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, 2 012 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, J J. OPINION BY BOWES, J.: FILED FEBRUARY 29, 2016 William Mitchell appeals from the aggregate judgme nt of sentence of one hundred and nineteen years to two hundred and t hirty-eight years imprisonment imposed by the trial court after a jur y found him guilty of second-degree murder, robbery, and conspiracy to co mmit robbery. After careful review, we vacate Appellant’s judgment of s entence and remand for resentencing, but affirm in all other respects. Appellant, a juvenile at the time of the commissio n of the underlying crimes, and Lance Dempster were involved in the sho oting and robbery of Boston Smithwick, a Vocelli’s Pizza delivery driver . On April 19, 2007, Vocelli’s Pizza in Swissvale received a delivery or der for pizza and soda from an individual named Lance. That person provided a cell phone number andJ-A29016-15

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asked that the order be delivered to 565 Campbell S treet, Wilkinsburg. Smithwick drove to the address. Appellant, armed w ith a sawed-off shotgun, and Dempster attempted to rob Smithwick. Smithwick tried to grab the weapon, and was shot in the leg. The shot gun blast severed the femoral artery in his leg, causing Smithwick to ble ed to death. Police later recovered a hacksaw blade with Appellant’s fingerpr ints 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 Camp bell Street, which had been converted into an apartment building, shortly before the shooting. Ms. Parker lived in one of the apartments herself. Ap pellant 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 th e 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 h omicide, robbery, conspiracy to commit murder and robbery, a nd possession of a prohibited offensive weapon. Appellant unsuccessfu lly litigated a pre-trial suppression motion, contending that he did not volu ntarily or knowingly and intelligently waive his Miranda rights when he provided police with aJ-A29016-15

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statement. The matter proceeded to a jury trial. The jury found Appellant guilty of second-degree murder, robbery, and conspi racy to commit robbery on April 30, 2012. The court sentenced Appellant o n November 27, 2012, after the United States Supreme Court decision in Miller v. Alabama , 132 S.Ct. 2455 (2012), which declared mandatory sentenc es of life imprisonment without parole for juvenile homicide o ffenders violated the Eighth Amendment. The court imposed a sentence of ninety-nine to one hundred and ninety-eight years incarceration for th e felony murder crime. It also sentenced Appellant to consecutive sentences o f ten to twenty years each for robbery and conspiracy to commit robbery. Appellant timely filed a post-sentence motion. Af ter a hearing, the court denied that motion. Appellant timely appeale d. The trial court directed Appellant to file and serve a Pa.R.A.P. 19 25(b) concise statement of errors complained of on appeal. Appellant complied , and the trial court authored its Rule 1925(a) opinion. The matter is n ow ready for this Court’s consideration. Appellant raises seven issues for o ur review.
I. Whether the Trial Court erred or, abused its discre tion 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 an d ninety eight (198) years, effectively a life senten ce, in violation of the mandates of the Supreme Court of t he United States pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012) and with no sentencing provision in eff ect pursuant to the Pennsylvania Crimes Code on Novembe r 27, 2012 to address Appellant’s unique situation?J-A29016-15

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II. Whether the Trial Court erred or abused its discret ion 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 f ailing to provide a proper and sufficient statement of reason s 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 evide nce to prove beyond a reasonable doubt that the Appella nt committed the crimes of Murder in the Second Degree and Criminal Conspiracy to Commit Robbery?
IV. Whether the Trial Court erred by admitting, over ob jection, a statement allegedly made by Diane Davidson, decea sed, 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 ob jection, a statement alleged to have been made by Diane Davidson, deceased, through the testimony of Detect ive Defelice, when said statement was inadmissible hear say within hearsay and not subject to the excited utter ance or the inconsistent statement exceptions to hearsay.
VI. Whether the Trial Court erred in denying a pre-tria l Motion to Suppress Statement, regarding statements that we re made by the Appellant during a May 1, 2007 police interrogation, and allowing them to be played in co urt over objection, because the Appellant’s waiver of Mirand a and subsequent statements were not voluntary, knowing, and intelligent?
VII. The trial court erred when denying Appellant’s post

sentence motion regarding the allowance of putting before the jury the crime of Conspiracy to Commit Robbery, effectively requiring Appellant to defend on an unc harged offense after the jury was empaneled? Appellant’s brief at 9-10.J-A29016-15

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Appellant’s initial two claims pertain to sentenci ng. It would, however, be unnecessary to reach these issues if Appellant i s entitled to relief on any of his remaining claims. Accordingly, we will addr ess issues three through seven before considering his sentencing claims. Fu rther, 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 s ufficiency claim at the outset regardless of the order of his claims. Commonwealth v. Stokes , 38 A.3d 846 (Pa.Super. 2011). Appellant argues that t he Commonwealth failed to introduce sufficient evidence to prove be yond a reasonable doubt that he committed second-degree murder. He maintai ns that the Commonwealth did not establish that he killed Smith wick while facilitating, attempting, or committing a robbery or that he was an accomplice to the robbery that resulted in Smithwick’s death. Appell ant contends that it is speculation and conjecture that he possessed the sh otgun during the robbery since none of the Commonwealth’s witnesses testified to seeing him shoot Smithwick. In addition, Appellant asserts that the evidence w as insufficient to establish that he committed robbery or conspired to commit a robbery, thereby rendering both his second-degree murder and conspiracy to commitJ-A29016-15

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robbery convictions infirm. 1 He submits that the Commonwealth did not prove an agreement between Appellant and Dempster t o 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 presen ce when Dempster “acted independently and spontaneously in robbing a nd shooting Smithwick[.]” Appellant’s brief at 32. In reviewing a sufficiency claim, we consider the e ntirety 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 C ommonwealth. Id . The evidence “need not preclude every possibility of in nocence and the factfinder is free to believe all, part, or none of the evidence presented.” Id

. Only where “the evidence is so weak and inconclusiv e that, as a matter of law, no probability of fact can be drawn from the c ombined circumstances[,]” is a defendant entitled to relief

. Id . We do not “re-weigh the evidence and substitute our judgment for that o f 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 separa te 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

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the evidence de novo

. Commonwealth v. Sanchez , 36 A.3d 24, 37 (Pa. 2011). Second-degree murder, commonly known as felony mur der in Pennsylvania, requires a homicide committed while t he “defendant was engaged as a principal or an accomplice in the perp etration 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 defe ndant in engaging in or being an accomplice in the commission of, or an att empt 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 ju risdictions have determined that one cannot conspire to commit felon y murder. Evanchyk v. Stewart , 340 F.3d 933, 939-40 (9th Cir. 2003) (holding tha t, under Arizona law, one cannot conspire to commit felony m urder); 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) (opin ing that Kansas does not recognize the crime of conspiracy to commit fel ony murder because conspiracy requires a specific intent). This Court has also repeatedly noted that one cannot attempt to commit felony murder bec ause 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 o ur Supreme Court has concluded that one can conspire to commit third-deg ree 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 th e commission of the offense, he: (i) solicits such other person to commit i t; or (ii) aids or agrees or attempts to aid such other p erson in planning or committing it; or (2) his conduct is expressly declared by law to est ablish his complicity. (d) Culpability of accomplice. -- When causing a particular result is an element of a n 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 th at 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 a id.” Commonwealth v.
Knox , 50 A.3d 732, 739 (Pa.Super. 2012). Thus, Appella nt could have been found guilty of second-degree murder based on the j ury finding that Appellant aided in the robbery that resulted in Smi thwick’s death without establishing a conspiracy to commit that robbery. Accordingly, Appellant’s argument that the Commonwealth failed to prove a co nspiracy to commit robbery is immaterial to our sufficiency review for purposes of Appellant’s felony murder conviction.J-A29016-15

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With respect to the charges of robbery and conspir acy to commit robbery, Appellant was charged with robbery under 1 8 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) i nflicts serious bodily injury upon another; (ii) threatens another with or intent ionally puts him in fear of immediate serious bodily injury[.]” 18 Pa.C.S. § 37 01(a)(1)(i)-(ii). A defendant also may be guilty of robbery as an accom plice or co-conspirator as long as the defendant possessed the requisite mens rea to commit the criminal act and the additional elements of accompl ice liability or conspiratorial liability are established. We have p reviously outlined the definition of an accomplice. A person is a conspira tor if “the defendant: 1) entered into an agreement to commit or aid in an un lawful 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 de ciding if a conspiracy existed. Those factors were: “(1) an association b etween alleged conspirators; (2) knowledge of the commission of th e 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 infer red from a variety of circumstances including, but not limited to, the relationJ-A29016-15

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between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surroundin g the criminal episode.” Commonwealth v. Feliciano , 67 A.3d 19, 26 (Pa.Super. 2013) ( en banc ). “The conduct of the parties and the circumstances s urrounding 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 nec essarily guilty of conspiracy to commit robbery. The Commonwealth posits that the following evidenc e is sufficient to establish second-degree murder and conspiracy to co mmit robbery. Dempster and his girlfriend telephoned several loca l 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 Campbe ll Street address, Ms. Parker observed Dempster, Appellant, and Warren Irv in 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 e arlier that same day.

____________________________________________ 3 The calls were three-way calls.J-A29016-15

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Police recovered a hacksaw blade with Appellant’s f ingerprints 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 s hooting, he observed Appellant and Dempster hiding in the bushes when Sm ithwick arrived at 565 Campbell Street. The Commonwealth introduced evide nce that Appellant and Dempster then confronted Smithwick armed with a shotgun. Specifically, Irvin acknowledged hearing the shotgu n being cocked, and asserted that he ran away as Smithwick ran toward A ppellant, before he heard a shot fired. Shortly thereafter, police arr ived to find Smithwick shot. These facts, viewed in a light most favorable to t he Commonwealth, establish beyond a reasonable doubt that Appellant is guilty of seconddegree murder, robbery, and conspiracy to commit ro bbery. Appellant’s claim that he was merely present at the scene ignor es our standard of review. The evidence establishes that Appellant bot h aided Dempster in the robbery and agreed to take part in the robbery. Here, Appellant and Dempster attempted to hold up and rob Smithwick. I n 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 cou rt erred in admitting into evidence a statement by a deceased witness, Di ane Davidson. Evidentiary rulings are governed by an abuse of dis cretion standard.J-A29016-15

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Commonwealth v. Moser , 999 A.2d 602 (Pa.Super. 2010). First, Appellant attacks the admission of Davidson’s state ment through Doreen Parker. Appellant contends that the statement was inadmissible hearsay and did not fall within the ambit of the excited ut terance 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 lay ing 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 my self and Detective DeFelice last week? Ms. Parker: Yes, that was April 17 th

. 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 exce ption and Appellant argued that Ms. Davidson’s statement to Ms. Parker did not sufficiently evince that Ms. Davidson observed the shooting. Th e trial court overruled the objection. Appellant again objected immediatel y before the testimony.J-A29016-15

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Ms. Parker: Yes.[ 5 ]

. . . . Prosecutor: I’m going to show you this report. Te ll me if it refreshes your memory. Read it to yourself as to w hat 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 t he 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 wh at she told you? Ms. Parker: Yeah.

____________________________________________ 5 Appellant raised an objection and the court allow ed the prosecution to proceed in order to refresh the witness’ recollecti on.J-A29016-15

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Prosecutor: What did she say to you exactly? Ms. Parker: This. Prosecutor: You have to testify to it. What did s he 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 t he ground on the sidewalk and the curb. She could see better th an 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 wom en? 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. D avidson’s statement to Ms. Parker does not indicate that Ms. Davidson witn essed the shooting. The Commonwealth rejoins that the context of the s tatement is sufficient to establish that Ms. Davidson saw the s hooting. It adds that aJ-A29016-15

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shooting is a startling event and that Ms. Davidson made her statements to Ms. Parker within seconds to three minutes of the s hooting. Thus, it posits that Ms. Davidson’s statement was an excited uttera nce and admissible. We agree. The entire context of Ms. Davidson’s st atements to Ms. Parker indicate that she witnessed the shooting. A ppellant does not dispute that a shooting is a startling event. The trial co urt did not err in allowing Ms. Parker’s testimony regarding Ms. Davidson’s stateme nts. 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 c ontends 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 a nswered, “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 t he Commonwealth’s argument that the statement read by Detective DeFel ice was an inconsistent prior statement to Ms. Parker’s in-court testimony related above. AppellantJ-A29016-15

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argues that the trial court failed to appreciate th e distinction between an inconsistent statement and one that is merely dissi milar. 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. David son said, “Somebody shot the pizza man,” and that this declaration is n ot inconsistent with “Them boys shot the pizza man.” In addition, we are cogn izant 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 di d not say what gender they were. We find that the court erred in permitting Detectiv e DeFelice to testify as to what Ms. Parker relayed to him regarding Ms. Davidson. The difference between Ms. Parker’s testimony is not, w hen considered in context, inconsistent with, “Them boys shot the piz za man.” N.T., 4/25/12, at 119. Although Ms. Parker did state that Ms. Dav idson 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 abo ve was

____________________________________________ 6 The Commonwealth in its brief does not contend th at this was the inconsistency. Rather, it asserts that the stateme nt “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 invol ved. Commonwealth’s brief at 33.J-A29016-15

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consistent. Nonetheless, we agree with the Commonw ealth’s argument that the error was harmless. Harmless error exists if there is no reasonable pos sibility that the error could have contributed to the verdict. Commonwealth v. Green , 76 A.3d 575, 583 (Pa.Super. 2013). In this respect, an erro r is harmless if it did not prejudice the defendant or the prejudice wa s 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 prope rly admitted and uncontradicted evidence of guilt was so overwhe lming and the prejudicial effect of the error so insignifican t by comparison that the error could not have contributed to the ve rdict. Id . Here, the evidence was merely cumulative of prop erly admitted evidence. Appellant is not entitled to a new trial on this basis. Appellant’s next contention is that the trial cour t erred in denying his suppression motion. We consider an order denying a motion to suppress by reviewing the evidence of the Commonwealth’s witnes ses, and the uncontradicted evidence presented by the defendant. In re T.B. , 11 A.3d 500, 505 (Pa.Super. 2010). Where the factual findi ngs of the court are supported by that evidence, we are bound by those f indings. Id . However, the suppression court’s legal conclusions are not b inding. Id . The question of whether a confession is constitutionally admissi ble is one of law. Id . We evaluate Appellant’s waiver considering the totalit y of the circumstances. The Commonwealth was required to prove by a prepon derance of the evidence that Appellant’s Miranda waiver was constitutionally valid. Id

.J-A29016-15

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This “ inquiry has two distinct dimensions.” Id . First, Appellant must have voluntarily waived his right to remain silent. Thi s Court has opined that a voluntary waiver is one that is “the product of a f ree and deliberate choice rather than intimidation, coercion or deception.” Id . In addition, a person must be fully aware “of the nature of the right bei ng 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, experien ce, comprehension, the presence or absence of an interested adult, the dur ation and means of the interrogation, the juvenile’s physical and psycholo gical state, the conditions attendant to the detention, the attitude of the off icial 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 presen t for his statement was not an interested adult. Appellant’s uncle, with t he consent of Appellant and Appellant’s mother, was present when Appellant spok e with police. Appellant argues, however, that because his uncle c ooperated with police, he had a conflict of interest. According to Appell ant, his uncle, Harry Mitchell, previously provided police with informati on that incriminated Appellant. Appellant submits that his lack of expe rience with policeJ-A29016-15

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interrogation, combined with the lack of an interes ted adult being present, resulted in his waiver being invalid. The Commonwealth responds by initially setting for th that Appellant did not confess to the crime. Rather, Appellant de nied involvement in the robbery and shooting, although he did admit to taki ng part in sawing off a shotgun. It continues by highlighting that Appella nt voluntarily turned himself into police with his mother and uncle on Ma y 1, 2007. The Commonwealth does acknowledge that Appellant’s uncl e was interviewed on April 20 and April 26, 2007. In the later intervie w, Appellant’s uncle informed police that Appellant was back in town or available for questioning. Appellant’s uncle thereafter helped to facilitate A ppellant turning himself in to police. When Appellant arrived at the Allegheny County Hom icide 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 indicatin g that he did not wish to speak with police, Appellant informed a sergeant th at he was willing to discuss the matter with police but not with his mot her present. The sergeant spoke with Appellant’s mother about Appell ant being more comfortable talking with police without her being i n the room. Appellant, his mother, and uncle then were permitted to speak toge ther. Appellant’s mother agreed to allow Appellant to speak with poli ce but asked thatJ-A29016-15

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Appellant’s uncle be present. Police agreed and th en informed Appellant of his Miranda rights in the presence of both his mother and uncl e. 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 roo m. Appellant’s uncle did not ask any questions and Appellant was permitted t o speak uninterrupted. The police did not discuss the April 20 and April 2 6 interviews with Appellant’s uncle, but the interview ended after Ap pellant 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 tha t Appellant’s uncle had a conflict of interest. The evidence only indi cates 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 wa s 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 err ed 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 t hat crime was notJ-A29016-15

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included in the criminal information. This claim i s frivolous and belied by the record. In count two of the criminal information, the Commonwealth charged Appellant with robbery. In count three, th e Commonwealth expressly delineated that Appellant, with the intent of promoting or facilitating the cr ime(s) charged above, conspired and agreed with Lance Dempster tha t they or one or more of them would engage in conduct constit uting such crime(s) or attempt or solicitation to commit such crime(s), and in furtherance thereof did as a principal or an acc omplice, commit one or more of the following overt acts: sho oting the victim, Boston Smithwick, Jr. See Criminal Information at 1, count 3. Thus, the cri minal information referred to the crime of robbery charged in count t wo in setting forth the conspiracy offense. Appellant is entitled to no re lief. 7 Having disposed of Appellant’s claims pertaining to his trial, we now consider his sentencing challenges. Appellant’s in itial sentencing issue is that he was illegally sentenced to the equivalent o f 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 unla wful. Instantly,

____________________________________________ 7 We caution counsel against advancing claims that a re patently contradicted by the record. Further, we add that trial counsel did not object to the criminal information being inadequate prior to tria l or to the Commonwealth proceeding on a theory at trial that Appellant cons pired 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

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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 witho ut parole for juvenile homicide offenders violate the Eighth Amendment. A ccordingly, Pennsylvania’s mandatory sentencing structure for j uvenile homicide defendants was rendered unconstitutional. After Ap pellant 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, th ere 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 lif e imprisonment. However, that statute’s interplay with 61 Pa.C.S. § 6137(a), which mandated no opportunity for parole, was no longer c onstitutionally sound. Thus, Appellant should have been provided the oppor tunity 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 spec ific time in which a juvenile homicide defendant in Appellant’s situatio n 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 forthose found guilty of firstdegree murder.J-A29016-15

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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 j uvenile 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-re lated 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 va cating Appellant’s judgment of sentence on this ground, we need not re ach his second sentencing issue. Judgment of sentence vacated. Case remanded for re- sentencing. Jurisdiction relinquished.J-A29016-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/29/2016