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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 Novemb er 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 / Finley 1 brief. After review, we affirm the order and grant counsel’s petition. On direct appeal, this Court summarized the factual a nd procedural history of this case as follows: On the evening of February 19, 2005, Kevilin Middle ton hosted a birthday party for T.C. Lyerly. Toward the end of the party, Mr. Middleton made arrangements for exotic dancers to come t o his

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* Retired Senior Judge assigned to the Superior Court

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1 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).J-S39023-14

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residence and perform in exchange for two hundred doll ars ($200). The exotic dancers, Angel Potter and Helen McC orkle, arrived at Mr. Middleton’s residence along with Geneva Burrell. At this time, Mr. Middleton, Mr. Lyerly, and Chaoe D avis were the only people still at the party. Before the dance rs’ performance, however Mr. Middleton insulted Ms. Potte r’s appearance and refused to provide payment. Mr. Middl eton, Ms. Potter, and Ms. Burrell began to argue. The argume nt escalated, and Ms. Potter reached into Mr. Middleton’s pocket and removed money. Ms. Burrell advised Ms. Potter to return the m oney, and Ms. Potter eventually complied. Shortly thereafter, Ms. Potter and Ms. Burrell telephoned [Cunningham] and his co-def endants to come to Mr. Middleton’s home and help secure payment

. Approximately thirty (30) minutes later, a van arriv ed at Mr. Middleton’s house. [Cunningham], Alfon Brown, Ramone Coto, and Eric Surratt exited the van and approached the re sidence. The men carried guns, and [Cunningham] wore a hooded sweatshirt and ski mask. Upon their arrival, at least t hree (3) of the men entered Mr. Middleton’s house without permissi on and demanded payment for the dancers. Before Mr. Middlet on 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 fr om the gunshots. The Commonwealth charged [Cunningham] with two (2) c ounts of criminal homicide, criminal attempt, burglary, agg ravated assault, carrying a firearm without a license, and crimi nal conspiracy. On June 18, 2007, [Cunningham] proceeded t o a bench trial. The court tried [Cunningham] and his co-d efendants jointly. At trial, the Commonwealth presented testimony from M s. McCorkle, Ms. Burrell, and Ms. Potter. Ms. McCorkle test ified that she saw four (4) men exit a van and walk towards Mr. Middleton’s house carrying guns. She identified Mr. B rown, Mr. Coto, and Mr. Surratt, but did not recognize the fou rth gunman. Ms. Burrell, however, positively identified [Cunningh am] 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 est ablished the fingerprints lifted from the front storm door at Mr. Middleton’s residence matched [Cunningham’s] fingerprin ts.J-S39023-14

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Following numerous continuances, the court scheduled closin g arguments for February 8, 2008. After the defense re sted its case, however, [Cunningham’s] counsel became seriously ill and died. Consequently, the court appointed replacement co unsel to represent [Cunningham]. On February 8, 2008, repla cement counsel appeared before the court and explained that h e was unprepared to proceed. As a result, the court reschedul ed [Cunningham’s] closing argument for July 7, 2008, giv ing replacement counsel five (5) months to consult with [Cunningham], review the file, and prepare to close f or 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) co unt each of burglary and criminal conspiracy. [2] On September 22, 2008, the court sentenced [Cunningham] to concurrent ter ms of life imprisonment for his second degree murder conviction s. The court also imposed concurrent terms of thirty (30) to sixt y (60) months’ imprisonment for his burglary conviction and eig hteen (18) to thirty-six (36) months’ imprisonment for his co nspiracy conviction. On October 2, 2008, [Cunningham] timely f iled a post-sentence motion, which the court denied on December 9, 2008. [Cunningham] did not pursue a direct appeal wi th [the Superior Court]. On April 6, 2009, [Cunningham] timely filed a pro se petition pursuant to [the PCRA]. Thereafter, the PCRA court a ppointed counsel. On July 8, 2009, counsel filed an amended PCR A 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), resp ectively.J-S39023-14

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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 o f appeal with the Pennsylvania Supreme Court, but the petiti on 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 am ended PCRA petition on June 11, 2012. On August 21, 2012, Cunningham file d 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 m otion for a Grazier 3 hearing to determine whether Cunningham knowingly a nd voluntarily wished to proceed pro se . On October 12, 2012, PCRA counsel filed a supplemen t to the amended PCRA petition, raising three addition al 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

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Counsel then presented argument. No testimony was take n. Following the hearing, on May 20, 2013, the PCRA court granted Cun ningham’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 E vidence.” In that filing, PCRA counsel averred that the copy of the evi dence had been provided to the defense expert and that “[n]o furthe r argument or supplemental matter [would] be submitted by the defen se regarding the print evidence.” Notice of Status of Defense Expert’s R eview of Print Evidence, 11/6/2013, at 1. On November 7, 2013, the PCRA court denied Cunningh am’s petition. On November 15, 2013, Cunningham filed a notice of a ppeal and concise statement of errors complained of on appeal pursuant t o 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 p resent an expert to challenge the reliability of the fingerpri nt/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 Constitutio n, the Eighth and Fourteenth Amendments to the United Stat es Constitution, Article 5 of the Universal Declaration o f Human Rights and/or Article 7 of the International Covenen t on CivilJ-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 Pennsylvani a Constitutions? 4. Whether [Cunningham’s] convictions and sentences are illeg al and must be vacated and [Cunningham] discharged where the statutes defining the offenses and authorizing sente nce 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 follo ws: Counsel petitioning to withdraw from PCRA representat ion must proceed under [ Turner / Finley and] . . . must review the case zealously. Turner / Finleycounsel 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 rev iewed, explaining why and how those issues lack merit, and requ esting 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 t hat 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 cl aims are without merit, the court will permit counsel to withdr aw and deny relief. Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citations omitted).J-S39023-14

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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 wa s 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 p etition and
Turner / Finley brief. Letter, 1/30/2014. In the letter, counsel a lso 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 wi th the
Turner / Finley requirements. However, before passing upon PCRA counse l’s motion to withdraw, we must conduct our own independen t review of the record. Our standard of review of a PCRA court order is as foll ows: We review an order dismissing a petition under the PCR A in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA cou rt 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 gro unds if the record supports it. We grant great deference to th e 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, whe re the petitioner raises questions of law, our standard of revi ew is de novo and our scope of review is plenary.J-S39023-14

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Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012) (internal citations omitted). Here, Cunningham’s first two issues are ineffective assist ance of counsel (“IAC”) claims. IAC claims are governed by the following standard: In Pennsylvania, counsel is presumed effective, and a de fendant bears the burden of proving otherwise. In order to b e entitled to relief on a claim of ineffective assistance of counsel, t he PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable m erit; (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 act ion or inaction. When determining whether counsel’s actions or omissions were reasonable, we do not question whether th ere were other more logical course of actions which counsel cou ld 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 woul d have been different. Where it is clear that a petit ioner has failed to meet any of the three, distinct prongs . . ., the claim may be disposed of on that basis alone, without a determinatio n 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 ineffecti ve for failing to seek to sever Cunningham’s trial from that of his co-de fendants.
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 informati ons may be tried together if they are alleged to have parti cipated in theJ-S39023-14

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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 ab sent 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’ de fenses are so antagonistic that a joint trial would result i n prejudice. Id. , at 1372–73. However, the party seeking severance mu st 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 [t he crime], is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried toget her. . . . Defenses become antagonistic only when the jury, in orde r to believe the essence of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of h is 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 enter ed the house, who shot the victims, and what each intended upon arrival at Mr. Middleton’s house. All questioned Ms. Burrell’s credibility. Howev er, conflicting versions as to what took place or the extent of involvements ar e not a reason toJ-S39023-14

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sever trial. See Housman , supra . Because the decision to try the defendants jointly was supported by law and not an abu se of the trial court’s discretion, there is no arguable merit to the underlyi ng 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 inef fective for failing to present an expert witness to challenge the C ommonwealth’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. Reu tzel was unable to match the prints to copies of Cunningham’s prints that we re already in the fingerprint index database. However, Mr. Reutzel ex plained that Cunningham’s prior prints lacked sufficient detail, whi le the prints taken after Cunningham’s arrest provided sufficient detail t o make a reliable comparison. Id. at 14, 16. There is no evidence to suggest that any o therJ-S39023-14

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expert could have disputed the fingerprint evidence. 4 Further, the fingerprint evidence was not the only evidence that pl aced Cunningham at the scene. While Ms. Burrell’s credibility was challenged , she testified that Cunningham entered Mr. Middleton’s house. Absent evid ence that a second fingerprint expert could establish material doubt reg arding Mr. Reutzel’s testimony, Cunningham cannot satisfy the prejudice pron g 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 reaso ns. Turner / Finley Brief at 29-34. First, Cunningham argues that the cou rt in sentencing should have applied Miller v. Alabama , 132 S.Ct. 2455 (2012), which held that mandatory life sentences without parole for juven iles were unconstitutional. However, we have previously held th at Miller does not extend to adults or apply retroactively. Commonwealth v. Cintora , 69 A.3d 759, 764 & n.4 (Pa. Super. 2013). Here, Cunni ngham 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

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4 The PCRA Court provided Cunningham with an expert to evaluate the fingerprint match in its May 20, 2013 order. PCRA cou nsel averred that the expert received the information required to perform his evaluation. However, Cunningham chose not to present that evaluati on.J-S39023-14

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treated differently than adults without violating th e Constitution. See Commonwealth v. Berry , 785 A.2d 994, 997 (Pa. Super. 2001) (“We are mindful of the public policy that requires that juveni les 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 tha t rule to juvenile delinquency proceedings [and] we conclude that the equa l protection clause does not mandate that the rule [be applied to juveni les].”); 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 a dults differently without implicating equal protection, this argument is without merit. Cunningham also alleges a violation of Article 1, Sec tion 13 of the Pennsylvania Constitution, which prohibits cruel punishme nts, and the Eighth and Fourteenth Amendments to the United States Constit ution. 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 Consti tution. Commonwealth v. Elia , 83 A.3d 254, 267 (Pa. Super. 2013), appeal denied , 94 A.3d 1007 (Pa. 2014). The United States Suprem e Court has held that mandatory life sentences for adults do not ru n afoul of the Eighth Amendment. See Rummel v. Estelle , 445 U.S. 263, 285 (1980)J-S39023-14

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(upholding life sentence without parole under recidivi st statute). This issue also has no merit. Finally, Cunningham cites the Universal Declaration of Human Rights. However, the Supreme Court has recognized that the D eclaration, while stating principles, is not a treaty or international ag reement 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 Cunnin gham asserts that his conviction and sentence are illegal because the st atutes upon which the conviction and sentence are based are void for fai lure 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 with draw and affirm the PCRA court’s order. Order affirmed. Petition to withdraw granted.

Judgment Entered.J-S39023-14

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Joseph D. Seletyn, Esq. Prothonotary

Date: 10/3/2014