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Commonwealth v. Knox

Superior Court of Pennsylvania

June 5, 2017

DEVON KNOX Appellant

         Appeal from the Judgment of Sentence September 30, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010088-2007

          BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E. [*]


          PANELLA, J.

         In 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 life.

         In this 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.

         In his 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 Devon's claim.

         Our 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).

         "[T]he 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 (citation omitted).

         At 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.

         The 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.

         During 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.

         On 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.

         However, 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 appeal.

         Generally, 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 ...

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