J-S39023-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

RICHARD GEORGE CUNNINGHAM 

 Appellant No. 1821 WDA 2013 

Appeal from the PCRA Order of November 7, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No.: CP-02-CR-0015297-2006 

BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.*

 

MEMORANDUM BY WECHT, J.: FILED OCTOBER 03, 2014 

 Richard Cunningham (“Cunningham”) appeals the November 7, 2013 

order that denied his petition for relief pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Cunningham’s counsel has filed a 

petition to withdraw as counsel and a Turner/Finley1

 brief. After review, 

we affirm the order and grant counsel’s petition. 

 On direct appeal, this Court summarized the factual and procedural 

history of this case as follows: 

On the evening of February 19, 2005, Kevilin Middleton hosted a 

birthday party for T.C. Lyerly. Toward the end of the party, Mr. 

Middleton made arrangements for exotic dancers to come to his 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 
J-S39023-14 

- 2 - 

residence and perform in exchange for two hundred dollars 

($200). The exotic dancers, Angel Potter and Helen McCorkle, 

arrived at Mr. Middleton’s residence along with Geneva Burrell. 

At this time, Mr. Middleton, Mr. Lyerly, and Chaoe Davis were 

the only people still at the party. Before the dancers’ 

performance, however Mr. Middleton insulted Ms. Potter’s 

appearance and refused to provide payment. Mr. Middleton, Ms. 

Potter, and Ms. Burrell began to argue. The argument escalated, 

and Ms. Potter reached into Mr. Middleton’s pocket and removed 

money. Ms. Burrell advised Ms. Potter to return the money, and 

Ms. Potter eventually complied. Shortly thereafter, Ms. Potter 

and Ms. Burrell telephoned [Cunningham] and his co-defendants 

to come to Mr. Middleton’s home and help secure payment. 

Approximately thirty (30) minutes later, a van arrived at Mr. 

Middleton’s house. [Cunningham], Alfon Brown, Ramone Coto, 

and Eric Surratt exited the van and approached the residence. 

The men carried guns, and [Cunningham] wore a hooded 

sweatshirt and ski mask. Upon their arrival, at least three (3) of 

the men entered Mr. Middleton’s house without permission and 

demanded payment for the dancers. Before Mr. Middleton had 

an opportunity to comply, the men began firing at Mr. Middleton, 

Mr. Lyerly, and Mr. Davis. Mr. Lyerly and Mr. Davis died 

instantly. Mr. Middleton sustained critical injuries from the 

gunshots. 

The Commonwealth charged [Cunningham] with two (2) counts 

of criminal homicide, criminal attempt, burglary, aggravated 

assault, carrying a firearm without a license, and criminal 

conspiracy. On June 18, 2007, [Cunningham] proceeded to a 

bench trial. The court tried [Cunningham] and his co-defendants 

jointly. 

At trial, the Commonwealth presented testimony from Ms. 

McCorkle, Ms. Burrell, and Ms. Potter. Ms. McCorkle testified 

that she saw four (4) men exit a van and walk towards Mr. 

Middleton’s house carrying guns. She identified Mr. Brown, Mr. 

Coto, and Mr. Surratt, but did not recognize the fourth gunman. 

Ms. Burrell, however, positively identified [Cunningham] as the 

fourth man, who entered the house wearing a ski mask and 

carrying a gun. Ms. Potter also testified she heard Ms. Burrell 

direct [Cunningham] to Mr. Lyerly’s location inside the house. 

Further, a latent fingerprint examiner conclusively established 

the fingerprints lifted from the front storm door at Mr. 

Middleton’s residence matched [Cunningham’s] fingerprints. 
J-S39023-14 

- 3 - 

Following numerous continuances, the court scheduled closing 

arguments for February 8, 2008. After the defense rested its 

case, however, [Cunningham’s] counsel became seriously ill and 

died. Consequently, the court appointed replacement counsel to 

represent [Cunningham]. On February 8, 2008, replacement 

counsel appeared before the court and explained that he was 

unprepared to proceed. As a result, the court rescheduled 

[Cunningham’s] closing argument for July 7, 2008, giving 

replacement counsel five (5) months to consult with 

[Cunningham], review the file, and prepare to close for the 

defense. 

On July 7, 2008, replacement counsel delivered closing 

argument. Subsequently, the court found [Cunningham] guilty 

of two (2) counts of second degree murder and one (1) count 

each of burglary and criminal conspiracy.[2] On September 22, 

2008, the court sentenced [Cunningham] to concurrent terms of 

life imprisonment for his second degree murder convictions. The 

court also imposed concurrent terms of thirty (30) to sixty (60) 

months’ imprisonment for his burglary conviction and eighteen 

(18) to thirty-six (36) months’ imprisonment for his conspiracy 

conviction. On October 2, 2008, [Cunningham] timely filed a 

post-sentence motion, which the court denied on December 9, 

2008. [Cunningham] did not pursue a direct appeal with [the 

Superior Court]. 

On April 6, 2009, [Cunningham] timely filed a pro se petition 

pursuant to [the PCRA]. Thereafter, the PCRA court appointed 

counsel. On July 8, 2009, counsel filed an amended PCRA 

petition, requesting reinstatement of [Cunningham’s] appellate 

rights nunc pro tunc. On August 20, 2009, the PCRA court 

granted the requested relief. 

On September 18, 2009 [Cunningham] timely filed his notice of 

appeal. 

Commonwealth v. Cunningham, 1614 WDA 2009, slip op. at 1-4 (Pa. 

Super. July 30, 2010) (footnote omitted). 

____________________________________________ 

2

 18 Pa.C.S.A. §§ 2502(b), 3502(a), and 903(a), respectively. 
J-S39023-14 

- 4 - 

 This Court affirmed Cunningham’s judgment of sentence in part, but 

vacated the thirty to sixty month sentence for burglary. The panel held that 

the sentencing court erred in imposing a separate sentence for burglary 

because that conviction was the predicate felony for the felony murder 

conviction. Id. at 14. Cunningham filed a petition for allowance of appeal 

with the Pennsylvania Supreme Court, but the petition was denied on March 

30, 2011. Commonwealth v. Cunningham, 20 A.3d 484 (Pa. 2011). 

 On December 27, 2011, Cunningham timely filed a pro se PCRA 

petition. Counsel was appointed, and she filed an amended PCRA petition on 

June 11, 2012. On August 21, 2012, Cunningham filed a pro se motion 

seeking to terminate PCRA counsel’s representation. On August 29, 2012, 

Cunningham filed a pro se motion to amend the PCRA petition to add new 

claims. On September 24, 2012, PCRA counsel filed a motion for a Grazier3

hearing to determine whether Cunningham knowingly and voluntarily wished 

to proceed pro se. On October 12, 2012, PCRA counsel filed a supplement 

to the amended PCRA petition, raising three additional claims that 

Cunningham included in his motion to amend. 

 On April 25, 2013, the PCRA court held a hearing on the PCRA petition. 

The PCRA court first asked Cunningham whether he still wished to represent 

himself and he declined. Notes of Testimony (“N.T.”), 4/25/2013, at 2-3. 

____________________________________________ 

3

 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 
J-S39023-14 

- 5 - 

Counsel then presented argument. No testimony was taken. Following the 

hearing, on May 20, 2013, the PCRA court granted Cunningham’s motion to 

appoint a fingerprint expert. On November 6, 2013, PCRA counsel filed a 

“Notice of Status of Defense Expert’s Review of Print Evidence.” In that 

filing, PCRA counsel averred that the copy of the evidence had been 

provided to the defense expert and that “[n]o further argument or 

supplemental matter [would] be submitted by the defense regarding the 

print evidence.” Notice of Status of Defense Expert’s Review of Print 

Evidence, 11/6/2013, at 1. 

 On November 7, 2013, the PCRA court denied Cunningham’s petition. 

On November 15, 2013, Cunningham filed a notice of appeal and concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On December 17, 2013, the trial court filed its Pa.R.A.P. 1925(a) opinion. 

On January 30, 2014, PCRA counsel filed a petition to withdraw as counsel. 

 In the Turner/Finley brief, counsel identifies four potential issues: 

1. Whether [trial counsel] was ineffective for failing to file a 

motion to sever, for purposes of trial, [Cunningham’s] case 

from Co-Defendant Surratt’s case? 

2. Whether [trial counsel] was ineffective by failing to present an 

expert to challenge the reliability of the fingerprint/hand-print 

evidence? 

3. Whether [Cunningham’s] mandatory sentences of life in 

prison without parole, which prohibits the court from 

considering mitigating factors, is unconstitutional under 

Article I, Section 13 of the Pennsylvania Constitution, the 

Eighth and Fourteenth Amendments to the United States 

Constitution, Article 5 of the Universal Declaration of Human 

Rights and/or Article 7 of the International Covenent on Civil 
J-S39023-14 

- 6 - 

and Political Rights and whether failure to apply the decision 

of Miller v. Alabama, --- U.S. ---, 132 S. Ct. 2455 (2012) to 

the instant matter constitutes a violation of the equal

protection clauses of the United Stated and Pennsylvania 

Constitutions? 

4. Whether [Cunningham’s] convictions and sentences are illegal 

and must be vacated and [Cunningham] discharged where 

the statutes defining the offenses and authorizing sentence 

are void for failure to contain the enacting clause set forth 

and mandated by/under 1 Pa.C.S. § 1101(a)? 

Turner/Finley Brief at 3. 

First, we must consider whether PCRA counsel has complied with the 

requirements for appointed counsel to withdraw pursuant to Turner and 

Finley. We previously have explained this procedure as follows: 

Counsel petitioning to withdraw from PCRA representation must 

proceed under [Turner/Finley and] . . . must review the case 

zealously. Turner/Finley counsel must then submit a “nomerit” letter to the trial court, or brief on appeal to this Court, 

detailing the nature and extent of counsel’s diligent review of the 

case, listing the issues which petitioner wants to have reviewed, 

explaining why and how those issues lack merit, and requesting 

permission to withdraw. 

Counsel must also send to the petitioner: (1) a copy of the “no 

merit” letter/brief; (2) a copy of counsel’s petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed 

pro se or by new counsel. 

Where counsel submits a petition and no-merit letter that satisfy 

the technical demands of Turner/Finley, the court — trial court 

or this Court — must then conduct its own review of the merits 

of the case. If the court agrees with counsel that the claims are 

without merit, the court will permit counsel to withdraw and 

deny relief. 

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations 

omitted). 
J-S39023-14 

- 7 - 

 Here, PCRA counsel has filed a Turner/Finley brief. Counsel listed 

the issues Cunningham wished to raise. Turner/Finley Brief at 3. Counsel 

attested to her diligent review of the record. Id. at 19. Counsel then 

thoroughly reviewed each issue and concluded that each was without merit. 

Id. at 22-35. Counsel also sent a letter to Cunningham, stating that she 

had filed a petition to withdraw and enclosing the petition and 

Turner/Finley brief. Letter, 1/30/2014. In the letter, counsel also advised 

Cunningham of his right to proceed pro se, hire new counsel, and/or file a 

supplemental brief. Id. Counsel has attached the letter to her petition to 

withdraw. 

We conclude that PCRA counsel has complied substantially with the 

Turner/Finley requirements. However, before passing upon PCRA counsel’s 

motion to withdraw, we must conduct our own independent review of the 

record. 

Our standard of review of a PCRA court order is as follows: 

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court’s ruling if it 

is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court’s decision on any grounds if 

the record supports it. We grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford 

no such deference to its legal conclusions. Further, where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review is plenary. 
J-S39023-14 

- 8 - 

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) 

(internal citations omitted). 

Here, Cunningham’s first two issues are ineffective assistance of 

counsel (“IAC”) claims. IAC claims are governed by the following standard: 

In Pennsylvania, counsel is presumed effective, and a defendant 

bears the burden of proving otherwise. In order to be entitled to 

relief on a claim of ineffective assistance of counsel, the PCRA 

petitioner must plead and prove by a preponderance of the 

evidence that (1) the underlying claim has arguable merit; 

(2) counsel whose effectiveness is at issue did not have a 

reasonable basis for his action or inaction; and (3) the PCRA 

petitioner suffered prejudice as a result of counsel’s action or 

inaction. When determining whether counsel’s actions or 

omissions were reasonable, we do not question whether there 

were other more logical course of actions which counsel could 

have pursued: rather, we must examine whether counsel’s 

decisions had any reasonable basis. Further, to establish 

prejudice, a petitioner must demonstrate that but for the act or 

omission in question, the outcome of the proceedings would 

have been different. Where it is clear that a petitioner has failed 

to meet any of the three, distinct prongs . . ., the claim may be 

disposed of on that basis alone, without a determination of 

whether the other two prongs have been met. 

Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and 

internal quotation marks omitted; emphasis in original). 

 The first issue raised is that trial counsel was ineffective for failing to 

seek to sever Cunningham’s trial from that of his co-defendants. 

Turner/Finley Brief at 22. With regard to when defendants may be tried 

together, Rule 582 states in pertinent part: 

Defendants charged in separate indictments or informations may 

be tried together if they are alleged to have participated in the 
J-S39023-14 

- 9 - 

same act or transaction or in the same series of acts or 

transactions constituting an offense or offenses. 

Pa.R.Crim.P. 582(A)(2). 

Whether to grant a motion for severance is within the trial 

court’s sound discretion and “should not be disturbed absent a 

manifest abuse of discretion.” [Commonwealth v. Chester,

587 A.2d 1367, 1372 (Pa. 1991)]. Chester noted joint trials are 

preferred where conspiracy is charged. Severance may be

proper where a party can establish the co-defendants’ defenses 

are so antagonistic that a joint trial would result in prejudice. 

Id., at 1372–73. However, the party seeking severance must 

present more than a mere assertion of antagonism: 

[T]he fact that defendants have conflicting versions of what took 

place, or the extents to which they participated in [the crime], is 

a reason for rather than against a joint trial because the truth 

may be more easily determined if all are tried together. . . . 

Defenses become antagonistic only when the jury, in order to 

believe the essence of testimony offered on behalf of one 

defendant, must necessarily disbelieve the testimony of his codefendant. 

Commonwealth v. Housman, 986 A.2d 822, 834 (Pa. 2009) (some 

citations omitted). 

 Here, the crimes for which all of the defendants were charged arose 

from the same series of acts that resulted in the illegal entry into Mr. 

Middleton’s house and the deaths of Mr. Lyerly and Mr. Davis. Further, the 

defenses offered were not so antagonistic as to require severance. The 

defendants offered conflicting versions as to who entered the house, who 

shot the victims, and what each intended upon arrival at Mr. Middleton’s 

house. All questioned Ms. Burrell’s credibility. However, conflicting versions 

as to what took place or the extent of involvements are not a reason to 
J-S39023-14 

- 10 - 

sever trial. See Housman, supra. Because the decision to try the 

defendants jointly was supported by law and not an abuse of the trial court’s 

discretion, there is no arguable merit to the underlying claim. Further, for 

the same reasons, there was a reasonable basis for trial counsel not to 

pursue a motion to sever the trials. Because there is no proof of either of 

those prongs of the IAC claim, this issue has no merit. 

 Counsel next raises the issue that trial counsel was ineffective for 

failing to present an expert witness to challenge the Commonwealth’s 

fingerprint evidence. Turner/Finley Brief at 26. However, there is no 

indication Cunningham suffered any prejudice, such that the outcome of the 

proceeding would have been different. See Steele, supra. 

 Wayne Reutzel, a latent fingerprint examiner with the Allegheny 

County crime lab, testified that a latent fingerprint and palm print were 

found on the interior of the front storm door of Mr. Middleton’s home. Mr. 

Reutzel was able to match the prints to a set of known prints from 

Cunningham. N.T., 8/16-17/2007, at 13-14. Mr. Reutzel was unable to 

match the prints to copies of Cunningham’s prints that were already in the 

fingerprint index database. However, Mr. Reutzel explained that 

Cunningham’s prior prints lacked sufficient detail, while the prints taken 

after Cunningham’s arrest provided sufficient detail to make a reliable 

comparison. Id. at 14, 16. There is no evidence to suggest that any other 
J-S39023-14 

- 11 - 

expert could have disputed the fingerprint evidence.4 Further, the 

fingerprint evidence was not the only evidence that placed Cunningham at 

the scene. While Ms. Burrell’s credibility was challenged, she testified that 

Cunningham entered Mr. Middleton’s house. Absent evidence that a second 

fingerprint expert could establish material doubt regarding Mr. Reutzel’s 

testimony, Cunningham cannot satisfy the prejudice prong of the IAC 

standard. Thus, this issue is also without merit. 

 PCRA counsel next addresses Cunningham’s contention that his 

mandatory life sentence was prohibited for various reasons. Turner/Finley

Brief at 29-34. First, Cunningham argues that the court in sentencing 

should have applied Miller v. Alabama, 132 S.Ct. 2455 (2012), which held 

that mandatory life sentences without parole for juveniles were 

unconstitutional. However, we have previously held that Miller does not 

extend to adults or apply retroactively. Commonwealth v. Cintora, 69 

A.3d 759, 764 & n.4 (Pa. Super. 2013). Here, Cunningham was twentythree years old at the time of the homicides and Miller was decided after his 

conviction. This issue is without merit. 

Cunningham next states that the failure to extend Miller was an equal 

protection violation. However, we have often found that juveniles may be 

____________________________________________ 

4

 The PCRA Court provided Cunningham with an expert to evaluate the 

fingerprint match in its May 20, 2013 order. PCRA counsel averred that the 

expert received the information required to perform his evaluation. 

However, Cunningham chose not to present that evaluation. 
J-S39023-14 

- 12 - 

treated differently than adults without violating the Constitution. See 

Commonwealth v. Berry, 785 A.2d 994, 997 (Pa. Super. 2001) (“We are 

mindful of the public policy that requires that juveniles be treated differently 

from adult offenders.”); Commonwealth v. Sadler, 447 A.2d 625, 627 (Pa. 

Super. 1982) (“[W]e believe that our Supreme Court could rationally adopt a 

rule of criminal procedure . . . without applying that rule to juvenile 

delinquency proceedings [and] we conclude that the equal protection clause 

does not mandate that the rule [be applied to juveniles].”); see also 

Commonwealth v. Batts, 66 A.3d 286, 290 (Pa. 2013) (quoting Miller for 

“[t]he ‘foundational principle’. . . that ‘imposition of a State’s most severe 

penalties on juvenile offenders cannot proceed as though they were not 

children’”). Because the law may treat juveniles and adults differently 

without implicating equal protection, this argument is without merit. 

Cunningham also alleges a violation of Article 1, Section 13 of the 

Pennsylvania Constitution, which prohibits cruel punishments, and the Eighth 

and Fourteenth Amendments to the United States Constitution. First, we 

have held that the rights under Article 1, Section 13 are co-extensive with, 

and no broader than, those of the United States Constitution. 

Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013), appeal 

denied, 94 A.3d 1007 (Pa. 2014). The United States Supreme Court has 

held that mandatory life sentences for adults do not run afoul of the Eighth 

Amendment. See Rummel v. Estelle, 445 U.S. 263, 285 (1980) 
J-S39023-14 

- 13 - 

(upholding life sentence without parole under recidivist statute). This issue 

also has no merit. 

Finally, Cunningham cites the Universal Declaration of Human Rights. 

However, the Supreme Court has recognized that the Declaration, while 

stating principles, is not a treaty or international agreement and therefore 

imposes no legal obligations. Sosa v. Alvarez-Machain, 542 U.S. 692, 

734-35 (2004). Hence, it provides no legal authority to render 

Cunningham’s sentence unconstitutional. 

The last issue raised by PCRA counsel on behalf of Cunningham asserts 

that his conviction and sentence are illegal because the statutes upon which 

the conviction and sentence are based are void for failure to contain an 

enacting clause. Turner/Finley Brief at 34. However, the Crimes Code 

does contain the required enacting clause (“The General Assembly of the 

Commonwealth of Pennsylvania hereby enacts as follows:”) prior to Section 

1 of the Code. See 1972, P.L. 1482, No. 334. Therefore, this argument is 

also meritless. 

We have conducted our review of the record and find no issues of 

merit. Therefore, we grant counsel’s petition to withdraw and affirm the 

PCRA court’s order. 

Order affirmed. Petition to withdraw granted. 

Judgment Entered. 
J-S39023-14 

- 14 - 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/3/2014