OPINION BY BOWES, J.:
Kevin Lofton appeals from the judgment of sentence of life imprisonment without parole imposed following his convictions of second-degree murder, robbery, criminal conspiracy to commit robbery, possession of an instrument of crime, and carrying a firearm without a license. We affirm Appellant's convictions, but, because Appellant committed the murder as a juvenile, we vacate his judgment of sentence and remand for resentencing in accordance with Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
On Christmas evening, 2007, the victim, Andrew Jackson, was visiting with family in Philadelphia. The family was enjoying a game of cards when Mr. Jackson decided to retrieve a case of beer from his car. A group of young men surrounded Mr. Jackson in an attempt to rob him. Mr. Jackson resisted and was shot seven times with a .25 caliber semi-automatic handgun. The victim's cousin and several neighbors heard the shots and observed the attackers flee. In addition, two passersby, a mother and daughter, telephoned police moments before the shooting to report the robbery. However, none of the witnesses could identify the assailants and the case initially remained unsolved.
The investigation renewed over one year later when a witness, who was under arrest at the time, came forward and provided information that he saw Appellant and two others fleeing from the scene and observed Appellant carrying a black handgun. The witness, Terrance Farley, also asserted that Appellant and his co-defendants admitted to shooting someone during a robbery. Mr. Farley, at trial, denied making statements to police that implicated Appellant and two co-defendants, Anwar Shamsid-Deen and Antoine Ray. Instead, he acknowledged only that he identified the three men as persons he knew from the neighborhood.
The police investigation also led them to J.D., a fifteen-year-old juvenile, who was thirteen at the time of the shooting. J.D. resided at Glen Mills, a juvenile facility. Philadelphia police traveled to Glen Mills, retrieved J.D., and returned with him to Philadelphia, a forty-five to fifty minute trip. Police handcuffed J.D. in the vehicle and did not alert his mother of the purpose of their interrogation. J.D. informed police that he was present during the robbery and that Appellant and his co-defendants attempted to rob the victim before Appellant shot him. At trial, J.D. denied inculpating Appellant and his two co-defendants.
Appellant and his two co-defendants were tried jointly. On May 4, 2011, the jury acquitted Appellant of first-degree murder, but adjudicated him guilty of second-degree murder, robbery, conspiracy to commit robbery, and carrying a firearm without a license. The trial court sentenced Appellant, on August 15, 2011, to a mandatory term of life imprisonment based on the murder conviction. Appellant contested the imposition of the mandatory at sentencing, averring it was unconstitutional because he was a juvenile when he committed the crime. Specifically, Appellant argued that the sentence violated his Eighth Amendment right against cruel and unusual punishment and his due process rights under the Fourteenth
Appellant's brief at 3.
Appellant labels his initial challenge as a weight-of-the evidence claim. We evaluate such claims under settled precepts.
Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003) (citations omitted). Hence, a trial court's denial of a weight claim "is the least assailable of its rulings." Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873, 880 (2008). Conflicts in the evidence and contradictions in the testimony of any witnesses are for the fact finder to resolve. Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528 (2003). As our Supreme Court has further explained,
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 752 (2000) (citations omitted). In addition, a weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.Super.2011). Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion. Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).
Appellant argues that no witness testified in court to observing Appellant shoot the victim, the testimony of the homicide detectives was arrogant, and J.D.'s damaging out-of-court statement was coerced. In the latter two respects, Appellant highlights
In Karkaria, the defendant was charged with raping his stepsister. On appeal, he presented a sufficiency, not weight, of the evidence claim. The Karkaria Court, relying on Farquharson, concluded that the testimony of the victim was "so unreliable and contradictory that it is incapable of supporting a verdict of guilty, and thus, is insufficient as a matter of law." Karkaria, supra at 1172. Specifically, in Karkaria, the victim alleged that her stepbrother sexually assaulted her on a weekly basis for three years while babysitting her on weekends while another stepbrother was not home. The court, nonetheless, recognized that the victim also admitted that the defendant no longer babysat her during the period in which the crimes were alleged to have occurred as well as other inconsistencies.
In Farquharson, the defendant, a female psychiatrist, was convicted of murder and conspiracy in the death of another doctor after the defendant's lesbian lover, a former patient, shot and killed the doctor. Although discussing the defendant's position that she could not be convicted based on mere conjecture, the court rejected the surmise and mere conjecture argument therein. Instead, the court concluded that the defendant's own statements to police provided sufficient "indicium of trustworthiness" of her conspirator's testimony. Farquharson, supra at 551.
Our Supreme Court recently discussed both of these cases in Commonwealth v. Brown, 52 A.3d 1139 (Pa.2012), and concluded that a claim that a prior inconsistent statement repudiated at trial was too unreliable to prove guilt beyond a reasonable doubt, such as occurred herein, was properly considered a sufficiency of the evidence issue and not a weight claim. In discussing Karkaria, the Court explained,
Brown, supra at 1156 n. 18; but see id. at 1190 n. 1 (Castille, C.J. concurring and dissenting) (opining that the issue was a weight of the evidence claim).
We do not dispute that Appellant's legal argument and the phrasing of his issue pertain to the weight of the evidence and not its sufficiency and point out that, unlike the defendant in Brown, supra, Appellant did not label the issue as a sufficiency of the evidence claim. Therefore, we do not find that Brown requires Appellant's
The Commonwealth responds that the issue is waived because, although Appellant filed a post-sentence motion, that motion is not part of the certified record and, thus, this Court cannot assume that Appellant preserved his weight challenge. In the alternative, the Commonwealth submits that Appellant's claim fails on the merits. It notes that the credibility of the witnesses is for the fact-finder and that inconsistencies between the trial testimony and the prior statements was for the jury to resolve. The Commonwealth posits that the jury was presented with the fact that J.D. signed a written statement implicating Appellant and determined that his trial testimony wherein he retracted that statement lacked credulity.
Assuming arguendo that Appellant preserved the issue, we agree with the Commonwealth that it does not entitle him to relief. The jury was clearly apprised of the discrepancies between the out-of-court statements and the in-court testimony both of J.D. and Mr. Farley. Appellant thoroughly explored the police tactics in securing the statements and attempted to highlight, via questioning of police, the possibility that the investigators did not actually transcribe verbatim the statements provided by the witnesses. The jury, nevertheless, was free to reject the in-court testimony of J.D. and Mr. Farley and accept the testimony of police that they accurately transcribed the statements that they were provided as well as the veracity of the out-of-court statements.
Moreover, while the additional witnesses could not conclusively identify Appellant or his co-defendants, their testimony was consistent with other information provided by J.D. Namely, J.D. indicated that Appellant and his two co-defendants attempted to rob the victim while he and several other teens stood at a distance and watched. The victim's cousin described three people as part of the assault and related that several other individuals were nearby. The mother and daughter witnesses provided that a group of six or seven were involved. Hence, this case does not present a factual scenario analogous to the sufficiency issue in Karkaria and is closer in line with Farquharson, where our Supreme Court rejected the defendant's conjecture argument. Since the prior inconsistent statements of J.D. and Mr. Farley were admissible as substantive evidence, the testimony of the additional witnesses provided an indicium of reliability as to J.D.'s and Mr. Farley's out-of-court statements, and the jury is the arbiter of credibility, we hold that the trial court did not abuse its discretion in ruling on the weight issue.
Appellant also contends that his sentence of life imprisonment without the possibility of parole violates his federal due process, equal protection, and Eighth Amendment right against cruel and unusual punishment as well as the corresponding rights under the Pennsylvania Constitution. The Commonwealth concedes that Appellant is entitled to resentencing based on the United States Supreme Court decision in Miller, supra, See also Commonwealth v. Jovon Knox, 50 A.3d 749 (Pa.Super.2012); Commonwealth v. Devon Knox, 50 A.3d 732 (Pa.Super.2012). We agree that Appellant is entitled to resentencing, and write further to note that, in direct response to Miller, the Pennsylvania General Assembly has passed a new law relative to juvenile first-degree and second
The legislature failed to contemplate that it is longstanding precedent that persons are generally entitled to the retroactive applicability of decisions when they are pursuing an identical issue on direct appeal. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983) ("we hold that where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal."); Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986) (discussing various retroactivity approaches utilized in Pennsylvania); cf. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding new federal constitutional rules apply retroactively to cases on direct appeal).
Thus, juveniles convicted before June 24, 2012, but who are on direct appeal, may be entitled to resentencing despite the legislature's failure to adequately address such juveniles.
The new legislation provides:
The new law distinguishes between defendants convicted of first-degree murder and second-degree murder and further divides punishment for those who were
Judgment of sentence vacated. Case remanded for re-sentencing. Jurisdiction relinquished.