from the Judgment of Sentence March 13, 2015 In the Court of
Common Pleas of Philadelphia County Criminal Division at
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.
Robert Shabazz-Davis appeals the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County on March
13, 2015, at which time he was sentenced to life imprisonment
without the possibility of parole along with a consecutive
term of three and one half (3½) years to seven years
in prison following his convictions of first-degree murder
and firearms not to be carried without a
license. Appellant was a juvenile at the time of
the murder, bringing his case within the purview of
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012), and Commonwealth v. Batts, 620
Pa. 115, 66 A.3d 286 (2013)("Batts II")
(invalidating mandatory sentences of life without the
possibility of parole for juvenile offenders and indicating
that appellate remedy for the unconstitutional imposition of
a mandatory life-without-parole sentence upon a juvenile is a
remand for resentencing at which the trial court must
consider the sentencing factors set forth in
Miller). Following a careful review, we affirm.
trial court aptly set forth the facts herein as follows:
On May 28, 2012, at approximately 2:13 p.m., police officers
from the 22nd District responded to a radio call
of a shooting at 1732 Ridge Avenue. (N.T. 10/24/14 p. 89).
Upon arrival officers found decedent Antwan Pack lying in a
pool of blood on the floor inside the Sunshine Laundromat.
(N.T., 10/24/14 pp. 89-90). Police Officer Joseph Kocher
observed that decedent was in critical condition with
multiple gunshot wounds to the back. (N.T., 10/24/14 p. 90).
Eyewitness Jeffrey Noble helped police officers place Mr.
Pack into a police wagon. (N.T., 10/24/14 p. 61). Mr. Noble
and Officer Kocher rode in the back of the wagon with
decedent as he was transported to Hahnemann Hospital. (N.T.,
10/24/14 p. 91). Mr. Noble testified that en route to the
hospital, Mr. Pack stated someone named "'Rob'
from Highland" had shot him. (N.T., 10/24/14 pp. 68-69.
Officer Kocher also testified that on the way to the
hospital, Mr. Pack identified the male that shot him as
"Rob." (N.T., 10/24/14 p. 92). Mr. Pack was
admitted to Hahnemann Hospital and was taken to surgery, at
around 3:00 p.m., in an attempt to save his life, but he was
pronounced dead at 7:39 p.m. (N.T., 10/27/14 p. 100). The
autopsy report showed decedent had been shot twice in the
back and suffered devastating injuries including fractures to
his vertebrae, which rendered him paralyzed, and lacerations
of his liver, left lung, and right lung, which prevented him
from breathing and ultimately caused his death. (N.T.,
10/27/14 pp. 99-107). Six fired cartridge casings and one
projectile were recovered from the scene of the crime. (N.T.,
10/24/14 p. 53).
Eyewitnesses Antwyne Askew and Marcus Pough testified at
trial about the events that took place the day decedent was
shot and killed. On June 16, 2012, Mr. Askew gave an
interview to homicide detectives wherein he stated that while
standing on the corner of Vineyard Street and Ridge Avenue,
on May 28, 2012, he observed a male on a bicycle brandish a
weapon. (N.Y., 10/27/14 pp. 36-38). Seconds later, he heard
gunshots. (N.T., 10/27/14 pp. 36-37). Looking in the
direction of the gunshots he observed the male on the bicycle
known to him as "Rob" shooting at decedent. (N.T.,
10/27/14 pp. 37-40). Mr. Askew identified "Rob" as
[Appellant] Robert Shabazz-Davis from a photographic array.
(N.T., 10/27/14 p. 43). Further, in his interview, Mr. Askew
stated that [Appellant] and decedent had previously argued
with each other. (N.T., 10/27/14 pp. 44-45).1 Mr.
Pough was interviewed on June 27, 2012, and he stated that on
the day of the shooting, he was walking down Ridge Avenue
towards the laundromat with his niece when he observed a male
firing a gun into the laundromat. (N.T., 10/24/14 p. 129).
Mr. Pough stated further that he saw the male place the gun
in his waistband and ride off on a bicycle towards him.
(Id.) Mr. Pough walked past the laundromat and
observed decedent on the floor inside the laundromat
suffering from gunshot wounds and screaming for help.
(Id.) Later, Mr. Pough was shown a photographic
array and identified [Appellant] as the male he saw firing a
gun into the laundromat. (N.T., 10/24/14 pp.
By June 30, 2012 a number of unsuccessful attempts had been
made to locate [Appellant] on an arrest warrant charging him
with the murder of decedent and various weapons offenses.
(N.T., 10/27/14 p. 116). Extensive efforts to apprehend
[Appellant] continued without immediate success. (N.T.,
10/27/14 pp. 117-124). On January 28, 2013, [Appellant's]
attorney notified authorities that [Appellant] wanted to
surrender. (N.T., 10/27/14 p. 124). On that same day,
[Appellant] was finally arrested. (Id.)
On July 13, 2012, Daquan Johnson was arrested after fleeing
police. (N.T., 10/27/14 pp. 86-91). He was found to be in
possession of the firearm used to kill Antwan Pack.
Id. Officer Michael Livewell testified that,
according to social media websites, Mr. Johnson identified
himself as a member of Highland and was one of
[Appellant's] associates. (N.T., 10/27/14 pp. 13-15).
1At trial, Mr. Askew denied that he in fact made
such statements and identified the shooter. (N.T., 10/27/14
p. 37-43). However, Detective Jacobs, who took Mr.
Askew's statement, testified to his statements and
identification. (N.T., 10/27/14 p. 70-76). The jury was given
the opportunity to view the signatures above and below the
photographs on the array and determine Mr. Askew's
credibility regarding his denial.
2Mr. Pough denied making those statements and
identifying the shooter from the photo array at trial. (N.T.,
10/24/14 pp. 141-142). However, Detective Schmidt, who took
Mr. Askew's statement, testified to his statements and
identification. (N.T., 10/24/14 p. 170-183).
Trial Court Opinion, filed 6/28/16, at 1-3.
March 22, 2015, Appellant filed his "Motion for Post
Sentence Relief And/Or Modification or Reconsideration of
Sentence, " and the same was denied by operation of law
pursuant to Pa.R.CrimP. 720(B)(3) on August 6, 2015.
Appellant filed a notice of appeal pro se on August
18, 2015, and upon consideration of defense counsel's
motion to withdraw and a hearing, the trial court entered an
Order on October 2, 2015, granting counsel's motion to
withdraw. Thereafter, on November 6, 2015, counsel was
reappointed to represent Appellant on direct appeal. On June
12, 2016, Appellant filed his Statement of Matters Complained
of on Appeal pursuant to Pa.R.A.P. 1925(b) wherein he raised
ten (10) issues. The trial court filed its Rule 1925(a)
Opinion on June 28, 2016.
brief. Appellant presents the following Statement of the
1. In Miller v. Alabama, the U.S. Supreme Court
outlawed mandatory life without parole for juveniles
("LWOP"), and instructed that the discretionary
imposition of this sentence should be "uncommon"
and reserved for the "rare juvenile offender whose crime
reflects irreparable corruption."
A. Did the Trial Court err when it imposed the sentence of
life without the possibility of parole on Appellant despite
the safeguards set forth by our Supreme Court in Miller
v. Alabama and in contradiction of the safeguards
provided by the United States Constitution and the
B. There is currently no procedural mechanism to ensure that
juvenile LWOP will be "uncommon" in Pennsylvania.
Should this Court exercise its authority under the
Pennsylvania Constitution to promulgate procedural safeguards
including (a) a presumption against juvenile LWOP, (b) a
requirement for competent expert testimony, and (c) a
"beyond a reasonable doubt" standard of proof?
C. In Miller, the U.S. Supreme Court stated that the
basis for its individualized sentencing requirement was
Graham's comparison of juvenile LWOP to the
death penalty. [ ] Appellant received objectively less
procedural due process than an adult facing capital
punishment. Should the Court address the constitutionality of
[ ] Appellant's sentencing proceeding?
D. Did the trial court err in not dismissing the case against
Appellant due to the Commonwealth's blatant violations
under Brady v. Maryland?
2. Did the Trial Court err in not dismissing the case against
Appellant due to the Commonwealth's blatant violations
under Brady v. Maryland?
Brief of Appellant at 4.
outset, we observe that Appellant's introductory comment
and issues B and C are, verbatim, the same questions which
our Pennsylvania Supreme Court agreed to consider in granting
partial allowance of appeal in Commonwealth v. Batts
("Batts III"), 125 A.3d 33 (Pa.Super.
2015), appeal granted in part, 135 A.3d 176 (Pa.
2016). In addition, Appellant's issue A herein is
reflected in the issues the Supreme Court will consider in
Batts III. Notwithstanding, we decline to postpone a
decision in this case pending the Supreme Court's
resolution of the appeal in Batts, III.
Until our Supreme Court holds otherwise, we will employ the
applicable legal principles extant currently, and ...