J-S68037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
               Appellee                 :
                                        :
         v.                             :
                                        :
RYAN PHYLLIP BOWERS,                    :
                                        :
               Appellant                :      No. 388 WDA 2016

         Appeal from the Judgment of Sentence February 18, 2016
             in the Court of Common Pleas of Mercer County
           Criminal Division at No(s): CP-43-CR-0001526-2014

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED NOVEMBER 30, 2016

     Ryan Phyllip Bowers (Appellant) appeals from the judgment of

sentence entered February 18, 2016, after he was found guilty of, inter alia,

robbery, burglary, two counts of second-degree murder, and third-degree

murder. After careful review, we affirm.

     The facts pertinent to this appeal are as follows. Appellant was

arrested and charged with several crimes stemming from the murder of

Michael Anthony Johns (Johns). Appellant and Patrick McCamey (McCamey)

arrived at Johns’ home with the intention of committing a burglary/robbery.

N.T., 5/14-18/2016, at 170-71. Upon arrival, an altercation ensued,

ultimately resulting in Johns’ death.       Id. 184-86.   Both Appellant and

McCamey were stabbed by Johns during the struggle. Id. at 170. At trial,

Appellant argued McCamey killed Johns because of a personal vendetta,



* Retired Senior Judge assigned to the Superior Court
J-S68037-16


independent of the burglary and robbery committed by Appellant and his

cohort. Id. at 240-41.

        Prior to trial, Appellant filed a motion seeking to suppress statements

he made after he was taken to police barracks and read his Miranda1 rights.

Appellant averred these statements should be suppressed for, inter alia, the

troopers’ failure to stop the interrogation after Appellant requested counsel.

N.T., 2/4/2015, at 28-30. Following a hearing, the suppression court issued

findings of fact and conclusions of law denying the motion.

        Appellant proceeded to a jury trial, and on February 18, 2016 was

found guilty of all charged crimes. On November 25, 2016, Appellant was

sentenced to two concurrent terms of life imprisonment for each count of

second-degree murder and concurrent terms of imprisonment of 10 to 20

years for third-degree murder and criminal conspiracy respectively.

        Appellant timely filed post-sentence motions, properly preserving all

issues presented on appeal. Following the denial of these motions, Appellant

timely filed a notice of appeal.2

        Appellant raises the following claims for our review.

        1. Did the trial court err in failing to suppress [Appellant’s]
           inculpatory statements made during police custodial
           interrogation after [Appellant] had orally invoked his right to
           assistance of legal counsel during the custodial interrogation?




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


                                       -2-
J-S68037-16


      2. Did the trial court err by failing to instruct the jury at
         [Appellant’s] request that the Commonwealth, to convict
         [Appellant] of murder of the second degree and/or murder of
         the third degree, bore the burden of proof beyond a
         reasonable doubt that [Appellant’s] co-defendant did not kill
         the victim for the co-defendant’s personal reasons
         independent of the charged felonies of burglary and/or
         robbery?

      3. Did the trial court err in failing to determine that the
         mandatory sentence of a term of life imprisonment for a
         conviction of murder of the second degree ([i.e.] felony
         murder) is unconstitutional cruel and unusual punishment in
         violation of the eighth amendment to the United States
         Constitution and Article 1, Section 13 of the Pennsylvania
         Constitution     because     said    punishment       is  grossly
         disproportional to the crime where the killing is without
         explicit malice and specific intent to kill another person?

Appellant’s Brief at 5-6 (suggested answers and unnecessary capitalization

omitted).

      We first address Appellant’s issue that the trial court erred in

concluding that “Appellant did not validly invoke his right to the assistance of

counsel before or during the police custodial interrogation[,]” and therefore

wrongly denied Appellant’s motion to suppress statements made to police

during the interrogation. Appellant’s Brief at 16.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.  Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.


                                     -3-
J-S68037-16


     Where ... the appeal of the determination of the suppression
     court turns on allegations of legal error, the suppression court’s
     legal conclusions are not binding on an appellate court, whose
     duty it is to determine if the suppression court properly applied
     the law to the facts. Thus, the conclusions of law of the court[]
     below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).            “Moreover,

appellate courts are limited to reviewing only the evidence presented at the

suppression hearing when examining a ruling on a pre-trial motion to

suppress.”    Commonwealth v. Stilo, 138 A.3d 33, 35–36 (Pa. Super.

2016).

     The following principles guide our review if this matter.

           In Miranda v. Arizona, [the United States Supreme
     Court] established a number of prophylactic rights designed to
     counteract the “inherently compelling pressures” of custodial
     interrogation, including the right to have counsel present.
     Miranda did not hold, however, that those rights could not be
     waived.    On the contrary, the opinion recognized that the
     statements elicited during custodial interrogation would be
     admissible if the prosecution could establish that the suspect
     “knowingly and intelligently waived his privilege against self-
     incrimination and his right to retained or appointed counsel.”

           In Edwards v. Arizona, [451 U.S. 477 (1981)], [the
     United States Supreme Court] established a second layer of
     prophylaxis for the Miranda right to counsel: once a suspect
     asserts the right, not only must the current interrogation cease,
     but he may not be approached “until counsel has been made
     available to him,”—which means, [the High Court has] most
     recently held, that counsel must be present[.] If the police do
     subsequently initiate an encounter in the absence of counsel
     (assuming there has been no break in custody), the suspect’s
     statements are presumed involuntary and therefore inadmissible
     as substantive evidence at trial, even where the suspect[]
     executes a waiver and his statements would be considered


                                    -4-
J-S68037-16


      voluntary under traditional standards. This is “designed to
      prevent police from badgering a defendant into waiving his
      previously asserted Miranda rights[.]”

Commonwealth v. Hayes, 755 A.2d 27, 32–33 (Pa. Super. 2000)

(citations omitted).

             The U.S. Supreme Court has held that in order “[t]o avoid
      difficulties of proof and to provide guidance to officers
      conducting interrogations,” the determination of whether the
      right to counsel was invoked by the accused is an “objective
      inquiry.” Effective assertion of the Fifth Amendment right to
      counsel “requires, at a minimum, some statement that can
      reasonably be construed to be an expression of a desire for the
      assistance of an attorney in dealing with custodial interrogation
      by the police.” However, if the accused makes an ambiguous or
      equivocal reference that would lead an officer, in light of the
      circumstances, to believe “only that the suspect might be
      invoking the right to counsel,” police interrogation need not
      cease. The accused must “articulate his desire to have counsel
      present sufficiently clearly that a reasonable police officer in the
      circumstances would understand the statement to be a request
      for an attorney.”

Commonwealth v. Martin, 101 A.3d 706, 725–26 (Pa. 2014) (citations

omitted, emphasis in original).

      Instantly, there is no dispute that Appellant was in fact subjected to a

custodial interrogation.   What is contested is whether Appellant made an

affirmative request for counsel. Appellant contends the following statement3




3
  The audio recording was played at the suppression hearing but per the
suppression court’s instructions, was not transcribed. A duplicate of the
recorded interrogation was provided to this Court as part of the reproduced
record.



                                     -5-
J-S68037-16


provided sufficient evidence that he invoked his right to counsel after he was

read his Miranda rights.4

      Trooper Morris: But I certainly want you to know that you need
      to tell us the truth through all of this, okay?

      Appellant: I have no problem with telling you the truth. But,
      um, I just don’t know, I mean put yourself in my [inaudible], I
      just don’t know if it’s the best circumstances to say it without a
      lawyer here, you know, I just don’t know, you know what I
      mean, I don’t know, I don’t know, I [want to] tell you guys.

      Trooper Morris: Well I’ll tell you this is it, this is your only
      opportunity. I’m not going to come back and talk to you again,
      okay… because I’m giving you one opportunity to man up and
      talk about it.

Recorded Interview of Ryan Phyllip Bowers, September 29, 2014.5

      Appellant avers he “did more than merely think out loud whether he

should have an attorney. [Appellant] affirmatively told police that he did not

know whether he should have the assistance and presence of legal counsel




4
  At the beginning of the recorded interrogation Trooper Morris stated:
“[Appellant], you understand you’re being detained right now. We did- we
read you your rights- do you understand your rights?” Appellant answered
affirmatively. Trooper Morris continued: “Okay, you understand you start
talking to us you can stop any time you want to, were not going to make
you continue, okay, so whenever you think you want to stop, you just tell us
okay?” Recorded interview of Ryan Phyllip Bowers, September 29, 2014.
5
  After Appellant made inculpatory statements, he explained: “I just didn’t
know if [] telling you this without a lawyer was going to hurt me or help me
or.” Recorded interview of Ryan Phyllip Bowers, September 29, 2014. At
the end of the interview Appellant reiterated that he was “going to be honest
with you guys- I mean, I wasn’t trying to play hardball, I just didn’t know if
it’s better just to talk to you guys now or wait [until] I had a lawyer
present.” Id. In response, Trooper Morris stated, “well, ultimately that is
your decision…” Id.


                                    -6-
J-S68037-16


for and with him before and/or during the custodial interrogation by the

police.” Appellant’s Brief at 17.

      Following a hearing on Appellant’s motion, the trial court issued a

finding of fact and conclusion of law, wherein the court stated the following:

            Notably, [Appellant] was advised as part of his rights that
      he had the right to stop the interview at any time. When the
      troopers began the recording of the statement, they first
      explained to [Appellant] why he was there, which included a
      statement that [McCamey] was in the barracks and that they
      had been talking to him and that he had told them the story and
      that they wanted to give [Appellant] an opportunity to tell the
      truth so that he could paint the incident with his version rather
      than the version that the evidence was showing which was this
      was a cold-blooded murder. Initially in the interview [Appellant]
      stated that he wanted to tell them the truth but he wasn’t sure
      that he should be doing it without an attorney. The troopers
      indicated that this was his first and only chance to tell them the
      truth if it is contrary to the physical evidence they claimed they
      had at the time.

             [Appellant] then went on to give various versions of what
      occurred, and after each version the police challenged
      [Appellant] by indicating that his version was inconsistent with
      the evidence and that he was not telling them the full truth.
      They also reiterated that he will be given this chance only once
      to tell the truth and that it could be the difference between life
      imprisonment as the evidence seemed to point to, versus
      perhaps a 10 to 20 year sentence. [Appellant] continued to talk
      freely with the troopers during the recorded interview refining
      the story as he went along until he ultimately appeared to give a
      full version of what occurred. At no time during the recorded
      interview did [Appellant] unequivocally ask for an attorney
      and/or exercise any of his rights. “[T]he Fifth Amendment right
      to counsel must be specifically invoked.”

Findings of Fact, Conclusions of Law, and Order, 3/13/2015, at 7-8

(unnumbered, citation removed).




                                     -7-
J-S68037-16


      Upon review, we find the trial court’s conclusions are supported by the

record. Specifically, we conclude Appellant’s pondering aloud “if it’s the best

circumstances to say it without a lawyer here” did not affirmatively invoke

his right to counsel. Not only do Appellant’s words fail to express sufficiently

a desire for the assistance of counsel, we find his statements did not include

the affirmative language that would make an officer objectively believe

Appellant was requesting a lawyer. See Davis v. United States, 512 U.S.
452, 453 (1994) (holding “that [defendant’s] remark—‘[m]aybe I should talk

to a lawyer’—was not a request for counsel.”).6 No relief is due.

      Next, Appellant asserts the trial court erred when it refused to issue a

specific jury instruction requested by defense counsel. Appellant’s Brief at

21.   While deliberating, the jury submitted a question to clarify the

Commonwealth’s burden in disproving Appellant’s defense theory that

McCamey had murdered Johns for personal reasons. 5/14-18/2016 at 326.

The trial court provided the jury with a supplemental instruction, and

defense counsel objected. Specifically, counsel sought to have the trial court

reissue an instruction given before deliberation, and requested the court

clarify the Commonwealth’s burden with respect to the third-degree murder

6
   Furthermore, we reject Appellant’s argument that after his inquiry
regarding an attorney, the troopers were obligated to ask clarifying
questions to determine if Appellant was asserting his right to counsel. See
Martin, 101 A.3d at 726 (finding that while “stating that it would be ‘good
practice’ for police to further question the accused to clarify ambiguous
references to counsel, the [United States Supreme Court] specifically
declined to adopt a rule requiring officers to ask clarifying questions”).



                                     -8-
J-S68037-16


charge. Id. at 330-31. The trial court denied Appellant’s request, relying on

the court’s supplemental instruction and the prior general instructions given

to the jury before deliberation began.       In arguing that the supplemental

instruction given by the trial court was inadequate, Appellant contends the

instruction “did not tell the jury expressly, specifically[,] and directly that the

Commonwealth did bear such a burden of proof on the charge of [second-

degree murder].” Appellant’s Brief at 29.

      [I]n reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case.

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)

(citations omitted).

      The   record reflects that prior       to   the   commencement of their

deliberations, the trial court provided lengthy instructions to the jury and

specifically set forth the Commonwealth’s burden. See N.T., 5/14-18/2016,

at 272-75. While discussing the elements needed to prove second and third-

degree murder, the trial court stated, in part, the following:

            [S]o to find [Appellant] guilty of second[-]degree murder,
      that is felony murder, you must find that the following four
      elements have been proven beyond a reasonable doubt. First,
      that [McCamey] killed [Johns]; second that he did so while he
      and [Appellant] were partners in committing or attempting to
      commit robbery and/or burglary; third, that [McCamey] did the
      act that killed [Johns] in furtherance of the robbery and/or
      burglary; and fourth that the defendant was acting with malice.


                                       -9-
J-S68037-16



                                    ***

           You heard me mention the phrase of “in furtherance of the
     crime of burglary or robbery.” The phrase “in furtherance of”; in
     furtherance of does not include all acts committed by a
     partner. A partner’s act that kills is not in furtherance of
     the felony if the partner does the act for his own personal
     reasons that are independent of the felony. Therefore, you
     must find [Appellant], not guilty of second[-]degree
     murder if you find that [McCamey] killed [Johns] for
     personal reasons independent of any felony as the
     defense argues.

                                 ***

            And last, we have third degree murder … To find
     [Appellant] guilty of this offense, you must find the following
     three elements have been proven beyond a reasonable doubt.
     First that [Johns] is dead; second, that [Appellant and/or] his
     accomplice intentionally and knowingly or recklessly engaged in
     conduct that caused the death of [] Johns; and third, that
     [Appellant] and/or his accomplice did so with malice.

                                 ***

     If you were to find that [McCamey] was acting in the killing of
     [Johns] for his own personal reasons independent of what else
     was going on, based upon all of the totality of the circumstances,
     that may also [] not establish proof beyond a reasonable doubt
     that [Appellant] was an accomplice to murder of the third
     degree. You would have to examine all of the facts and
     circumstances and see if that’s even in the case or how it fits in.

Id. at 307, 318 (emphasis in original).

     While deliberating, the jury asked the following question: “Regarding

both or either [second or third-degree murder], is there a burden of proof on

the part of the prosecution to prove that McCamey did not kill for personal




                                    - 10 -
J-S68037-16


reasons independent of the burglary/robbery?” Id. at 326. In response, the

trial court gave the following supplemental instruction:

             That’s a good question, that’s a tricky question. I have to
      start out by telling you, of course, that the burden of proof is
      always on the government, and what they have to prove beyond
      a reasonable doubt is each and every element of the offenses for
      which he’s charged. On the second[-]degree murder charge,
      we’re talking about a killing that occurs while felonies are going
      on or just after it. So, it’s in the course of committing or
      during the commission of that I think you’re concerned
      with. The government has that burden to prove that the
      killing occurred in furtherance of the burglary and
      furtherance of the robbery. The fact that there may be other
      evidence or explanations that [may be] given somewhere in the
      evidence is for you, first of all, to decide what, if any, there is,
      what weight to give it, and do that within the circumstances of
      all of the evidence physical and testimony that you’ve received,
      applying the weight and the credibility to it and decide whether
      they met the burden of proving whether the killing was in
      furtherance beyond a reasonable doubt.

             As to murder of the third[-]degree, the in furtherance of
      language is not in there because that has nothing to do with
      committing another felony, that’s just murder based upon the
      elements of third[-]degree murder, it’s every other intentional
      killing other than first[-]degree murder and felony murder.. So,
      on that degree you would have to find that [Appellant], if you’re
      thinking that McCamey is the actual person who committed the
      act, and did the killing, then the only way you can convict him of
      murder three is by accomplice liability and the burden of proof is
      on the government to prove beyond a reasonable doubt
      that [Appellant] was acting as an accomplice in a third[-
      ]degree murder, and of course, if your conclusions are
      that they have not met that burden of proof whether it’s
      because you accept an alternate version, that perhaps it
      may have occurred by somebody else going off on his own
      independent killing, then unless he’s an accomplice to
      that he can’t be guilty of murder of the third[-]degree.
      So, the government has to prove whatever you find the facts are
      that he was an accomplice to assist in murder of the third
      degree.



                                     - 11 -
J-S68037-16


            So you have to examine their evidence based on their
      burden as to the elements of that offense, and the element here
      is accomplice liability. What, if anything, did he do as an
      accomplice to assist, aid, abet in murder of the third[-]degree if
      you’re finding that [McCamey] did it.

Id.at 326-29 (emphasis added).

      In response to Appellant’s contention that the court’s supplemental

instruction failed to set forth adequately the Commonwealth’s burden, the

trial court stated the following:

            Defense counsel took exception to this instruction at
      sidebar, arguing essentially that the [trial court’s] instruction
      should be worded differently, i.e., that the Commonwealth bears
      the burden of proving that the killing was not for personal
      reasons independent of the robbery and/or burglary. Notably,
      defense counsel was not arguing that the instruction was wrong;
      he simply wanted it to go further and to tell the jury directly that
      the government must prove the killing was not for an
      independent reason. The trial court did not give any such
      further instructions regarding this question.

             Defense counsel’s exception, [deals] with semantics. The
      trial court instructed the jury throughout the general instructions
      and again in response to [the jury’s question, that] the
      government always bore the burden of proof. The jury was
      given general instructions (without objection) of what elements
      the government had to prove. The [trial court] also made it
      clear in response to [the question] that the prosecution has the
      “burden to prove that the killing occurred in furtherance of the
      burglary and furtherance of the robbery.” The jury would only
      be left with a single directive on the law, i.e., that only the
      prosecution bore any burden of proof as to the elements of each
      offense and if the co-defendant committed the killing outside of
      the felony acts or for personal reasons, then it did not meet its
      burden and they must find defendant not guilty of felony
      murder. . .

            In addition, as to third[-]degree murder, the jury was
      instructed during the final instructions and in response to its []
      question, that the Commonwealth had to prove that [Appellant]


                                     - 12 -
J-S68037-16


      was an accomplice to find him guilty. But they must find him
      not guilty if “somebody else [was] going off on his own
      independent killing, then unless he’s an accomplice to that he
      can’t be guilty of murder of the third degree.”

             Thus, the [trial court] finds that defense counsel’s
      suggested language is simply a different way to express the law,
      and that the instructions by the [trial court] left no room for the
      jury to be confused that they could find [Appellant] not guilty of
      either murder if it was either an independent act of the
      codefendant or the prosecution did not prove that [Appellant[
      was acting as an accomplice to third degree murder, or the
      killing did not occur in furtherance of the alleged robbery or
      burglary.

Memorandum and Order, 2/18/2016, at 12-13.

      We agree that the trial court adequately answered the jury’s inquiry

and concisely set forth the Commonwealth’s burden. In concluding that the

trial court did not abuse its discretion, we note that

      [w]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth            v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citation   omitted).      Here,   without     addressing   Appellant’s   proposed

alternative language, we find the trial court clearly, adequately, and

accurately presented the law and provided ample instruction in response to

the question asked by the jury. No relief is due.




                                      - 13 -
J-S68037-16


       Lastly, we address Appellant’s issue regarding the constitutionality of

his sentence to life in prison for second-degree murder. Appellant contends

that

       [i]t is grossly disproportional to legislate a mandatory sentence
       of [] life imprisonment without parole for a conviction of murder
       of the second[-]degree committed during certain felonies but
       which is not an intentional killing of another, in which there is no
       specific intent to kill another, there is no actual malice towards
       the other, and in which there is no willful, deliberate, and
       premediated killing of another, when the same mandatory
       sentence of a term of life imprisonment is the legislated default
       sentence for a conviction for a criminal homicide of another
       which is committed by intentional killing[.]

Appellant’s Brief at 34-35. Additionally, Appellant cites Miller v. Alabama

132 S. Ct. 2455 (2012), arguing that even though he was 23 years old at

the time of the offenses outlined supra, the findings in Miller concerning

“the incomplete development of the human brain and its judgmental

reasoning capabilities and capacities in young persons” are also applicable to

a 23 year old male.      Appellant’s Brief at 32-33.         “[T]he mandatory life

sentence without the possibility of parole completely ignores these biological

and physiological realties[.]” Id. at 33.

       Appellant’s   issue   challenges     the   legality     of   his   sentence.

Commonwealth v. Henkel, 938 A.2d 433, n. 14 (Pa. Super. 2007).

       [T]he selection of the penalty of life imprisonment, being a
       legislative determination, carries a strong presumption of
       validity, and of constitutionality. “Therefore, in assessing a
       punishment selected by a democratically elected legislature
       against the constitutional measure, we presume its validity. [A]
       heavy burden rests on those who would attack the judgment of
       the representatives of the people.”


                                      - 14 -
J-S68037-16


Commonwealth v. Middleton, 467 A.2d 841, 846 (Pa. Super. 1983)

(citations omitted).

        In concluding Appellant’s final issue does not entitle him to relief by

this Court, we our guided by our holding in Henkel, which addressed the

same issue presently raised by Appellant, “that the imposition of a life

sentence     for   second-degree    murder       constituted   cruel   and   unusual

punishment under both the United States and Pennsylvania Constitutions.” 7

Henkel, 938 A.2d at 446.

              Nearly 25 years ago, in Commonwealth v. Middleton, []
        this Court dismissed a constitutional challenge identical to the
        one presented by [appellants] and stated:

              The offense of felony-murder is undoubtedly one of
              the gravest and most serious which can be
              committed.      The taking of a life during the
              commission of an enumerated felony demonstrates a
              disregard for the property, safety, sanctity, integrity,
              and especially, the life of the victim. It is a crime of
              archviolence.    Clearly, such an offense merits a
              severe penalty.

Id. at 446–47.

        As in Henkel, we too find Appellant has provided no reason for us to

revisit our well-established precedent.8 Furthermore, Appellant’s attempt to

implicate Miller is likewise unavailing.        The Supreme Court in Miller held

that “mandatory life without parole for those under the age of eighteen at

7
    See Pa. Const., Art. I, § 13 and U.S. Const. amend. VIII.
8
 Our Supreme Court, in dictum, harshly criticized the felony-murder rule in
Commonwealth ex rel Smith v. Myers, 261 A.2d. 550 (Pa. 1970).
Appellant does not argue the issues raised therein.


                                       - 15 -
J-S68037-16


the time of their crimes violates the Eighth Amendment's prohibition on

‘cruel and unusual punishments.’” Miller, 132 S. Ct. at 2460. Appellant was

not a juvenile at the time of the offense, and is therefore unable to benefit

from the holdings in Miller.

      Thus, after a thorough review of the record and briefs in this case, we

are unconvinced that any of Appellant’s arguments entitles him to relief.9

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2016




9
  There appears to be a question as to the legality of Appellant’s sentence,
considering he was found guilty and sentenced to three counts of murder
arising from the death of one victim. However, this issue has not been
raised by Appellant on appeal. Given the apparent complexity of this issue,
we decline to consider it sua sponte. See Commonwealth v. Wolfe, 106
A.3d 800, 801 (Pa. Super. 2014) (“We begin by noting that a challenge to
the legality of the sentence can never be waived and may be raised by this
Court sua sponte.”) (emphasis added).


                                    - 16 -