtained the
          subscriber information and call detail logs from
          Teesa’s phone, which had been recovered from her
          bed. According to those records, on the night before
          her death, several calls or texts were sent from
          Appellant’s cell phone to Teesa’s cell phone. The cell
          phone exchanges continued the next morning. The
          last contact from Appellant to Teesa was a call at
          6:30 a.m. on the morning of her death. Detective
          Miller testified that the records indicate that at 9:30
          a.m., Hoye also texted Teesa.

                 Pamela Woods, an employee of the Allegheny
          County Medical Examiner’s Office, and an expert in
          forensic science with regard to trace evidence,
          testified that fibers taken from Teesa’s esophagus
          and stomach were consistent with the burnt flowers
          recovered from the scene. Daniel Wolfe, from the
          same department, testified as an expert in forensic
          science, specifically gunshot residue, that based on
          his analysis of the gunshot residue kit, no particles
          associated with gunshot residue were detected on
          Teesa’s hands. Wolfe testified that the results were
          inconclusive, meaning that because residue was not
          found on Teesa’s hands, he could not conclude that
          her hands were in close proximity to the firearm
          when it went off thus refuting Appellant’s story about
          a struggle over the gun.




                                   -8-
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                  Dr. Karl Williams, Chief Medical Examiner of
          Allegheny County, testified that he performed an
          autopsy of Teesa.        He stated that Teesa had a
          gunshot wound going from under her chin upward,
          fracturing the mandible before exiting the head
          lateral to the right eye. After examining skin tissue
          around the entry wound under a microscope, he
          determined from the presence of gunshot residue
          that the barrel of the gun when it was discharged
          was against the skin surface. Additionally, micro
          tears surrounding the entrance wound support the
          conclusion that Teesa was shot at close range. He
          also opined that the gunshot wound alone would not
          have been fatal, as the bullet never entered Teesa’s
          brain. Dr. Williams testified that Teesa was alive
          when the fire started, because he found soot lining
          her upper airways, trachea and the upper parts of
          her lungs. Teesa’s carbon monoxide saturation level
          was recorded at 40 percent, which was high enough
          to indicate both that she was alive when she was
          exposed to a flaming object, and that the fire and
          resulting smoke were significant contributory causes
          to her death, along with blood loss and the resulting
          filling of her lungs with blood.

                Raymond Everett, from the Allegheny County
          Office of the Medical Examiner testified as an expert
          in firearms and tool marks, specifically bullet
          trajectories.    He testified that, based on the
          trajectory the bullet must have travelled, it was not
          plausible in this case for two people to have
          struggled over a gun and the gun to have discharged
          accidentally.   Conversely, a plausible explanation
          would be that the shooter was standing behind the
          victim with the victim bent over. He was also able to
          determine that the .22 caliber pistol recovered and
          examined was operable but in poor condition. He
          determined the cause of death to be a combination
          of the gunshot wound causing blood loss and the
          pooling of blood in Teesa’s lungs along with smoke
          inhalation. The manner of death was homicide.

               Appellant testified in his own defense. He
          admitted that he lied to police and gave them


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            numerous accounts of the events which transpired.
            He stated that he did so because he was afraid of
            King, whom Appellant said was the real assailant.
            Appellant said he was present during the shooting
            and that King had threatened to kill Appellant and
            his family if he didn’t cooperate by giving King a
            burning afghan to throw on Teesa and by taking the
            PlayStation afterwards. He admitted that he called
            King ten times after Teesa’s death, and later that
            afternoon went to King’s house, despite Appellant’s
            assertion that King had threatened to kill him.

Trial court opinion, 12/19/14 at 3-12 (citations to record omitted).

      The jury convicted appellant of all counts. Appellant was sentenced on

the first-degree murder count to 55 years to life imprisonment with a

consecutive period of 5 to 10 years on the arson counts, concurrent to each

other. He received no further penalty at the remaining counts.

      Appellant raises the following issues for our review:

            I.     DID   THE   LOWER   COURT    ABUSE   ITS
                   DISCRETION     WHEN      IT    ADMITTED
                   INFLAMMATORY    PHOTOGRAPHS     OF   THE
                   VICTIM’S   AUTOPSY,    CAUSING    UNFAIR
                   PREJUDICE AGAINST MR. PAGE-JONES?

            II.    IS     MR.      PAGE-JONES’ SENTENCE
                   UNCONSTITUTIONALLY CRUEL AND UNUSUAL
                   PUNISHMENT, AS JUVENILE DEFENDANTS
                   MUST HAVE SOME REASONABLE ABIILITY
                   [SIC] TO GAIN PAROLE?

            III.   DID    THE    COMMONWEALTH      PRESENT
                   INSUFFICIENT EVIDENCE TO PROVE BEYOND A
                   REASONABLE DOUBT THAT MR. PAGE-JONES
                   CAUSED THE DEATH OF MS. WILLIAMS AND
                   DID NOT ACT UNDER DURESS?

Appellant’s brief at 6.



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      First, appellant contends that the trial court abused its discretion when

it allowed, during the testimony of Chief Medical Examiner Dr. Karl Williams,

the   admission    of   “gruesome,”   color,   explicit   and   highly    prejudicial

photographs taken of the victim’s body during her autopsy.               (Appellant’s

brief at 21.)     He argues that the photographs did not make a fact of

consequence more or less probable than without submission of the

photographs.      Appellant contends that Dr. Williams described the victim’s

injuries in detail and the photographs held little or no evidentiary value. He

contends the probative value of the photographs was far outweighed by the

unfair prejudice he incurred.

      The admissibility of photographs of a murder victim falls within the

discretion of the trial court, and only an abuse of that discretion will

constitute reversible error. Commonwealth v. Tharp, 830 A.2d 519, 531

(Pa. 2003). An abuse of discretion occurs when a trial court, in reaching its

conclusions, overrides or misapplies the law or exercises judgment which is

manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Brown, 839 A.2d 433, 435 (Pa.Super. 2013). The test

for determining the admissibility of post-mortem photographs involves a

two-step analysis.      First, the court must decide whether a photograph is

inflammatory by its very nature. If the photograph is deemed inflammatory,

the court must determine whether the essential evidentiary value of the

photograph outweighs the likelihood that the photograph will improperly



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influence the minds and passions of the jury.     Commonwealth v. Pruitt,

951 A.2d 307, 319 (Pa. 2008).      The mere fact that the medical examiner

testifies to the nature of the victim’s injuries and the cause of death does not

render photographs of the victim duplicative.       Id.; Commonwealth v.

Rush, 646 A.2d 557, 560 (Pa. 1994) (“[T]he condition of the victim’s body

provides evidence of the assailant’s intent, and, even where the body’s

condition can be described through testimony from a medical examiner, such

testimony does not obviate the admissibility of photographs.”).           While

recognizing that photographs of a homicide victim can be unpleasant,

disturbing, and brutal, our courts have held that “[t]here is no need to so

overextend an attempt to sanitize the evidence of the condition of the body

as to deprive the Commonwealth of opportunities of proof in support of the

onerous burden of proof beyond a reasonable doubt.” Tharp, 830 A.2d at

531, quoting Commonwealth v. McCutchen, 454 A.2d 547 (Pa. 1982).

      In this case, the three color photographs in question were of the victim

lying on a steel table in the medical examiner’s office (Exhibit 85), the

victim’s legs1 (Exhibit 86), and a close-up of the victim’s face (Exhibit 88).



1
   Exhibit 86, the photo of the victim’s legs, is not inflammatory. The
photograph, which shows only the legs of the victim, reveals some fairly
small areas of burns and what appears to be black soot. The photo
illustrates the distribution of relatively small wounds in conjunction with
Dr. Williams’ testimony describing the configuration of burns and other
injuries to the victim’s body; specifically, that “the rest of the body was
relatively spared other than a few areas on the legs.” (Trial testimony,
5/28/13 at 367.) See Commonwealth v. Wright, 961 A.2d 119, 139 (Pa.


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Although the photos did not depict, as appellant avers, the victim in

“mid-autopsy” (appellant’s brief at 21), they are, nevertheless, disturbing

images which depict the victim’s burned, bloody face and body.                So, as a

preliminary matter we agree that the photos, with the exception of

Exhibit 86, while not unduly graphic, are of an inflammatory nature.

      We must next determine whether the essential evidentiary value of the

photos outweighed the likelihood that the photos would improperly influence

the minds and passions of the jury.                 The photos were admitted in

conjunction with Dr. Williams’ testimony regarding the nature of the victim’s

wounds. From the time he was initially questioned by detectives up to and

including trial, appellant gave numerous different versions of events. In one

of those versions (i.e., the version given on March 24, 2011, while appellant

was in custody), appellant stated to Detective Matthews that he shot the

victim in the chin or neck and then after noticing that she was still breathing,

decided to set the victim on fire.           (Trial testimony, 5/24/13 at 267.)

Appellant described how he laid an afghan across her right side and tried a

few   times    to   set   the   afghan     on     fire   by   using   a   dried   flower




2008) (“photos neither gruesome nor necessarily explicit in their portrayal of
the body” are admissible).


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arrangement he ignited on the stove. (Id. at 310.)2 The Commonwealth’s

position at trial was that appellant’s version about how the victim sustained

the fire damage was the truth. Given appellant’s various versions of events,

the jury was asked to decide whether this was, in fact, what happened.

Using the full-body photo (Exhibit 85), Dr. Williams described the burn

patterns, and pointed to a line of generalized redness along the right side of

the trunk onto the front of the trunk, lower chest, and upper abdomen.

(Trial transcript, 5/28/13 at 372.)3 As described by Dr. Williams, the photo

shows a “distinctive band of thermal injuries around the right side of the

trunk going on to the abdomen” which was consistent with appellant’s

statement to the detectives. We find that the full-body photo which depicted

the burn pattern was probative in helping the jury to decide which of

appellant’s versions to believe.

      One of appellant’s defenses was that the shooting was accidental and

that the gun went off when appellant and the victim were standing

face-to-face struggling for the gun.   Using Exhibit 88, the close-up of the

victim’s face, Dr. Williams identified a lateral crescent-shaped tear on the

outer side of the victim’s right eye as the exit wound. Dr. Williams pointed


2
  Detective Matthews testified that appellant “attempted to set [the victim]
on fire in her own bedroom, and he wasn’t having very much luck. The fire
wasn’t really catching. It was smoldering, but it wasn’t flaming.” (Trial
transcript, 5/24/13 at 269.)
3
 According to the Commonwealth’s attorney, the “the burns did not appear
as visible” on the black-and-white photos. (Id. at 369.)


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out small “areas of black” coloration on either side of the entry wound below

the right side of the victim’s chin which he identified as a “contact wound”

and explained how these “powder burns” may be an indication that the gun

was very close to and/or in contact with the skin when it fired. 4         (Id. at

379.) Using the entrance and exit wounds, Dr. Williams described for the

jury, with the use of a trajectory rod, the path of the bullet in the victim’s

body. We find that the close-up photo of the victim’s face which showed the

entrance   and   exit   wounds   was     probative   in   discounting   appellant’s

explanations that he and the victim were standing face-to-face and

struggling for the gun when it accidentally went off. We also find the photo

was probative in helping the jury to understand the proximity of the gun to

the victim and the position of the victim when she was shot.5

      Accordingly, while appellant claims that the photos did not assist the

jury in any factual determination, we cannot agree. Rather, the photos were

to help establish that appellant’s confession (the version in which he stated

he acted alone and attempted to set the victim on fire) was consistent with


4
  Dr. Williams confirmed with formaldehyde testing that the black material
depicted on this photo was gunshot residue and that the entry wound was a
contact wound, meaning the barrel of the gun was against or very close to
the skin when it discharged. (Id. at 381.)
5
  The Commonwealth sought to prove, through Dr. Williams’ opinion as to
the trajectory of the bullet through the victim’s body, together with the
testimony of forensic examiner, Raymond Everett, regarding the trajectory
of the bullet through the bedroom closet door, that the shooter was not
facing the victim, but was standing behind the victim with her bent over
forward, facing the ground. (Trial transcript, 5/28/13 at 412.)


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the physical evidence and to disprove his defense that the shooting occurred

during a struggle for the gun.

      Furthermore, we note that the trial court emphasized to the jury that

its decision should not be influenced by emotion. Prior to the testimony of

Dr. Williams regarding the exhibits, the trial court issued the following

cautionary instruction:

                  I do need to caution you, however, you may
            find these pictures to be disturbing and unpleasant
            to view, but you must not let them stir your
            emotions to the prejudice of the Defendant. Your
            verdict must be based on a rational and fair
            consideration of all the evidence and not on passion
            or prejudice against the Defendant. As judges of the
            facts, you must view the evidence relevant to the
            case impassionately and impersonally. The evidence
            is relative to the case and to meeting the
            Commonwealth’s burden of proof.

                  However, this evidence is only one piece of the
            Commonwealth’s case.        It is not, by itself,
            conclusive.  You must find each of the other
            elements, which I will give to you, in order to find
            the Defendant guilty of any or all of the crimes
            charged.

                  So once again, do not allow the crime scene,
            the autopsy photos here to prejudice you in any way
            or to interfere with your ability to fairly consider all
            of the evidence and reach a verdict, an impartial
            verdict in this case.

Id. at 370-371.

      It is well-settled that “the jury is presumed to have followed the

court’s instructions.”    Commonwealth v. Flor, 998 A.2d 606, 632 (Pa.

2010). For the forgoing reasons, no relief is due on this claim.


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      Next, appellant argues that his sentence of 60 years to life is

unconstitutionally cruel and unusual punishment because: (1) his sentence

is the “functional equivalent” of life without parole (“LWOP”) as he will not be

eligible for parole until after the expiration of his life expectancy; 6 and

(2) Miller v. Alabama,         U.S.       , 132 S.Ct. 2455, 183 L.Ed.2d 407

(2012), and Graham v. Florida, 560 U.S. 48 (2010), require sentencing

courts to “provide [juveniles] some meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.”       Miller, 132 S.Ct. at

2469, quoting Graham, 560 U.S. at 73.           Appellant asks this court to

invalidate his de facto LWOP sentence and remand for a new sentence

which affords him a “reasonable expectation” of parole.

      As an initial matter, we will address the Commonwealth’s argument

that appellant waived this issue for failure to include a Pa.R.A.P. 2119(f)

statement in his brief.

      Pa.R.A.P. 2119(f) provides:

            (f)   Discretionary aspects of sentence.           An
                  appellant who challenges the discretionary
                  aspects of a sentence in a criminal matter shall
                  set forth in a separate section of the brief a
                  concise statement of the reasons relied upon

6
  Appellant will be 78 years old at his first opportunity for parole. Citing
“Michigan Life Expectancy Data for Youth Serving Natural Life Sentences,”
The Campaign for the Fair Sentencing of Youth, Michigan ACLU,
http://fairsentencingofyouth.org/wp-content/uploads/2010/02/Michigan-
Life-Expectancy-Data-Youth-Serving-Life.pdf, (April 2013), appellant, noting
the similarities between Pennsylvania and Michigan’s demographics, asserts
that the average life expectancy of an African-American youth given a life
sentence is 50.6 years.


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                  for allowance of appeal with respect to          the
                  discretionary aspects of a sentence.             The
                  statement shall immediately precede              the
                  argument on the merits with respect to           the
                  discretionary aspects of the sentence.

      We do not agree with the Commonwealth that Pa.R.A.P. 2119(f)

applies, as appellant did not challenge a discretionary aspect of his sentence.

It would appear from caselaw that a claim that a sentence violates an

individual’s right to be free from cruel and unusual punishment is a

nonwaivable challenge to the legality of the sentence. Commonwealth v.

Seskey, 86 A.3d 237 (Pa.Super. 2014), appeal denied, 101 A.3d 103 (Pa.

2014); Commonwealth v. Brown, 71 A.3d 1009 (Pa.Super. 2013) (a

challenge to the constitutionality of a mandatory sentence of life in prison

without the possibility of parole for a juvenile challenges the legality of the

sentence and thus cannot be waived); Commonwealth v. Yasipour, 957

A.2d 734, 740 n.3 (Pa.Super. 2008), appeal denied, 980 A.2d 111 (Pa.

2009). Cf. Commonwealth v. Seagraves, 103 A.3d 839 (Pa.Super. 2014)

(reviewing a juvenile appellant’s challenge to the discretionary aspects of his

LWOP sentence on the grounds that sentencing court failed to take into

consideration   the   mitigating   factors    listed   in   Miller).     See   also

Commonwealth v. Knox, 50 A.3d 732 (Pa.Super. 2012), in which this

court, pursuant to Miller, vacated a mandatory sentence of LWOP for

second-degree murder committed when the defendant was a juvenile, and




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we expressly stated that the claim before us was a challenge to the legality

of the sentence. Id. at 741. Thus, we will review the merits of this issue.

      Appellant contends that his lengthy term-of-years sentence poses the

same constitutional questions for juveniles as the mandatory LWOP

sentences struck down by the Supreme Court in Miller. He argues that a

60-year minimum sentence is unconstitutional because it is the “functional

equivalent” to LWOP. We disagree.        18 Pa.C.S.A. § 1102.1(d), enacted in

direct response to Miller, requires the trial court to consider the age-related

factors espoused in Miller.    Here, the trial court did exactly what it was

required to do. It conducted an individualized sentencing hearing on August

26, 2013, during which it considered the factors set forth in Miller and

Section 1102.1(d).

      Further, Miller does not categorically prohibit sentences of life without

parole   for   juvenile   offenders     convicted   of   homicide    offenses.

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).            By the same token,

Miller does not categorically prohibit the “functional equivalent” of an LWOP

sentence either. Rather, Miller held that the Eighth Amendment prohibits

sentencing schemes that mandate a minimum sentence of LWOP for juvenile

offenders regardless of their age and age-related characteristics and the

nature of their crimes.   Miller requires the sentencing court to consider

various age-related factors before it may impose a sentence on a juvenile for




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a homicide offense. This is precisely what the trial court did. Therefore, we

find that this argument is without merit.

        In his final issue, appellant argues that the Commonwealth did not

present sufficient evidence to prove beyond a reasonable doubt that he,

rather than Joseph King, caused the victim’s death. He also contends that

the Commonwealth failed to present sufficient evidence to rebut his

testimony that he acted under duress7 on the day in question.

        The test for reviewing a sufficiency of the evidence claims is well-

settled:

              [W]hether, viewing the evidence in the light most
              favorable to the Commonwealth as verdict winner
              and drawing all proper inferences favorable to the
              Commonwealth, the jury could reasonably have
              determined all elements of the crime to have been
              established beyond a reasonable doubt. . .       This
              standard is equally applicable to cases where the
              evidence is circumstantial rather than direct so long
              as the combination of the evidence links the accused
              to the crime beyond a reasonable doubt.

Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa. 1988) (citations

omitted).



7
    18 Pa.C.S.A. § 309(a) provides the definition of duress:

              § 309. Duress.

              (a)   General rule.--It is a defense that the actor
                    engaged in the conduct charged to constitute
                    an offense because he was coerced to do so by
                    the use of, a threat to use, unlawful force
                    against his person or the person of another,


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      We have carefully reviewed the entire record and find that the

evidence more than supported the conclusion that appellant acted alone and

that he was both the shooter and the arsonist responsible for the victim’s

death.

      At trial, appellant testified that he invited Joseph King to accompany

him to the victim’s house and once there, King shot the victim and forced

appellant to set the victim and her house on fire under threats to appellant

and his family.   However, before trial appellant gave multiple versions to

detectives including that he acted alone; he shot the victim, and then ignited

a dried flower arrangement on the stove, carried it to the victim’s bedroom

and used it to ignite the afghan which he had placed across her while she

was still alive. Appellant’s statement was consistent with the physical and

medical evidence. Also consistent with the physical evidence was appellant’s

statement to the detectives that revealed his knowledge of exactly where

the bullet entered the victim’s body. At the same time, such knowledge was

completely inconsistent with his self-serving testimony at trial that he was

sitting in the living room when King shot the victim. Appellant had also told

the detective that he saw the victim’s body flinching each time he attempted

to set her on fire. He described how he had trouble getting the afghan to

actually catch on fire, so he decided to burn the entire house down and pile




                  which a person of reasonable firmness in his
                  situation would have been unable to resist.


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items on the stove which he knew would catch on fire. Further, the evidence

revealed that appellant had an established relationship with the victim and

had called and texted her several times that morning. He deleted his cell

phone records before he gave his phone to the police.       During one of his

statements, appellant stated that he took the PlayStation and placed it in a

yellow purse he found at the victim’s house. A yellow purse, belonging to

the victim’s mother, was found in appellant’s home, and a witness testified

that she saw appellant carrying a yellow purse in the vicinity of the victim’s

home. Finally, appellant admitted that despite his supposed fear of King, he

willingly contacted King after the murder and went to King’s home.

      We find that the evidence was more than sufficient to allow the jury to

determine that appellant’s trial testimony was a fabrication and that he did

not act under any threat of duress or serious bodily injury and that he had

every opportunity to avoid committing his criminal acts.        The evidence

overwhelmingly established that appellant caused the death of the victim.

His convictions, including first degree murder, are affirmed.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2015




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