Appeal from the Judgment of Sentence Entered September 23, 2008, Court of Common Pleas, Allegheny County, Criminal Division, at No. CP-02-CR-0010088-2007.
The opinion of the court was delivered by: Shogan, J.:
BEFORE: BOWES, DONOHUE and SHOGAN, JJ.
Appellant, Devon Knox, appeals from the judgment of sentence of mandatory life imprisonment without the possibility of parole entered following his convictions of second-degree murder, attempted robbery of a motor vehicle, and related crimes. Appellant and his co-defendant, his identical twin brother Jovon Knox, were seventeen years old at the time of the crimes.*fn1 Appellant challenges, inter alia, the constitutionality of a sentence of life imprisonment without the possibility of parole for a juvenile convicted of second-degree murder.*fn2 Pursuant to the United States Supreme Court's recent decision in Miller v. Alabama, 567 U.S. ___, 2012 WL 2368659 (June 25, 2012), we vacate the judgment of sentence and remand for the limited purpose of resentencing. In all other respects, we affirm.
In this murder case, the victim, eighteen-year-old Jehru Donaldson, was sitting alone in the driver's seat of his parked vehicle outside his girlfriend's sister's home in the North Side area of Pittsburgh. The victim was waiting to take his girlfriend and her two nephews to the Pittsburgh Pirates baseball game. Two other nephews, Aa.C. (age 13) and Ah.C. (age 9), were sitting on the front porch of their house and watched Appellant and his twin brother approach the parked vehicle. One of the twins told the victim to get out of the car and pulled out a gun. The victim drove away, and both twins ran after him. The twin with the gun shot at the car and struck the victim in the head, causing the car to crash. The victim died from the gunshot wound. Ah.C. was familiar with Appellant, having seen him in the neighborhood. The nephews described Appellant and his twin for the police as the perpetrators. The nephews also identified Appellant from a photo array as the twin who shot the victim. United States Marshals secured a warrant for the twins and arrested them. After Appellant's father refused to go to the police station, Appellant waived his Miranda*fn3 rights and gave a statement.
Appellant was charged with homicide,*fn4 attempted robbery of a motor vehicle,*fn5 conspiracy-robbery of a motor vehicle,*fn6 and possession of a firearm without a license.*fn7 At the preliminary hearing, Ah.C. again identified Appellant as the shooter. Appellant's motion to suppress his statement to police was subsequently denied, and Appellant and his twin brother were jointly tried by a jury. At trial, Ah.C. initially identified Appellant's twin as the shooter. Later during direct examination, however, Ah.C. identified Appellant as the shooter. At trial, Aa.C. initially said that he could not pick out the twin who had the gun. Later, though, Aa.C. testified that the lighter skinned twin had the gun, and he identified Appellant as the one with lighter skin. During closing argument, the prosecutor argued that the facts and identification evidence presented by the eyewitnesses established Appellant was the shooter. However, he also noted that under theories of accomplice liability and conspiracy, it was irrelevant which twin was the actual shooter because both of the twins were equally responsible for the victim's death for purposes of second-degree murder. The prosecutor reasoned that, although the identification testimony was consistent, "[i]t would not have mattered if [the eyewitnesses] could not identify who the shooter was." N.T., 6/3, 4, 9/08, at 435.
Appellant was found not guilty of first-degree murder but guilty of second-degree murder, attempted robbery of a motor vehicle, and the remaining offenses. His twin brother received the same verdict. On September 23, 2008, the trial court sentenced Appellant, as well as his twin brother, to a mandatory sentence of life imprisonment without parole for the second-degree murder charge, with no further penalty on the other counts.*fn8 Appellant filed post-sentence motions, raising a challenge to the weight of the evidence. Appellant later filed another post-sentence motion raising a claim of ineffective assistance of counsel. A hearing was commenced, but the post-sentence motions were denied by operation of law. This appeal followed.
Appellant presents the following issues for our review:
I. The verdict was against the weight of the evidence, where [Appellant] was identified as the non-shooter by a Commonwealth eye-witness, and the non-shooter's conduct did not establish concert of action or an agreement to rob the victim, and that the jury found otherwise should shock the [conscience] of the court.
II. The imposition of a life sentence without the possibility of parole on a juvenile convicted of homicide by means of the felony murder rule and related doctrines violates the 8th
Amendment ban on cruel and unusual punishment.
III. The trial court abused its discretion in denying the motion to suppress [Appellant's] statement made to police the day after the shooting, because the Commonwealth failed to meet its burden to show that [Appellant] knowingly, voluntarily, and intelligently waived his Miranda rights, where despite the fact he was a juvenile at the time, he was not given an opportunity to consult with an interested adult.
IV. This honorable court should remand for continuation of the ineffectiveness hearing, or find that the claim has not been previously litigated for purposes of any subsequent collateral challenge, because the trial court ended the ineffectiveness hearing before the testimony of trial counsel could be heard, where the trial court claimed that it lacked jurisdiction to continue.
Appellant first argues that the verdict of guilt was against the weight of the evidence. Specifically, Appellant contends that there was no evidence to establish which twin shot the gun, or that the twins were acting in concert or in agreement with respect to either the robbery or the homicide. Appellant insists that he was identified in court as the non-shooter and that any evidence to the contrary was tenuous and vague.
We use the following standard of review in addressing a weight of the evidence claim:
Our scope of review for such a claim is very narrow. The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Young, 692 A.2d 1112, 1114-1115 (Pa. Super. 1997) (citations omitted).
It must be emphasized that it is not for this Court or any appellate court to view the evidence as if it was the jury. Our purview is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience.
Commonwealth v. Griffin, 684 A.2d 589, 597 (Pa. Super. 1996). Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence. Commonwealth v. Widmer, 560 Pa. 308, 321, 744 A.2d 745, 753 (2000).
In addressing Appellant's challenge to the weight of the evidence, the trial court made the following observation regarding the facts established by the evidence:
Contrary to [Appellant's] version of the facts, the evidence presented at trial established that [Appellant] acted in concert with his brother in the robbery of Jehru Donaldson's car. [Appellant] purposefully approached the car with his brother and pulled out a gun, while his brother blocked the door of the car so Jehru could not escape. Once [Appellant] fired the gun, he and his brother fled and hid, and both subsequently lied to the police regarding their whereabouts at the time of the shooting. There is nothing about the verdicts in this case that shock the conscience or demand the award of a new trial. Rather, to the contrary, the verdicts comport with the evidence presented at trial, namely that [Appellant] and his brother acted in concert to rob Jehru Donaldson of his car and Jehru Donaldson was killed in the commission of that robbery. This Court was well within its discretion when it allowed [Appellant's] weight of the evidence claim to be denied by operation of law. As such, this claim must fail.
Trial Court Opinion, 9/14/09, at 3-4.
Correspondingly, our review of the record reflects ample evidence upon which the jury could rely to substantiate which twin possessed the gun during the incident. Indeed, there were two eyewitnesses to the event and both identified, from photo arrays shown on the day of the murder, Appellant as the twin who held the gun. N.T., 6/3, 4, 9/08, at 185, 314- 315, 321, 363. Ah.C. also identified Appellant as the shooter during the preliminary hearing. Id. at 363. In addition, both eyewitnesses confirmed during trial that they observed Appellant, the lighter skinned of the twins, as the twin who held and shot the gun.*fn9 Id. at 158-159, 300-301.
Furthermore, even if the jury did not specifically find that Appellant was the shooter,*fn10 the record certainly reflects that the twins acted in concert and had agreed to rob the victim, and that both were thus liable for second-degree murder.
"A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa.C.S.A. § 2502(b). The "perpetration of a felony" is defined as: "The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or ...