J-A21043-15

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDRE L.L. VESSELS,

Appellant No. 419 EDA 2015

Appeal from the PCRA Order entered January 8, 2015,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0001460-2008

BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015

Andre L.L. Vessels (“Appellant”) appeals from the order denying his 

first petition for post-conviction relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

 The PCRA court summarized the pertinent procedural history as 

follows:

On October 30, 2007, [seventeen-year-old Appellant] 

was arrested and charged with Murder and related 

charges. On November 21, 2008, a jury found [Appellant] 

guilty of Murder of the Second Degree. That same day, 

the [trial court] sentenced [Appellant] to life imprisonment 

without the possibility of parole. 

On January 9, 2009, [counsel] was appointed to 

represent [Appellant]. On January 16, 2009, [Appellant] 

filed a [PCRA] petition requesting leave to have his 

appellate rights reinstated nunc pro tunc. On March 6, 

2009, [the PCRA court] granted [Appellant’s] PCRA 
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petition. On March 26, 2009, [Appellant] filed a Notice of 

Appeal. 

On January 26, 2010, the Superior Court of 

Pennsylvania affirmed the judgment of sentence. On 

September 29, 2010, the Supreme Court of Pennsylvania 

denied [Appellant’s] Petition for Allowance of Appeal.

On August 25, 2011, [Appellant] filed a timely pro se 

PCRA petition. On July 17, 2012, [Appellant] filed a 

supplemental pro se PCRA petition. On June 12, 2013, 

[PCRA counsel] entered his appearance. On December 26, 

2013, [PCRA counsel] filed an amended PCRA petition, in 

which he announced his intent to preserve the issue of a 

life without parole sentence having been imposed where 

[Appellant] was a juvenile at the time of the murder, and 

his intent to examine the record for any further potential 

issues. The Commonwealth failed to file an answer to 

PCRA counsel’s amended petition. On December 4, 2014, 

this Court held a status listing to determine why there had 

not been further filings in this case. On December 8, 

2014, this Court filed its Notice of Intent to Dismiss 

pursuant to Pa.R.Crim.P. 907. 

PCRA Court Opinion, 1/8/15, at 1-2. 

On December 29, 2014, Appellant filed a pro se response. By order 

entered January 8, 2015, the PCRA court denied Appellant’s amended PCRA 

petition. This timely appeal followed. The PCRA court did not require 

Pa.R.A.P. 1925 compliance.

Appellant raises the following issue:

I. Did the PCRA Court err when it dismissed [Appellant’s] 

Amended PCRA Petition (without an Evidentiary Hearing) 

and where [Appellant] had properly pled, and would have 

been able to prove, that he was entitled to relief with 

regard to the fact that he was serving Life Imprisonment 

without the possibility of Parole even though the offense 

was committed at the time he was a juvenile?
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Appellant’s Brief at 3. 

Our standard of review regarding an order dismissing a petition under 

the PCRA is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Halley, 

870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). 

Moreover, a PCRA court may decline to hold a hearing on the petition if the 

PCRA court determines that the petitioner’s claim is patently frivolous and is 

without a trace of support either in the record or from other evidence. 

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

In support of his issue, Appellant makes the following argument:

[Appellant] should be remanded to the PCRA Court/Trial 

Court so that a New Sentencing Hearing could be held and 

so that he could be re-sentenced to Life with the possibility 

of Parole, as he was a juvenile at the time that his offense 

was committed. In the alternative, [Appellant] is 

respectfully requesting that this matter be stayed until 

other matters before the United States Supreme Court 

which discussed this issue can be resolved.

Appellant’s Brief at 5.

Rejecting Appellant’s request for resentencing, the PCRA court 

reasoned:

In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 

2013), our Supreme Court addressed the exact claim 

presented by [Appellant]: a post-conviction challenge to 

the imposition of a mandatory sentence of life 
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imprisonment, without the possibility of parole, for a 

murder committed by a juvenile. The Court held that the 

United States Supreme Court’s decision in Miller v. 

Alabama, 132 S.Ct. 2455, 2477, 183 L.Ed. 2d 407 

(2012), which held that the Eighth Amendment forbids a 

sentencing scheme that mandates life in prison without the 

possibility of parole for juvenile offenders did not apply 

retroactively. Id.

[Appellant’s] judgment of sentence became [final on 

December 28, 2010, ninety] days after the Pennsylvania 

Supreme Court denied [his] Petition for Allowance of 

Appeal. [Appellant’s] judgment of sentence was final 

before the United States Supreme Court’s decision in 

Miller v. Alabama. This Court is bound by our Supreme 

Court’s decision in Cunningham. Accordingly, 

[Appellant’s] claim is meritless.

PCRA Court Opinion, 1/8/15, at 3.

Our review of recent precedent supports the PCRA court’s discussion of 

Miller and its retroactivity. See generally, Cunningham, supra, 

Commonwealth v. Reed, 107 A.3d 137 (Pa. Super. 2014); 

Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal denied, 

101 A.3d 103 (Pa. 2014); compare Commonwealth v. Christina, 114 

A.3d 419 (Pa. Super. 2015). Thus, Appellant’s claim that he should be 

resentenced is meritless.

Appellant also argues that this Court “can grant [him] relief” because 

the “Pennsylvania Supreme Court in Cunningham suggested that relief can 

be granted under Article [1] Section 13 of the Pennsylvania Constitution 

which prohibits the infliction of ‘cruel punishment.’” Appellant’s Brief at 7. 

Initially, we note that because Appellant has raised his state constitutional 
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claim for the first time on appeal, it is waived. See generally, Pa.R.A.P. 

302(a).

Alternatively, Appellant argues that this Court “should stay a ruling on 

this matter pending a decision from the United States in Nebraska v. 

Mantich, 135 S.Ct. 67 (U.S. 2014), and Provitt v. Pennsylvania, 135 

S.Ct. 50 (U.S. 2014).” Appellant’s Brief at 7. Our research of these cases 

confirms the Commonwealth’s assertion that Appellant’s specific request is 

moot because the United States Supreme Court has since denied certiorari in 

both cases. See Commonwealth Brief at 10. 

We recognize that in Montgomery v. Louisiana, 2015 U.S. LEXIS 

1942, the high court granted the petition for writ of certiorari to address the 

following question: “Do we have jurisdiction to decide whether the Supreme 

Court of Louisiana correctly refused to give retroactive effect in this case to 

our decision in Miller v. Alabama?” Id. (citation omitted); see also 

Christina, 114 A.3d *12 n.1 (Mundy, J., concurring). However, should the 

prospective decision in Montgomery be of benefit to Appellant, he could file 

a second PCRA petition raising his claim. Thus, we decline Appellant’s 

request to stay the present appeal.

In sum, our review of the record supports the PCRA court’s 

determination that Appellant’s amended PCRA petition is meritless. We 

therefore affirm the PCRA court’s denial of Appellant’s petition for postconviction relief.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015