J-S13021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LESLIE L. BROWN

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1053 WDA 2017

Appeal from the PCRA Order June 22, 2017

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0008030-2009

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 2, 2018

Appellant, Leslie L. Brown, appeals from the order denying his petition 

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

This Court previously summarized the facts of the crime and initial 

procedural history as follows:

At approximately 12:00 a.m. on the morning of September 

29, 2006, 16-year-old [Appellant] was in the Swissvale 

neighborhood of Allegheny County with friends Lamar Meggison 

(“Meggison”), Keith Smith (“Smith”), and Daniel Holmes. As the 

group proceeded to a local convenience store, [Appellant] 

approached Michael Stepien (“Stepien” or “the victim”), who was 

walking in a nearby alley, and demanded money, holding a gun to 

Stepien’s head. Stepien told [Appellant] he had no money. 

[Appellant] fired two warning shots—one in the air and one into 

the ground—and demanded money a second time. When Stepien 

again told him he did not have any money, [Appellant] shot him 

in the head. [Appellant] and his friends, who were still in the area, 
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ran to the home of Terico Ross, another friend who lived in the 

neighborhood. While there, in the presence of his friends, 

[Appellant] said that he killed someone.

Paramedics responded to a call of a man lying in the alley 

between Nied’s Funeral Home and the volunteer fire department 

and transported the victim to the hospital. Stepien was 

pronounced dead from the gunshot wound to his head at 

approximately 3:00 a.m. on September 29, 2006. Medical 

personnel removed a badly damaged .22 caliber bullet from 

Stepien’s head.

On October 6, 2006, at a bus stop in Swissvale several 

blocks from where the murder occurred, [Appellant] approached 

Francis Yesco (“Yesco”) from behind, put a gun to his head, told 

him not to move, and reached into Yesco’s pants pocket. Yesco 

brushed [Appellant’s] hand away and turned to strike [Appellant], 

at which [Appellant] fled, still holding the gun. Yesco and 

Swissvale Police Officer Justin Keenan, who was patrolling in the 

area and observed what happened, chased [Appellant] for 

approximately half a block, during which [Appellant] discarded the 

firearm over a fence. Officer Keenan ultimately caught [Appellant] 

and arrested him, and recovered the gun shortly thereafter.

A ballistics expert for the Commonwealth test-fired 

[Appellant’s] gun, a .22 caliber revolver, and compared the test 

bullet with the bullet removed from the victim. The bullet 

recovered from Stepien’s head was so badly damaged it could not 

be matched, but because it shared certain similarities with the test 

bullet, [Appellant’s] gun could not be excluded as the murder 

weapon.

The police had no further evidence linking [Appellant] to 

Stepien’s murder until 2008, when they arrested Carl Smith, 

Smith’s brother, who told police that Smith was present at the 

time [Appellant] shot Stepien. This led police to interview other 

witnesses, who also implicated [Appellant] in Stepien’s murder. A 

grand jury was subsequently convened, and ultimately [Appellant] 

was arrested.

The Commonwealth charged [Appellant] by information with 

criminal homicide, robbery, carrying a firearm without a license, 

and possession of a firearm by a minor.1 Following a three-day 

trial, a jury convicted [Appellant] of second-degree murder,2
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robbery, carrying a firearm without a license, and possession of a 

firearm by a minor. On May 23, 2011, the trial court sentenced 

[Appellant] to a mandatory term of life in prison without the 

possibility of parole for second-degree murder and to a 

consecutive term of three to six years of imprisonment for 

carrying a firearm without a license. The court imposed no further 

penalty on the remaining convictions.

1 18 Pa.C.S.A. §§ 2501(a), 3701(a)(1), 6106, 

6110.1(a).

2 18 Pa.C.S.A. § 2502(b).

Following sentencing, the trial court granted trial counsel’s 

motion to withdraw. The trial court did not appoint new counsel 

until July 14, 2011. On September 30, 2011, [Appellant] filed a 

counseled petition pursuant to the Post Conviction Relief Act 

seeking reinstatement of his post-sentence rights. The trial court 

granted his request on December 1, 2011, ordering the filing of 

post-sentence motions nunc pro tunc within 10 days of its order.

[Appellant] complied on December 7, 2011, raising a challenge to 

the weight of the evidence and two claims of trial court error. On 

January 20, 2012, the trial court granted [Appellant] permission 

to file amended post-sentence motions, which [Appellant] did on 

March 30, 2012, raising an additional claim of trial court error. On 

May 16, 2012, [Appellant’s] post-sentence motions were denied 

by operation of law.

Brown filed a timely notice of appeal, and complied with the 

trial court’s request for a concise statement of matters complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). He then filed a 

supplemental 1925(b) statement, raising for the first time a claim 

that his mandatory sentence of life in prison without the possibility 

of parole is unconstitutional.

Commonwealth v. Brown, 71 A.3d 1009, 1011–1012 (Pa. Super. 2013).

This Court rejected both Appellant’s claim that his convictions were 

against the weight of the evidence and an evidentiary issue, but it vacated the 

judgment of sentence and remanded to the trial court for resentencing in light 

of Miller v. Alabama, 567 U.S. 460 (2012), and Commonwealth v. Knox, 
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50 A.3d 749 (Pa. Super. 2012). Brown, 71 A.3d at 1017. Our Supreme Court 

denied Appellant’s petition for allowance of appeal. Commonwealth v. 

Brown, 77 A.3d 635, 346 WAL 2013 (Pa. filed October 10, 2013).

The trial court held a sentencing hearing on November 19, 2014, 

following which it sentenced Appellant to forty years to life in prison for murder 

and a consecutive term of three to six years of imprisonment for carrying a 

firearm without a license. Appellant filed a timely post-sentence motion, 

which the trial court denied. Appellant filed a timely notice of appeal.

On appeal to this Court, Appellant challenged the discretionary aspects 

of his sentence, claiming it was both excessive and unreasonable. We 

disagreed and affirmed the judgment of sentence. Commonwealth v. 

Brown, 133 A.3d 81, 535 WDA 2015 (Pa. Super. filed September 28, 2015) 

(unpublished memorandum). Our Supreme Court denied Appellant’s petition 

for allowance of appeal. Commonwealth v. Brown, 128 A.3d 218, 396 WAL 

2015 (Pa. filed December 1, 2015).

On December 11, 2015, Appellant filed the instant, timely, pro se PCRA 

petition. The PCRA court appointed counsel, who filed an amended PCRA 

petition on December 22, 2016. The PCRA court issued its notice of intent to 

dismiss the petition pursuant to Pa.R.Crim.P. 907 on May 19, 2017, and 

dismissed the petition on June 22, 2017. Appellant filed a timely notice of 

appeal on July 21, 2017. The PCRA court did not order the filing of a Pa.R.A.P. 

1925(b) statement. In lieu of a Rule 1925(a) opinion, the PCRA court refers 
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us to its explanation in the Notice of Intention to Dismiss Pursuant to 

Pa.R.Crim.P. 907.

Appellant raises the following issues for our review:

I. Are [Appellant’s] claims for relief are [sic] properly 

cognizable under the Post-Conviction Relief Act?

II. Did the lower court abuse its discretion in denying the PCRA 

petition, as amended, without a hearing insofar as 

[Appellant] established the merits of the claim that 

appellate counsel was ineffective for failing to raise a claim 

on appeal that the trial court abused its discretion in denying 

[Appellant’s] request for new counsel to represent him at 

trial upon failing to hold a full and meaningful hearing 

regarding [Appellant’s] allegation that his court-appointed

attorney had a conflict of interest regarding his case, and 

that he and his court-appointed trial counsel had

irreconciliable differences?

III. Did the lower court impose[] an illegal sentence insofar as 

the only authorized sentence for a second degree murder

committed by a juvenile in 2006 is unconstitutional, and that 

defect cannot be remedied by either severance or judicial 

revision of the statute, as a result, [Appellant] must be 

resentenced for a lesser offense?

Appellant’s Brief at 5 (full capitalization omitted).

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 
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2016). The PCRA court’s findings will not be disturbed unless there is no 

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 

1095, 1100 (Pa. Super. 2014).

Our Supreme Court has held that “PCRA hearings are not discovery 

expeditions, but are conducted when necessary to offer the petitioner an 

opportunity to prove his explicit assertion of ineffectiveness raising a colorable 

claim about which there remains an issue of material fact.” Commonwealth 

v. Cousar, 154 A.3d 287, 299 (Pa. 2017) (citing Commonwealth v. Sneed, 

45 A.3d 1096, 1107 (Pa. 2012). Moreover, “the PCRA court has discretion to 

dismiss a petition without a hearing when the court is satisfied ‘there are no 

genuine issues concerning any material fact, the defendant is not entitled to 

post-conviction collateral relief, and no legitimate purpose would be served by 

further proceedings.’” Cousar, 154 A.3d at 297 (citing Commonwealth v. 

Roney, 79 A.3d 595, 604 (Pa. 2013). “[S]uch a decision is within the 

discretion of the PCRA court and will not be overturned absent an abuse of 

discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

We first address Appellant’s Issue II, asserting ineffective assistance of 

his prior counsel.1 When considering an allegation of ineffective assistance of 

counsel, counsel is presumed to have provided effective representation unless 

the PCRA petitioner pleads and proves that: (1) the underlying claim is of 

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1

 Appellant’s first issue merely is a recitation of case law and does not pose 

an issue for this Court’s disposition.
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arguable merit; (2) counsel had no reasonable basis for his action or inaction; 

and (3) petitioner was prejudiced by counsel’s action or omission. 

Commonwealth v. Johnson, ___ A.3d ___, ___, 2018 PA Super 28, *5 (Pa. 

Super. 2018) (citing Commonwealth v. Pierce, 527 A.2d 973, 975–976 (Pa. 

1987)). “In order to meet the prejudice prong of the ineffectiveness standard, 

a defendant must show that there is a ‘reasonable probability that but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). 

A claim of ineffective assistance of counsel will fail if the petitioner’s evidence 

fails to meet any one of the three prongs. Commonwealth v. Simpson, 66 

A.3d 253, 260 (Pa. 2013). Because courts must presume that counsel was 

effective, Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015), the 

burden of proving ineffectiveness rests with the petitioner. Commonwealth 

v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

Appellant argues that the PCRA court erroneously denied Appellant’s 

PCRA petition without a hearing regarding Appellant’s claim that appellate 

counsel was ineffective for failing to challenge the trial court’s refusal to 

appoint Appellant new counsel at trial. Appellant’s Brief at 16, 23. If it had 

done so, Appellant alleges, he would have proven that the trial court failed to 

engage in a “meaningful inquiry” involving Appellant’s reasons for the request 

for new counsel. Id. at 20. In support, he cites and contrasts
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Commonwealth v. Tyler, 360 A.2d 617 (Pa. 1976), and Commonwealth 

v. Floyd, 937 A.2d 494 (Pa. Super. 2007). Appellant’s Brief at 20–22.

The PCRA court concluded that this claim did not present a genuine issue 

of material fact; thus, an evidentiary hearing would serve no purpose. Notice 

of Intention to Dismiss Pursuant to Pa.R.Crim.P. 907, 5/19/17, at 1. As 

Appellant is asserting appellate counsel’s ineffectiveness, not that of trial 

counsel, Appellant must demonstrate that if appellate counsel had raised the 

underlying claim, “there is a reasonable probability that appellate counsel 

would have been successful in litigating this claim before the Superior Court.” 

Id. In order to meet his burden, Appellant must prove that this Court would 

conclude that the trial court abused its discretion in failing to grant Appellant’s 

request for new counsel.

We begin by noting that “the right to appointed counsel does not include 

the right to counsel of the defendant’s choice.” Commonwealth v. Albrecht, 

720 A.2d 693, 709 (Pa. 1998). This Court has stated:

Rather, the decision to appoint different counsel to a requesting 

defendant lies within the discretion of the trial court. 

Commonwealth v. Grazier, 391 Pa. Super. 202, 570 A.2d 1054, 

1055 (1990). Before new counsel is appointed, “a defendant must 

show irreconcilable differences between himself and his courtappointed counsel before a trial court will be reversed for abuse 

of discretion in refusing to appoint new counsel.” Id.; see also

Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a 

defendant for whom counsel has been appointed shall not be 

granted except for substantial reasons.”).

Commonwealth v. Smith, 69 A.3d 259, 266 (Pa. Super. 2013). Moreover, 

it is well established that “an indigent defendant is not entitled to free counsel 
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of his choice; that appointed counsel may only be rejected for ‘good cause 

shown’; and that a ‘mere dissatisfaction’ with appointed counsel does not 

constitute good cause.” Id. at 267 (citing Commonwealth v. Knapp, 542 

A.2d 546, 549 (Pa. Super. 1988)); see also Grazier, 570 A.2d at 1056 (mere 

averment that in a separate, unrelated proceeding another member of the 

public defender’s staff rendered ineffective assistance, without more, does not 

incapacitate the entire staff of the public defender from representing the 

appellant); Commonwealth v. Chew, 487 A.2d 1379 (Pa. Super. 1985) 

(mere difference of opinion concerning trial strategy or brevity of pretrial 

communications does not compel the appointment of new counsel); 

Commonwealth v. Johnson, 454 A.2d 1111 (Pa. Super. 1983) (defendant’s 

asserted lack of confidence in court appointed counsel’s attitude was not 

sufficient reason for appointment of new counsel).

Appellant contends that the trial court failed to engage in a meaningful 

inquiry into the basis for Appellant’s dissatisfaction with defense counsel 

throughout trial. Due to the court’s failure in that regard, if appellate counsel 

had raised the issue, Appellant submits it is likely that this Court would have 

found that the trial court abused its discretion in failing to appoint new counsel 

for Appellant. For the reasons that follow, we disagree, and we further discern 

that Appellant’s asserted case law in support is distinguishable.

Appellant suggests “there is no clear record with respect to whether the 

judge understood why [Appellant] was attempting to have counsel replaced.” 
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Appellant’s Brief at 22. The record simply does not support such a claim. The 

trial court inquired about Appellant’s dissatisfaction with trial counsel and 

explained its perception to Appellant. During a pretrial discussion of 

preliminary matters, Appellant told the court he felt “like I have ineffective 

counsel,” and Appellant did not have “full discovery.” N.T., 2/22/11, at 6. 

The trial court inquired what was missing, but Appellant repeated “there is 

basic[] discovery that I don’t have that I should have and I don’t want to 

proceed with this trial.” Id. at 6–7. Upon inquiry, trial counsel told the court, 

“My client has every piece of discovery that I have.” Id. at 6. Despite the 

trial court’s further inquiry, Appellant did not specify what discovery he lacked 

but instead, vaguely asserted, “There is definitely stuff missing from my 

discovery.” Id. at 7. The trial court acknowledged Appellant’s objection for 

the record, it apparently was satisfied with trial counsel’s representations, and 

it concluded that the trial would proceed. Id. at 6–7.

The trial court continued to entertain Appellant’s complaints about trial 

counsel, out of the presence of the jury. On the second day of trial, February 

23, 2011, during the lunch break, Appellant asserted his displeasure regarding 

allegedly inconsistent statements by some witnesses that trial counsel did not 

expose. The following exchange occurred:

[APPELLANT]: I have certain questions. They are not 

questions that have no relevance, questions that I want him to 

ask about evidence entered into the proceeding that he flat-out 

refused. At the beginning I explained I have ineffective counsel 

and stated the reasons, the phone calls. I feel like I have 
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ineffective counsel and I would not like to proceed with the lawyer 

that I have.

THE COURT: He is an experienced attorney. He has tried as 

many homicides as anybody in this courthouse, Mr. Brown. I did 

notice this morning that you were writing things down and he 

consulted with you about [them] and obviously felt that those 

questions were not appropriate questions and did not ask.

[APPELLANT]: Your Honor–

THE COURT: Wait. So in that regard as an officer of the 

court and consistent with his knowledge of the Rules of Evidence 

and his experience he did not pose the questions perhaps that you 

wanted asked or posing them in the way that you wanted them

asked but that is a matter of his judgment again consistent with 

his experience and knowledge of the Rules of Evidence.

[APPELLANT]: Your Honor, I understand that he has prior 

experience, I definitely understand that, but what seemed like him 

consulting with me was really him blowing me off. We don’t even 

get along. I feel like I do not want to proceed with the lawyer that 

I have basically and the questions that I have are definitely 

relevant. If I would bring them up to you, you would understand.

They are definitely relevant, statements that are made that are 

inconsistent. Statements that are made that he testified as grand 

juror, they should have been brought up and he refuses to do it.

N.T., 2/23/11, at 172–173. The trial court considered Appellant’s position and 

replied:

THE COURT: He certainly demonstrated, Mr. Brown, this 

morning a very intimate knowledge of the record, prior

inconsistent statements of the grand jury and police proceedings 

and he confronted Mr. Smith about that pointedly from my 

perception so your motion for discharging [trial counsel] is denied

if it amounts to any of those things. Thank you.

N.T., 2/23/11, at 174.

Near the end of trial, after the jury was removed, Appellant complained 

about trial counsel’s handling of tapes of jail telephone calls, and he asserted 
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that he never learned of the tapes until the day of trial. N.T., 2/23/11, at 261. 

The trial court listened to Appellant’s concerns and advised, “I will give you 

overnight to consult with [trial counsel] about that matter if you need time.” 

Id. at 262. The Commonwealth then clarified the discovery regarding the 

tapes, trial counsel explained his opinion, and Appellant was again given the 

opportunity to assert his concern. Id. at 262–264.

Finally, following the court’s charge to the jury, Appellant once again

averred that he continued to believe defense counsel was ineffective and that 

“there is a conflict of interest between me and my attorney.” N.T., 2/24/11, 

at 323. The trial court responded that Appellant had clearly asserted his 

dissatisfaction with trial counsel for the record. Id.

We begin our analysis by examining Smith, supra, wherein the 

appellant also asserted that the trial court failed to engage in meaningful 

inquiry into the expressed desire for new counsel. In Smith, a remand was 

necessary because the trial court therein made no attempt to ascertain 

whether the appellant desired to represent himself or merely sought the 

appointment of new counsel. The Smith trial court told the defendant to “suck 

it up” and that it was “not interested” in the defendant’s rights and that he 

should “[t]ake it up to the Superior Court.” Smith, 69 A.3d at 266. In the 

present case, the record is clear that Appellant sought different courtappointed counsel. Indeed, there has never been an allegation in the instant 

case that Appellant sought to represent himself. Appellant’s Brief at 20, 23.
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Moreover, as noted supra, the cases Appellant cited are distinguishable. 

In Tyler, 360 A.2d 617, the defendant asserted an irreconcilable difference of 

opinion from his court-appointed counsel regarding how the defendant’s trial 

should be conducted. Id. at 618. Because trial counsel “acknowledged the 

existence of such a difference of opinion but advised the court that he was 

precluded by the attorney-client privilege from further explaining the nature 

of the difficulties,” the trial court was unable to conduct an inquiry into the 

nature of the dispute. Id. Thus, in Tyler, the trial court had no information 

about the specific conflict between the defendant and his attorney before it 

denied the defendant’s request for new counsel. Id. Our Supreme Court 

concluded in Tyler that the refusal to appoint new counsel was an abuse of 

discretion. Id. at 619. See also Floyd, 937 A.2d at 499 (discussing Tyler

and noting that the trial court in Tyler was “essentially prevent[ed] . . . from 

inquiring into the underpinnings of the defendant’s complaints”).

The case at bar is in stark contrast to the above cases. The record 

reflects that the instant trial court allowed Appellant to express his 

dissatisfaction on multiple occasions, probed the nature of Appellant’s specific 

complaints, asked questions of trial counsel about the nature of the conflict in 

each instance, and concluded there was not a breakdown in the relationship 

that warranted appointment of new counsel. Accordingly, we discern no abuse 

of the PCRA court’s discretion in determining that no genuine issue of material 

fact existed to warrant a hearing. “As counsel is not deemed to be ineffective
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for failing to preserve a meritless issue for appellate review, Appellant is not 

entitled to relief on this claim.” Johnson, ___ A.3d at ___, 2018 PA Super 

28 at *7 (citing Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 

2003) (en banc)). Thus, we conclude Appellant’s ineffective-assistance-ofcounsel claim does not warrant relief.

In his final issue, referencing Miller v. Alabama, 567 U.S. 460 (2012),

Appellant avers that “the lower court imposed an illegal sentence insofar as 

the only authorized sentence for a second degree murder committed by a 

juvenile in 2006 is unconstitutional. . . .” Appellant’s Brief at 25. Thus, he 

posits that he “must be resentenced for a lesser offense.” Id. Appellant 

continues that he could “not be subjected to a ‘Miller resentencing’ because 

under settled Pennsylvania law . . . there is no valid[] constitutional penalty 

provided in Pennsylvania’s criminal sentencing laws for a second degree 

murder committed by a youth under 18 prior to 2012.” Appellant’s Brief at 

26.

When reviewing the legality of a sentence, “our standard of review is de 

novo and our scope of review is plenary.” Commonwealth v. Brown, 159 

A.3d 531, 532 (Pa. Super. 2017) (citation omitted). As noted supra, Appellant 

committed the murder in 2006, when he was sixteen years old.2 On May 23, 

2011, the trial court imposed a sentence of life imprisonment without the 

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2

 Appellant was born on July 22, 1990. Complaint, 6/2/09.
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possibility of parole. While Appellant’s direct appeal was pending, the United 

States Supreme Court decided Miller on June 25, 2012. The Miller Court 

stated that “mandatory life without parole for those under the age of 18 at 

the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel 

and unusual punishments.’” Miller, 567 U.S. at [460] 132 S.Ct at 2460; see 

also Knox, 50 A.3d at 769 (“[A] mandatory sentence of a term of life 

imprisonment without the possibility of parole for a juvenile offender convicted 

of second-degree murder is cruel and unusual punishment and a violation of 

the Eighth Amendment. . . .”). Therefore, on July 17, 2013, this Court vacated 

Appellant’s judgment of sentence and remanded to the trial court for 

resentencing. Brown, 71 A.3d at 1017.

In remanding the case for resentencing, this Court acknowledged that 

the newly enacted statute intended to address Miller, 18 Pa.C.S. § 1102.1, 

was inapplicable to Appellant’s case in that the new legislation explicitly stated 

that it applied only to defendants convicted after June 24, 2012. Accordingly, 

upon remand, this Court issued the following guidance to the trial court:

It is uncontested that the trial court sentenced [Appellant] 

to a mandatory term of life in prison without the possibility of 

parole for second-degree murder that he committed when he was 

16 years old. The United States Supreme Court has spoken clearly 

on this issue: “mandatory life without parole for those under the 

age of 18 at the time of their crimes violates the Eighth 

Amendment’s prohibition on ‘cruel and unusual punishments.’” 

Miller, 132 S.Ct.at 2460; see also Knox, 50 A.3d at 769 (holding 

that “a mandatory sentence of a term of life imprisonment without 

the possibility of parole for a juvenile offender convicted of 

second-degree murder is cruel and unusual punishment and a 

violation of the Eighth Amendment of the United States 
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Constitution and Article I, Section 13 of the Pennsylvania 

Constitution,” and setting forth a non-exhaustive list of factors to 

be considered upon resentencing); Commonwealth v. Batts, 

[620] Pa.[115], [66] A.3d [286], 2013 WL 1200252, *6 (Mar.26, 

2013) (life sentence without the possibility of parole 

unconstitutional for first-degree murder committed when the 

defendant was 14 years old). We therefore agree that we must 

vacate the judgment of sentence and remand for resentencing

pursuant to Miller and Knox.

7

[FN 7] On October 25, 2012, the Pennsylvania 

Legislature passed new legislation setting forth the 

sentence for persons who commit murder, murder of 

an unborn child and murder of a law enforcement

officer prior to the age of 18. 18 Pa.C.S.A. §1102.1. 

This statute expressly applies only to defendants 

convicted after June 24, 2012. Id. As the trial court 

sentenced [Appellant] on May 23, 2011, this statute 

is inapplicable to the case at bar.

Brown, 71 A.3d at 1016–1017.3

Upon remand, at the November 19, 2014 resentencing, the trial court 

explained the reasons for this Court’s remand, the applicable law, and the 

sentencing factors the court intended to consider in resentencing Appellant. 

N.T. (Resentencing), 11/19/14, at 3–11.

4

 The court weighed the various 

standard sentencing factors and age-related factors and, as noted supra, 

resentenced Appellant to forty years to life incarceration for second-degree 

____________________________________________

3

 In response to Miller and the codification of 18 Pa.C.S. § 1102.1, the 

Sentencing Commission “created a basic sentencing matrix specifically for 

juvenile first-and second-degree homicide offenders where the offense 

occurred after June 24, 2012. Commonwealth v. Melvin, 172 A.3d 14, 21–

22 (Pa. Super. 2017) (emphasis in original) (citing 204 Pa. Code § 303.16(b)).

4

 The November 19, 2014 notes of testimony are erroneously labeled “PCRA

Transcript.”
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murder. Id. at 61–72; see also Trial Court Opinion Following Resentence, 

5/26/15, at 8, 8 n.6 (docket entry 65). Appellant challenged the discretionary 

aspects of his new sentence in his ensuing direct appeal. We ultimately denied 

relief on Appellant’s claim, concluding that he “failed to present this Court with 

a substantial question worthy of appellate review.” Brown, 535 WDA 2015 

(unpublished memorandum at 8).

We reject Appellant’s contention that his sentence is illegal because

there is “no valid, constitutional penalty provided in Pennsylvania’s criminal 

sentencing laws for a second degree murder committed by a youth under 18 

prior to 2012.” Appellant’s Brief at 26. In Commonwealth v. Machicote,

172 A.3d 595 (Pa. Super. 2017), relying principally upon Commonwealth v. 

Batts, 163 A.3d 410, 421 (Pa. 2017) (Batts II),

5 we determined that “a trial 

court, in resentencing a juvenile offender convicted [of second-degree 

murder] prior to Miller, was constitutionally permitted to impose a minimum 

term-of-years sentence and a maximum sentence of life imprisonment, thus 

‘exposing these defendants to parole eligibility upon the expiration of their 

minimum sentences.’” Machicote, 172 A.3d at 601.

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5

 In Batts II, we explained that the trial court has discretion to impose a life 

sentence without the possibility of parole upon juvenile offenders convicted of 

first-degree murder prior to Miller as long as the court follows the criteria 

identified in Miller. If, however, the court elects not to impose a life sentence 

without the possibility of parole, it must impose both a minimum sentence and 

a maximum sentence of life imprisonment with the possibility of parole.
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Similarly, in Melvin, 172 A.3d 14, we addressed the appellant’s 

challenge to the legality of his resentence for the crime of second-degree 

murder. Therein, the appellant’s sentence for life imprisonment without the 

possibility of parole, imposed when he was a juvenile, was vacated pursuant 

to Miller, and he was resentenced to a term of incarceration of thirty years to 

life in prison. Melvin, 172 A.3d at 18. On appeal from the judgment of 

sentence, the appellant asserted the sentencing court lacked any “valid 

statutory authority to impose a term-of-years sentence with a maximum term 

of life imprisonment at his resentencing . . . because the crime at issue . . . 

was committed before June 24, 2012,” and thus, “the only possible legal 

sentence is on the lesser included offense of third-degree murder or the 

underlying felony of robbery.” Id. (footnote omitted). This is essentially the 

same claim as asserted herein.

In rejecting the appellant’s issue, we stated:

[T]he Court [in Batts II] expressly rejected the claim of Batts and 

his amici, which [the a]ppellant herein now argues, that there is 

no legislatively authorized sentence for juveniles convicted of 

first-degree murder prior to 2012. [Batts II] at 435–41. The 

Court also rejected Batts’ contentions that the forty year 

maximum penalty for third-degree murder is the only legal 

alternative and that severance of the statute is impossible. [Batts 

II] at 441–48. Importantly, the Court held, inter alia, that a trial 

court, in resentencing a juvenile offender convicted prior to 

Miller, was constitutionally permitted to impose a minimum termof-years sentence and a maximum sentence of life imprisonment, 

thus “exposing these defendants to parole eligibility upon the 

expiration of their minimum sentences”. Batts II, 163 A.3d at 

439. We are bound by our Supreme Court’s decision. Thus, we 

disagree with [the a]ppellant that his resulting thirty-years-to-life 

sentence is illegal. . . .
J-S13021-18

- 19 -

Id. at 22 (footnote omitted).

The instant trial court followed the guidance set forth in Miller, Knox 

and Batts II. Notice of Intention to Dismiss Pursuant to Pa.R.Crim.P. 907, 

5/19/17, at 2. In conjunction with our consideration of Machicote and 

Melvin,

6 we conclude the trial court’s imposition of sentence of forty years to 

life in prison was not an illegal sentence.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/2/2018

____________________________________________

6

 We note that neither Appellant nor the Commonwealth acknowledged 

Machicote or Melvin, both of which preceded the filing of briefs in this case 

by three months.