Appeal from the PCRA Order Entered October 21, 2011, In the Court of Common Pleas of York County, Criminal Division, at No. CP-67-CR-0000448-2009.
BEFORE: SHOGAN, MUNDY and OTT, JJ.
Appellant, Kwilson Coleman, appeals from the order denying his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We summarize the history of this case as follows. On October 7, 2009, following a three-day trial, a jury convicted Appellant of first-degree murderin relation to the November 27, 2008 shooting death of the victim, Greg Wright. Appellant was seventeen years old at the time of the offense. The trial court subsequently sentenced Appellant to serve a term of life imprisonment without the possibility of parole. Appellant filed post-sentence motions, which were denied by the trial court. On October 18, 2010, a panel of this Court affirmed Appellant's judgment of sentence and on March 16, 2011, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Coleman, 15 A.3d 531 (Pa.Super. 2010) (unpublished memorandum), appeal denied, 20 A.3d 483 (Pa. 2011).
On June 22, 2011, Appellant, pro se, filed his petition pursuant to the PCRA. Following the appointment of counsel, the PCRA court held a hearing on the merits and subsequently denied Appellant's petition. Appellant then filed this appeal. During the pendency of this appeal, Appellant filed a petition seeking remand pursuant to Pa.R.A.P. 2501(b) based on the United States Supreme Court's decision in Miller v. Alabama, U.S., 132 S.Ct. 2455 (2012). Although we denied Appellant's petition, we permitted him to file a supplemental brief to address the issue raised in Miller regarding the imposition of an automatic life sentence on a defendant convicted of homicide as a minor.
I. Did the PCRA court commit reversible legal error when it refused to adopt the finding from the United States Supreme Court in Graham v. Florida that it is unconstitutional to sentence a juvenile to life in prison without the possibility of parole?
II. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where the Commonwealth committed a clear discovery violation in not turning over the photo line-up until the day of trial?
III. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where trial counsel failed to cross-examine Melanie Miller regarding the photo line-up or to request a continuance based on the new evidence of the photo line-up?
IV. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where the Commonwealth committed prosecutorial misconduct by calling Melanie Miller as a witness?
V. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where Marshi Martin recanted his statement?
VI. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where trial counsel failed to request a special jury instruction regarding Melanie Miller's identification?
VII. Did the PCRA court commit reversible legal error when it denied Mr. Coleman's request for relief where trial counsel failed to follow up on Richard Walker's claim that he received letters from Melanie Miller admitting that she lied during trial?
Appellant's Brief at 4-5 (footnote omitted).
Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)).
In support of his first issue on appeal, Appellant argues that the United State Supreme Court's holding in Graham v. Florida, ___U.S. ___, 130 S.Ct. 2011 (2010), wherein it held a sentence of life without the possibility of parole imposed on a juvenile convicted of a non-homicide offense is unconstitutional, also rendered Appellant's sentence unconstitutional. Appellant's Brief at 9-11. In his supplemental brief, Appellant argues that the United States Supreme Court's holding in Graham recently was expanded to juveniles convicted of homicide. Appellant's Supplemental Brief at 5 (citing Miller v. Alabama, U.S., 132 S.Ct. 2455 (2012)). Appellant also cites this Court's decision in Commonwealth v. Knox, 50 A.3d 749 (Pa.Super. 2012) wherein we applied the decision in Miller and concluded that the automatic imposition of a sentence of life in prison without the possibility of parole was unconstitutional. Because Appellant was seventeen years old, and thus a minor at the time of his offense, he alleges that his sentence was unconstitutional and requests that it be vacated and the matter remanded for resentencing. Appellant's Supplemental Brief at 8.
In Miller, the Court held that sentencing a juvenile convicted of a homicide offense to mandatory life imprisonment without parole violates the Eighth Amendment's prohibition against cruel and unusual punishment. Accordingly, such sentences cannot be handed down unless a judge or jury first considers mitigating circumstances. Id. at 2475. Recently, however, the Pennsylvania Supreme Court determined that Miller does not apply retroactively to an inmate, convicted as a juvenile, who is serving a sentence of life imprisonment without the possibility of parole and who has exhausted his direct appeal rights and is proceeding under the PCRA. Commonwealth v. Cunningham, A.3d, 38 EAP 2012, 2013 WL 5814388 (Pa. filed October 30, 2013).
Although Appellant was seventeen years old at the time he committed the underlying murder, Miller is inapplicable as it does not apply retroactively to Appellant's PCRA petition, and Appellant is not entitled to relief on this issue. Cunningham.
In his second issue, Appellant claims that the Commonwealth committed a discovery violation for failing to disclose to Appellant, prior to the first day of trial, the existence of a photographic line-up shown to witness Melanie Miller. Ms. Miller allegedly failed to identify Appellant from the photographic line-up with 100 percent certainty. Appellant's entire argument regarding this issue is as follows:
II. The PCRA court committed reversible legal error when it denied Defendant's request for PCRA relief where the Commonwealth committed a discovery violation by not turning over the photo line-up until the day of trial.
The standard of review for an appeal of a denial of a petition for Post-Conviction Relief is whether the PCRA court's determination is supported by the record and is free of legal error.14 This Court will not disturb the findings of the PCRA court unless they are not supported by the record.15
14 Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).
15 Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super. 1997).
Mr. Coleman alleges that the Commonwealth presented to defense counsel, on the day of trial, a photo line-up that had been shown to a witness, Melanie Miller. It is not disputed that Mr. Coleman and his trial counsel were not given or even knew about this line-up prior to that moment.16 The reason given by the Commonwealth was that since Ms. Miller did not positively identify Mr. Coleman in that line-up they did not intend to use it.17 Trial counsel decided to not pursue the issue ...