The opinion
J-S63037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JEFFRY MCBRIDE
Appellant No. 2187 EDA 2015
Appeal from the PCRA Order June 26, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0013114-2007
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 25, 2017
Appellant, Jeffry McBride, appeals from the order entered in the
Philadelphia County Court of Common Pleas denying his first petition filed
pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant contends
trial counsel was ineffective and that his mandatory sentence of life without
parole (“LWOP”) is unconstitutional under Miller v. Alabama, 132 S. Ct.
2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We
affirm in part, reverse in part, vacate Appellant’s judgment of sentence, and
remand for resentencing.
In its opinion, the PCRA court summarizes the relevant facts of this
case as follows:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S §§ 9541-9546.
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On April 21, 2007, approximately twenty (20) to fifty
(50) people were in the Kenderton Elementary playground.
Demond Brown (decedent/victim, also identified on the
record as “Demond”) had recently finished a game of
basketball and was standing on the sideline. The
decedent’s cousin, Anthony Harris (also identified on the
record as “Tony”), and best friend, Hassan Durant, were
standing on the basketball court.
Armel Baxter and [Appellant] were in the backseat of
their friend Rachel Marcelis’ car, driving to their friend
Daryl Mack’s (also identified on the record as “Mack”)
aunt’s house. Either, Baxter or [Appellant] said they saw
someone on the playground and told Rachel Marcelis to go
back so they could be sure. Rachel Marcelis drove around
the block, and Baxter and [Appellant] exited the car.
Anthony Harris and Hassan Durant saw Baxter and
[Appellant] enter the playground with ‘hoodies’ on. People
on the playground noticed Baxter and [Appellant] because
both men were wearing hoodies on a very hot day. The
decedent turned around, noticed Baxter and [Appellant],
and began to run. Baxter and [Appellant] began shooting,
and continued to shoot as they walked together side by
side. The decedent ran in a “zigzag” pattern towards the
15th Street exit. The decedent stumbled out of the
playground and fell in the middle of the street.
Baxter and [Appellant] ran out of the playground, and
headed east on Ontario Street, then south on 15th Street.
Rachel Marcelis saw Baxter and [Appellant] running in her
direction, and let them back in her car. While in the car,
Rachel Marcelis heard Baxter and [Appellant] talking about
how [Appellant’s] gun did not work and he could “not get
any rounds off”. When they arrived at Daryl Mack’s aunt’s
house, Rachel Marcelis asked [Appellant] “if that was the
person who shot De-Nyce.” [Appellant] answered “Yes.”
After they left the house, Rachel Marcelis, Baxter and
[Appellant] drove to Wilkes-Barre for the weekend, but
only Rachel Marcelis returned the following Monday.
An arrest warrant was issued for both Baxter and
[Appellant] on May 4, 2007. [Appellant] was arrested in
Wilkes-Barre on May 7, 2007, after police were informed of
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his outstanding warrant. Baxter was found at a motel in
Wilkes-Barre on July 10, 2007 . . . .
PCRA Ct. Op., 10/21/15, at 2-3.
A jury convicted Appellant on February 5, 2009, of first-degree
murder2, criminal conspiracy3, and possessing an instrument of crime4
(“PIC”). That same day, the court sentenced Appellant to LWOP for murder
and concurrent sentences of ten to twenty years’ imprisonment and one to
two years’ imprisonment for conspiracy and PIC, respectively. This Court
affirmed Appellant’s judgment of sentence on March 22, 2010, and our
Supreme Court denied allowance of appeal on September 16, 2010. See
Commonwealth v. McBride, 440 EDA 2009 (Pa. Super. March 22, 2010),
appeal denied, 163 EAL 2010 (Pa. Sept. 16, 2010).
On April 14, 2011, Appellant timely filed his first PCRA petition pro se.
The PCRA court appointed counsel on December 19, 2011. PCRA counsel
subsequently filed several amended petitions, which raised Appellant’s
claims of trial counsel’s ineffectiveness and the constitutionality of his LWOP
sentence pursuant to Miller. The PCRA court dismissed without a hearing
Appellant’s claims regarding Miller and trial counsel’s failure to call several
character witnesses at trial. However, the PCRA court ultimately held an
2
18 Pa.C.S. § 2502(a).
3
18 Pa.C.S. § 903(a)(1).
4
18 Pa.C.S. § 907(a).
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evidentiary hearing on Appellant’s claims regarding trial counsel’s failure to
call several exculpatory witnesses at trial and to cross-examine Rachel
Marcelis on her immunity agreement. The PCRA court denied Appellant’s
petition on June 26, 2015. Appellant timely filed a notice of appeal on July
9, 2015, and complied with the court’s order to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
I. The PCRA Court erred for failing to grant PCRA relief
because trial counsel was ineffective for failing to
investigate, interview, and call Darryl Mack, Stephan
Studivant, Zan’ea Jones, Ikenia Harris and Deborah
McBride, who would be exculpatory eyewitnesses at trial.
II. The PCRA Court erred for failing to grant PCRA relief
because trial counsel was ineffective for failing to
investigate, interview, and call Kyle Carter, Derrick
McMillan, Gregory Blackmon, Shawn Lowry, Theresa
Brown, Tyrone Lewis, Malik Wooden and McCoy Matthews
and the PCRA judge failed to grant an evidentiary hearing
for these witnesses.
III. The PCRA Court erred for failing to grant PCRA relief
because trial counsel was ineffective because he received
the Commonwealth’s Petition for Immunity and the Order
for Immunity and failed to cross-examine Rachel Marcelis
concerning this favorable treatment by the
Commonwealth.
IV. The PCRA Court erred for failing to grant PCRA relief
because Appellant’s sentence of mandatory [LWOP] is
“cruel punishment” under Article 1, §§ 1, 9, and 13 of the
Pennsylvania Constitution and “cruel and unusual
punishment” under the Eighth and Fourteenth
Amendments to the U.S. Constitution.
V. The PCRA Court erred for failing to grant PCRA relief
because Appellant’s sentence of mandatory sentence of
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[LWOP] is unconstitutional under both Article 1, §§ 1, 9,
and 13 of the Pennsylvania Constitution and under the
Eighth and Fourteenth Amendments to the U.S.
Constitution because two classes of prisoners sentenced to
mandatory [LWOP] are treated differently.
VI. The Pennsylvania Code therefore does not establish a
constitutional sentence for first degree murder committed
by a juvenile. It would violate [A]ppellant’s rights under
the ex post facto clause to inflict “punishments, where the
party was not, by law, liable to any punishment” or to
inflict “greater punishment, than the law annexed to the
offense.[”] Stogner v. California, 539 U.S. 607, 612
(2003).
VII. The PCRA Court erred for failing to grant PCRA relief
because Miller v. Alabama, 132 S. Ct 2455 (2012),
applies retroactively to . . . [A]ppellant who has exhausted
his appeal rights and is proceeding under the [PCRA]
because: (1) Miller’s companion case, Jackson v. Hobbs,
132 S. Ct. 548 (2011) was decided on collateral review
and (2) cases from both strands of precedent relied upon
by the Court in Miller have been applied retroactively.
Appellant’s Brief at 3-4.
We address Appellant’s issues regarding trial counsel’s ineffectiveness
together. Appellant argues trial counsel was ineffective for failing to
investigate, interview, and call several character witnesses and exculpatory
witnesses at trial. Specifically, Appellant claims he submitted to trial counsel
a list of several eyewitnesses who were available to testify that Appellant
was not involved in decedent Brown’s shooting. Appellant alleges trial
counsel’s failure to call these witnesses prejudiced Appellant and denied him
a fair trial. Moreover, Appellant contends trial counsel failed to call
witnesses who were willing to testify to Appellant’s reputation for
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peacefulness. Appellant further claims the PCRA court erred in failing to
conduct an evidentiary hearing on Appellant’s claim regarding these
character witnesses. Additionally, Appellant argues trial counsel was
ineffective for failing to cross-examine Rachel Marcelis regarding her
immunity. Appellant maintains Rachel Marcelis received favorable treatment
from the Commonwealth in exchange for her testimony against Appellant.
Appellant concludes he is entitled to a new trial. We disagree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011). This Court
grants great deference to the findings of the PCRA court if the record
contains any support for those findings. Commonwealth v. Boyd, 923
A.2d 513 (Pa. Super. 2007). We give no such deference, however, to the
court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194
(Pa. Super. 2012). Traditionally, credibility issues are resolved by the trier
of fact who had the opportunity to observe the witnesses’ demeanor.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998), cert. denied,
120 S. Ct. 41 (1999). Where the record supports the PCRA court’s
credibility resolutions, they are binding on this Court. Id.
Nevertheless, “a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision dismissing a
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petition without a hearing for an abuse of discretion.” Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). Further,
when the PCRA court denies relief without an evidentiary hearing, this Court
must examine each of the issues raised in light of the record to determine
whether the PCRA court erred in concluding there were no genuine issues of
material fact. Id. (citation omitted).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) [a]ppellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation
marks and citations omitted).
“In order to prevail on a claim of ineffectiveness for failing to call a
witness, a defendant must prove, in addition to meeting the three
[ineffectiveness] requirements, that: (1) the witness existed; (2) the witness
was available to testify for the defense; (3) counsel knew or should have
known of the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the witness’s testimony was so
prejudicial as to have denied him a fair trial.” Commonwealth v. Walls,
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993 A.2d 289, 302 (Pa. Super. 2010) (quoting Commonwealth v. Wright,
961 A.2d 119, 155 (Pa. 2008)).
Instantly, the PCRA court addressed Appellant’s ineffectiveness claims
as follows:
1. Failing to Call Darryl Mack, Stephan Studivant,
Zan’ea Jones, Ikenia Harris, and Deborah McBride
[Appellant] first asserts that trial counsel was
ineffective for failing to “investigate, interview and call”
Darryl Mack, Stephan Studivant, Zan’ea Jones, Ikenia
Harris, and Deborah McBride as exculpatory witnesses at
trial. This claim is without merit. . . . Here, the evidence
presented at the hearing clearly established that trial
counsel, Michael Wallace, was not ineffective as he had a
reasonable basis for not calling the above witnesses to
testify on [Appellant’s] behalf.
Regarding witness Darryl Mack, [Appellant] alleged that
Mack would have testified at trial that he was present with
Rachel Marcelis at the time of the shooting, that Mack was
driving―not Marcelis, and that Marcelis was heavily under
the influence of drugs. At the PCRA hearing, Mr. Wallace
testified that, after questioning Mack, he determined that
Mack’s testimony would not be helpful at trial. Mr. Wallace
also testified that he had information that what Mack was
saying was not truthful, so that his testimony at trial would
be false. Finally, Mr. Wallace testified that he consulted
with [Appellant] regarding Mack’s testimony and
[Appellant] agreed to not call Mack at trial. The [PCRA
c]ourt found Mr. Wallace’s testimony to be credible and
that Mr. Wallace’s belief that Mack was not helpful and
would lie on the stand was a reasonable basis for not
calling Mack at trial. Because this finding is supported by
the record, [Appellant] cannot show that [trial] counsel’s
actions lacked a reasonable basis. Therefore, the [PCRA
c]ourt did not err in dismissing [Appellant’s] claim of [trial]
counsel[’s] ineffectiveness for failing to call Mack at trial.
Regarding witness Stephan [Studivant], [Appellant]
alleged that [Studivant] was present at the scene of the
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shooting, that he could not see the shooters[’] faces as
they were concealed by hoodies, but that he heard
Anthony Harris inform police that Malik Ware was the
shooter. Mr. Wallace testified at the PCRA hearing that
[Studivant] told Wallace’s investigator that he was not
even at the scene of the shooting, and only later claimed
to have been a witness. The [PCRA c]ourt found Mr.
Wallace’s testimony to be credible and that not presenting
fabricated testimony was a reasonable basis for not calling
[Studivant] to testify at trial. As [Appellant] cannot show
that [trial] counsel’s actions lacked a reasonable basis, the
[PCRA c]ourt did not err in dismissing [Appellant’s] claim
of [trial] counsel[’s] ineffectiveness for failing to call
[Studivant] at trial.
Regarding witnesses Zan’ea Jones, Ikenia Harris, and
Deborah McBride, [Appellant] sought to establish through
these witnesses that Rachel Marcelis had animosity
towards [Appellant] stemming from her failed relationship
with [Appellant’s] brother and because [Appellant] took
advantage of her. [Appellant] alleged that this evidence
would have demonstrated that Marcelis was biased against
[Appellant] and therefore incredible. However, at the
PCRA hearing, Mr. Wallace testified that he believed that
none of these witnesses would have supported an
argument that Marcelis was biased against [Appellant].
Jones, Harris, and McBride were all family members of
[Appellant]. Wallace testified that all three of these
witnesses were close with Marcelis, that Marcelis ate with
them, that Marcelis stayed overnight with them, and that
all of them partied together as recently as the very night
before the shooting. Therefore, it was Wallace’s view that
these witnesses would have established a close
relationship among Marcelis, [Appellant] and [Appellant’s]
family, rather than any bad feelings that would have
caused Marcelis to be biased. As [trial] counsel had a
reasonable basis for not calling the above three women,
the [PCRA c]ourt did not err in dismissing [Appellant’s]
claim of [trial] counsel[’s] ineffectiveness.
2. Failing to Call Kyle Carter, Derrick McMillan, Gregory
Blackmon, Shawn Lowry, Theresa Brown, Tyrone
Lewis, Malik Wooden, and McCoy Matthews
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[Appellant] next asserts that trial counsel was
ineffective for failing to investigate, interview, and call Kyle
Carter, Derrick McMillan, Gregory Blackmon, Shawn Lowry,
Theresa Brown, [Tyrone] Lewis, Malik Wooden, and McCoy
Matthews at trial and that the [PCRA c]ourt erred in failing
to grant an evidentiary hearing on these witnesses. This
claim is without merit.
Regarding Kyle Carter, [Appellant] alleged that Carter
would have testified that he was present at the shooting,
and that he heard “Tone” (Anthony Harris) say that Malik
Ware, not [Appellant], shot [decedent] Brown. However,
the record establishes that, while Carter was subpoenaed
to appear at trial, Carter was not present in court when he
would have been called to testify. While Wallace
attempted to request a continuance to attempt to compel
Carter to appear, the trial judge would not agree to a
continuance for that purpose. The trial judge’s decision to
refuse the continuance request was upheld by the Superior
Court on [Appellant’s] direct appeal. As Carter failed to
appear in court, despite having been properly subpoenaed,
and since the trial court refused to continue the case to
allow further efforts to secure his appearance, Carter was
unavailable to testify on [Appellant’s] behalf. Therefore,
[Appellant’s] claim of [trial] counsel’s ineffectiveness for
failing to call Carter at trial is without arguable merit.
Accordingly, the [PCRA c]ourt did not err in denying
[Appellant’s] claim without an evidentiary hearing.
Regarding witness Derrick McMillan, [Appellant] alleged
that McMillan would testify that [Appellant] “did not have a
reputation for fighting or shooting.” At trial, counsel
stipulated that five different family members would testify
at trial that [Appellant’s] reputation “for being peaceful
and nonviolent [was] excellent.” Because McMillan’s
testimony regarding [Appellant’s] character would have
been cumulative, merely repeating the stipulated
testimony of five other character witnesses, [trial] counsel
cannot be ineffective for not calling him as a witness.
Therefore, the [PCRA c]ourt did not err in failing to grant
an evidentiary hearing on this claim.
Regarding Gregory Blackmon, [Appellant] alleged that
Blackmon would have testified that [decedent] Brown was
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shot by individuals who were taller and slimmer than
[Appellant]. As with witness Kyle Carter, . . . Blackmon
was subpoenaed for trial but failed to appear, and the trial
judge refused to continue the case to allow further efforts
to secure his appearance. For the reasons stated above
regarding Carter, [Appellant’s] claim regarding witness
Blackmon was properly rejected without an evidentiary
hearing.
Regarding Shawn Lowry, [Appellant] alleged that Lowry
would testify that he “had knowledge of who was present
on the playground when the shooting took place.”
However, [Appellant] did not assert anywhere in his
Amended Petition how this testimony would have been
relevant or exculpatory. Indeed, [Lowry’s] statement to
police . . . does not provide any reason to believe that
[Lowry] saw the actual shooting or could testify that
[Appellant] did not shoot [decedent] Brown. Moreover,
the record demonstrates that both trial counsel and
counsel for co-defendant Baxter attempted to locate
[Lowry], but that these attempts were unsuccessful and
[Lowry] never appeared at trial. Accordingly, as
[Appellant] failed to aver the existence of evidence that
could establish that he was prejudiced by the lack of
[Lowry’s] testimony, and since the record demonstrates
that [Lowry] was unavailable, [trial] counsel was not
ineffective for failing to call him at trial.
Regarding Theresa Brown, [Appellant] alleged that
[Theresa] Brown would have testified that she saw “two
males wearing light colored hoodies and the ‘hoodies’ were
up.” As with [Lowry], . . . [Appellant] does not allege that
this testimony would, in any way, exculpate [Appellant] or
provide any additional, relevant testimony. Moreover,
[Appellant] cannot demonstrate that he was prejudiced by
the lack of this testimony, since both Hassan Durant and
Anthony Harris both testified that the shooters were
wearing hoodies, with the hoods up, but that they could
see enough of [Appellant’s] face to identify him as a
shooter. Harris additionally testified that he saw
[Appellant’s] face before [Appellant] raised the hood. As
[Appellant] could not have been prejudiced by the lack of
[Theresa] Brown’s testimony, [Appellant] cannot establish
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that counsel was ineffective for failing to call [her] to
testify at trial.
Regarding Tyrone Lewis, [Appellant] alleged that Lewis
“had knowledge of who was present on the playground
when the shooting took place.” As with [Lowry], . . .
[Appellant] does not allege that this testimony would, in
any way, exculpate [Appellant] or provide any additional,
relevant testimony. Further, the record indicates that both
trial counsel and counsel for co-defendant Baxter
attempted to locate Lewis, but that these attempts were
unsuccessful and Lewis never appeared at trial.
Accordingly, as [Appellant] failed to aver the existence of
evidence that could establish that he was prejudiced by the
lack of [Lowry’s] testimony, and since the record
demonstrates that [Lowry] was unavailable, counsel was
not ineffective for failing to call him at trial.
Regarding Malik Wooden, [Appellant] alleged that
Wooden would have testified that one of the two shooters
“had a dark complexion and this was not consistent with
[Appellant] or his co-defendant Armel Baxter.” [Appellant]
fails to demonstrate how this additional testimony would
have exculpated [him]. Even assuming arguendo that
[Appellant’s] complexion could not properly be described
as “dark,” Wooden did not describe the complexion of both
shooters. Moreover, . . . [Appellant] was identified by two
individuals, one of whom testified that he saw [Appellant]
before [he] covered his face with his hoodie. Further,
[Appellant] failed to allege anywhere that Wooden was
available to testify on his behalf. As [Appellant] was not
prejudiced by the lack of Wooden’s testimony, and as
there is no reason to believe that Wooden was available to
testify at trial, [trial] counsel was not ineffective for failing
to call Wooden as a witness.
Regarding McCoy Matthews, [Appellant] asserts that
Matthews “had knowledge of who was present on the
playground when the shooting took place.” For the
reasons set forth above for witnesses Lowry and Lewis,
[Appellant] fails to establish how Matthews[’] testimony
would have been relevant or exculpatory at trial.
[Matthews’] statement to police . . . does not provide any
reason to believe that Matthews saw the actual shooting or
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could testify that [Appellant] did not shoot [decedent]
Brown. Further, [Appellant] never alleges that Matthews
was available to testify on his behalf. As [Appellant] was
not prejudiced by the lack of Matthews’ testimony, and as
there is no reason to believe that Matthews was available
to testify at trial, [trial] counsel was not ineffective for
failing to call Matthews as a witness.
3. Failing to Cross-Examine Rachel Marcelis Regarding
Immunity
[Appellant] next asserts that trial counsel was
ineffective for failing to cross-examine Rachel Marcelis
concerning the Commonwealth’s Petition for Immunity and
the Order for Immunity which counsel received prior to
trial. This claim is without merit.
At trial, defense counsel conducted an extensive cross-
examination of Marcelis concerning her involvement in the
playground shooting. However, Mr. Wallace did not
question Marcelis concerning the immunity granted to her
by the Commonwealth. At the PCRA hearing, Mr. Wallace
testified that he was fully aware of the immunity, but
declined to question [Marcelis] about it since he believed it
would hurt [Appellant’s] case. The [PCRA c]ourt found Mr.
Wallace’s testimony to be credible. Under the
Commonwealth’s theory, Marcelis drove [Appellant] to and
from the murder, and therefore could have been charged
as an accomplice. Under the defense theory, Marcelis and
[Appellant] were in a car together, but had nothing to do
with the murder. Accordingly, Marcelis only had criminal
exposure if the Commonwealth’s contentions were correct.
Bringing out the immunity agreement under those
circumstances could tend to support the Commonwealth’s
version of the facts. Under these circumstances, Wallace’s
strategic decision to not bring out the immunity had a
reasonable basis. Therefore, [trial] counsel was not
ineffective for choosing to omit this testimony.
PCRA Ct. Op. at 5-12 (citations and footnotes omitted). We agree with the
PCRA court’s conclusions. Furthermore, regarding the immunity claim,
Appellant has failed to demonstrate he was prejudiced by trial counsel’s
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failure to cross-examine Marcelis on her immunity agreement. See Perry,
959 A.2d at 936. At trial, Hassan Durant and Anthony Harris both testified
to seeing Appellant and co-defendant shoot decedent Brown. See N.T. Trial,
1/29/09, at 76-77; N.T. Trial, 1/30/09, at 4-6. Thus, Appellant has not
proven there is a reasonable probability the outcome of his trial would have
been different but for trial counsel’s alleged ineffectiveness. See Perry, 959
A.2d at 936. Accordingly, Appellant’s claims of trial counsel’s ineffectiveness
merit no relief, and we affirm the PCRA court’s dismissal of these claims.
Appellant’s remaining issues challenge his LWOP sentence; therefore,
we will address them together. Appellant argues his mandatory sentence of
LWOP constitutes “cruel and unusual punishment” under the Pennsylvania
and United States Constitutions because he was a juvenile when the crimes
were committed. Appellant contends he was seventeen-years-old at the
time of the offense and, therefore, his mandatory LWOP sentence is
unconstitutional pursuant to Miller and Montgomery. Appellant concludes
he is entitled to resentencing under Miller and Montgomery. We agree.
On January 25, 2016, while the instant appeal was pending,5 the
United States Supreme Court issued its decision in Montgomery and held,
“Miller announced a substantive rule of constitutional law. Like other
substantive rules, Miller is retroactive[.]” Montgomery, 136 S. Ct. at 734.
5
Appellant filed his pro se PCRA petition on April 14, 2011, prior to the
United States Supreme Court’s decision in Miller on June 25, 2012.
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Thereafter, this Court issued its decision in Commonwealth v. Secreti, 134
A.3d 77 (Pa. Super. 2016) and held the decision in Montgomery renders
Miller retroactive “effective as of the date of the Miller decision.” Secreti,
134 A.3d at 82. Therefore, pursuant to the decisions in Miller,
Montgomery, and Secreti, we reverse the PCRA court’s order denying
relief on this claim, vacate Appellant’s judgment of sentence, and remand for
resentencing.
Order affirmed in part and reversed in part. Judgment of sentence
vacated. Remand for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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