Com. v. Deans, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRIAN DEANS :
:
Appellant : No. 3082 EDA 2017
Appeal from the PCRA Order August 15, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007584-2007
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 19, 2019
Darrian Deans appeals from the August 15, 2017 order dismissing his
PCRA petition without a hearing. After thorough review, we affirm.
The facts underlying the convictions were summarized by this Court on
direct appeal:
On October 2, 2006, William Hilton and Darnell DeLoatch
were talking on the 1700 block of South 55th Street in
Philadelphia. At approximately 8:30 p.m., two men, both with
handguns, approached the pair. They opened fire, and both Hilton
and DeLoatch were shot multiple times. Both men died from their
wounds. Elissa Carter, who lived right across the street from
where the shootings took place, was later able to identify
[Appellant] as one of the perpetrators. In addition, various
neighbors gave testimony identifying [Appellant] and his co-
defendant, Ronsean Johnson, as perpetrators of the crimes.
Commonwealth v. Deans, 981 A.2d 915 (Pa.Super. 2009) (unpublished
memorandum at 1). The record reveals further that a young woman, J.W.,
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testified that Appellant admitted to her that he and “his bull” 1 killed “Keem’s
cousins.”2 N.T. Trial (Jury), 2/20/08, at 80.
In February 2008, Appellant and Johnson were tried together and the
jury found them both guilty of two counts of first-degree murder and one
count of criminal conspiracy. The court sentenced Appellant to two
consecutive life sentences on the murder convictions and a consecutive term
of ten to twenty years of imprisonment on the conspiracy charge. This Court
affirmed judgment of sentence on direct appeal. Deans, supra. The
Supreme Court denied allowance of appeal. Commonwealth v. Deans, 40
A.3d 120 (Pa. 2012).
Appellant filed this timely pro se PCRA petition on August 21, 2012, and
counsel was appointed. Appellant filed a pro se amended PCRA petition on
May 27, 2015. Thereafter, counsel was permitted to withdraw, and new
counsel was appointed to represent Appellant. Counsel filed a Turner/Finley
no-merit letter on April 10, 2017, and a motion to withdraw. After conducting
its review of the no-merit letter and the certified record, the trial court issued
Pa.R.Crim.P. 907 notice of its intention to dismiss the petition without an
evidentiary hearing. Appellant filed a response, following which the court
dismissed the petition and granted counsel’s motion to withdraw.
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1 The term “bull” was interpreted as “friend.” See N.T. (Motion), 2/13/08,
at 4.
2 We use initials as J.W. was a minor at the time of the events herein.
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Appellant timely appealed and complied with the PCRA court’s order to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
He presents nine issues that we have re-ordered for ease of disposition:
I. Was defense counsel constitutionally ineffective in not
challenging the Commonwealth’s use of [J.W.’s] testimony
as “other crimes evidence[?]”
II. Whether trial counsel was ineffective for failing to oppose
the Commonwealth’s use of [J.W.’s] testimony as
extraneous evidence of another crime, and the
Commonwealth’s use of this extraneous evidence to form
the basis of the affidavit of probable cause to arrest and
seize items from Appellant’s home[?]
III. Was defense counsel constitutionally ineffective in not
moving for severance because of other crimes implications
that tended to prejudice [Appellant] and co[-]defendant[?]
IV. Was defense counsel constitutionally ineffective in not
challenging the admissibility of [D.D.]’s testimony[?]
V. Was defense counsel constitutionally ineffective in failing to
challenge the authenticity of the photos unlawfully seized
from [Appellant’s] house[?]
VI. Was defense counsel constitutionally ineffective in failing to
object and raise on direct appeal issues of prosecutorial
misconduct[?]
VII. Was defense counsel constitutionally ineffective for failing to
call [Appellant’s] alibi witnesses and lying to witnesses and
[Appellant], as to what each one said to the other
constituting a fraud on court[?]
VIII. Is [sic] the affidavits from Hakeem Harris and Latanya
McKoy evidence, when affidavits exonerate [Appellant] from
crime and or exclude evidence from being introduced, and
also prove Atty. Hoof frauded on court[?]
IX. Did PCRA court err in dismissing PCRA petition where
Appellant [should be] considered a child by the
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Commonwealth due to being on juvenile probation until age
of 21[?] At the time of this offense [Appellant] was 20 years
old, and on juvenile probation.
Appellant’s brief at 1-2.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Lane, 81 A.3d 974, 977 (Pa.Super. 2013). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court's legal
conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).
Most of Appellant’s issues on appeal are claims of ineffective assistance
of counsel. In order to prevail on such a claim, a defendant “must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.Super.
2007) (citation omitted). As we recently reiterated in Commonwealth v.
Sandusky, 203 A.3d 1033, 1043-44 (Pa.Super. 2019), in order to prove
ineffectiveness, the petitioner has the burden of establishing all three of the
following prongs: “(1) the underlying claim is of arguable merit; (2) that
counsel had no reasonable strategic basis for his or her action or inaction; and
(3) but for the errors and omissions of counsel, there is a reasonable
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probability that the outcome of the proceedings would have been different.”
Id. “A failure to satisfy any prong of the ineffectiveness test requires rejection
of the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409,
419 (Pa. 2009).
A claim has arguable merit when the factual averments, if true, would
entitle the petitioner to relief. See Commonwealth v. Jones, 876 A.2d 380,
385 (Pa. 2005). This is a legal question. The test for determining whether
counsel had a reasonable basis for his action is an objective one: whether no
competent counsel would have chosen that course or, the alternative not
chosen offered a significantly great likelihood of success. Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa.Super. 2013). In order to establish prejudice,
a petitioner must demonstrate a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. Id. “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. If a petitioner fails to satisfy the prejudice prong, “the
claim may be dismissed on that basis alone and the court need not first
determine whether the first and second prongs have been met.”
Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).
Appellant claims first that trial counsel was ineffective in failing to object
to J.W.’s testimony as “other crimes evidence” inadmissible under Pa.R.E.
404(b). J.W. testified, inter alia, that Appellant pointed a gun at her and asked
her what she knew about the murders, i.e., “people being killed in Southwest
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Philly a month or two before?” N.T. Trial (Jury), 2/20/08, at 80. When she
denied knowledge, he told her that “Keem” owed him money and that he and
“his bull” had murdered Keem’s two cousins. Id.
The Commonwealth points out that trial counsel filed a motion in limine
to exclude the foregoing testimony as impermissible “other crimes” evidence
that improperly showed his propensity to commit criminal acts and that he
acted in accordance therewith. See Pa.R.E. 404(b). Following argument, the
motion was denied. See N.T. (Motion), 2/13/08, at 10. More importantly,
the Commonwealth maintains that although evidence that Appellant pointed
a gun at J.W. was evidence of another crime, it was highly relevant in
establishing that Appellant had access to a gun. Moreover, Appellant’s
statement that he and “his bull” killed two people was not other crimes
evidence, but an admission of guilt of the crimes for which he was on trial.
The record confirms that trial counsel filed a motion in limine based on
Rule 404(b) to exclude this evidence. See N.T. Pre-Trial Motions, 2/13/08, at
3-11. Thus, the factual predicate of Appellant’s ineffectiveness claim fails.
Hence, there is no arguable merit in Appellant’s contention that counsel was
ineffective in this regard, and no relief is due.
Appellant alleges next that counsel was ineffective for failing to
challenge the Commonwealth’s use of J.W.’s information to establish probable
cause to arrest him and search his home. We construe this argument as a
claim that counsel should have moved to suppress the evidence obtained from
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the search of his home based on a lack of probable cause for the search
warrant. Appellant appears to argue that J.W.’s statement was inadmissible
evidence, and therefore, it could not be used by police to support the showing
of probable cause for the search warrant.
J.W. told police that Appellant pointed a gun at her in his home, and
further, he admitted his participation in the killings. There is no requirement
that information constitute admissible evidence in order to serve as basis for
probable cause. See Commonwealth v. Woosnam, 819 A.2d 1198
(Pa.Super. 2003) (holding an affidavit for probable cause can be founded on
hearsay). The affidavit need only contain information sufficient to persuade a
reasonable person that probable cause existed to conduct a search. Id. The
issuing authority views the information in a common sense manner to
determine the fair probability of criminal activity and that contraband or
evidence of a crime will be found in a particular place. Id.
As the PCRA court aptly noted, counsel had no basis to attack the
sufficiency of the affidavit of probable cause based on information gleaned
from J.W.’s statement. Appellant’s incriminating statement that he killed two
people was, in the trial court’s view, “the epitome of facts upon which probable
cause may be established.” PCRA Court Opinion, 11/13/17, at 7.
Furthermore, Appellant does not allege or offer to prove that the affiant,
Detective Charles Boyle, did not have a good faith belief in the truth of that
information. The court found that the affiant “rightly included” J.W.’s
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information in the affidavit, and furthermore, that the statement supported a
finding of probable cause for the search warrant for Appellant’s home.3 We
find no showing of arguable merit to support a claim of counsel ineffectiveness
in this regard, and thus, this claim fails.
Appellant was tried with his co-defendant Ronsean Johnson.4 Appellant
claims that counsel was ineffective in failing to move for severance as their
defenses were antagonistic. In support thereof, he points to the court’s
exclusion of evidence that one of the victims robbed his co-defendant and that
his co-defendant wanted revenge. In addition, he alleges that since J.W.’s
statement linked the two men together, its admission was prejudicial to his
co-defendant.
The Commonwealth counters that severance was not warranted herein
and counsel was not ineffective for failing to request it. Commonwealth’s brief
at 13. According to the Commonwealth, the crimes charged against both
defendants arose out of the same facts, much of the same evidence was
applicable to both, and judicial economy was promoted by eliminating the
duplication of separate proceedings. Furthermore, conspiracy was charged,
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3 The court noted that even if that information had been excluded, “the
information from [J.W.] that defendant committed a rape . . . established
probable cause to search defendant’s residence. N.T. Pre-Trial Motions,
2/13/08, at 16.
4 Ronsean Johnson is also known as Ronsean Jackson and Sean Jackson.
Throughout the trial, he was referred to as Mr. Jackson.
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and generally, conspiring co-defendants should be charged together. The
Commonwealth contends that this was not a situation where the co-
defendants’ defenses were so antagonistic as to be irreconcilable and result in
prejudice if pursued at a joint trial. Commonwealth v. Lambert, 603 A.2d
568, 573 (Pa. 1992).
The PCRA court noted first that joint trials of co-defendants are favored
in Pennsylvania, especially where the crimes charged arise out of the same
facts and the majority of the evidence is admissible against both co-
defendants. PCRA Court Opinion, 11/13/17, at 10-11 (and cases cited
therein). Second, it reasoned that severance should be granted only where
the defenses of each are so antagonistic as to be irreconcilable. Id. at 11
(citing Commonwealth v. Williams, 720 A.2d 679, 685 (Pa. 1998). Our
Supreme Court defined “irreconcilable defenses” in Commonwealth v.
Brown, 925 A.2d 147, 162 (Pa. 2007): “the jury essentially would be forced
to disbelieve the testimony on behalf of one defendant in order to believe the
defense of his co-defendant.” The PCRA court reasoned that the fact that
Appellant’s co-defendant may have had a motive to kill one of the victims did
not establish a defense for Appellant or cause the jury to choose between
conflicting defenses. PCRA Court Opinion, 11/13/17, at 12. In addition, the
court noted that a defendant must demonstrate actual prejudice from the joint
trial, which Appellant did not do. Id. The fact that J.W.’s testimony may have
prejudiced Appellant’s co-defendant did not provide a basis to sever as J.W.’s
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testimony did not provide a defense for co-defendant Johnson or exculpate
him in the shootings. Id. We find no error or abuse of discretion in the PCRA
court’s determination that Appellant failed to demonstrate arguable merit or
prejudice in support of his claim that counsel was ineffective in failing to seek
severance.
Next, Appellant claims his counsel was ineffective for failing to object to
the testimony of a thirteen-year-old eyewitness, D.D., on competency
grounds. D.D. was eleven years old when he witnessed the murders, and he
identified Appellant as the shooter shortly thereafter.
The record reveals that co-defendant Johnson challenged the admission
of D.D.’s testimony on competency grounds, and a hearing was held outside
the presence of the jury. N.T. Trial (Jury), 2/19/08, at 161-68. The trial court
determined that D.D. was competent to testify as he was able to
communicate, understood the difference between a lie and the truth, could
recall the events about which he would testify, understood the duty to tell the
truth, and the roles of the persons involved in the trial. See Commonwealth
v. Delbridge, 855 A.2d 27, 39 (Pa. 2003). Hence, the trial court overruled
co-defendant’s competency objection, and this Court affirmed that ruling in
co-defendant Johnson’s appeal. See Commonwealth v. Johnson, 986 A.2d
1257 (Pa.Super. 2009) (unpublished memorandum).
We find that Appellant has not established any prejudice due to the
failure of his counsel to object on this ground where a similar objection was
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made by co-defendant’s counsel, overruled, and upheld by this Court on
appeal. Appellant has not even suggested how his counsel’s participation
would have changed the outcome of the competency hearing. Thus, Appellant
has failed to establish the arguable merit and prejudice prongs of an
ineffective assistance claim.
Appellant’s next ineffectiveness claim pertains to his counsel’s failure to
object to the admission of a photograph recovered from his home that depicts
Appellant and his co-defendant in a Chinese store located near the scene of
the murders.5 Appellant maintains that his counsel should have objected to
the admission of the photograph based on a lack of authentication. He also
complains that counsel should have objected because the purported
authentication testimony from Detective Charles Boyle, i.e., that he was
familiar with the location seen in the photograph and that Appellant and his
co-defendant were portrayed therein, was offered after the photograph was
admitted.
We note first that both Appellant’s counsel and co-defendant Johnson’s
attorney objected to the admission of the photograph based on a lack of
authentication prior to trial. N.T. (Motion), 2/13/08, at 15-23. Counsel for
co-defendant renewed that objection at trial, and it was overruled. N.T. Trial
____________________________________________
5Although the person identified as co-defendant Johnson is depicted in the
photograph as holding a gun, the gun was redacted from the photograph
before it was displayed to the jury.
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(Jury), 2/20/08, at 110. Appellant has failed to demonstrate how the outcome
would have been different had his counsel renewed the objection at trial.
Regarding the timing of the authentication testimony, the record reveals
that the Commonwealth made a proffer of Detective Boyle’s authentication
testimony prior to the admission of the photograph, and the jury was not
shown the photograph until after the detective testified. The law is well settled
that the trial court has discretion as to the order of presentation of witnesses
and proof. See Commonwealth v. Smallwood, 442 A.2d 222, 224 (Pa.
1982) (“The order of proof is a matter within the realm of the trial court’s
judicial discretion which will not be interfered with in the absence of an abuse
thereof.”). Appellant failed to establish prejudice or arguable merit.
With regard to the photograph, Appellant also argues that it was illegally
seized from his home and that counsel was ineffective in failing to seek its
suppression. He contends that the search was not supported by probable
cause and the photograph was irrelevant. The Commonwealth counters that
probable cause to search Appellant’s home was supplied by J.W.’s statement
that Appellant admitted that he murdered the two men and held her at
gunpoint in his home. Based on that information, they had reason to believe
that search of the home would yield a gun or other contraband or evidence
relevant to the murders.
The PCRA court found no merit in Appellant’s claim that counsel was
ineffective for failing to challenge the search that yielded the photograph. The
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court found that the affidavit of probable cause contained not only J.W.’s
report of Appellant’s incriminating admission to the murders, but that it also
contained information that Appellant had committed a rape, “which by itself
established probable cause to search [Appellant’s] residence.” PCRA Court
Opinion, 11/13/17, at 8 (citing N.T. Trial (Jury), 2/13/08, at 16). Moreover,
the fact that photographs were not listed in the search warrant did not
preclude their seizure. As the PCRA court correctly noted, items other than
those described in a search warrant may be seized “if they have a reasonable
relation to the purpose of the search.” Id. at 9 (citing Commonwealth v.
Gannon, 454 A.2d 561, 565 (Pa.Super. 1982)). The PCRA court found the
photographs to be reasonably related to the purpose of the search as they
depicted Appellant in a location near the double homicide and with his co-
defendant who was holding a gun. Hence, the court found no arguable merit
in Appellant’s claim that his counsel was ineffective for failing to challenge the
seizure of the photographs. We agree with the PCRA court’s analysis and find
no arguable merit in Appellant’s ineffective assistance claim that would entitle
him to relief.
Next, Appellant asserts that trial counsel was ineffective in failing to
object and raise on appeal numerous instances of prosecutorial misconduct.
He claims that counsel was ineffective for not objecting to some of the
improprieties, failing to request a mistrial in other instances, and in
abandoning some of these issues on appeal.
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According to Appellant, ineffectiveness first occurred when counsel
purportedly failed to object, seek a curative instruction, and/or appeal when
the prosecutor argued facts not in evidence during the opening statement.
The prosecutor represented that Appellant, having learned that his co-
defendant had been arrested, accosted J.W. at gunpoint. Defense counsel
objected, but the objection was overruled. The trial court found the argument
proper as J.W. was going to testify, and did testify, that Appellant held J.W.
at gunpoint after learning that his co-defendant had been arrested. Appellant
faults his counsel for failing to assert the trial court’s ruling as error on appeal
and contends that it prejudiced his co-defendant.
The PCRA court found that Appellant was not entitled to relief based on
alleged prejudice to his co-defendant where the comment referred to
Appellant. Moreover, the court noted that J.W. testified that Appellant pointed
a gun at her, and the jury was told that her testimony could only be considered
against Appellant. Finally, Appellant offers no support for his claim that had
counsel appealed, the result would have been different. Thus, he has not
made the requisite showing of prejudice that would entitle him to relief.
In a closely-related argument, Appellant claims that counsel was
deficient in failing to object when the prosecutor stated that Appellant held a
gun to J.W.’s head, when J.W. actually testified that he pointed a gun at her.
The PCRA court found no prejudice from counsel’s failure to object as Appellant
failed to offer any argument that the outcome of the trial would have been
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any different if counsel had successfully objected. Furthermore, the trial court
had cautioned the jury that the arguments of counsel were not evidence. We
agree, and no relief is due on this basis. N.T. Trial (Jury), 2/21/08, at 11-12.
Next, Appellant faults his counsel for failing to seek a mistrial when the
Commonwealth “manipulated” J.W.’s testimony “about the murder” to reflect
that there had actually been two murders. Defense counsel objected, but the
objection was overruled. Appellant alleges ineffectiveness on counsel’s part
because he did not seek a mistrial following Detective Boyle’s testimony that
J.W. provided him with information regarding a double murder when she said
“murder” in the singular. N.T. Trial (Jury), 2/20/08, at 175-76.
The PCRA court found no manipulation of J.W.’s testimony in this regard.
It reasoned that J.W.’s use of the word “murder” was merely a reference to
the incident, not to the number of persons killed. PCRA Court Opinion,
11/13/17, at 16. In her statement to police and her trial testimony, J.W.
spoke of “two murders,” and reported that Appellant said “me and my other
bull (friend) murdered Keem's two cousins[,]” clearly indicating that more
than one person was killed. Id. at 7 (citing N.T. (Motion), 2/13/08 at 3-11;
N.T. Trial (Jury), 2/20/08, at 85, 89-90). We find, as to each of the foregoing
claims, Appellant neglected to make any showing of prejudice, i.e., that a
mistrial would have been granted had it been sought.
Next, Appellant complains that counsel failed to object when the
prosecutor argued that Appellant’s grandmother lived in Southwest
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Philadelphia in close proximity to the Chinese store, which he claims is
factually incorrect. Again, Appellant fails to establish how he was prejudiced,
especially where there was photographic evidence of him at the Chinese store.
In sum, we find no ineffective assistance of counsel with regard to what
Appellant complains was prosecutorial misconduct.
Appellant argues next that the testimony of Mrs. Elissa Carter was
inconsistent and that her testimony of fear and intimidation was outside the
scope of the Commonwealth’s proffer. He argues that the Commonwealth’s
reference to the intimidation coming from one side of the courtroom implied
that Appellant was responsible for intimidating the witness. Appellant’s
counsel objected in closing, to no avail. Appellant faults the trial court for not
providing a cautionary or curative instruction. Appellant’s brief at 37. Since
this alleged error is directed at the trial court, not counsel, it is waived as it
could have been asserted on direct appeal. Commonwealth v. Paddy, 15
A.3d 431, 442 (Pa. 2011) (“An issue has been waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state post-conviction proceeding. 42 Pa.C.S. §
9544(b).”).
Appellant raises a litany of instances where he alleges counsel was
ineffective for failing to object, or seek a mistrial, or appeal. He blames his
counsel for not objecting to Ms. Carter’s statement being hand-recorded by
the police, although he offers no explanation as to how he was prejudiced.
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Appellant alleges that counsel should have challenged the court’s refusal
to declare a mistrial based upon improper surprise when Mr. LeRoy Davis
identified him in court as “the tall guy.” However, the PCRA found no prejudice
as the identification was “equivocal at best.” PCRA Court Opinion, 11/13/17,
at 23. Additionally, the PCRA court found no evidence that the Commonwealth
knew Mr. Davis was going to make the in-court identification before he did so.
Id. Finally, the PCRA court noted that an in-court identification is not per se
improper absent a pre-trial identification. Id. (citing Commonwealth v.
Rush, 562 A.2d 285 (Pa. 1989), and Commonwealth v. Cornish, 370 A.2d
291 (PA. 1977)). We find no error in the PCRA court’s rationale, and no relief
is due.
Appellant also claims that trial counsel was ineffective for failing to call
his alibi witnesses. In a related issue, Appellant alleges that counsel lied to
him and the alibi witnesses about the reasons for not calling them. Neither
claim affords a basis for relief.
In support of this ineffectiveness claim, Appellant offers two affidavits
that he acquired after the fact from Hakeem Harris and Latanya McKoy, which
he maintains establish an alibi defense. The Commonwealth counters that
Appellant expressly waived his right to call witnesses at trial, and furthermore,
that neither of the affidavits established an alibi.
The PCRA court agreed with the Commonwealth that Appellant should
not be heard to complain that counsel was ineffective in failing to call his alibi
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witnesses after Appellant represented to the trial court that he did not ask
counsel to call certain persons as witnesses, counsel had not refused to call
any, and he was satisfied with counsel’s representation. N.T. Trial (Jury),
2/21/08, at 8-9 (citing Commonwealth v. Lawson, 762 A.2d 753 (Pa.Super.
2000)) (holding that one cannot waive the right to call witnesses and then
later claim that the waiver was coerced by counsel). Furthermore, the PCRA
court found that the affidavits did not establish an alibi for Appellant. Ms.
McKoy did not state that Appellant was in a particular location when the crime
was committed that would have rendered it impossible for him to have
committed it; Hakeem merely said he spoke to Appellant by phone. Hakeem
also stated therein that he intentionally absented himself from trial because
he was angry with Appellant and afraid of being arrested.
Our review of the affidavits confirms that they do not furnish alibis for
Appellant or establish that these witnesses were available and willing to testify
on Appellant’s behalf. Hence, Appellant cannot demonstrate that he was
prejudiced by counsel’s failure to call them. As to Appellant’s claim that
counsel lied to him and the witnesses to secure the witnesses’ absence,
Appellant offers no support. The affidavits do not establish any
misrepresentations that counsel purportedly made regarding their attendance
at trial. Thus, this claim lacks arguable merit and a showing of prejudice that
would entitle Appellant to relief.
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Appellant’s final issue is that the PCRA court erred in dismissing his PCRA
petition where he should have been sentenced as a juvenile. He claims that,
although he was twenty years old at the time of the offense, he was on juvenile
probation until the age of twenty-one, and should have been treated as a
juvenile. The Commonwealth directs our attention to Commonwealth v.
Lee, 206 A.3d 1 (Pa.Super. 2019) (en banc), where this Court rejected the
argument that there should be exceptions to the eighteen-year-old ceiling
recognized in Miller v. Alabama, 567 U.S. 460 (2012).
In Lee, the critical issue was whether the appellant could avail herself
of the Miller rationale, even though she was over the age of eighteen at the
time of the offense. She alleged that the “immature brain” theory was equally
applicable to her and rendered her less culpable under Miller. Lee, supra at
5. This Court refused to expand the Miller holding on collateral review to
individuals over the age of eighteen. Thus, the PCRA court correctly held that
Miller did not apply to Appellant, who was twenty years old at the time of the
murders.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/19
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