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[U] Commonwealth v. Williams

Superior Court of Pennsylvania

March 4, 2014



Appeal from the PCRA Order November 16, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005219-2003.

Joseph D. Seletyn, Esq.




Brittany Leigh Williams appeals from the order entered November 16, 2011, denying her first collateral petition. We affirm.

A prior panel of this Court delineated the salient facts.

On the evening of March 22, 2003, [seventeen-year-old] victim [Dana] Pliakas, Leonard Penn, and Eileen Catania were visiting at the apartment shared by [nineteen-year-old] Appellant and [her boyfriend Rodney] Burton.[1] At one point during the evening, Burton, Penn, and Pliakas left the home and went to a convenience store. While en route, Burton allegedly telephoned ex-girlfriend [Jennifer] Cline, and when the trio arrived back at Burton's apartment, Pliakas told Appellant about Burton's indiscretion.
Appellant became enraged and began beating Pliakas.[2] At one point, Appellant forced Pliakas to disrobe and threatened her with a gun. Appellant told Pliakas repeatedly that she was going to die. Pliakas's attempt to escape from the apartment was prevented. Once the initial assault subsided, Appellant, Burton, and Penn began to worry about the charges they would face should word of the assault become known to police.
Burton and Appellant told Pliakas to get dressed, and that they were taking her to get a jitney. The three left the apartment together, but one hour later, only Burton and Appellant returned. Within 48 hours, Appellant was arrested and charged with murder.
At trial, Penn testified that when Burton returned, he told Penn that he and Appellant had stripped Pliakas, and that he had shot her in the back of her head. N.T., 6/28-7/1/04, at 118-119. Penn also testified that Burton asked him to dispose of a black trash bag which he and Appellant had carried into the apartment. Penn complied, dumping the bag in a dumpster in the Hill District section of Pittsburgh. Id. at 119-120. A bus rider discovered Pliakas's body the following morning, lying dead on the side of a road, dressed only in socks. Id. at 34-36.
Eileen Catania testified that when Burton and Appellant returned to the apartment, Burton was cleaning his gun with his shirt, and Appellant was carrying a black trash bag. Id. at 206. Catania testified that Appellant told her that, "I just got this nigger to kill the victim, now I can get him to do anything." Id. Catania also testified that when she later left the apartment with Penn and Penn's cousin, they stopped in the Hill District and Penn disposed of the black trash bag that Catania averred contained Pliakas's belongings. Id. at 206-208.

Commonwealth v. Williams, 976 A.2d 1218 (Pa.Super. 2009) (unpublished memorandum at 2-3).

A jury convicted Appellant of first degree murder, conspiracy, kidnapping, terroristic threats, false imprisonment, and simple assault.[3] On October 14, 2004, the court imposed the mandatory sentence of life imprisonment without parole for the murder charge. The court also sentenced Appellant consecutively to twenty to forty months incarceration each for the kidnapping and conspiracy convictions. Appellant, with the aid of new counsel, timely filed post sentence motions alleging ineffective assistance of counsel. The court conducted an evidentiary hearing on March 22, 2005, wherein trial counsel testified, but the court did not rule on the motions. Accordingly, the motions were denied by operation of law.

Appellant filed a timely appeal and the court directed Appellant to file and serve a concise statement of errors complained of on appeal. Appellant's counsel filed an untimely concise statement. Thereafter, counsel discontinued the appeal on March 1, 2007. Appellant filed a pro se PCRA petition on April 18, 2007, and the court appointed counsel. Counsel filed an amended petition seeking reinstatement of Appellant's direct appeal rights, which the court granted. On appeal, among the issues raised were two ineffective assistance of counsel claims.[4] The panel addressed those claims under Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and affirmed Appellant's judgment of sentence. Our Supreme Court denied allowance of appeal on December 30, 2009. Commonwealth v. Williams, 987 A.2d 161 (Pa. 2009).

Appellant then filed a counseled PCRA petition on August 6, 2010. The PCRA court, with a different judge from the one who presided at trial, conducted two evidentiary hearings on June 8, 2011 and June 20, 2011. Subsequently, the court entered an order denying Appellant's petition on November 16, 2011. This timely appeal ensued. The PCRA court directed Appellant to comply with Pa.R.A.P. 1925(b), which she did. The court then authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review. Appellant presents the following issues for this Court's consideration.

1. Whether Defendant's [c]ounsel, David DeFazio, provided ineffective assistance of counsel in failing to properly prepare Defendant for her testimony on direct examination in a first degree murder case?
2. Whether Defendant's [c]ounsel provided ineffective assistance of counsel by failing to develop a record of involuntary intoxication and drug use and by failing to object to the incorrect, confusing and misleading jury instructions on this issue?[5]
3. Whether Defendant's [c]ounsel provided ineffective assistance of counsel by failing to fully develop testimony on the issue of "heat of passion" and voluntary manslaughter; and by failing to prepare and request a charge to the jury on voluntary manslaughter?
4. Whether Defendant's [c]ounsel provided ineffective assistance of counsel by failing to properly communicate to Defendant and her parents the plea bargain negotiations which then exposed Defendant to a verdict of first degree murder and a life sentence without parole?
5. Whether the PCRA [c]ourt erred in refusing to extend the holding of the United States Supreme Court in Graham v. Florida, 130 S.Ct. 2011 (2010) as the United States Supreme Court has done in Miller v. Alabama, 567 U.S. (2012) and finding that Appellant's sentence of life without parole represents cruel and unusual punishment?

Appellant's brief at 5-6.

This Court examines PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012). Our "review is limited to the findings of the PCRA court and the evidence of record." Id. Additionally, "[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record." Id. In this respect, we will not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Id. However, we afford no deference to its legal conclusions. Id. "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Id.

Appellant's first four issues pertain to the effectiveness of trial counsel. "To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Stewart, 2013 PA.Super. 317, *4 (en banc). Failure to meet any prong of this test will result in the claim failing. Id.

Arguable merit exists where the facts alleged could establish cause for relief. Id. In addition, we determine whether counsel had a reasonable basis for his actions by looking to whether counsel's decisions effectuated his client's interest. Id. Counsel's actions are unreasonable if "no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success." Id. In conducting this analysis, "[w]e do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken." Prejudice exists where there is a reasonable probability that absent counsel's errors, the result of the proceeding would have been different. Id.

The first issue Appellant presents is that trial counsel was ineffective in failing to adequately prepare Appellant for her testimony. She contends that, although counsel met with her parents on numerous occasions, he only met with her twice during a nineteen-month period. According to Appellant, trial counsel did not provide full consultation with her prior to her testimony and therefore, was surprised by her testimony at trial. Appellant avers that he did not discuss with her the legal doctrines of voluntary intoxication or heat of passion, nor did he engage "in fair persuasion during plea negotiations[.]" Appellant's brief at 37.

The Commonwealth counters that "there is simply no support for Appellant's contention that had counsel spent more time consulting with her concerning trial strategies in general and her trial testimony in particular, the outcome of the proceedings would have been more favorable for the defense." Commonwealth's brief at 14. It points out that trial counsel testified at the PCRA hearing that he met with both Appellant and her family and discussed the crimes in question and the penalties she faced if convicted. Trial counsel also remarked that he discussed the facts of the case with Appellant and that she told him at least three different stories regarding her involvement. According to trial counsel, after initially denying any involvement, Appellant admitted to physically attacking the victim, but claimed that she did not murder the victim and attempted to persuade Burton not to shoot the victim. Trial counsel based his trial strategy on this version of events. However, Appellant testified differently at trial, stating that she did not attack or restrain the victim in any manner.

The Commonwealth submits that trial counsel's PCRA testimony that her testimony was unexpected does not reveal inadequate preparation, but only that it was directly contrary to her final recounting of the events. Thus, the Commonwealth posits that trial counsel cannot be ineffective for failing to predict that his client's testimony would be different from that discussed pre-trial.

The PCRA court ruled that trial counsel credibly testified to meeting with Appellant and discussing with both her and her parents the charges of first and third degree murder, conspiracy, and simple assault. It further concluded that trial counsel was credible in relaying that Appellant and he agreed pre-trial that she would admit to assault. Nevertheless, Appellant elected not to pursue that course of action at trial.

We begin by noting that, while Appellant raised two ineffective assistance of counsel claims on direct appeal, she did not proffer the ineffectiveness issues she now raises in that appeal, nor does she layer these claims. Layering an ineffectiveness claim requires a petitioner to allege the ineffectiveness of each prior attorney and develop each prong of the ineffectiveness test for each lawyer. See Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003). The layering of claims was largely rendered moot by our Supreme Court's seminal decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).

However, because Appellant proceeded under the then-existing Bomar[6] exception by raising various ineffectiveness claims on direct appeal, she waived all other ineffectiveness issues. Commonwealth v. Robinson, 2013 WL 6822831, 5 (Pa. 2013) ("as appellant was permitted to litigate claims of trial counsel ineffectiveness on post-verdict motions and on direct appeal, to secure relief on his new, underlying claims of trial counsel ineffectiveness, he must demonstrate not only that trial counsel was ineffective, but that appellate counsel were ineffective for failing to raise the claims on post-verdict motions and on his hybrid direct appeal."); Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) ("In post-sentence motions and on direct appeal while represented by counsel different from counsel representing him at trial, Appellant raised numerous ineffectiveness claims against trial counsel that were fully litigated by the trial court. Because this circumstance constituted an exception to the Grant rule, we reviewed and disposed of Appellant's raised ineffective assistance of trial counsel claims on direct appeal. Any other claim of trial counsel ineffectiveness that Appellant failed to raise on direct appeal has been waived.").

To overcome waiver, Appellant should have layered her claims regarding post-sentence motion counsel's failure to set forth these issues, in addition to trial counsel's underlying ineffectiveness. See Robinson, supra. Nonetheless, the PCRA court did not dispose of Appellant's issue based on inadequate layering of the claim. In circumstances where a petitioner does not adequately layer a claim before the PCRA court and the court did not direct amendment or dismiss on these grounds, our Supreme Court has looked through this deficiency to the underlying trial counsel claim. See Commonwealth v. Walker, 36 A.3d 1, 8-9 (Pa. 2011); id. at 18 (Castille, C.J. concurring). Since the PCRA court did not utilize this ground for dismissing Appellant's claim or offer Appellant the opportunity to amend her petition, we proceed further. Walker, supra; see also Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013) ("A judge "shall" order amendment of a defective PCRA petition, Pa.R.Crim.P. 905(B), thus, we may infer the PCRA court did not agree that the instant petition or advocacy was inadequate. Therefore, in this matter, we decline to find waiver based on any alleged inadequacies.").

As our Supreme Court in Walker cogently explained:

We are also seeing post-McGill cases where PCRA courts have failed to allow for amendment, an important safeguard contemplated in the Rules of Criminal Procedure and emphasized in McGill. Given the complexities posed by these layered ineffectiveness claims, we now conclude the better practice is not to reject claims of appellate counsel's ineffectiveness on the grounds of inadequate development in the appellate brief if the deficiencies in the brief mirror those in the PCRA pleadings, unless the PCRA court invoked these deficiencies as the basis for its decision and afforded an opportunity to amend. Accordingly, McGill 's remand procedure will remain an option in cases such as this one, and we will review the underlying claim concerning trial counsel's stewardship to determine whether remand for further development of the claim pertaining to appellate counsel is required. As held in McGill and [Commonwealth v.] Rush, [838 A.2d 651 (Pa. 2003)] remand is unnecessary where the appellant has not met his burden of proving the underlying claim of trial counsel's ineffectiveness.


Instantly, it is the layering of nunc pro tunc appellate counsel's effectiveness that is at issue.[8] Since the appellate brief in this matter and the PCRA petition below did not layer the claim, we will review the underlying trial counsel claim to determine if a remand is necessary to develop the aspect of the issue relative to post-sentencing counsel.

Trial counsel have a duty to adequately prepare for trial. See e.g., Stewart, supra. This duty includes making reasonable investigations and meeting with a client to discuss the case. See e.g., Commonwealth v. Perry, 644 A.2d 705, 709 (Pa. 1994) ("Failure to prepare is not an example of forgoing one possible avenue to pursue another approach; it is simply an abdication of the minimum performance required of defense counsel."). In the capital direct appeal context, our Supreme Court has held that an attorney must meet face-to-face with his client at least once. Commonwealth v. Brooks, 839 A.2d 245, 250 (Pa. 2003) ("in order to prepare a defense to a charge of murder in the first degree, it is essential that at the very least, counsel meet with his client in person to, inter alia, gather information from the client, evaluate the client's demeanor, and try to establish a working relationship.").

In Commonwealth v. Elliott, 80 A.3d 415, 431 (Pa. 2013), a PCRA appeal, the High Court noted that Brooks was a departure from prior precedent as to counsel's alleged "failure to prepare based solely on the existence or duration of counsel's pretrial face-to-face consultation with the defendant." Unlike Elliott, however, Appellant's trial took place after Brooks. While it is uncertain how the Supreme Court would apply Brooks outside the capital arena, this Court has also opined on the degree of pre-trial preparation in Commonwealth v. Johnson, 51 A.3d 237 (Pa.Super. 2012) (en banc). Critical to the Johnson decision was the absence of actual prejudice.

In Johnson, trial counsel's preparation was more minimal than that herein. There, counsel admitted that he could only recall one telephone conversation with Johnson before trial, which lasted at most one half-hour. Johnson's attorney also declined to meet with his client more than once while Johnson was incarcerated. While counsel did see his client at the preliminary hearing and at his criminal arraignment, no trial strategy was discussed. Despite this lack of consultation by trial counsel, the petitioner could not establish that additional preparation would have led to a reasonable probability that the outcome of the trial would have been different. In the context of pre-trial preparation, our Supreme Court has held that prejudice may be established by showing that additional preparation would have resulted in counsel learning "beneficial information or issues that counsel should have presented had he been prepared adequately, which would have changed the outcome of the trial." Elliott, supra at 432.

Instantly, Appellant's claim fails for a host of reasons. First, the PCRA court expressly found credible trial counsel's testimony regarding his pre-trial preparation, that Appellant had agreed to admit to assaulting the victim, and suddenly changed her story at trial. Additionally, trial counsel had substantive conversations regarding the criminal charges, potential sentences, and plea negotiations. Indeed, at the post-sentence motion hearing shortly after trial, trial counsel testified that he talked with Appellant "around ten times." N.T., 3/22/05, at 44. He also discussed the case with Appellant's parents more than a dozen times. Trial counsel was aware of Appellant's drug and alcohol problems, and spoke to her about her consumption of alcohol on the night of the killing. While Appellant acknowledged using marijuana and drinking rum, she did not assert that she was on a three-day drug and alcohol bender and it was evident from her own recollection that she was aware of what was occurring during the incident leading up to the victim's death. Appellant's father also denied that Appellant had a history of blackouts from drinking.

Importantly, Appellant also denied culpability for the murder. An intoxication defense admits to culpability. Although Appellant introduced evidence that she was intoxicated, such proof would not per se result in a finding of diminished capacity. See Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008) ("Intoxication, however, may only reduce murder to a lower degree if the evidence shows that the defendant was 'overwhelmed to the point of losing his faculties and sensibilities.'"); Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) ("To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill. The mere fact of intoxication does not give rise to a diminished capacity defense.") (citations omitted). The intoxication must rise to a level that the defendant cannot form specific intent. Hutchinson, supra. Here, the evidence from the numerous other witnesses in this case precluded a voluntary intoxication defense as being viable.

In this respect, Appellant threatened the victim with a gun and ordered her to strip. She then attempted to undress the victim herself, threatened to kill her, and demanded that she perform oral sex, before beating the victim again. Appellant attacked the victim for approximately fifteen to twenty minutes. Neighbors upset over the noise from Burton's apartment remarked that, when they complained, they observed the victim saying that she wanted to leave, but Appellant held onto her arm and refused to allow her to exit the apartment. Before leaving with the victim and Burton, Appellant also told the victim that she was going to die. None of these actions is consistent with Appellant being so intoxicated that she was overwhelmed to the point of losing her faculties. Appellant is not entitled to relief.

Appellant's second contention is that counsel rendered ineffective assistance in not developing a voluntary intoxication defense and failing to object to the trial court's instruction regarding intoxication and the use of drugs. We have previously discussed Appellant's failure to layer this claim and the grounds to look through that failure. Appellant contends that Dr. Cyril Wecht's testimony at her PCRA hearing indicates that she could not have formed specific intent to commit murder based on her assertions of the amount of alcohol and drugs she consumed before she attacked and Burton killed the victim. According to Appellant, had trial counsel proffered a voluntary intoxication defense, it would have reduced her culpability from first degree murder to third degree murder. She adds that trial counsel acknowledged that he did not seek an evaluation by a psychologist or psychiatrist to determine if she was addicted to drugs.

Appellant also argues that counsel was ineffective in neglecting to object to the following jury instruction:

the Commonwealth has the burden of proving this defense-I should say disproving. Thus, you cannot find the defendant guilty of first degree murder unless you are satisfied beyond a reasonable doubt the defendant, despite the intoxication or drugged condition, was at the time incapable of forming a specific intent to kill; that is a willful and deliberate premeditated design to kill.

N.T., 6/30/04, at 61-62. In Appellant's view, since the trial court erred in this context by using the term "incapable" of forming a specific intent instead of capable, that the instruction was both incorrect and confusing.

The Commonwealth responds that Appellant's first argument is without merit because she testified that she did not commit the crime and voluntary intoxication does not exculpate a defendant, but only would reduce her culpability. It highlights that where a defendant denies commission of the crime altogether, our Supreme Court has declined to hold counsel ineffective for not presenting either a diminished capacity or voluntary intoxication defense. The Commonwealth further posits that trial counsel did discuss with Appellant her use of alcohol and marijuana, but that she did not inform him "that she had been on a three day drug and alcohol binge[.]" Commonwealth's brief at 18. In addition, it notes that trial counsel discussed with Appellant and her parents that she had received treatment for drug and alcohol addiction, but that Appellant's ability to recall the incident called into question the viability of a voluntary intoxication defense.

With respect to Dr. Wecht, the Commonwealth points out that he did not interview Appellant and relied solely on information she and her family provided to him. It adds that Appellant's newly-alleged defense is not credible in light of the testimony of the other individuals at the apartment, none of whom indicated that Appellant was intoxicated to a degree that would have reduced her ability to form specific intent. In relation to the jury instruction matter, it acknowledges that the trial court plainly misspoke. Nonetheless, it submits that the strength of the evidence and the lack of evidence that Appellant was seriously impaired by drugs or alcohol precludes a finding that there is a reasonable probability that the outcome of the trial would have differed.

We have previously discussed the lack of viability of a voluntary intoxication defense based on the surrounding circumstances of the crime and the testimony of those who viewed Appellant before the killing. Moreover, our Supreme Court has consistently rejected ineffectiveness claims based on the failure to proffer a diminished capacity defense where the defendant maintains his or her innocence. Hutchinson, supra at 312 ("If a defendant does not admit that he killed the victim, but rather advances an innocence defense, then evidence on diminished capacity is inadmissible."); Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009) ("where a defendant has denied committing a crime during his trial testimony, this Court has refused to find counsel ineffective for failing to present a defense that would have conflicted with such testimony."). For these reasons, trial counsel was not ineffective for electing not to pursue a voluntary intoxication defense.

With respect to Appellant's jury instruction argument, we find that she is not entitled to relief. "[I]in reviewing a challenged jury instruction, an appellate court must consider the entire charge as a whole, not merely isolated fragments, to ascertain whether the instruction fairly conveys the legal principles at issue." Commonwealth v. Cook, 952 A.2d 594, 626-627 (Pa. 2008). There is no dispute that the trial court erred in its phrasing of the instruction relative to intoxication as a defense. As outlined in detail, the Commonwealth's evidence refuted that Appellant's intoxication was so severe as to prevent her from forming specific intent. Additionally, the trial court properly instructed the jury that a defendant may claim voluntary intoxication as a defense where the defendant "was so intoxicated or drugged at the time of the killing that she did not possess the specific intent to kill required for first-degree murder." Id. at 61. Considering the jury instruction as a whole and the lack of viability of the intoxication defense, Appellant cannot demonstrate actual prejudice.

Next, Appellant argues that trial counsel was ineffective in neglecting to develop testimony that would have supported a heat of passion jury charge for voluntary manslaughter. This claim is meritless. Voluntary manslaughter requires a sudden and intense passion resulting from serious provocation by the victim or the person whom the actor intends to kill, but the actor accidentally or negligently kills another. See 18 Pa.C.S. § 2503(a) (emphasis added). Appellant's argument hinges entirely on her anger at the victim because she told Appellant that her boyfriend was speaking to an ex-girlfriend. Such evidence and Burton's subsequent claim that the victim was lying is insufficient to show that the victim seriously provoked Appellant. See Hutchinson, supra at 315. Phrased differently, telling Appellant information regarding her boyfriend's wandering attention would not render a reasonable person incapable of reason or cool reflection.

Pointedly, testimony that the victim seriously provoked Appellant into conspiring and aiding in killing the victim was not only untenable, it was inconsistent with Appellant's claim that she attempted to convince her boyfriend not to kill the victim. We agree with trial counsel's PCRA testimony that "there were no facts that permitted that theory[.]" N.T., PCRA Hearing, 6/20/11, at 122. Trial counsel was not ineffective in declining to elicit testimony from Appellant to show heat of passion and thereby allow her to seek a voluntary manslaughter charge.

The fourth claim Appellant levels on appeal is that trial counsel failed to communicate to her the Commonwealth's plea offer. Appellant's position fails to appreciate this Court's standard of review, and would require this Court to disregard the PCRA court's credibility determinations. Specifically, Appellant relies entirely on the testimony of her parents who claimed that trial counsel did not encourage Appellant to accept a plea. She contends that counsel did not secure the plea offer in writing, consult with her regarding a possible plea, or make it clear that she should plead guilty to third degree murder. Appellant maintains that the United States Supreme Court decisions in Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), support her argument. The Supreme Court in Frye held, "that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Frye, supra at 1408. Concomitantly, in Lafler, the High Court held that where the defendant rejects a plea offer, the defendant must demonstrate,

that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Lafler, supra at 1385.

In the present case, the PCRA court determined that trial counsel advised Appellant to accept an open plea deal for third degree murder and informed her of the potential length of sentence and what an open plea entailed. Despite trial counsel's advice, Appellant did not want to accept an open plea and maintained her innocence. As the Commonwealth astutely observed, trial counsel did communicate the Commonwealth's plea offers and acted in substantial conformity with Lafler and Frye, which effected no change in Pennsylvania law. See Commonwealth v. Copeland, 554 A.2d 54 (Pa.Super. 1988).

There is no allegation that trial counsel presented incorrect advice regarding the plea offer. During the post-sentence motion hearing, trial counsel related that Appellant was forceful in rejecting a plea deal, that her parents did not believe Appellant committed the murder, and that the parents asked him to proceed to trial. According to trial counsel, the plea deal remained open during trial and he recommended that she accept. In light of the PCRA court's credibility findings, and the testimony of trial counsel at both the post-sentence motion hearing and the PCRA proceeding, Appellant's claim is without merit.

The final issue Appellant sets forth is that the PCRA court erred in not extending the holdings in Graham, supra and Miller, supra, and finding that her sentence of life imprisonment without parole violated the Eighth Amendment's prohibition against cruel and unusual punishment. In Graham, the United States Supreme Court held that a sentence of life imprisonment without parole for a non-homicide juvenile offender violated the Eighth Amendment prohibition against cruel and unusual punishment. In reaching this conclusion, it focused heavily on the differences between juveniles and adults. Subsequently, in a closely divided five-to-four decision, the Supreme Court, relying heavily on Graham, determined that mandatory sentences of life imprisonment without parole for juvenile homicide offenders violated the Eighth Amendment. Miller, supra. Again, a significant portion of the High Court's rationale distinguished between adults, those eighteen and over, and juveniles.

Appellant argues that, although she was nineteen, she was still a teenager, and that Graham "relied extensively on research that shows that teenagers are more impulsive, less able to calculate consequences and more vulnerable to peer pressure than adults." Appellant's brief at 66. According to Appellant, dicta in both Graham and Miller persuasively demonstrates that her own mandatory life sentence without the possibility of parole violates the Federal and Pennsylvania Constitution. However, she does not advance any argument under the Pennsylvania Constitution, nor does she marshal forth any evidence regarding how other states or the federal law treat adult homicide offenders under twenty.

This Court has stated that the holding in Miller does not apply to those over eighteen. Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013). In addition, our Supreme Court has concluded that the holding in Miller does not apply retroactively to juveniles. Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Further, the High Court has held that novel Eighth Amendment claims seeking a change in the law are ordinarily not the proper subject of a PCRA petition. Robinson, supra at *21.[9]

We recognize that the holding of a case is different from its rationale, see Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), but no state or federal court has seen fit to reject as unconstitutional life without parole sentences for adults convicted of first degree murder. We add that there is little dispute that the original meaning of the cruel and unusual punishments clause prohibited only torturous methods of punishment. See Harmelin v. Michigan, 501 U.S. 957, 979 (1991). Of course, the High Court has expanded its Eighth Amendment jurisprudence to reflect what it has labeled as evolving standards of decency. See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion of Warren, C.J.).

The Supreme Court has delineated that a court must consider "objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue." Graham, supra at 2022. In addition, a court "must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution." Id.

Appellant does not suggest that a single state or federal law has moved away from sentencing young adults to life without parole in the wake of the Graham and Miller decisions. This alone should be enough to refute any suggestion that there is somehow a national consensus against the practice. Appellant's sentence was not cruel and unusual punishment when imposed. For these reasons, Appellant's claim fails.

Order affirmed. Appellant's request for post-submission communication is denied.[10]

Judgment Entered.

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