Appeal from the Judgment of Sentence May 23, 2011, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0008030-2009.
BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
Leslie L. Brown ("Brown") appeals from the judgment of sentence entered on May 23, 2011, by the Court of Common Pleas, Allegheny County. Upon review, we vacate and remand for resentencing in accordance with Miller v. Alabama, U.S., 132 S.Ct. 2455 (2012), and Commonwealth v. Knox, 50 A.3d 749 (Pa. Super. 2012), appeal granted on other grounds, Pa., A.3d, 2013 WL 2451355 (June 6, 2013). In so ruling, we apply the well-established principle 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. See Commonwealth v. Howard, 540 A.2d 960, 961 (Pa. Super. 1988); Commonwealth v. Yasipour, 957 A.2d 734, 740 n. 3 (Pa. Super. 2008), appeal denied, 602 Pa. 658, 980 A.2d 111 (2009).
At approximately 12:00 a.m. on the morning of September 29, 2006, 16-year-old Brown was in the Swissvale neighborhood of Allegheny County with friends Lamar Meggison ("Meggison"), Keith Smith ("Smith"), and Daniel Holmes. As the group proceeded to a local convenience store, Brown approached Michael Stepien ("Stepien" or "the victim"), who was walking in a nearby alley, and demanded money, holding a gun to Stepien's head. Stepien told Brown he had no money. Brown fired two warning shots – one in the air and one into the ground – and demanded money a second time. When Stepien again told him he did not have any money, Brown shot him in the head. Brown and his friends, who were still in the area, ran to the home of Terico Ross, another friend who lived in the neighborhood. While there, in the presence of his friends, Brown said that he killed someone.
Paramedics responded to a call of a man lying in the alley between Nied's Funeral Home and the volunteer fire department and transported the victim to the hospital. Stepien was pronounced dead from the gunshot wound to his head at approximately 3:00 a.m. on September 29, 2006. Medical personnel removed a badly damaged .22 caliber bullet from Stepien's head.
On October 6, 2006, at a bus stop in Swissvale several blocks from where the murder occurred, Brown approached Francis Yesco ("Yesco") from behind, put a gun to his head, told him not to move, and reached into Yesco's pants pocket. Yesco brushed Brown's hand away and turned to strike Brown, at which Brown fled, still holding the gun. Yesco and Swissvale Police Officer Justin Keenan, who was patrolling in the area and observed what happened, chased Brown for approximately half a block, during which Brown discarded the firearm over a fence. Officer Kennan ultimately caught Brown and arrested him, and recovered the gun shortly thereafter.
A ballistics expert for the Commonwealth test-fired Brown's gun, a .22 caliber revolver, and compared the test bullet with the bullet removed from the victim. The bullet recovered from Stepien's head was so badly damaged it could not be matched, but because it shared certain similarities with the test bullet, Brown's gun could not be excluded as the murder weapon.
The police had no further evidence linking Brown to Stepien's murder until 2008, when they arrested Carl Smith, Smith's brother, who told police that Smith was present at the time Brown shot Stepien. This led police to interview other witnesses, who also implicated Brown in Stepien's murder. A grand jury was subsequently convened, and ultimately Brown was arrested.
The Commonwealth charged Brown by information with criminal homicide, robbery, carrying a firearm without a license, and possession of a firearm by a minor. Following a three-day trial, a jury convicted Brown of second-degree murder,  robbery, carrying a firearm without a license, and possession of a firearm by a minor. On May 23, 2011, the trial court sentenced Brown to a mandatory term of life in prison without the possibility of parole for second-degree murder and to a consecutive term of three to six years of imprisonment for carrying a firearm without a license. The court imposed no further penalty on the remaining convictions.
Following sentencing, the trial court granted trial counsel's motion to withdraw. The trial court did not appoint new counsel until July 14, 2011. On September 30, 2011, Brown filed a counseled petition pursuant to the Post Conviction Relief Act seeking reinstatement of his post-sentence rights. The trial court granted his request on December 1, 2011, ordering the filing of post-sentence motions nunc pro tunc within 10 days of its order. Brown complied on December 7, 2011, raising a challenge to the weight of the evidence and two claims of trial court error. On January 20, 2012, the trial court granted Brown permission to file amended post-sentence motions, which Brown did on March 30, 2012, raising an additional claim of trial court error. On May 16, 2012, Brown's post-sentence motions were denied by operation of law.
Brown filed a timely notice of appeal, and complied with the trial court's request for a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). He then filed a supplemental 1925(b) statement, raising for the first time a claim that his mandatory sentence of life in prison without the possibility of parole is unconstitutional. The trial court issued a written opinion pursuant to Pa.R.A.P. 1925(a), addressing all of the issues raised by Brown.
On appeal, he raises three issues for our review, which we have reordered for ease of disposition:
1. Did the trial court err in denying [Brown]'s post[-]sentencing motions since [Brown]'s convictions of second[-]degree murder, robbery-[serious bodily injury], firearms not to be carried without a license and possession of a ...