Commonwealth v. Knox

• Decision Date: 19 September 2012
• Citation: 2012 PA Super 148,50 A.3d 749
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jovon KNOX, Appellant.
• Court: Pennsylvania Superior Court

50 A.3d 749
2012 PA Super 148

COMMONWEALTH of Pennsylvania, Appellee
v.
Jovon KNOX, Appellant.

Superior Court of Pennsylvania.

Argued May 18, 2010.
Filed July 16, 2012.
Reargument Denied Sept. 19, 2012.

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Thomas N. Farrell, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney and Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Marsha Levick, Philadelphia, amicus curiae.

BEFORE: DONOHUE, OLSON and FITZGERALD ^*, JJ.

OPINION BY DONOHUE, J.:

Jovon Knox (“Knox”) appeals from the judgment of sentence entered on September 23, 2008, following a jury trial at which Knox was convicted of second-degree felony murder, attempted robbery of a motor vehicle, conspiracy, and carrying a firearm without a license. Knox and his co-defendant, his identical twin brother, Devon Knox (“Devon”), were 17–years–old at the time they committed the crimes.¹ On appeal, Knox challenges the sufficiency of the evidence to support his convictions and the constitutionality of a life sentence without the possibility of parole for a juvenile convicted of second-degree murder. Although we determine that the evidence was sufficient to support his convictions, we remand for resentencing based the United States Supreme Court's decision in

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Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

On July 8, 2007, at approximately 1:30 p.m., Jehru Donaldson (“the victim”) drove his girlfriend to her sister's house on the North Side of Pittsburgh to pick up two of her nephews for a Pittsburgh Pirates baseball game. The victim waited outside in his car while his girlfriend went inside the house. Two of her nephews, Ah.C. and Aa.C. (ages 9 and 13, respectively), were outside at the time, and observed Knox and his twin brother approach the victim's car on the driver's side. One of the twins told the victim to “[g]et out of the car.” N.T., 6/3/08, at 145. The same twin then lifted his shirt, exposed a gun, and again said to the victim: “Get out of the car.” Id. at 147. When the victim did not comply, the same twin pulled out the gun and aimed it at the victim's head. The victim pushed the gun away from his face with his hand and drove off. Both twins ran towards the car, and the twin with the gun fired one shot towards the victim's car. After the shot was fired, the victim crashed his vehicle into an abandoned house, at which point both twins ran together up the street, away from the victim's car.

In the hours that followed the shooting, Ah.C. and Aa.C. spoke with police about what they observed. Both Ah.C. and Aa.C. identified the twins in photo arrays as being the two individuals who approached the victim's car, and further identified Devon as the shooter.

The victim was rushed to Allegheny General Hospital and was pronounced dead the following afternoon, on July 9, 2007. The cause of death was a single gunshot wound to the head.

That same day, United States Marshals secured a warrant for the arrest of Knox and his twin brother. Upon arriving at the Knox residence, the twins' father informed the marshals that he was preparing to send his daughter out of town for fear of retaliation against his sons. He told the marshals that Knox and his brother were staying with a girlfriend, and provided the address where the twins were later apprehended.

Knox was taken to the police station, where he was provided his Miranda² rights and interrogated by the police. Knox told police that he was not in the area where the shooting occurred on the day in question, but could not say whom he was with or where he was.³

Knox was charged with criminal homicide, attempted robbery of a motor vehicle, conspiracy to commit robbery of a motor vehicle, and possession of a firearm without a license.⁴ He was tried jointly with Devon. The Commonwealth proceeded on the theory that Devon was the shooter, and Knox his accomplice and co-conspirator.⁵ Knox's defense was that Devon was the perpetrator of the crimes, and that he

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was merely an innocent bystander. On the first day of the trial, however, Knox and his twin brother, who were dressed identically, switched places in what the trial court referred to as “a courtroom stunt reminiscent of ‘The Parent Trap[.]’ ” Trial Court Opinion, 6/22/09, at 2; see N.T., 6/3/08, at 156–57, 185–93.⁶ At the time the brothers engaged in this switch, Ah.C. testified and identified Knox as the shooter.

The jury acquitted Knox of first-degree murder,⁷ but convicted him of second-degree murder,⁸ attempted robbery of a motor vehicle, conspiracy, and carrying a firearm without a license. The jury did not make a finding regarding which brother was the shooter. The trial court sentenced Knox to the mandatory sentence for second-degree murder—life in prison without the possibility of parole ⁹—and imposed no further penalty on the other convictions.

Trial counsel was permitted to withdraw, and the trial court appointed new counsel. The trial court granted an extension of time for Knox to file post-sentence motions so that new counsel could obtain the trial transcripts. Thereafter, Knox filed a post-sentence motion asserting that the verdict was against the weight of the evidence. This motion was denied on March 12, 2009.

Knox filed a notice of appeal on April 3, 2009. He timely complied with the trial court's order to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed a responsive opinion pursuant to Pa.R.A.P. 1925(a). On appeal, Knox raises the following issues for our review:

1. Whether there was sufficient evidence to support the convictions of second-degree murder, criminal attempt (robbery of a motor vehicle), criminal conspiracy (robbery of a motor vehicle), and carrying a firearm without a license when the Commonwealth failed to prove beyond a reasonable doubt that [Knox] was a conspirator and/or an accomplice, and only proved [Knox] was merely present during a robbery/homicide?

2. Whether there was sufficient evidence to support the conviction of carrying a firearm without a license when the Commonwealth failed to prove beyond a reasonable doubt that [Knox] carried a firearm, and the evidence at trial demonstrated that [Devon] possessed the gun at all times?

3. Whether the life sentence without the possibility of parole for a juvenile is unconstitutional under the Eighth Amendment of the United States Constitution as well as

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Article I, Section 13 of the Pennsylvania Constitution?

Knox's Brief at 4.

In his first issue raised on appeal, Knox challenges the sufficiency of evidence to prove that he conspired with Devon to commit the crimes perpetrated against the victim, or that he was Devon's accomplice in the commission of the crimes.¹⁰Id. at 17. He argues that the Commonwealth established only that he “was merely present,” with no evidence that he aided or intended to aid Devon in the commission of the crimes. Id. at 17, 21. In anticipation of the Commonwealth's argument that Knox did not leave the scene when he saw Devon had a gun, he explains that “[h]e didn't have time to leave. Both [Ah.C.] and [Aa.C.] admitted that they could not run into their house and get help from an adult when they saw Devon with the gun because the event happened so very quickly.” Id. at 22.

Our standard for reviewing the sufficiency of the evidence is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa.Super.2011) ( en banc ).

We begin by setting forth the definitions of the relevant crimes. “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). The statute defining robbery of a motor vehicle provides: “A person commits a felony of the first degree if he steals or takes a motor vehicle from another person in the presence of that person or any other person in lawful possession of the motor vehicle.” 18 Pa.C.S.A. § 3702(a).

“A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b). “Perpetration of a felony” is defined as: “The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after

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committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.” 18 Pa.C.S.A. § 2502(d).

The Pennsylvania Crimes Code defines conspiracy as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees...