March 5, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JORDAN MICHAEL WALLICK Appellant
Appeal from the Judgment of Sentence of May 21, 2012 In the Court of Common Pleas of York County Criminal Division at No.: CP-67-CR-0005884-2010
BEFORE: BENDER, J., WECHT, J., and FITZGERALD, J. [*]
Jordan Wallick appeals his May 21, 2012 judgment of sentence. We deny relief on Wallick's pre-trial and trial-related issues. However, we vacate his judgment of sentence and remand for resentencing pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012).
Wallick, who was fifteen years-old at the time of his crimes, initially was charged with criminal homicide, two counts of robbery, three counts of conspiracy, and possession of a firearm by a minor. On August 25, 2010, Wallick filed a "Motion to Transfer Jurisdiction to Juvenile Court" ("decertification motion") pursuant to 42 Pa.C.S. § 6322(a) with the Honorable Joseph C. Adams in the Court of Common Pleas of York County ("Judge Adams" or "decertification court"). After the decertification motion was filed, but before the motion was litigated, the Commonwealth established a prima facie case as to the each of the charges at a preliminary hearing. Judge Adams conducted hearings on Wallick's decertification motion on January 31 and February 14, 2011. On February 17, 2011, Judge Adams issued an "Opinion and Findings of Fact" ("Decertification Court Opinion ("D.C.O.")) accompanying an order denying Wallick's decertification motion.
While the decertification motion was pending, Wallick had filed a motion to have the York County District Attorney's Office, in its entirety, recused from prosecuting the case. Wallick alleged that the victim in this case worked for the District Attorney's Office for approximately five years, and had continued to maintain a relationship with several unnamed members of that office up until his death. Wallick contended that, due to the relationship between the victim and the District Attorney's Office, a conflict of interest had arisen that required recusal. The Honorable Thomas Kelley ("Judge Kelley") presided over an October 18, 2010 hearing on the motion. At the conclusion of that hearing, Judge Kelley denied the motion.
On December 17, 2010, also while his decertification motion still was pending, Wallick filed an omnibus pre-trial motion wherein he sought, inter alia, suppression of a photo line-up that the police showed to an eyewitness to the crimes. Wallick maintained that the photographic line-up was unconstitutionally suggestive because: (1) Wallick's photograph depicted him as being younger than the individuals appearing in the other photographs; (2) Wallick's head appeared smaller than everyone else's head; (3) only one other person in the line-up had a skin tone similar to Wallick's; and (4) due to the manner in which the photographs were taken, Wallick appeared shorter than people in the other photos. On May 26, 2011, the Honorable Michael Bortner ("Judge Bortner" or "trial court") conducted a hearing on Wallick's motion. On October 21, 2011, following briefing by the parties, Judge Bortner issued an order denying Wallick's suppression motion and a contemporaneous opinion in support of that order.
Wallick's jury trial was held from April 2-5, 2012. The trial court summarized the facts presented at trial as follows:
On July 28, 2010[, Wallick] met up with the three other codefendants to plan a robbery. [Wallick] was given a gun by one of the codefendants for use in the robbery. On July 28, 2010[, ] James Wallmuth, hereafter the victim, met a friend at the "Waterway Bar" for drinks. Between 10:45 and 11:00 p.m., witnesses saw the victim sitting on a bench outside of the Waterway Bar. After [she passed] the victim, one of the witnesses saw a biracial man pass her and walk towards the victim. Moments later, the witness heard a gunshot and saw the same man, whom she later identified as [Wallick], running away from the scene. Likewise, shortly after [Wallick] left his coconspirators to commit the robbery, his codefendants heard the same gunshot. One of the codefendants also testified that he saw [Wallick] shoot the victim after the victim attempted to push the gun away. Around 11:06[, ] a 9-1-1 call was placed to report a shooting at the Waterway Bar and Grill. Sometime after the shooting, [Wallick] met up with his codefendants and admitted to shooting someone during the robbery.
Trial Court Opinion ("T.C.O."), 2/13/2013, at 3 (citations to notes of testimony omitted). Relying upon this evidence, the jury convicted Wallick of second-degree murder,  one count of robbery, and one count of conspiracy to commit robbery.
On May 21, 2012, Wallick was sentenced to a mandatory life sentence on the second-degree murder conviction. Wallick also was sentenced to eight to sixteen years' incarceration on the robbery conviction, and seven to fourteen years' incarceration on the conspiracy conviction. Those two sentences were ordered to run consecutively to each other, but concurrently to the life sentence.
On May 31, 2012, Wallick filed post-sentence motions for a new trial and for reconsideration of his sentence. Among the claims raised therein, Wallick argued that, because he was a juvenile, his life sentence was unconstitutional pursuant to Miller. On July 16, 2012, Wallick filed a motion to withdraw his post-sentence motion without prejudice, and to vacate his sentence and hold a new sentencing hearing in light of Miller. Wallick also sought permission to re-file his post-sentence motions should he be re-sentenced. On July 19, 2012, the Commonwealth filed a written response to Wallick's motion to withdraw his post-sentence motions without prejudice, wherein the Commonwealth expressly did not oppose vacating Wallick's sentence and holding a second sentencing hearing pursuant to Miller. The following day, the Commonwealth filed a written response to the substantive claims raised in Wallick's original post-sentence motions.
On July 23, 2012, Wallick filed a "Praecipe to Withdraw Motion to Withdraw Post-Sentence Motion Without Prejudice and Vacate Sentence and Schedule Sentencing Hearing." That same day, Wallick filed a "Motion to Vacate Illegal Sentence and Schedule Sentencing Hearing, " wherein Wallick raised substantially the same arguments that he raised in his earlier motion seeking to withdraw his post-sentence motions and to proceed directly to a new sentencing hearing. Also that same day, the trial court held a hearing on Wallick's string of motions. The Commonwealth conceded during the hearing that Wallick was entitled to a new sentencing hearing. At the conclusion of the hearing, the trial court reserved ruling on the matter until the court reviewed the materials submitted by Wallick, and afforded the Commonwealth an opportunity to file a written response to Wallick's most recent motion. On July 30, 2012, the Commonwealth filed its written response, again conceding that a new sentencing hearing was warranted under Miller and our decision in Commonwealth v. Knox, 50 A.3d 749 (Pa.Super. 2012). On November 5, 2012, the trial court denied all of Wallick's post-sentence motions.
On November 29, 2012, Wallick filed a notice of appeal. On December 5, 2012, the trial court directed Wallick to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. On December 26, 2012, Wallick timely complied. On February 13, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Wallick raises six questions for our review:
1. Whether the [decertification court] erred in failing to decertify [Wallick]?
2. Whether the decertification court erred in failing to grant [Wallick] immunity to testify as to the circumstances of the case and in doing so violated [Wallick's] due process rights?
3. Whether the trial court erred in permitting the Commonwealth to introduce the line-up of [Wallick] at trial?
4. [Whether Judge Kelley] and the trial court erred when they denied [Wallick's] motion to recuse the District Attorney's Office?
5. [Whether] the trial court erred when it failed to vacate [Wallick's] sentence and provide [Wallick] a resentencing?
6. [Whether] the trial court erred when it sentenced [Wallick] to a consecutive sentence for robbery and conspiracy to commit robbery when those charges merged with the second-degree murder charge?
Brief for Wallick at 2 (capitalization and grammar modified).
In his first issue, Wallick challenges the decertification court's decision not to transfer his case to juvenile court. Wallick summarizes his argument as follows:
[Wallick] asserts that his age, prior record, family circumstances and the specific facts of the crime all indicated that [Wallick] could have been rehabilitated. The facts as indicated at [the decertification hearing] were that [Wallick] was doing well in the home of the Turnages[, his one-time foster family]; however, before he was ready to leave[, ] his probation officer sent him to go live with his mother in New Jersey, where he was without adequate supervision. [Wallick] showed a history of wanting to please people and needing a family[, ] which makes significant the fact that the codefendant who gave [Wallick] the gun was an adult telling him what to do. The fact that the same adult codefendants received a benefit for testifying against [Wallick] at trial depicts an unfair judicial system. Furthermore, [Wallick's] prior charges were very minor, verbally threatening a child when he was in early elementary school and then stealing a motorcycle and stealing guns which he did not even use. As such, [Wallick] asserts that the [decertification court's] failure to decertify him was in error.
Brief for Wallick at 7 (capitalization modified).
Recently, in Commonwealth v. Brown, 26 A.3d 485 (Pa.Super. 2011), we set forth the principles that govern a challenge to an order denying a decertification petition:
The Juvenile Act, 42 Pa.C.S.A. §[§] 6301[, ] et seq., is designed to effectuate the protection of the public by providing children who commit 'delinquent acts' with supervision, rehabilitation, and care while promoting responsibility and the ability to become a productive member of the community. 42 Pa.C.S.A. § 6301(b)(2). The Juvenile Act defines a 'child' as a person who is under eighteen years of age. 42 Pa.C.S.A. § 6302. Typically, most crimes involving juveniles are tried in the juvenile court of the Court of Common Pleas.
Our legislature, however, has deemed some crimes so heinous that they are excluded from the definition of 'a delinquent act.' Pursuant to 42 Pa.C.S.A. § 6322(a) and § 6355(e), when a juvenile is charged with a crime, including murder or any of the other offenses excluded from the definition of 'delinquent act' in 42 Pa.C.S.A. § 6302, the criminal division of the Court of Common Pleas is vested with jurisdiction. See 42 Pa.C.S.A. § 6302[.]
When a case involving a juvenile goes directly to the criminal division, the juvenile can request treatment within the juvenile system through a transfer process called 'decertification.' To obtain decertification, it is the juvenile's burden to prove, by a preponderance of the evidence, that transfer to the juvenile court system best serves the public interest. 42 Pa.C.S.A. § 6322(a).
Pursuant to § 6322(a), the decertification court shall consider the factors contained in § 6355(a)(4)(iii) in determining whether the child has established that the transfer will serve the public interest. These factors are as follows:
(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual posed by the child;
(D) the nature and circumstances of the offense allegedly committed by the child;
(E) the degree of the child's culpability;
(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and
(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:
(II) mental capacity;
(IV) the degree of criminal sophistication exhibited by the child;
(V) previous records, if any;
(VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors[.]
42 Pa.C.S.A. § 6355(a)(4)(iii).
While the Juvenile Act requires that a decertification court consider all of these factors, it is silent as to the weight assessed to each by the court. However, '[w]hen a juvenile seeks to have his case transferred from the criminal division to the juvenile division, he must show that he is in need of and amenable to treatment, supervision or rehabilitation in the juvenile system.' If the evidence presented fails to establish that the youth would benefit from the special features and programs of the juvenile system and there is no special reason for sparing the youth from adult prosecution, the petition must be denied and jurisdiction remains with the criminal division.
The ultimate decision of whether to certify a minor to stand trial as an adult is within the sole discretion of a decertification court. This Court will not overturn a decision to grant or deny decertification absent a gross abuse of discretion. An abuse of discretion is not merely an error of judgment but involves the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment based upon partiality, prejudice or ill will.
Brown, 26 A.3d at 491–93 (quotation marks, some citations, and emphasis omitted).
We have reviewed the certified record, the parties' briefs, and the transcript of the decertification hearing. Furthermore, we have reviewed the thorough opinion issued by Judge Adams, who presided over the decertification hearing. Having reviewed this information, in tandem with the above legal standards, we conclude that Judge Adams' decision not to decertify Wallick's criminal case to juvenile court did not constitute a gross abuse of discretion. In reaching this conclusion, we adopt Judge Adams' thorough and well-reasoned February 17, 2011 opinion as our own. A copy of Judge Adams' opinion is attached hereto for reference.
In his second issue, Wallick contends that, pursuant to Brown, the decertification court violated his Fifth Amendment right against self-incrimination by not granting Wallick immunity to testify at the decertification hearing. In Brown, the appellant, a juvenile charged with murder, maintained his innocence at all times during the decertification interviews and at the decertification hearing. The Commonwealth's expert testified that, because the appellant would not accept responsibility for his actions, he could not be rehabilitated. 26 A.3d at 490. The decertification court credited the expert's testimony and conclusions, and reached its own conclusion that, without acceptance of responsibility, "the prospects of rehabilitation within the juvenile jurisdiction [was] likely to be unsuccessful." Id. The decertification court later asserted that "it was not concluding as a matter of law [that] a child must confess in order to be decertified to juvenile court, and that any discussion by the court of the relationship between taking responsibility for the underlying offense and rehabilitation was solely in reference to addressing and evaluating the evidence on that issue." Id. We later rejected the decertification court's tardy attempt to clarify its original statement, and concluded that the decertification court unconstitutionally penalized the appellant for asserting his right to remain silent. Id. at 498.
For the first time in Pennsylvania, we determined that the right to remain silent as prescribed in the Fifth Amendment was applicable to decertification hearings. Id. at 495. Having so established, we then turned our attention to whether the decertification court had, in fact, violated that right. We noted that, under the decertification court's logic, in order for the appellant to prove (as was his burden) that he was amendable to treatment pursuant to 42 Pa.C.S. § 6355(a)(4)(iii)(G), the appellant "would necessarily have to admit guilt and incriminate himself." Id. at 498. In other words, the decertification court required the appellant to incriminate himself as a precursor to satisfying his decertification burden. This, we held, was a patent violation of the appellant's Fifth Amendment rights. Id.
We then turned our focus to whether the appellant enjoyed immunity to overcome the Fifth Amendment violation, such that any statements made by a juvenile in a decertification proceeding could not be used in a subsequent criminal proceeding. We began with the applicable statute, 42 Pa.C.S. § 6338(c)(1), which provides:
(c) STATEMENTS AND INFORMATION OBTAINED DURING SCREENING OR ASSESSMENT.-
(1) No statements, admissions or confessions made by or incriminating information obtained from a child in the course of a screening or assessment that is undertaken in conjunction with any proceedings under this chapter, including, but not limited to, that which is court ordered, shall be admitted into evidence against the child on the issue of whether the child committed a delinquent act under this chapter or on the issue of guilt in any criminal proceeding.
Brown, 26 A.3d at 499. We assumed for purposes of the appeal that, had the appellant made incriminating statements to the Commonwealth's expert, they would have fallen within the purview of this statute. Id.
We then delineated the three types of immunity in Pennsylvania:
"Use" immunity provides immunity only for the testimony actually given pursuant to the order compelling said testimony. "Use and derivative use" immunity enlarges the scope of the grant to cover any information or leads that were derived from the actual testimony given under compulsion. . . . "Transactional" immunity is the most expansive, as it in essence provides complete amnesty to the witness for any transactions which are revealed in the course of the compelled testimony.
Id. at 499-500 (quoting Commonwealth v. Swinehart, 664 A.2d 957, 960 n.5 (Pa. 1995)). We concluded that the immunity afforded to juveniles by 42 Pa.C.S. § 6338(c)(1) constituted basic "use" immunity. However, "use" immunity "protects the witness only from the use of the specific testimony compelled from him under the grant of immunity, but not from evidence obtained as a result of such testimony." Id. at 500 (quoting Gosling v. Commonwealth, 415 S.E.2d 870, 873 (Va. 1992)). Furthermore, "witnesses protected only by use immunity may be pursued by prosecutors with evidence derived from compelled testimony, and[, therefore, use immunity is] inadequate to overcome an assertion of the [Fifth Amendment privilege." Id. Hence, we held that "42 Pa.C.S. § 6338(c)(1) cannot compel [the appellant] to incriminate himself at a decertification hearing, because the statutory provision does not immunize evidence that is directly and indirectly obtained from [the appellant's] statements and admissions." Id.
Ultimately, we determined that the decertification court's unconstitutional requirement that the appellant incriminate himself in order to prove that he was amendable to treatment was "a pivotal component" of the decertification court's analysis that amounted to an abuse of discretion. Id. at 510. Moreover, the patent violation of the appellant's Fifth Amendment right was not overcome by the basic use immunity that is afforded to juveniles by 42 Pa.C.S. § 6338(c)(1). Consequently, we remanded for a new decertification hearing. Id.
Presently, Wallick contends that the essential conclusions that we reached in Brown required the decertification court herein to grant him immunity, and that, because the decertification court failed to do so, a new hearing is required. We disagree. Wallick apparently believes that, pursuant to Brown, trial courts now must grant full transactional immunity to all juveniles in decertification hearings, and that his Fifth Amendment rights were violated by the court's failure to do so. Wallick's interpretation of Brown is incorrect.
Brown was predicated upon the fact that the decertification court demonstrably penalized the appellant for exercising his right to remain silent. As we noted therein, "the Fifth Amendment proscribes only self-incrimination obtained by a genuine compulsion of testimony." Brown, 26 A.3d at 497 (citing Commonwealth v. Padillas, 997 A.2d 356, 362 (Pa.Super. 2010)). We held that, for Fifth Amendment purposes, the decertification court's implicit requirement that the appellant admit his guilt constituted a genuine compulsion of testimony. With regard to immunity, we held only that the immunity provided by 42 Pa.C.S. § 6338(c)(1) was insufficient to overcome the decertification court's violation of the appellant's rights. At no point did we declare that every juvenile must be afforded full transactional immunity by the court in every decertification hearing, nor did we even address the question of whether a decertification court has the inherent authority to grant such immunity.
Rather, Brown only stands for the proposition that a decertification court cannot compel a juvenile to incriminate himself either directly or as a prerequisite to satisfying the juvenile's burden to achieve decertification. However, Wallick was never compelled to testify or to provide incriminating evidence against himself. The transcript of the decertification hearing makes clear that Wallick was not compelled to take any particular action implicating his Fifth Amendment rights, and the issue of immunity was not the driving factor in his decision not to testify. Wallick declined to testify because he was afraid of doing so in front of a courtroom full of people. His decision was not made because of a fear that his testimony would be used against him at a subsequent criminal proceeding. Wallick indicated that he would talk to the judge or to the Commonwealth's attorney alone, but not in open court. Wallick further indicated to his attorney that he decided not to testify because he was too nervous to testify in front of a larger crowd of people. See Notes of Testimony ("N.T."), 1/31/2011, at 215. Thus, Wallick was not forced to abandon his right to testify only because he was not provided with immunity.
Second, unlike in Brown, Wallick suffered no penalty for his decisions not to testify or not to admit his guilt. The decertification court did not place any significant emphasis upon Wallick's failure to accept responsibility for his actions in its decision not to decertify the case to juvenile court. At no point in the court's thorough, well-reasoned opinion that we adopted above, did the decertification court penalize Wallick for not accepting responsibility for the murder. Rather, the court reached its decision on other grounds that were more than sufficient to demonstrate that decertification to juvenile court was inappropriate in this case. Without being compelled to admit his guilt, or without being penalized for not doing so, Brown has no applicability to Wallick's case. Consequently, no relief is due.
Wallick next argues that the trial court erred when it denied Wallick's pre-trial motion to suppress evidence related to a photographic line-up that he maintains was unduly suggestive, as well as subsequent in-court identifications based upon the suggestive photographic line-up. Wallick argues that:
the photo lineup was unduly suggestive as [Wallick's] picture clearly stood out more than the other men. In the photo lineup[, Wallick] appears to be the only juvenile, his head is much smaller than the other men in the lineup, his skin tone is much lighter than all but one of the other men, and [Wallick] appears to be much shorter than the other men.
Brief for Wallick at 11. We agree with Wallick that the line-up utilized in this case was suggestive. However, the line-up was not so suggestive as to warrant suppression of the line-up evidence.
We begin with our standard of review:
When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa.Super. 2009) (internal citations and quotes omitted).
Recently, in Commonwealth v. Fulmore, 25 A.3d 340 (Pa.Super. 2011), we recited the following governing principles regarding the suggestiveness of a pre-trial photographic line-up:
"Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances." Commonwealth v. Carson, 741 A.2d 686, 697 (Pa. 1999), abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). "Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but 'suggestiveness alone does not warrant exclusion.'" Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa.Super. 2009). Identification evidence will not be suppressed "unless the facts demonstrate that the identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Commonwealth v. Burton, 770 A.2d 771, 782 (Pa.Super. 2001), overruled on other grounds by Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa. 2002) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). Photographs used in line-ups are not unduly suggestive if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics. Commonwealth v. Fisher, 769 A.2d 1116, 1126–27 (Pa. 2001).
Fulmore, 25 A.3d at 346 (citations modified).
We have reviewed the photographic array utilized by the police in this case. Even a brief glance at the eight photographs included in the array is sufficient to detect a troubling degree of suggestiveness. Wallick's photograph sits in the upper right hand corner of the array of photographs, and one's eye is drawn immediately to that photograph. Wallick's skin tone resembles only one of the other seven individual's skin tones, and the resemblance at most can be characterized as modest. The most notable difference between the photographs is the size of Wallick's head when compared to those of the other seven individuals. For whatever reason, Wallick's head is approximately half the size of the other individuals' heads. The top of his head reaches only to the ears of the person depicted in the photograph immediately adjacent to his. Finally, regardless of the actual ages of the other individuals depicted in the array, Wallick appears much younger than everyone else. Simply put, Wallick's photograph barely resembles anyone else's photograph in the array in size, skin tone, age, or other pertinent characteristic. His photo stands out like a proverbial sore thumb. We are constrained to conclude, based upon the totality of the circumstances, that the photographic array used by the police in this case was suggestive.
However, mere suggestiveness does not require automatic suppression of evidence or subsequent identifications. As noted above, suggestiveness is only one factor in the equation, and suppression is required only if the impermissible suggestiveness creates a very substantial likelihood of irreparable misidentification. See Kubis, Burton, supra. The Commonwealth must demonstrate that the totality of the circumstances demonstrate that an independent basis existed for the identification. Commonwealth v. Abdul–Salaam, 678 A.2d 342, 349 (Pa. 1996) The factors to be considered in determining whether an independent basis exists are:
(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.
Commonwealth v. Fisher, 769 A.2d 1116, 1127 (Pa. 2001) (citing Commonwealth v. Carter, 643 A.2d 61, 71 (Pa. 1994)). "The corrupting effect of the suggestive identification, if any, must be weighed against these factors." Commonwealth v. Meachum, 711 A.2d 1029, 1034 (Pa.Super. Ct. 1998) (citing Commonwealth v. Sample, 468 A.2d 799, 801 (Pa.Super. 1983)). "Reliability is the linchpin in assessing the admissibility of a challenged identification." Sample, 468 A.2d at 801.
Cori Pautz, an eyewitness to the murder, was the person who selected Wallick's photograph from the photo array. At trial, Pautz testified that, on the night of the murder, she and three other women decided to take a walk. N.T., 4/2-5/2012, at 309-10. During their walk, they decided to cut though the Waterway Bar's parking lot. They did so because the lot was well-lit. Id. at 310. After they passed through the lot and headed away from the Waterway Bar, Pautz noticed a group of people standing against a wall, one of whom was wearing a red shirt. The person in the red shirt stepped away from the wall, and started to walk toward Pautz' group. The Pautz group headed into an alley. While in the alley, they heard gunshots. Pautz and company ran for a brief time, and then waited until they were sure that there were no further gunshots. However, before she ran, Pautz looked over her shoulder and saw the same young man wearing the red shirt running from the area of the Waterway Bar. Id. at 311-12.
Pautz subsequently met with the police. She described the actor in the red shirt as being tall and slender. She noted that he had curly hair, and that he looked young, possibly in his teens. Finally, Pautz told the police that the actor had "biracial light skin." Id. 313. On cross-examination, Pautz admitted that she told the police that she did not get a good look at the actor. Id. at 320. However, she was able to view the actor for a sufficient period to ascertain and recall certain identifying features that "stuck out" to Pautz, including the size and shape of his nose and his curly hair. Id. Pautz then selected Wallick's photograph from the challenged photographic array.
In his brief, Wallick provides only two paragraphs of discussion pertaining to this issue. Brief for Wallick at 11. The first paragraph sets forth the governing legal principles that apply to a challenge to a photographic line-up or array. The second paragraph is a brief discussion of his argument, which we have block-quoted above. Wallick's argument focuses solely upon the pictures contained in the photographic array. Wallick makes no effort to address Pautz' ability to view him on the night in question, nor does he contest whether the summarized testimony above was sufficient to render the identification reliable and overcome the facial suggestiveness of the array.
Based upon our review of the testimony, we conclude that the totality of the circumstances demonstrate that the suggestiveness in the array did not impermissibly create a substantial likelihood of irreparable misidentification. See Burton, supra. While Pautz did not have an ideal opportunity to view Wallick, she nonetheless observed him from the side in a well-lit area, and identified accurately Wallick's skin tone, hair style, and age group. Further, she specifically recalled the size and shape of his nose. From the totality of these factors, we conclude that the Commonwealth proved that Pautz' identification of Wallick was based upon her observations, and was not driven solely by the suggestiveness of the photographic array. Hence, we hold that the trial court did not err in denying Wallick's suppression motion.
Next, Wallick argues that Judge Kelley erred by denying Wallick's pre-trial motion to compel the District Attorney's Office to recuse itself. In his brief, Wallick notes that the victim worked for the District Attorney's Office, and personally was known by the lead prosecutor. Wallick argues that the District Attorney's Office therefore had a conflict of interest that required the office to recuse itself.
In its Rule 1925(a) opinion, the trial court noted that it had reviewed the transcript of the hearing held by Judge Kelley, and agreed with Judge Kelley that Wallick "was unable to offer any proof of an actual conflict; in fact, defense counsel admitted to [Judge Kelley] that she had no information regarding a potential conflict of interest and stated only that several people in the District Attorney's Office may be witnesses that she might call at trial." T.C.O. at 8. The trial court cited the well-settled principle that "a prosecution is barred when an actual conflict of interest affecting the prosecutor exists in the case; under such circumstances a defendant need not prove actual prejudice in order to require that the conflict be removed." Id. (quoting Commonwealth v. Eskridge, 604 A.2d 700, 702 (Pa. 1992)). The court finally concluded that Wallick's equivocal statements at the pretrial hearing "provided no evidence of an actual or potential conflict of interest." Id.
In his exceedingly short argument, Wallick has not overcome his burden of demonstrating an actual conflict of interest, aside from bald allegations that the prosecutor knew the victim at some point in time. Wallick does not demonstrate the extent or nature of the relationship between the parties, or that the relationship rose to the level of an actual conflict of interest that impaired the prosecutor's ability fairly to try the case against Wallick. Consequently, no relief is due.
In his next issue, Wallick argues that, as a juvenile, his mandatory life sentence for his second-degree murder conviction is unconstitutional pursuant to Miller and Knox, supra, and that he is entitled to a new sentencing hearing. We agree.
In Miller, the United States Supreme Court held that "[m]andatory life [imprisonment] without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Miller, 132 S.Ct. at 2460. In Knox, the appellant, a juvenile convicted of second-degree murder, was sentenced to a mandatory life sentence pursuant to 18 Pa.C.S. § 1102(b). Relying upon Miller, we vacated the life sentence, and held that "a mandatory sentence of a term of life imprisonment without the possibility of parole for a juvenile offender convicted of second-degree murder is cruel and unusual punishment and a violation of the Eighth Amendment [to] the United States Constitution and Article I, Section 13 of the Pennsylvania Constitution." Knox, 50 A.3d at 769. The relevant circumstances in Knox and the matter sub judice are identical. Thus, Knox and Miller unequivocally compel our conclusion that Wallick's mandatory life sentence is unconstitutional.
We note that our General Assembly enacted 18 Pa.C.S. § 1102.1, which sets forth the sentences for persons who commit murder before the age of eighteen. The statute expressly applies only to defendants convicted after June 24, 2012. Wallick was convicted on April 5, 2012. Therefore, section 1102.1 does not apply to Wallick. Thus, upon remand, the trial court must consider the non-exhaustive factors set forth in Knox, which were derived from the Supreme Court's analysis in Miller, before imposing a sentence. See Commonwealth v. Brown, 71 A.3d 1009, 1016-17 (Pa.Super. 2013) (holding that sentencing court must consider the Knox factors when the juvenile murder conviction occurred before June 24, 2012). In Knox, we delineated those factors as follows:
The Miller Court did not provide a specific list of what factors the sentence must consider when determining the appropriate sentence for a juvenile potentially facing a sentence of life in prison, only indicating that the consideration of such factors will render the punishment "uncommon" for juveniles. Miller, 132 S.Ct. at 2469. Our review of Miller indicates, at the very least, [a sentencing court] must consider a juvenile's age at the time of the offense, his diminished culpability and heightened capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, the presence of any drug and/or alcohol problems, his mental health history, and his potential for rehabilitation. See id. at 2464, 2467-69. This is not an exhaustive list.
Knox, 50 A.3d at 768.
Because Wallick's mandatory life sentence was unconstitutional, we vacate the judgment of sentence and remand to the trial court for a new sentencing hearing with the above instructions. Finally, because we vacate the judgment of sentence, Wallick's final claim, which challenges the trial court's exercise of discretion in imposing consecutive sentences on Wallick's robbery and conspiracy convictions, is moot.
Judgment of sentence vacated. Case remanded with instructions.