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. ...