Commonwealth v. Miller

212 A.3d 1114

COMMONWEALTH of Pennsylvania, Appellee

v.Kenneth MILLER, Appellant

No. 338 EDA 2017

Superior Court of Pennsylvania.

Filed June 11, 2019

Submitted December 17, 2018

David L. Zuckerman, Assistant Federal Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

Kenneth Miller (Appellant) appeals from the January 12, 2017 order granting in part and denying in part his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. Upon review, we affirm.

We provide the following background.

Charles Love, Esq. (Love), represented [Appellant's] uncle, Gregory Miller (Gregory) on various matters, and successfully obtained money for Gregory as the result of a variety of civil claims.... However, Love could not distribute the entire sum to Gregory because of outstanding support orders and child support arrearages.

On the morning of February 25, 1998, [Appellant] and Marcus Lloyd (Lloyd) met Herbert Blakeney (Blakeney) at Blakeney's house, at which time the three traveled to Gregory's home. During the ensuing conversation, Gregory spoke to the others about robbing Love at his office at 1006 Spruce Street in Philadelphia, and mentioned that anyone present at the office might have to be shot. According to the original plan, as devised by Gregory and as testified to by Blakeney, [Appellant] was to be the shooter and Lloyd was to tie up the victims while Blakeney acted as a lookout. Gregory gave [Appellant] a handgun and told Blakeney to go to Love's office, get a check for [$ 10,000] from [Love], and give the check to Lloyd; Gregory instructed Lloyd to take the check to the bank and cash it. Gregory did not accompany [Appellant], Blakeney, and Lloyd to Love's office, but before they left for the office, Gregory told the three that the victims would have to be killed and to "leave no witnesses."

En route, [Appellant], Blakeney, and Lloyd took turns carrying the weapon, but Blakeney ended up with it when they reached Love's office. Brian Barry (Barry), a paralegal, opened the office door, whereupon [Appellant], Blakeney, and Lloyd entered and Blakeney brandished the gun. Blakeney then told Love to write out a check for [$ 10,000] while Lloyd tied up Barry. Lloyd departed to cash the check at the bank. Remaining at Love's office, [Appellant] and Blakeney passed the gun back-and-forth to each other.

Lloyd was unable to cash the check because he had insufficient identification, so he returned to Love's office and said to Love, "[y]ou know you is [sic ] a dead mother f***er now." [Appellant] then handed the gun to Blakeney and exclaimed that Blakeney "was a b**** ass n***er if [he didn't] kill the mother f***ers." Blakeney then confronted the victims in the back storage room of Love's office and shot each of them in the head. Blakeney took [$ 1,500] from Love's person, and then [Appellant], Blakeney, and Lloyd fled the scene. The three parted ways temporarily. They later met at Blakeney's house, agreed to split the [$ 1,500] "proceeds" among the three of them, and further agreed to tell Gregory that they did not obtain any money because they could not cash the check.

At approximately 12:00 p.m. on that day, February 25, 1998, one of Love's clients flagged down a police officer at 10th and Spruce Streets and informed the officer that her attorney was in need of an ambulance. The officer entered the law office and saw the bodies of Love and Barry lying face down on the floor of the storage closet, with gunshot wounds to the back of their heads. Love's desk ledger contained an entry made that day indicating that he had written a check for [$ 10,000]. The police officer noticed two .38 caliber shell casings on the floor. Both bullets were later recovered from the victims by the medical examiner.

[Eventually, Appellant, Lloyd, Blakeney, and Gregory were arrested in connection with this crime and charged with, inter alia , murder.]

The trial court conducted a jury trial for [ ] three defendants, [Appellant], Lloyd, and Gregory, ... from September 16, 1999, until September 29, 1999. Blakeney entered into a negotiated plea agreement, at which time he pl[eaded] guilty to two counts of murder in the first degree and received two concurrent life sentences, in exchange for his testimony regarding the roles of [Appellant], Lloyd, Gregory, and himself in the chain of events leading to the deaths of Love and Barry.

Commonwealth v. Miller , 572 Pa. 623, 819 A.2d 504, 507-08 (2002) (footnote and citations to notes of testimony omitted).

At the conclusion of the trial, Appellant was convicted of two counts of first-degree murder, and one count each of robbery and criminal conspiracy. The trial court sentenced Appellant to death on each murder conviction after the jury found the existence of two aggravating circumstances, which outweighed the lone mitigating circumstance. On direct appeal, our Supreme Court affirmed. Miller , 819 A.2d 504. On October 6, 2003, the United States Supreme Court denied Appellant's petition for a writ of certiorari .

Miller v. Pennsyl vania , 540 U.S. 827, 124 S.Ct. 50, 157 L.Ed.2d 50 (2003).

On January 21, 2004, Appellant pro se timely filed the instant PCRA petition. On October 29, 2008, through counsel, Appellant amended his petition, raising eight claims of penalty-phase error and seven claims of guilt-phase error.

On May 13, 2014, the PCRA court granted Appellant penalty-phase relief by vacating his death sentences and imposing a sentence of life imprisonment without the possibility of parole (LWOP) on each murder conviction. The Commonwealth conceded to the granting of this relief and imposing of the amended sentence. See Commonwealth's Supplemental Motion to Dismiss, 4/17/2014, at 1.

On May 13-15, 2014, the PCRA court conducted an evidentiary hearing on some of Appellant's guilt-phase claims. The following individuals testified: Daniel Martell, forensic psychologist; Thomas W. Moore, Jr., Esquire, Appellant's trial counsel; Robert Durison, Director of the Classification Movement and Registration Division of the Philadelphia Prison System; and Joseph J. Mariano, Esquire, Appellant's direct appeal counsel. The PCRA court denied relief on Appellant's guilt-phase claims on January 13, 2017.¹

This timely-filed appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant raises seven issues for our review. Appellant's Brief at 1-2.

I.

Before reaching the merits of Appellant's claims, we address whether this Court or our Supreme Court has jurisdiction over this appeal. This Court has "exclusive jurisdiction of all appeals from final orders of the courts of common pleas ... except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court." 42 Pa.C.S. § 742. Our Supreme Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in, inter alia , automatic review of sentences as provided by 42 Pa.C.S. § 9546(d) (providing that in the PCRA context, "[a] final court order ... in a case in which the death penalty has been imposed shall be directly appealable only to the Supreme Court"). 42 Pa.C.S. § 722(4).

In this case, while the death penalty had been imposed in the past, as part of Appellant's PCRA relief, the death penalty was vacated and replaced with two LWOP sentences. Thus, our jurisdictional analysis turns on whether a PCRA order granting penalty-phase relief and resentencing a defendant to a non-death sentence, but denying guilt-phase relief, qualifies as a PCRA case in which the death penalty has been imposed for purposes of subsection 9546(d). If such an order falls within the scope of subsection 9546(d), it must be appealed directly to our Supreme Court. However, if it falls outside the scope of subsection 9546(d), this Court has jurisdiction to entertain the appeal.

We begin with an analysis of subsection 9546(d), the relevant jurisdictional provision. When this Court interprets a statute, we do so mindful of the following principles.

[O]ur objective is to ascertain and effectuate the intention of the General Assembly[,] and that [e]very statute shall be construed, if possible, to give effect to all of its provisions. This Court may not ignore the language of a statute, nor may we deem any language to be superfluous. Governing presumptions include that the General Assembly intended the entire statute at issue to be effective and certain, and that the General Assembly did not intend an absurd result.

Bayview Loan Servicing, LLC v. Lindsay , 185 A.3d 307, 312 (Pa. Super. 2018) (citations and quotation marks omitted). "In reading the plain language, ‘[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]’ " Gross v. Nova Chemicals Servs., Inc. , 161 A.3d 257, 264 (Pa. Super. 2017) (quoting 1 Pa.C.S. § 1903(a) ).

Thus, we consider first the plain language of subsection 9546(d): "A final court order under this subchapter in a case in which the death penalty has been imposed shall be directly appealable only to the Supreme Court pursuant to its rules." 42 Pa.C.S. § 9546(d) (emphasis added). Grammatically, the verb "has been" is used when a condition was imposed in the past and continues to be imposed in the present. Contrarily, in Appellant's case, the death penalty had been imposed in the past, but does not continue to be imposed at the present time. Thus, the plain language of subsection 9546(d) indicates that a death sentence must remain a potential sentence at the time of the appeal in order for the Supreme Court to possess exclusive jurisdiction over a PCRA appeal. The relevant case law supports this conclusion.

In Commonwealth v. Bryant , 566 Pa. 307, 780 A.2d 646 (2001), the PCRA court had granted...