J-S24003-17

2017 PA Super 173

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEVON KNOX

Appellant No. 1937 WDA 2015

Appeal from the Judgment of Sentence September 30, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010088-2007

BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY PANELLA, J. FILED JUNE 5, 2017

In 2007, Appellant, Devon Knox, then 17 years old, and his twin 

brother, Jovon, attempted to carjack Jehru Donaldson. Donaldson drove 

away from the attempt, but one of the brothers fatally shot Donaldson 

before the two fled the scene. A jury ultimately convicted Devon of seconddegree murder, and he was sentenced to life imprisonment without 

possibility of parole. In 2012, this Court vacated the sentence pursuant to 

Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that sentencing a 

juvenile to life without parole constituted cruel and unusual punishment and 

was therefore unconstitutional. The trial court subsequently sentenced 

Devon to a term of imprisonment of 35 years to life.

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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In this appeal from his judgment of sentence, Devon argues that prior 

appellate counsel was ineffective for failing to challenge the sufficiency of the 

evidence to support his conviction for second-degree murder. He also 

contends that the trial court’s sentence was an abuse of its discretionary

powers. We conclude that Devon has failed to establish that his claim of 

ineffectiveness of prior appellate counsel is entitled to unitary review on 

direct appeal. Furthermore, we cannot conclude that the trial court abused 

its discretion in imposing sentence. We therefore affirm.

In his first issue on appeal, Devon asserts that the evidence at trial 

was insufficient to sustain his verdict for second-degree murder. While we 

conclude that we cannot reach this issue on direct appeal, a brief review of 

the standards involved in addressing this issue and the evidence presented 

by the Commonwealth at trial are necessary to understand Devon’s claim.

Our standard of review for a challenge to the sufficiency of the 

evidence is to determine whether, when viewed in a light most favorable to 

the verdict winner, the evidence at trial and all reasonable inferences 

therefrom are sufficient for the trier of fact to find that each element of the 

crimes charged is established beyond a reasonable doubt. See 

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The 

Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 
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evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) 

(citation omitted). 

“[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Id. (citation omitted). Any 

doubt raised as to the accused’s guilt is to be resolved by the fact-finder. 

See id. “As an appellate court, we do not assess credibility nor do we assign 

weight to any of the testimony of record.” Commonwealth v. Kinney, 863 

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not 

disturb the verdict “unless the evidence is so weak and inconclusive that as 

a matter of law no probability of fact may be drawn from the combined 

circumstances.” Bruce, 916 A.2d at 661 (citation omitted).

At trial, the Commonwealth presented testimony from two 

eyewitnesses to the attempted carjacking. Two juvenile witnesses identified 

the twin brothers as the carjackers. The witnesses’ testimony on which 

brother fired the fatal shots, however, was inconsistent. The younger 

witness first testified that Jovon was the shooter. See N.T., Jury Trial, 6/3-

4/08, at 154-156. This identification was based off his perception that Jovon 

had a lighter complexion than his brother. See id. However, he conceded 

that he had previously identified Devon as the shooter, and that “it [was] 

real hard to tell the difference between” the twins. Id., at 180-181.

The older eyewitness was unable to differentiate between the twins at 

trial. See id., at 298-299. This witness also believed that the lighter-skinned 
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twin was the shooter. See id., at 300. However, he identified Devon as the 

lighter-skinned twin. See id.

During closing arguments, the prosecutor noted that the eyewitnesses 

had presented conflicting testimony as to which one of the twins was the 

shooter. See id., at 427-428. He argued, however, that the issue was only 

relevant to the charge of first-degree murder. See id., at 428. He told the 

jury that the identity of the shooter was irrelevant to the charge of seconddegree murder, so long as the jury believed that both brothers were 

engaged in the act of robbing Donaldson. See id., at 436. 

On appeal, Devon concedes that, if the jury had convicted him of being 

the shooter, the evidence at trial was sufficient to sustain his conviction. He 

contends, however, that the evidence was insufficient to establish his 

conviction for second-degree murder according to the following chain of 

logic. Devon contends that, given the lack of a specific jury finding on the 

issue of the identity of the shooter, we cannot assume that he was the 

shooter. If he was not the shooter, Devon argues that he could only be 

convicted of second-degree murder if the jury found that Jovon’s action in 

bringing the gun and shooting Donaldson were natural and foreseeable 

consequences of the twins’ plan to carjack Donaldson. He believes that they 

were not.

However, Devon acknowledges that this issue has been waived for 

purposes of this direct appeal from re-sentencing. See, e.g.,
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Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002). He 

thus argues that his original appellate counsel, who secured the vacation of 

his original sentence on direct appeal, was ineffective for failing to raise this 

issue in the prior appeal. Devon further acknowledges that the issue of 

appellate counsel’s ineffectiveness raises new issues regarding our ability to 

entertain the issue on direct appeal.

Generally, claims of ineffectiveness of counsel are not ripe until 

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 

2013). However, in extraordinary cases where the trial court determines that 

the claim of ineffectiveness is “both meritorious and apparent from the 

record,” it may exercise its discretion to consider the claim in a postsentence motion. Id., at 577. 

In Holmes, the Supreme Court of Pennsylvania explicitly identified 

ineffectiveness claims as “presumptively reserved for collateral attack[.]” 

Id., at 577 n.10. The Court warned against trial courts appointing “new 

counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while 

the trial court retains discretion in addressing such claims, the presumption 

weighs heavily in favor of deferring such claims to collateral review.

Further, the Court justified the creation of the “meritorious and 

apparent from the record” exception by explaining that “[t]he administration 

of criminal justice is better served by allowing trial judges to retain the 

discretion to consider and vindicate such distinct claims of ineffectiveness[.]” 
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Id., at 577 (emphasis added). Most importantly, the Court required an 

express waiver of the right to file a first, timely PCRA petition. See id., at 

579.

Here, Devon argues that his claim is both meritorious and apparent 

from the record. However, he has failed to expressly forgo his right to file a 

timely, first PCRA petition. He raised this issue for the first time in his 

Pa.R.A.P. 1925(b) statement. And the trial court declined to review the issue 

on its merits, noting that this claim should await resolution on collateral 

review. See Trial Court Opinion, 7/14/16, at 8. We cannot conclude that this 

reasoning was an abuse of the trial court’s discretion. This claim of prior 

counsel’s ineffectiveness is not ripe in this direct appeal. Devon’s first 

argument on appeal merits no relief.

In his second issue, Devon argues that the trial court imposed a 

“manifestly excessive” minimum sentence of 35 years. He concedes that this 

claim implicates the discretionary aspects of his sentence. See Appellant’s 

Brief, at 12. “A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. 

Super. 2004) (citation omitted). 

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 
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and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial

question that the sentence appealed from is not appropriate 

under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation 

omitted; brackets in original).

Here, Devon preserved his issue through a timely motion for 

reconsideration of the sentence imposed after remand,1and filed a timely 

appeal. He has included the required Rule 2119(f) statement. We therefore 

review his Rule 2119(f) statement to determine if he has raised a substantial 

question.

We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists. See Commonwealth v. Tirado, 870 

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for 

which the appeal is sought, in contrast to the facts underlying the appeal, 

which are necessary only to decide the appeal on the merits.” Id. (citation 

omitted); see also Pa.R.A.P. 2119(f).

____________________________________________

1 The Commonwealth contends that Devon did not preserve his challenge 

based upon the alleged excessiveness of the sentence in his post-sentence 

motion. However, the Commonwealth concedes that Devon has preserved 

his argument that the trial court imposed the sentence without considering 

any factor other than the seriousness of the crime. After reviewing the Rule 

2119(f) statement, we conclude that Devon is raising only the single issue 

that we address below and that he has properly preserved it under the 

specific circumstances of this case. 
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Devon “must show that there is a substantial question that the 

sentence imposed is not appropriate under the Sentencing Code.” McAfee, 

849 A.2d at 274 (citation omitted). That is, “the sentence violates either a 

specific provision of the sentencing scheme set forth in the Sentencing Code 

or a particular fundamental norm underlying the sentencing process.” 

Tirado, 870 A.2d at 365. Devon’s claim that the trial court focused 

exclusively on the seriousness of the crime while ignoring other, mitigating 

circumstances, such as his mental health history and difficult childhood, 

raises a substantial question. See Commonwealth v. Caldwell, 117 A.3d 

763, 770 (Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 

2015).

As a prefatory matter, we must address Devon’s assertion that there 

were no relevant guidelines in place at the time of re-sentencing. Once 

again, this issue requires some context. When this Court vacated and 

remanded his initial sentence of life without parole, there were no 

sentencing guidelines in place for his conviction of second-degree murder; 

life without parole was mandated under the then-existing scheme. The 

legislative and sentencing commission’s responses to Miller were both 

effective only for convictions that occurred after June 24, 2012; Devon was 

convicted in June 2008.

Therefore, the sentencing guidelines provide no guidance regarding 

the appropriate minimum sentence or the factors that were to be considered 
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at re-sentencing. Nor was there any direct statutory guidance. The trial 

court’s discretion was thus to be exercised in accordance with 

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). In Batts, the 

Pennsylvania Supreme Court held that a trial court, 

[a]t a minimum ... should consider a juvenile’s age at the time of 

the offense, his diminished culpability and capacity for change, 

the circumstances of the crime, the extent of his participation in

the crime, his family, home and neighborhood environment, his 

emotional maturity and development, the extent that familial 

and/or peer pressure may have affected him, his past exposure 

to violence, his drug and alcohol history, his ability to deal with 

the police, his capacity to assist his attorney, his mental health 

history, and his potential for rehabilitation. 

Id., at 297.

At re-sentencing, the trial court was provided with a pre-sentence 

investigation report (“PSI”). Furthermore, Devon conceded that he had an 

extensive juvenile delinquency history, including incidents where he had 

possessed firearms. See N.T., Sentencing Hearing, 9/30/2015, at 2. He did 

not respond well to supervision in the juvenile system. See id. Devon 

admitted that he had not had an exemplary record while imprisoned on this 

conviction, but argued that his record improved as he had matured. See id., 

at 4. In response, the Commonwealth presented the testimony of the 

victim’s father, Jay Donaldson, who testified to the severe impact of the 

crime.

Where the sentencing court had the benefit of reviewing a PSI, we 

must
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presume that the sentencing judge was aware of relevant 

information regarding the defendant's character and weighed 

those considerations along with mitigating statutory factors. A 

pre-sentence report constitutes the record and speaks for itself. 

In order to dispel any lingering doubt as to our intention of 

engaging in an effort of legal purification, we state clearly that 

sentencers are under no compulsion to employ checklists or any 

extended or systematic definitions of their punishment 

procedure. Having been fully informed by the pre-sentence 

report, the sentencing court's discretion should not be disturbed. 

This is particularly true, we repeat, in those circumstances where 

it can be demonstrated that the judge had any degree of 

awareness of the sentencing considerations, and there we will 

presume also that the weighing process took place in a 

meaningful fashion. It would be foolish, indeed, to take the 

position that if a court is in possession of the facts, it will fail to 

apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation 

omitted). 

In addition to the PSI, the trial court had the benefit of testimony from 

Devon, as well as the victim’s father. Devon does not point to any deficiency 

in the content of the PSI. While it is clear that Devon had mental health 

issues and suffered an extremely difficult childhood, there is no indication 

that the trial court completely disregarded these circumstances when 

imposing sentence. We therefore conclude that the trial court considered the 

age-appropriate factors when re-sentencing Devon, and therefore did not 

abuse its discretion. Under all the circumstances, the sentence imposed was 

not unreasonable, and Devon’s second and final issue on appeal merits no 

relief.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/5/2017