from the Judgment of Sentence September 30, 2015 In the Court
of Common Pleas of Allegheny County Criminal Division at
BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.
2007, Appellant, Devon Knox, then 17 years old, and his twin
brother, Jovon, attempted to carjack Jehru Donaldson.
Donaldson drove away from the attempt, but one of the
brothers fatally shot Donaldson before the two fled the
scene. A jury ultimately convicted Devon of second-degree
murder, and he was sentenced to life imprisonment without
possibility of parole. In 2012, this Court vacated the
sentence pursuant to Miller v. Alabama, 132 S.Ct.
2455 (2012), which held that sentencing a juvenile to life
without parole constituted cruel and unusual punishment and
was therefore unconstitutional. The trial court subsequently
sentenced Devon to a term of imprisonment of 35 years to
appeal from his judgment of sentence, Devon argues that prior
appellate counsel was ineffective for failing to challenge
the sufficiency of the evidence to support his conviction for
second-degree murder. He also contends that the trial
court's sentence was an abuse of its discretionary
powers. We conclude that Devon has failed to establish that
his claim of ineffectiveness of prior appellate counsel is
entitled to unitary review on direct appeal. Furthermore, we
cannot conclude that the trial court abused its discretion in
imposing sentence. We therefore affirm.
first issue on appeal, Devon asserts that the evidence at
trial was insufficient to sustain his verdict for
second-degree murder. While we conclude that we cannot reach
this issue on direct appeal, a brief review of the standards
involved in addressing this issue and the evidence presented
by the Commonwealth at trial are necessary to understand
standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and
all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super.
2003). "The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence."
Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super.
2007) (citation omitted).
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence."
Id. (citation omitted). Any doubt raised as to the
accused's guilt is to be resolved by the fact-finder.
See id. "As an appellate court, we do not
assess credibility nor do we assign weight to any of the
testimony of record." Commonwealth v. Kinney,
863 A.2d 581, 584 (Pa. Super. 2004) (citation omitted).
Therefore, we will not disturb the verdict "unless the
evidence is so weak and inconclusive that as a matter of law
no probability of fact may be drawn from the combined
circumstances." Bruce, 916 A.2d at 661
trial, the Commonwealth presented testimony from two
eyewitnesses to the attempted carjacking. Two juvenile
witnesses identified the twin brothers as the carjackers. The
witnesses' testimony on which brother fired the fatal
shots, however, was inconsistent. The younger witness first
testified that Jovon was the shooter. See N.T., Jury
Trial, 6/3-4/08, at 154-156. This identification was based
off his perception that Jovon had a lighter complexion than
his brother. See id. However, he conceded that he
had previously identified Devon as the shooter, and that
"it [was] real hard to tell the difference between"
the twins. Id., at 180-181.
older eyewitness was unable to differentiate between the
twins at trial. See id., at 298-299. This witness
also believed that the lighter-skinned twin was the shooter.
See id., at 300. However, he identified Devon as the
lighter-skinned twin. See id.
closing arguments, the prosecutor noted that the eyewitnesses
had presented conflicting testimony as to which one of the
twins was the shooter. See id., at 427-428. He
argued, however, that the issue was only relevant to the
charge of first-degree murder. See id., at 428. He
told the jury that the identity of the shooter was irrelevant
to the charge of second-degree murder, so long as the jury
believed that both brothers were engaged in the act of
robbing Donaldson. See id., at 436.
appeal, Devon concedes that, if the jury had convicted him of
being the shooter, the evidence at trial was sufficient to
sustain his conviction. He contends, however, that the
evidence was insufficient to establish his conviction for
second-degree murder according to the following chain of
logic. Devon contends that, given the lack of a specific jury
finding on the issue of the identity of the shooter, we
cannot assume that he was the shooter. If he was not the
shooter, Devon argues that he could only be convicted of
second-degree murder if the jury found that Jovon's
action in bringing the gun and shooting Donaldson were
natural and foreseeable consequences of the twins' plan
to carjack Donaldson. He believes that they were not.
Devon acknowledges that this issue has been waived for
purposes of this direct appeal from re-sentencing.
See, e.g., Commonwealth v.
Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002). He thus
argues that his original appellate counsel, who secured the
vacation of his original sentence on direct appeal, was
ineffective for failing to raise this issue in the prior
appeal. Devon further acknowledges that the issue of
appellate counsel's ineffectiveness raises new issues
regarding our ability to entertain the issue on direct
claims of ineffectiveness of counsel are not ripe until
collateral review. See Commonwealth v. Holmes, 79
A.3d 562, 576 (Pa. 2013). However, in extraordinary cases
where the trial court determines that the claim of
ineffectiveness is "both meritorious and apparent from
the record, " it may ...