J-S63037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JEFFRY MCBRIDE

 Appellant No. 2187 EDA 2015

Appeal from the PCRA Order June 26, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0013114-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,*J.

MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 25, 2017

Appellant, Jeffry McBride, appeals from the order entered in the 

Philadelphia County Court of Common Pleas denying his first petition filed 

pursuant to the Post Conviction Relief Act1(“PCRA”). Appellant contends 

trial counsel was ineffective and that his mandatory sentence of life without 

parole (“LWOP”) is unconstitutional under Miller v. Alabama, 132 S. Ct. 

2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We 

affirm in part, reverse in part, vacate Appellant’s judgment of sentence, and 

remand for resentencing. 

In its opinion, the PCRA court summarizes the relevant facts of this 

case as follows:

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S §§ 9541-9546. 
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On April 21, 2007, approximately twenty (20) to fifty 

(50) people were in the Kenderton Elementary playground. 

Demond Brown (decedent/victim, also identified on the 

record as “Demond”) had recently finished a game of 

basketball and was standing on the sideline. The 

decedent’s cousin, Anthony Harris (also identified on the 

record as “Tony”), and best friend, Hassan Durant, were 

standing on the basketball court. 

Armel Baxter and [Appellant] were in the backseat of 

their friend Rachel Marcelis’ car, driving to their friend 

Daryl Mack’s (also identified on the record as “Mack”) 

aunt’s house. Either, Baxter or [Appellant] said they saw 

someone on the playground and told Rachel Marcelis to go 

back so they could be sure. Rachel Marcelis drove around 

the block, and Baxter and [Appellant] exited the car. 

Anthony Harris and Hassan Durant saw Baxter and 

[Appellant] enter the playground with ‘hoodies’ on. People 

on the playground noticed Baxter and [Appellant] because 

both men were wearing hoodies on a very hot day. The 

decedent turned around, noticed Baxter and [Appellant], 

and began to run. Baxter and [Appellant] began shooting, 

and continued to shoot as they walked together side by 

side. The decedent ran in a “zigzag” pattern towards the 

15th Street exit. The decedent stumbled out of the 

playground and fell in the middle of the street. 

Baxter and [Appellant] ran out of the playground, and 

headed east on Ontario Street, then south on 15th Street. 

Rachel Marcelis saw Baxter and [Appellant] running in her 

direction, and let them back in her car. While in the car, 

Rachel Marcelis heard Baxter and [Appellant] talking about 

how [Appellant’s] gun did not work and he could “not get 

any rounds off”. When they arrived at Daryl Mack’s aunt’s 

house, Rachel Marcelis asked [Appellant] “if that was the 

person who shot De-Nyce.” [Appellant] answered “Yes.” 

After they left the house, Rachel Marcelis, Baxter and 

[Appellant] drove to Wilkes-Barre for the weekend, but 

only Rachel Marcelis returned the following Monday. 

An arrest warrant was issued for both Baxter and 

[Appellant] on May 4, 2007. [Appellant] was arrested in 

Wilkes-Barre on May 7, 2007, after police were informed of 
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his outstanding warrant. Baxter was found at a motel in 

Wilkes-Barre on July 10, 2007 . . . . 

PCRA Ct. Op., 10/21/15, at 2-3. 

A jury convicted Appellant on February 5, 2009, of first-degree 

murder2, criminal conspiracy3, and possessing an instrument of crime4

(“PIC”). That same day, the court sentenced Appellant to LWOP for murder 

and concurrent sentences of ten to twenty years’ imprisonment and one to 

two years’ imprisonment for conspiracy and PIC, respectively. This Court 

affirmed Appellant’s judgment of sentence on March 22, 2010, and our 

Supreme Court denied allowance of appeal on September 16, 2010. See 

Commonwealth v. McBride, 440 EDA 2009 (Pa. Super. March 22, 2010), 

appeal denied, 163 EAL 2010 (Pa. Sept. 16, 2010). 

On April 14, 2011, Appellant timely filed his first PCRA petition pro se. 

The PCRA court appointed counsel on December 19, 2011. PCRA counsel 

subsequently filed several amended petitions, which raised Appellant’s 

claims of trial counsel’s ineffectiveness and the constitutionality of his LWOP 

sentence pursuant to Miller. The PCRA court dismissed without a hearing 

Appellant’s claims regarding Miller and trial counsel’s failure to call several 

character witnesses at trial. However, the PCRA court ultimately held an 

 

2 18 Pa.C.S. § 2502(a). 

3 18 Pa.C.S. § 903(a)(1). 

4 18 Pa.C.S. § 907(a). 
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evidentiary hearing on Appellant’s claims regarding trial counsel’s failure to 

call several exculpatory witnesses at trial and to cross-examine Rachel 

Marcelis on her immunity agreement. The PCRA court denied Appellant’s 

petition on June 26, 2015. Appellant timely filed a notice of appeal on July 

9, 2015, and complied with the court’s order to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant raises the following issues for our review:

I. The PCRA Court erred for failing to grant PCRA relief 

because trial counsel was ineffective for failing to 

investigate, interview, and call Darryl Mack, Stephan 

Studivant, Zan’ea Jones, Ikenia Harris and Deborah 

McBride, who would be exculpatory eyewitnesses at trial. 

II. The PCRA Court erred for failing to grant PCRA relief 

because trial counsel was ineffective for failing to 

investigate, interview, and call Kyle Carter, Derrick 

McMillan, Gregory Blackmon, Shawn Lowry, Theresa 

Brown, Tyrone Lewis, Malik Wooden and McCoy Matthews 

and the PCRA judge failed to grant an evidentiary hearing 

for these witnesses. 

III. The PCRA Court erred for failing to grant PCRA relief 

because trial counsel was ineffective because he received 

the Commonwealth’s Petition for Immunity and the Order 

for Immunity and failed to cross-examine Rachel Marcelis 

concerning this favorable treatment by the 

Commonwealth. 

IV. The PCRA Court erred for failing to grant PCRA relief 

because Appellant’s sentence of mandatory [LWOP] is 

“cruel punishment” under Article 1, §§ 1, 9, and 13 of the 

Pennsylvania Constitution and “cruel and unusual 

punishment” under the Eighth and Fourteenth 

Amendments to the U.S. Constitution. 

V. The PCRA Court erred for failing to grant PCRA relief 

because Appellant’s sentence of mandatory sentence of 
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[LWOP] is unconstitutional under both Article 1, §§ 1, 9, 

and 13 of the Pennsylvania Constitution and under the 

Eighth and Fourteenth Amendments to the U.S. 

Constitution because two classes of prisoners sentenced to 

mandatory [LWOP] are treated differently. 

VI. The Pennsylvania Code therefore does not establish a 

constitutional sentence for first degree murder committed 

by a juvenile. It would violate [A]ppellant’s rights under 

the ex post facto clause to inflict “punishments, where the 

party was not, by law, liable to any punishment” or to 

inflict “greater punishment, than the law annexed to the 

offense.[”] Stogner v. California, 539 U.S. 607, 612 

(2003). 

VII. The PCRA Court erred for failing to grant PCRA relief 

because Miller v. Alabama, 132 S. Ct 2455 (2012), 

applies retroactively to . . . [A]ppellant who has exhausted 

his appeal rights and is proceeding under the [PCRA] 

because: (1) Miller’s companion case, Jackson v. Hobbs, 

132 S. Ct. 548 (2011) was decided on collateral review 

and (2) cases from both strands of precedent relied upon 

by the Court in Miller have been applied retroactively. 

Appellant’s Brief at 3-4. 

We address Appellant’s issues regarding trial counsel’s ineffectiveness 

together. Appellant argues trial counsel was ineffective for failing to 

investigate, interview, and call several character witnesses and exculpatory 

witnesses at trial. Specifically, Appellant claims he submitted to trial counsel 

a list of several eyewitnesses who were available to testify that Appellant 

was not involved in decedent Brown’s shooting. Appellant alleges trial 

counsel’s failure to call these witnesses prejudiced Appellant and denied him

a fair trial. Moreover, Appellant contends trial counsel failed to call 

witnesses who were willing to testify to Appellant’s reputation for 
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peacefulness. Appellant further claims the PCRA court erred in failing to 

conduct an evidentiary hearing on Appellant’s claim regarding these 

character witnesses. Additionally, Appellant argues trial counsel was 

ineffective for failing to cross-examine Rachel Marcelis regarding her 

immunity. Appellant maintains Rachel Marcelis received favorable treatment 

from the Commonwealth in exchange for her testimony against Appellant. 

Appellant concludes he is entitled to a new trial. We disagree. 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011). This Court 

grants great deference to the findings of the PCRA court if the record 

contains any support for those findings. Commonwealth v. Boyd, 923 

A.2d 513 (Pa. Super. 2007). We give no such deference, however, to the 

court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 

(Pa. Super. 2012). Traditionally, credibility issues are resolved by the trier 

of fact who had the opportunity to observe the witnesses’ demeanor. 

Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998), cert. denied, 

120 S. Ct. 41 (1999). Where the record supports the PCRA court’s 

credibility resolutions, they are binding on this Court. Id. 

Nevertheless, “a PCRA petitioner is not automatically entitled to an 

evidentiary hearing. We review the PCRA court’s decision dismissing a 
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petition without a hearing for an abuse of discretion.” Commonwealth v. 

Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). Further, 

when the PCRA court denies relief without an evidentiary hearing, this Court 

must examine each of the issues raised in light of the record to determine 

whether the PCRA court erred in concluding there were no genuine issues of 

material fact. Id. (citation omitted). 

[C]ounsel is presumed to have provided effective

representation unless the PCRA petitioner pleads and

proves that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable basis for his or her conduct;

and (3) [a]ppellant was prejudiced by counsel’s action or

omission. To demonstrate prejudice, an appellant must

prove that a reasonable probability of acquittal existed but

for the action or omission of trial counsel. A claim of

ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Further, a PCRA

petitioner must exhibit a concerted effort to develop his

ineffectiveness claim and may not rely on boilerplate

allegations of ineffectiveness. 

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation

marks and citations omitted). 

“In order to prevail on a claim of ineffectiveness for failing to call a 

witness, a defendant must prove, in addition to meeting the three 

[ineffectiveness] requirements, that: (1) the witness existed; (2) the witness 

was available to testify for the defense; (3) counsel knew or should have 

known of the existence of the witness; (4) the witness was willing to testify 

for the defense; and (5) the absence of the witness’s testimony was so 

prejudicial as to have denied him a fair trial.” Commonwealth v. Walls, 
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993 A.2d 289, 302 (Pa. Super. 2010) (quoting Commonwealth v. Wright, 

961 A.2d 119, 155 (Pa. 2008)). 

Instantly, the PCRA court addressed Appellant’s ineffectiveness claims 

as follows:

1. Failing to Call Darryl Mack, Stephan Studivant, 

Zan’ea Jones, Ikenia Harris, and Deborah McBride

[Appellant] first asserts that trial counsel was 

ineffective for failing to “investigate, interview and call” 

Darryl Mack, Stephan Studivant, Zan’ea Jones, Ikenia 

Harris, and Deborah McBride as exculpatory witnesses at 

trial. This claim is without merit. . . . Here, the evidence 

presented at the hearing clearly established that trial 

counsel, Michael Wallace, was not ineffective as he had a 

reasonable basis for not calling the above witnesses to 

testify on [Appellant’s] behalf. 

Regarding witness Darryl Mack, [Appellant] alleged that 

Mack would have testified at trial that he was present with 

Rachel Marcelis at the time of the shooting, that Mack was 

driving―not Marcelis, and that Marcelis was heavily under 

the influence of drugs. At the PCRA hearing, Mr. Wallace 

testified that, after questioning Mack, he determined that 

Mack’s testimony would not be helpful at trial. Mr. Wallace 

also testified that he had information that what Mack was 

saying was not truthful, so that his testimony at trial would 

be false. Finally, Mr. Wallace testified that he consulted 

with [Appellant] regarding Mack’s testimony and 

[Appellant] agreed to not call Mack at trial. The [PCRA 

c]ourt found Mr. Wallace’s testimony to be credible and 

that Mr. Wallace’s belief that Mack was not helpful and 

would lie on the stand was a reasonable basis for not 

calling Mack at trial. Because this finding is supported by 

the record, [Appellant] cannot show that [trial] counsel’s 

actions lacked a reasonable basis. Therefore, the [PCRA 

c]ourt did not err in dismissing [Appellant’s] claim of [trial] 

counsel[’s] ineffectiveness for failing to call Mack at trial. 

Regarding witness Stephan [Studivant], [Appellant] 

alleged that [Studivant] was present at the scene of the 
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shooting, that he could not see the shooters[’] faces as 

they were concealed by hoodies, but that he heard 

Anthony Harris inform police that Malik Ware was the 

shooter. Mr. Wallace testified at the PCRA hearing that 

[Studivant] told Wallace’s investigator that he was not 

even at the scene of the shooting, and only later claimed 

to have been a witness. The [PCRA c]ourt found Mr. 

Wallace’s testimony to be credible and that not presenting 

fabricated testimony was a reasonable basis for not calling 

[Studivant] to testify at trial. As [Appellant] cannot show 

that [trial] counsel’s actions lacked a reasonable basis, the 

[PCRA c]ourt did not err in dismissing [Appellant’s] claim 

of [trial] counsel[’s] ineffectiveness for failing to call 

[Studivant] at trial. 

Regarding witnesses Zan’ea Jones, Ikenia Harris, and 

Deborah McBride, [Appellant] sought to establish through 

these witnesses that Rachel Marcelis had animosity 

towards [Appellant] stemming from her failed relationship 

with [Appellant’s] brother and because [Appellant] took 

advantage of her. [Appellant] alleged that this evidence 

would have demonstrated that Marcelis was biased against 

[Appellant] and therefore incredible. However, at the 

PCRA hearing, Mr. Wallace testified that he believed that 

none of these witnesses would have supported an 

argument that Marcelis was biased against [Appellant]. 

Jones, Harris, and McBride were all family members of 

[Appellant]. Wallace testified that all three of these 

witnesses were close with Marcelis, that Marcelis ate with 

them, that Marcelis stayed overnight with them, and that 

all of them partied together as recently as the very night 

before the shooting. Therefore, it was Wallace’s view that 

these witnesses would have established a close 

relationship among Marcelis, [Appellant] and [Appellant’s] 

family, rather than any bad feelings that would have 

caused Marcelis to be biased. As [trial] counsel had a 

reasonable basis for not calling the above three women, 

the [PCRA c]ourt did not err in dismissing [Appellant’s] 

claim of [trial] counsel[’s] ineffectiveness. 

2. Failing to Call Kyle Carter, Derrick McMillan, Gregory 

Blackmon, Shawn Lowry, Theresa Brown, Tyrone 

Lewis, Malik Wooden, and McCoy Matthews
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[Appellant] next asserts that trial counsel was 

ineffective for failing to investigate, interview, and call Kyle 

Carter, Derrick McMillan, Gregory Blackmon, Shawn Lowry, 

Theresa Brown, [Tyrone] Lewis, Malik Wooden, and McCoy 

Matthews at trial and that the [PCRA c]ourt erred in failing 

to grant an evidentiary hearing on these witnesses. This 

claim is without merit. 

Regarding Kyle Carter, [Appellant] alleged that Carter 

would have testified that he was present at the shooting, 

and that he heard “Tone” (Anthony Harris) say that Malik 

Ware, not [Appellant], shot [decedent] Brown. However, 

the record establishes that, while Carter was subpoenaed 

to appear at trial, Carter was not present in court when he 

would have been called to testify. While Wallace 

attempted to request a continuance to attempt to compel 

Carter to appear, the trial judge would not agree to a 

continuance for that purpose. The trial judge’s decision to 

refuse the continuance request was upheld by the Superior 

Court on [Appellant’s] direct appeal. As Carter failed to 

appear in court, despite having been properly subpoenaed, 

and since the trial court refused to continue the case to 

allow further efforts to secure his appearance, Carter was 

unavailable to testify on [Appellant’s] behalf. Therefore, 

[Appellant’s] claim of [trial] counsel’s ineffectiveness for 

failing to call Carter at trial is without arguable merit. 

Accordingly, the [PCRA c]ourt did not err in denying 

[Appellant’s] claim without an evidentiary hearing. 

Regarding witness Derrick McMillan, [Appellant] alleged 

that McMillan would testify that [Appellant] “did not have a 

reputation for fighting or shooting.” At trial, counsel 

stipulated that five different family members would testify 

at trial that [Appellant’s] reputation “for being peaceful 

and nonviolent [was] excellent.” Because McMillan’s 

testimony regarding [Appellant’s] character would have 

been cumulative, merely repeating the stipulated 

testimony of five other character witnesses, [trial] counsel 

cannot be ineffective for not calling him as a witness. 

Therefore, the [PCRA c]ourt did not err in failing to grant 

an evidentiary hearing on this claim. 

Regarding Gregory Blackmon, [Appellant] alleged that 

Blackmon would have testified that [decedent] Brown was 
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shot by individuals who were taller and slimmer than 

[Appellant]. As with witness Kyle Carter, . . . Blackmon 

was subpoenaed for trial but failed to appear, and the trial 

judge refused to continue the case to allow further efforts 

to secure his appearance. For the reasons stated above 

regarding Carter, [Appellant’s] claim regarding witness 

Blackmon was properly rejected without an evidentiary 

hearing. 

Regarding Shawn Lowry, [Appellant] alleged that Lowry 

would testify that he “had knowledge of who was present 

on the playground when the shooting took place.” 

However, [Appellant] did not assert anywhere in his 

Amended Petition how this testimony would have been 

relevant or exculpatory. Indeed, [Lowry’s] statement to 

police . . . does not provide any reason to believe that 

[Lowry] saw the actual shooting or could testify that 

[Appellant] did not shoot [decedent] Brown. Moreover, 

the record demonstrates that both trial counsel and 

counsel for co-defendant Baxter attempted to locate 

[Lowry], but that these attempts were unsuccessful and 

[Lowry] never appeared at trial. Accordingly, as 

[Appellant] failed to aver the existence of evidence that 

could establish that he was prejudiced by the lack of 

[Lowry’s] testimony, and since the record demonstrates 

that [Lowry] was unavailable, [trial] counsel was not 

ineffective for failing to call him at trial. 

Regarding Theresa Brown, [Appellant] alleged that 

[Theresa] Brown would have testified that she saw “two 

males wearing light colored hoodies and the ‘hoodies’ were 

up.” As with [Lowry], . . . [Appellant] does not allege that 

this testimony would, in any way, exculpate [Appellant] or 

provide any additional, relevant testimony. Moreover, 

[Appellant] cannot demonstrate that he was prejudiced by 

the lack of this testimony, since both Hassan Durant and 

Anthony Harris both testified that the shooters were 

wearing hoodies, with the hoods up, but that they could 

see enough of [Appellant’s] face to identify him as a 

shooter. Harris additionally testified that he saw 

[Appellant’s] face before [Appellant] raised the hood. As 

[Appellant] could not have been prejudiced by the lack of 

[Theresa] Brown’s testimony, [Appellant] cannot establish 
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that counsel was ineffective for failing to call [her] to 

testify at trial. 

Regarding Tyrone Lewis, [Appellant] alleged that Lewis 

“had knowledge of who was present on the playground 

when the shooting took place.” As with [Lowry], . . . 

[Appellant] does not allege that this testimony would, in 

any way, exculpate [Appellant] or provide any additional, 

relevant testimony. Further, the record indicates that both 

trial counsel and counsel for co-defendant Baxter 

attempted to locate Lewis, but that these attempts were 

unsuccessful and Lewis never appeared at trial. 

Accordingly, as [Appellant] failed to aver the existence of 

evidence that could establish that he was prejudiced by the 

lack of [Lowry’s] testimony, and since the record 

demonstrates that [Lowry] was unavailable, counsel was 

not ineffective for failing to call him at trial. 

Regarding Malik Wooden, [Appellant] alleged that 

Wooden would have testified that one of the two shooters 

“had a dark complexion and this was not consistent with 

[Appellant] or his co-defendant Armel Baxter.” [Appellant] 

fails to demonstrate how this additional testimony would 

have exculpated [him]. Even assuming arguendo that 

[Appellant’s] complexion could not properly be described 

as “dark,” Wooden did not describe the complexion of both 

shooters. Moreover, . . . [Appellant] was identified by two 

individuals, one of whom testified that he saw [Appellant] 

before [he] covered his face with his hoodie. Further, 

[Appellant] failed to allege anywhere that Wooden was 

available to testify on his behalf. As [Appellant] was not 

prejudiced by the lack of Wooden’s testimony, and as 

there is no reason to believe that Wooden was available to 

testify at trial, [trial] counsel was not ineffective for failing 

to call Wooden as a witness. 

Regarding McCoy Matthews, [Appellant] asserts that 

Matthews “had knowledge of who was present on the 

playground when the shooting took place.” For the 

reasons set forth above for witnesses Lowry and Lewis, 

[Appellant] fails to establish how Matthews[’] testimony 

would have been relevant or exculpatory at trial. 

[Matthews’] statement to police . . . does not provide any 

reason to believe that Matthews saw the actual shooting or 
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could testify that [Appellant] did not shoot [decedent] 

Brown. Further, [Appellant] never alleges that Matthews 

was available to testify on his behalf. As [Appellant] was 

not prejudiced by the lack of Matthews’ testimony, and as 

there is no reason to believe that Matthews was available 

to testify at trial, [trial] counsel was not ineffective for 

failing to call Matthews as a witness. 

3. Failing to Cross-Examine Rachel Marcelis Regarding 

Immunity

[Appellant] next asserts that trial counsel was 

ineffective for failing to cross-examine Rachel Marcelis 

concerning the Commonwealth’s Petition for Immunity and 

the Order for Immunity which counsel received prior to 

trial. This claim is without merit. 

At trial, defense counsel conducted an extensive crossexamination of Marcelis concerning her involvement in the 

playground shooting. However, Mr. Wallace did not 

question Marcelis concerning the immunity granted to her 

by the Commonwealth. At the PCRA hearing, Mr. Wallace 

testified that he was fully aware of the immunity, but 

declined to question [Marcelis] about it since he believed it 

would hurt [Appellant’s] case. The [PCRA c]ourt found Mr. 

Wallace’s testimony to be credible. Under the 

Commonwealth’s theory, Marcelis drove [Appellant] to and 

from the murder, and therefore could have been charged 

as an accomplice. Under the defense theory, Marcelis and 

[Appellant] were in a car together, but had nothing to do 

with the murder. Accordingly, Marcelis only had criminal 

exposure if the Commonwealth’s contentions were correct. 

Bringing out the immunity agreement under those 

circumstances could tend to support the Commonwealth’s 

version of the facts. Under these circumstances, Wallace’s 

strategic decision to not bring out the immunity had a 

reasonable basis. Therefore, [trial] counsel was not 

ineffective for choosing to omit this testimony. 

PCRA Ct. Op. at 5-12 (citations and footnotes omitted). We agree with the 

PCRA court’s conclusions. Furthermore, regarding the immunity claim, 

Appellant has failed to demonstrate he was prejudiced by trial counsel’s
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failure to cross-examine Marcelis on her immunity agreement. See Perry, 

959 A.2d at 936. At trial, Hassan Durant and Anthony Harris both testified 

to seeing Appellant and co-defendant shoot decedent Brown. See N.T. Trial, 

1/29/09, at 76-77; N.T. Trial, 1/30/09, at 4-6. Thus, Appellant has not

proven there is a reasonable probability the outcome of his trial would have 

been different but for trial counsel’s alleged ineffectiveness. See Perry, 959 

A.2d at 936. Accordingly, Appellant’s claims of trial counsel’s ineffectiveness 

merit no relief, and we affirm the PCRA court’s dismissal of these claims. 

Appellant’s remaining issues challenge his LWOP sentence; therefore, 

we will address them together. Appellant argues his mandatory sentence of 

LWOP constitutes “cruel and unusual punishment” under the Pennsylvania 

and United States Constitutions because he was a juvenile when the crimes 

were committed. Appellant contends he was seventeen-years-old at the 

time of the offense and, therefore, his mandatory LWOP sentence is 

unconstitutional pursuant to Miller and Montgomery. Appellant concludes 

he is entitled to resentencing under Miller and Montgomery. We agree. 

On January 25, 2016, while the instant appeal was pending,5the 

United States Supreme Court issued its decision in Montgomery and held, 

“Miller announced a substantive rule of constitutional law. Like other 

substantive rules, Miller is retroactive[.]” Montgomery, 136 S. Ct. at 734. 

 

5 Appellant filed his pro se PCRA petition on April 14, 2011, prior to the 

United States Supreme Court’s decision in Miller on June 25, 2012. 
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Thereafter, this Court issued its decision in Commonwealth v. Secreti, 134 

A.3d 77 (Pa. Super. 2016) and held the decision in Montgomery renders 

Miller retroactive “effective as of the date of the Miller decision.” Secreti, 

134 A.3d at 82. Therefore, pursuant to the decisions in Miller, 

Montgomery, and Secreti, we reverse the PCRA court’s order denying 

relief on this claim, vacate Appellant’s judgment of sentence, and remand for 

resentencing. 

Order affirmed in part and reversed in part. Judgment of sentence 

vacated. Remand for resentencing. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2017