J-A29016-15 

2016 PA Super 53 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

WILLIAM MITCHELL, 

 Appellant No. 913 WDA 2013 

Appeal from the Judgment of Sentence November 27, 2012 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0007519-2007 

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ. 

OPINION BY BOWES, J.: FILED FEBRUARY 29, 2016 

 William Mitchell appeals from the aggregate judgment of sentence of 

one hundred and nineteen years to two hundred and thirty-eight years 

imprisonment imposed by the trial court after a jury found him guilty of 

second-degree murder, robbery, and conspiracy to commit robbery. After 

careful review, we vacate Appellant’s judgment of sentence and remand for 

resentencing, but affirm in all other respects. 

 Appellant, a juvenile at the time of the commission of the underlying 

crimes, and Lance Dempster were involved in the shooting and robbery of 

Boston Smithwick, a Vocelli’s Pizza delivery driver. On April 19, 2007, 

Vocelli’s Pizza in Swissvale received a delivery order for pizza and soda from 

an individual named Lance. That person provided a cell phone number and 
J-A29016-15 

- 2 - 

asked that the order be delivered to 565 Campbell Street, Wilkinsburg. 

Smithwick drove to the address. Appellant, armed with a sawed-off 

shotgun, and Dempster attempted to rob Smithwick. Smithwick tried to 

grab the weapon, and was shot in the leg. The shotgun blast severed the 

femoral artery in his leg, causing Smithwick to bleed to death. Police later 

recovered a hacksaw blade with Appellant’s fingerprints on it and learned 

from another individual that Appellant and Dempster had sawed the barrel 

off a shotgun on the day of the shooting. 

 A witness, Doreen Parker, informed police that she saw Appellant, 

Warren Irvin, and Dempster on the porch of 565 Campbell Street, which had 

been converted into an apartment building, shortly before the shooting. Ms. 

Parker lived in one of the apartments herself. Appellant was the son of her 

next door neighbor. According to Ms. Parker, Irvin was dealing drugs from 

the porch and the group refused to leave the porch. Ms. Parker also testified 

at trial that another neighbor, who lived across the street from 565 Campbell 

Street, and who was deceased at the time of trial, called her and told her 

that the pizza delivery man had been shot. 

 The Commonwealth charged Appellant with criminal homicide, 

robbery, conspiracy to commit murder and robbery, and possession of a 

prohibited offensive weapon. Appellant unsuccessfully litigated a pre-trial 

suppression motion, contending that he did not voluntarily or knowingly and 

intelligently waive his Miranda rights when he provided police with a 
J-A29016-15 

- 3 - 

statement. The matter proceeded to a jury trial. The jury found Appellant 

guilty of second-degree murder, robbery, and conspiracy to commit robbery 

on April 30, 2012. The court sentenced Appellant on November 27, 2012, 

after the United States Supreme Court decision in Miller v. Alabama, 132 

S.Ct. 2455 (2012), which declared mandatory sentences of life 

imprisonment without parole for juvenile homicide offenders violated the 

Eighth Amendment. The court imposed a sentence of ninety-nine to one 

hundred and ninety-eight years incarceration for the felony murder crime. It 

also sentenced Appellant to consecutive sentences of ten to twenty years 

each for robbery and conspiracy to commit robbery. 

 Appellant timely filed a post-sentence motion. After a hearing, the 

court denied that motion. Appellant timely appealed. The trial court 

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Appellant complied, and the trial court 

authored its Rule 1925(a) opinion. The matter is now ready for this Court’s 

consideration. Appellant raises seven issues for our review. 

I. Whether the Trial Court erred or, abused its discretion or 

had the legal authority to sentence Appellant, upon

conviction of Second Degree Murder, to a period of 

incarceration of ninety-nine (99) to one hundred and 

ninety eight (198) years, effectively a life sentence, in 

violation of the mandates of the Supreme Court of the 

United States pursuant to Miller v. Alabama, 132 S.Ct. 

2455 (2012) and with no sentencing provision in effect 

pursuant to the Pennsylvania Crimes Code on November 

27, 2012 to address Appellant’s unique situation? 
J-A29016-15 

- 4 - 

II. Whether the Trial Court erred or abused its discretion in 

sentencing Appellant to consecutive periods of ten (10) to 

twenty (20) years at the counts for Robbery and 

Conspiracy to Commit Robbery, and specifically in failing to 

provide a proper and sufficient statement of reasons for 

these sentences as required by 42 Pa.C.S. § 9721(b)

and/or 204 Pa.Code § 303.1(d)? 

III. Whether the Commonwealth presented sufficient evidence 

to prove beyond a reasonable doubt that the Appellant 

committed the crimes of Murder in the Second Degree and 

Criminal Conspiracy to Commit Robbery? 

IV. Whether the Trial Court erred by admitting, over objection, 

a statement allegedly made by Diane Davidson, deceased, 

through the testimony of Doreen Parker, when said 

statement was inadmissible hearsay and not subject to the 

excited utterance exception to hearsay? 

V. Whether the Trial Court erred by admitting, over objection, 

a statement alleged to have been made by Diane 

Davidson, deceased, through the testimony of Detective 

Defelice, when said statement was inadmissible hearsay 

within hearsay and not subject to the excited utterance or 

the inconsistent statement exceptions to hearsay. 

VI. Whether the Trial Court erred in denying a pre-trial Motion 

to Suppress Statement, regarding statements that were 

made by the Appellant during a May 1, 2007 police 

interrogation, and allowing them to be played in court over 

objection, because the Appellant’s waiver of Miranda and 

subsequent statements were not voluntary, knowing, and 

intelligent? 

VII. The trial court erred when denying Appellant’s postsentence motion regarding the allowance of putting before 

the jury the crime of Conspiracy to Commit Robbery,

effectively requiring Appellant to defend on an uncharged 

offense after the jury was empaneled? 

Appellant’s brief at 9-10. 
J-A29016-15 

- 5 - 

 Appellant’s initial two claims pertain to sentencing. It would, however, 

be unnecessary to reach these issues if Appellant is entitled to relief on any 

of his remaining claims. Accordingly, we will address issues three through 

seven before considering his sentencing claims. Further, it is settled that a 

sufficiency of the evidence claim entitles a person to discharge as to the 

crime in question. Hence, we address Appellant’s sufficiency claim at the 

outset regardless of the order of his claims. Commonwealth v. Stokes, 38 

A.3d 846 (Pa.Super. 2011). Appellant argues that the Commonwealth 

failed to introduce sufficient evidence to prove beyond a reasonable doubt 

that he committed second-degree murder. He maintains that the 

Commonwealth did not establish that he killed Smithwick while facilitating, 

attempting, or committing a robbery or that he was an accomplice to the 

robbery that resulted in Smithwick’s death. Appellant contends that it is 

speculation and conjecture that he possessed the shotgun during the 

robbery since none of the Commonwealth’s witnesses testified to seeing him 

shoot Smithwick. 

 In addition, Appellant asserts that the evidence was insufficient to 

establish that he committed robbery or conspired to commit a robbery, 

thereby rendering both his second-degree murder and conspiracy to commit 
J-A29016-15 

- 6 - 

robbery convictions infirm.1 He submits that the Commonwealth did not 

prove an agreement between Appellant and Dempster to rob Smithwick. 

Appellant posits that there was no evidence that he was aware that 

Dempster and his girlfriend called Vocelli’s Pizza. He argues that the 

Commonwealth’s evidence only established his presence when Dempster 

“acted independently and spontaneously in robbing and shooting 

Smithwick[.]” Appellant’s brief at 32. 

In reviewing a sufficiency claim, we consider the entirety of the 

evidence introduced, including improperly admitted evidence. 

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). 

We consider that evidence in a light most favorable to the Commonwealth, 

drawing all reasonable inferences in favor of the Commonwealth. Id. The 

evidence “need not preclude every possibility of innocence and the factfinder is free to believe all, part, or none of the evidence presented.” Id. 

Only where “the evidence is so weak and inconclusive that, as a matter of 

law, no probability of fact can be drawn from the combined 

circumstances[,]” is a defendant entitled to relief. Id. We do not “re-weigh 

the evidence and substitute our judgment for that of the fact-finder.” Id. 

As the question of the sufficiency of the evidence is one of law, we consider 

____________________________________________ 

1

 Appellant does not distinguish between the separate and distinct concepts 

of accomplice and conspiratorial liability. See Commonwealth v. 

Roebuck, 32 A.3d 613 (Pa. 2011) (highlighting differences between the two 

vicarious liability standards). 
J-A29016-15 

- 7 - 

the evidence de novo. Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 

2011). 

 Second-degree murder, commonly known as felony murder in 

Pennsylvania, requires a homicide committed while the “defendant was 

engaged as a principal or an accomplice in the perpetration of a felony.” 18 

Pa.C.S. § 2502(b). The Crimes Code further defines the perpetration of a 

felony, relevant herein, as, “[t]he act of the defendant in engaging in or 

being an accomplice in the commission of, or an attempt to commit, or flight 

after committing, or attempting to commit robbery[.]” 18 Pa.C.S. § 

2502(d).2 The General Assembly has further provided that, 

A person is an accomplice of another person in the commission 

of an offense if: 

____________________________________________ 

2

 The Crimes Code does not expressly set forth that one can be found guilty 

of second-degree murder as a conspirator. Other jurisdictions have 

determined that one cannot conspire to commit felony murder. Evanchyk 

v. Stewart, 340 F.3d 933, 939-40 (9th Cir. 2003) (holding that, under 

Arizona law, one cannot conspire to commit felony murder); see also

Evanchyk v. Stewart, 47 P.3d 1114, 1119 (Ariz. 2002); State v. Wilson, 

30 Kan.App.2d 498, 43 P.3d 851, 853-54 (2002) (opining that Kansas does 

not recognize the crime of conspiracy to commit felony murder because 

conspiracy requires a specific intent). This Court has also repeatedly noted 

that one cannot attempt to commit felony murder because an attempt is a 

specific intent crime, as is conspiracy. Commonwealth v. Spells, 612 

A.2d 458, 460 n. 5 (Pa.Super. 1992); Commonwealth v. Griffin, 456 A.2d 

171, 177 (Pa.Super. 1983). We note, however, that our Supreme Court has 

concluded that one can conspire to commit third-degree murder, which does 

not require proof of a specific intent to kill. Commonwealth v. Fisher, 80 

A.3d 1186 (Pa. 2013). 
J-A29016-15 

- 8 - 

(1) with the intent of promoting or facilitating the 

commission of the offense, he: 

 (i) solicits such other person to commit it; or 

(ii) aids or agrees or attempts to aid such other person in 

planning or committing it; or 

(2) his conduct is expressly declared by law to establish his 

complicity. 

(d) Culpability of accomplice. -- 

When causing a particular result is an element of an offense, an 

accomplice in the conduct causing such result is an accomplice in 

the commission of that offense, if he acts with the kind of 

culpability, if any, with respect to that result that is sufficient for 

the commission of the offense. 

18 Pa.C.S. § 306(c)-(d). Accomplice liability “may be established wholly by 

circumstantial evidence. Only 'the least degree of concert or collusion in the 

commission of the offense is sufficient to sustain a finding of responsibility 

as an accomplice.' No agreement is required, only aid.” Commonwealth v. 

Knox, 50 A.3d 732, 739 (Pa.Super. 2012). Thus, Appellant could have been 

found guilty of second-degree murder based on the jury finding that 

Appellant aided in the robbery that resulted in Smithwick’s death without 

establishing a conspiracy to commit that robbery. Accordingly, Appellant’s 

argument that the Commonwealth failed to prove a conspiracy to commit 

robbery is immaterial to our sufficiency review for purposes of Appellant’s 

felony murder conviction. 
J-A29016-15 

- 9 - 

 With respect to the charges of robbery and conspiracy to commit 

robbery, Appellant was charged with robbery under 18 Pa.C.S. § 

3701(a)(1)(i) and (ii). Under those provisions, a person is guilty of robbery, 

“if, in the course of committing a theft, he: (i) inflicts serious bodily injury 

upon another; (ii) threatens another with or intentionally puts him in fear of 

immediate serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(i)-(ii). A 

defendant also may be guilty of robbery as an accomplice or co-conspirator 

as long as the defendant possessed the requisite mens rea to commit the 

criminal act and the additional elements of accomplice liability or 

conspiratorial liability are established. We have previously outlined the 

definition of an accomplice. A person is a conspirator if “the defendant: 1) 

entered into an agreement to commit or aid in an unlawful act with another 

person or persons; 2) with a shared criminal intent; and 3) an overt act was 

done in furtherance of the conspiracy.” Commonwealth v. Devine, 26 

A.3d 1139, 1147 (Pa.Super. 2011). 

In Commonwealth v. Lambert, 795 A.2d 1010 (Pa.Super. 2002), 

this Court set forth four factors to consider in deciding if a conspiracy 

existed. Those factors were: “(1) an association between alleged 

conspirators; (2) knowledge of the commission of the crime; (3) presence at 

the scene of the crime; and (4) in some situations, participation in the object 

of the conspiracy.” Id. at 1016. A “conspiratorial agreement can be inferred 

from a variety of circumstances including, but not limited to, the relation 
J-A29016-15 

- 10 - 

between the parties, knowledge of and participation in the crime, and the 

circumstances and conduct of the parties surrounding the criminal episode.” 

Commonwealth v. Feliciano, 67 A.3d 19, 26 (Pa.Super. 2013) (en banc). 

“The conduct of the parties and the circumstances surrounding such conduct 

may create a web of evidence linking the accused to the alleged conspiracy 

beyond a reasonable doubt.” Id. (quoting Devine, supra at 1147). A 

person guilty of robbery as a co-conspirator is necessarily guilty of 

conspiracy to commit robbery. 

 The Commonwealth posits that the following evidence is sufficient to 

establish second-degree murder and conspiracy to commit robbery. 

Dempster and his girlfriend telephoned several local pizza shops before 

Dempster ordered pizza and a two-liter of soda from Vocelli’s in Swissvale.3

He gave the address of the delivery as 565 Campbell Street in Wilkinsburg. 

Dempster’s girlfriend testified that she knew that Dempster intended to rob 

a pizza delivery man. A resident of the 565 Campbell Street address, Ms. 

Parker observed Dempster, Appellant, and Warren Irvin sitting on the porch 

at that address shortly before Smithwick, Vocelli’s pizza delivery person, 

arrived. The Commonwealth introduced evidence that Appellant, Dempster, 

and Irvin sawed off the barrel of a shotgun with a hacksaw in an abandoned 

house several doors down from 565 Campbell Street earlier that same day. 

____________________________________________ 

3

 The calls were three-way calls. 
J-A29016-15 

- 11 - 

Police recovered a hacksaw blade with Appellant’s fingerprints on it. 

Appellant admitted to police that he did saw off a gun barrel, but denied 

being involved in the robbery and shooting. 

 Irvin testified that although he did not see the shooting, he observed 

Appellant and Dempster hiding in the bushes when Smithwick arrived at 565 

Campbell Street. The Commonwealth introduced evidence that Appellant 

and Dempster then confronted Smithwick armed with a shotgun. 

Specifically, Irvin acknowledged hearing the shotgun being cocked, and 

asserted that he ran away as Smithwick ran toward Appellant, before he 

heard a shot fired. Shortly thereafter, police arrived to find Smithwick shot. 

 These facts, viewed in a light most favorable to the Commonwealth, 

establish beyond a reasonable doubt that Appellant is guilty of seconddegree murder, robbery, and conspiracy to commit robbery. Appellant’s 

claim that he was merely present at the scene ignores our standard of 

review. The evidence establishes that Appellant both aided Dempster in the 

robbery and agreed to take part in the robbery. Here, Appellant and 

Dempster attempted to hold up and rob Smithwick. In the process of this 

robbery, Smithwick was shot and killed. Appellant’s sufficiency claims are 

devoid of merit. 

 Appellant’s next two claims are that the trial court erred in admitting 

into evidence a statement by a deceased witness, Diane Davidson. 

Evidentiary rulings are governed by an abuse of discretion standard. 
J-A29016-15 

- 12 - 

Commonwealth v. Moser, 999 A.2d 602 (Pa.Super. 2010). First, 

Appellant attacks the admission of Davidson’s statement through Doreen 

Parker. Appellant contends that the statement was inadmissible hearsay 

and did not fall within the ambit of the excited utterance exception to 

hearsay. The relevant testimony is as follows.4

 Prosecutor: What did she tell you? 

Ms. Parker: She told me that the pizza man was laying on the 

ground. 

 

Prosecutor: What exactly did she say to you? 

Ms. Parker: Doreen, I’m calling the police, too. Somebody shot 

the pizza man. He is laying on the ground. 

Prosecutor: Doreen, do you remember speaking to myself and 

Detective DeFelice last week? 

Ms. Parker: Yes, that was April 17th. 

Prosecutor: Right. 

Ms. Parker: Yes. 

Prosecutor: Do you remember what you told us Diane told you? 

Ms. Parker: She just told me he had been shot. 

Prosecutor: Would it help you remember if I showed you your 

report? 

____________________________________________ 

4

 Appellant objected to Ms. Parker being permitted to testify as to 

statements made to her by Ms. Davidson prior to Ms. Parker’s testimony. 

The Commonwealth invoked the excited utterance exception and Appellant 

argued that Ms. Davidson’s statement to Ms. Parker did not sufficiently 

evince that Ms. Davidson observed the shooting. The trial court overruled 

the objection. Appellant again objected immediately before the testimony. 
J-A29016-15 

- 13 - 

Ms. Parker: Yes.[5] 

. . . . 

Prosecutor: I’m going to show you this report. Tell me if it 

refreshes your memory. Read it to yourself as to what Diane 

told you, okay. Did you read this paragraph? 

Ms. Parker: Yes. 

Prosecutor: Does that refresh your recollection as to what you 

told the detective exactly what Diane told you on the phone? 

Ms. Parker: Yes. 

 Prosecutor: What did Diane tell you on the phone?

 Ms. Parker: He shot the pizza man. 

 Prosecutor: Who shot the pizza man? 

 Ms. Parker: She didn’t know who. 

 Prosecutor: What was the word she used? 

 [objection overruled] 

Prosecutor: Ms. Parker, would it help you to read the report 

again? Read this report to yourself beginning with Davidson 

stated to Parker. 

Ms. Parker: This is what she told me. 

Prosecutor: Does that refresh your memory as to what she told 

you? 

Ms. Parker: Yeah. 

____________________________________________ 

5

 Appellant raised an objection and the court allowed the prosecution to 

proceed in order to refresh the witness’ recollection. 
J-A29016-15 

- 14 - 

Prosecutor: What did she say to you exactly? 

Ms. Parker: This. 

Prosecutor: You have to testify to it. What did she tell you? 

Ms. Parker: She said he shot the pizza man. 

Prosecutor: Exactly what did she tell you? 

Ms. Parker: I’m calling 911. He is laying out on the ground on 

the sidewalk and the curb. She could see better than me. 

Prosecutor: Did she say who shot him? 

Ms. Parker: No. 

Prosecutor: How did she describe who shot him? 

Ms. Parker: She really didn’t. She was scared. 

Prosecutor: Did she say gender? 

Ms. Parker: She knew it was a male. 

Prosecutor: The people that shot the pizza man, Ms. Parker, did 

Diane say what gender they were? 

Ms. Parker: No. 

Prosecutor: She didn’t describe them as men or women? 

Ms. Parker: We already knew who it was out there. 

Prosecutor: She didn’t describe anybody. She just said they 

shot him. 

N.T., 4/25/12, 99-103. Appellant argues that Ms. Davidson’s statement to 

Ms. Parker does not indicate that Ms. Davidson witnessed the shooting. 

 The Commonwealth rejoins that the context of the statement is 

sufficient to establish that Ms. Davidson saw the shooting. It adds that a 
J-A29016-15 

- 15 - 

shooting is a startling event and that Ms. Davidson made her statements to 

Ms. Parker within seconds to three minutes of the shooting. Thus, it posits 

that Ms. Davidson’s statement was an excited utterance and admissible. 

 We agree. The entire context of Ms. Davidson’s statements to Ms. 

Parker indicate that she witnessed the shooting. Appellant does not dispute 

that a shooting is a startling event. The trial court did not err in allowing Ms. 

Parker’s testimony regarding Ms. Davidson’s statements. See 

Commonwealth v. Douglas, 737 A.2d 1188, 1195 (Pa. 1999) (unavailable 

witness’ statement provided after seeing a shooting was admissible as an 

excited utterance); Commonwealth v. Washington, 692 A.2d 1018, 1022 

(Pa. 1997). 

 Relatedly, Appellant asserts that the trial court erred in permitting 

Detective DeFelice to read into evidence Ms. Parker’s statement to him 

recounting what Ms. Davidson told her. Appellant contends that this 

testimony was double hearsay not falling within any recognized exception to 

the bar against such evidence. Specifically, over objection, the prosecution 

asked Detective DeFelice, “what did Ms. Parker say that Ms. Davidson told 

her?” N.T., 4/25/12, at 118. Detective DeFelice answered, “Them boys shot 

the pizza delivery man. Now he is laying out there on the curb.” Id. at 119. 

 The trial court permitted the testimony based on the Commonwealth’s 

argument that the statement read by Detective DeFelice was an inconsistent 

prior statement to Ms. Parker’s in-court testimony related above. Appellant 
J-A29016-15 

- 16 - 

argues that the trial court failed to appreciate the distinction between an 

inconsistent statement and one that is merely dissimilar. Appellant’s brief at 

40 (citing McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006) 

(quoting Commonwealth v. Bailey, 469 A.2d 604, 611 (Pa.Super. 1983))). 

He points out that Ms. Parker stated that Ms. Davidson said, “Somebody 

shot the pizza man,” and that this declaration is not inconsistent with “Them 

boys shot the pizza man.” In addition, we are cognizant that Ms. Parker 

repeatedly stated that Ms. Davidson told her that “he shot the pizza man[,]” 

although at one point she said that Ms. Davidson did not say what gender 

they were. 

We find that the court erred in permitting Detective DeFelice to testify 

as to what Ms. Parker relayed to him regarding Ms. Davidson. The 

difference between Ms. Parker’s testimony is not, when considered in 

context, inconsistent with, “Them boys shot the pizza man.” N.T., 4/25/12, 

at 119. Although Ms. Parker did state that Ms. Davidson did not describe the 

assailants, she acknowledged that Ms. Davidson knew it was men who 

robbed the victim.6 Viewed in its entirety, the testimony related above was 

____________________________________________ 

6

 The Commonwealth in its brief does not contend that this was the 

inconsistency. Rather, it asserts that the statement “he shot the pizza man” 

is inconsistent with “Them boys shot the pizza man[,]” because the latter 

quote indicates that more than one person was involved. Commonwealth’s 

brief at 33. 
J-A29016-15 

- 17 - 

consistent. Nonetheless, we agree with the Commonwealth’s argument that 

the error was harmless. 

Harmless error exists if there is no reasonable possibility that the error 

could have contributed to the verdict. Commonwealth v. Green, 76 A.3d 

575, 583 (Pa.Super. 2013). In this respect, an error is harmless if it 

did not prejudice the defendant or the prejudice was de minimis; 

or (2) the erroneously admitted evidence was merely cumulative 

of other untainted evidence which was substantially similar to 

the erroneously admitted evidence; or (3) the properly admitted 

and uncontradicted evidence of guilt was so overwhelming and 

the prejudicial effect of the error so insignificant by comparison 

that the error could not have contributed to the verdict. 

Id. Here, the evidence was merely cumulative of properly admitted 

evidence. Appellant is not entitled to a new trial on this basis. 

 Appellant’s next contention is that the trial court erred in denying his 

suppression motion. We consider an order denying a motion to suppress by 

reviewing the evidence of the Commonwealth’s witnesses, and the 

uncontradicted evidence presented by the defendant. In re T.B., 11 A.3d 

500, 505 (Pa.Super. 2010). Where the factual findings of the court are 

supported by that evidence, we are bound by those findings. Id. However, 

the suppression court’s legal conclusions are not binding. Id. The question 

of whether a confession is constitutionally admissible is one of law. Id. We 

evaluate Appellant’s waiver considering the totality of the circumstances. 

 The Commonwealth was required to prove by a preponderance of the 

evidence that Appellant’s Miranda waiver was constitutionally valid. Id. 
J-A29016-15 

- 18 - 

This “inquiry has two distinct dimensions.” Id. First, Appellant must have 

voluntarily waived his right to remain silent. This Court has opined that a 

voluntary waiver is one that is “the product of a free and deliberate choice 

rather than intimidation, coercion or deception.” Id. In addition, a person 

must be fully aware “of the nature of the right being abandoned and the 

consequences of the decision to abandon it.” Id. 

 When the Miranda waiver is performed by a juvenile, we have set 

forth that we consider the juvenile’s age, experience, comprehension, the 

presence or absence of an interested adult, the duration and means of the 

interrogation, the juvenile’s physical and psychological state, the conditions 

attendant to the detention, the attitude of the official conducting the 

interview, and any other factors that might drain a juvenile’s ability to 

withstand coercion and suggestion. Id. at 506. 

 Appellant maintains that his Miranda waiver was not knowing, 

intelligent, and voluntary because the adult present for his statement was 

not an interested adult. Appellant’s uncle, with the consent of Appellant and 

Appellant’s mother, was present when Appellant spoke with police. 

Appellant argues, however, that because his uncle cooperated with police, 

he had a conflict of interest. According to Appellant, his uncle, Harry 

Mitchell, previously provided police with information that incriminated 

Appellant. Appellant submits that his lack of experience with police 
J-A29016-15 

- 19 - 

interrogation, combined with the lack of an interested adult being present, 

resulted in his waiver being invalid. 

 The Commonwealth responds by initially setting forth that Appellant 

did not confess to the crime. Rather, Appellant denied involvement in the 

robbery and shooting, although he did admit to taking part in sawing off a 

shotgun. It continues by highlighting that Appellant voluntarily turned 

himself into police with his mother and uncle on May 1, 2007. The 

Commonwealth does acknowledge that Appellant’s uncle was interviewed on 

April 20 and April 26, 2007. In the later interview, Appellant’s uncle 

informed police that Appellant was back in town or available for questioning. 

Appellant’s uncle thereafter helped to facilitate Appellant turning himself in 

to police. 

 When Appellant arrived at the Allegheny County Homicide 

headquarters, he was told that he was under arrest for homicide. He, his 

mother, and uncle were taken into a conference room. Appellant was not 

handcuffed at that time. After initially indicating that he did not wish to 

speak with police, Appellant informed a sergeant that he was willing to 

discuss the matter with police but not with his mother present. The 

sergeant spoke with Appellant’s mother about Appellant being more 

comfortable talking with police without her being in the room. Appellant, his 

mother, and uncle then were permitted to speak together. Appellant’s 

mother agreed to allow Appellant to speak with police but asked that 
J-A29016-15 

- 20 - 

Appellant’s uncle be present. Police agreed and then informed Appellant of 

his Miranda rights in the presence of both his mother and uncle. Appellant 

answered questions on the Miranda waiver form, waiving his rights. 

Appellant, his mother, and Appellant’s uncle, each signed the form. At that 

point, Appellant’s mother exited the conference room. Appellant’s uncle did 

not ask any questions and Appellant was permitted to speak uninterrupted. 

The police did not discuss the April 20 and April 26 interviews with 

Appellant’s uncle, but the interview ended after Appellant told police that he 

did not wish to speak with them after they began to ask questions. 

 There is no evidence in the suppression record that Appellant’s uncle 

had a conflict of interest. The evidence only indicates that he spoke with 

police, helped facilitate Appellant turning himself in voluntarily, and had told 

Appellant that he had talked with police previously. The totality of the 

circumstances evinces a sound waiver. Appellant was informed of his rights 

in the presence of both his mother and his uncle. Appellant, along with both 

adults, signed a Miranda waiver form, after Appellant completed answering 

that form. Appellant was not handcuffed, there is no evidence of 

intimidation, nor was the interview conducted at an unreasonable hour or for 

an extended period. Appellant’s claim is meritless. 

Appellant’s final issue is that the trial court erred in denying the claim 

in his post-sentence motion that the court erred in putting before the jury 

the crime of conspiracy to commit robbery because that crime was not 
J-A29016-15 

- 21 - 

included in the criminal information. This claim is frivolous and belied by the 

record. In count two of the criminal information, the Commonwealth 

charged Appellant with robbery. In count three, the Commonwealth 

expressly delineated that Appellant, 

with the intent of promoting or facilitating the crime(s) charged 

above, conspired and agreed with Lance Dempster that they or 

one or more of them would engage in conduct constituting such 

crime(s) or attempt or solicitation to commit such crime(s), and 

in furtherance thereof did as a principal or an accomplice, 

commit one or more of the following overt acts: shooting the 

victim, Boston Smithwick, Jr. 

See Criminal Information at 1, count 3. Thus, the criminal information 

referred to the crime of robbery charged in count two in setting forth the 

conspiracy offense. Appellant is entitled to no relief.7

Having disposed of Appellant’s claims pertaining to his trial, we now 

consider his sentencing challenges. Appellant’s initial sentencing issue is 

that he was illegally sentenced to the equivalent of a life sentence without 

parole based on Miller v. Alabama, supra. The Commonwealth agrees 

that Appellant is entitled to resentencing on this basis and the trial court in 

its opinion acknowledged that its sentence was unlawful. Instantly, 

____________________________________________ 

7

 We caution counsel against advancing claims that are patently contradicted 

by the record. Further, we add that trial counsel did not object to the 

criminal information being inadequate prior to trial or to the Commonwealth 

proceeding on a theory at trial that Appellant conspired to commit robbery, 

nor did counsel object to the court instructing the jury on that crime. Only 

at sentencing did Appellant object to the criminal information regarding the 

conspiracy count. 
J-A29016-15 

- 22 - 

Appellant was found guilty on April 30, 2012, and sentenced on November 

27, 2012. The Miller decision was decided on June 24, 2012. Miller held 

that mandatory sentences of life imprisonment without parole for juvenile 

homicide offenders violate the Eighth Amendment. Accordingly, 

Pennsylvania’s mandatory sentencing structure for juvenile homicide 

defendants was rendered unconstitutional. After Appellant was sentenced, 

the General Assembly passed sentencing legislation to address the Miller

case. See 18 Pa.C.S. § 1102.1 (effective October 25, 2012). However, that 

statute does not apply to Appellant. Id.; see also Commonwealth v. 

Batts, 66 A.3d 286 (Pa. 2013) (citing Commonwealth v. Lofton, 57 A.3d 

1270, 1272 (Pa.Super. 2012)).8

While Appellant was not sentenced under a mandatory sentencing 

scheme, the sentencing court did not state that it considered various factors 

____________________________________________ 

8

 Contrary to Appellant’s argument at sentencing, there did exist statutory 

authority to sentence him. Specifically, under the then-applicable version of 

18 Pa.C.S. § 1102(b), Appellant was to be given life imprisonment. 

However, that statute’s interplay with 61 Pa.C.S. § 6137(a), which 

mandated no opportunity for parole, was no longer constitutionally sound. 

Thus, Appellant should have been provided the opportunity for parole during 

his life sentence. See Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) 

(discussing sentencing for juvenile found guilty of first-degree murder in 

light of Miller v. Alabama, 132 S.Ct. 2455 (2012)). Admittedly, there was 

no express statutory provision setting forth a specific time in which a 

juvenile homicide defendant in Appellant’s situation would be eligible for 

parole. Our Supreme Court in Batts expressly rejected the argument that a 

juvenile homicide defendant could only be sentenced to a term of years of 

twenty to forty years incarceration or that a trial court was without authority 

to impose a life sentence with a term of parole for those found guilty of firstdegree murder. 
J-A29016-15 

- 23 - 

that both this Court and our Supreme Court have set forth for sentencing 

those juvenile homicide offenders who did not come within the ambit of 18 

Pa.C.S. § 1102.1. See Knox, supra at 745; Lofton, supra; see also 

Batts, supra 296 (internal citations omitted) (“Miller neither barred 

imposition of a life-without-parole sentence on a juvenile categorically nor 

indicated that a life sentence with the possibility of parole could never be 

mandatorily imposed on a juvenile. Rather, Miller requires only that there 

be judicial consideration of the appropriate age-related factors set forth in 

that decision prior to the imposition of a sentence of life imprisonment 

without the possibility of parole on a juvenile.”). Accordingly, we vacate 

Appellant’s judgment of sentence and remand for re-sentencing consistent 

with the aforementioned decisions. Since we are vacating Appellant’s 

judgment of sentence on this ground, we need not reach his second 

sentencing issue. 

Judgment of sentence vacated. Case remanded for re-sentencing. 

Jurisdiction relinquished. 
J-A29016-15 

- 24 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 2/29/2016