IN THE SUPREME COURT OF PENNSYLVANIA

Transcription

1 IN THE SUPREME COURT OF PENNSYLVANIA No. COMMONWEALTH OF PENNSYLVANIA, v. CHARMAINE PFENDER, Petitioner. PETITION FOR ALLOWANCE OF APPEAL On Petition for Allowance of Appeal from the Judgment of the Superior Court of Pennsylvania at No. 839 WDA 2016 dated May 3, 2017, Affirming the Order of the Court of Common Pleas of Allegheny County at CC No dated May 10, 2016 BRET GROTE Legal Director Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA PA I.D. # Tel.: QUINN COZZENS Legal Fellow Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA PA I.D. # Tel: TIFFANY E. SIZEMORE-THOMPSON Assistant Clinical Professor, Supervising Attorney PA I.D. # Duquesne University School of Law Tribone Center for Clinical Legal Education 203 Tribone 914 Fifth Avenue Pittsburgh, PA Tel.: ATTORNEYS FOR PETITIONER

2 TABLE OF CONTENTS Page I. OPINIONS DELIVERED IN COURTS BELOW II. ORDER IN QUESTION III. QUESTIONS PRESENTED FOR REVIEW 1 IV. STATEMENT OF THE CASE. 2 V. MS. PFENDER S PETITION FOR ALLOWANCE OF APPEAL SHOULD BE GRANTED 10 A. The Superior Court s holding conflicts with the U.S. Supreme Court s holdings in Miller v. Alabama and Montgomery v. Louisiana B. The questions presented are ones of first impression in the Pennsylvania Supreme Court C. The questions presented are of substantial public importance and require a prompt and definitive resolution D. The questions presented involve the constitutionality of Pennsylvania s sentencing statute for first degree murder 29 VI. CONCLUSION APPENDIX A Opinion of the Superior Court.. 1a APPENDIX B Opinion of the PCRA Court b APPENDIX C Text of Constitutional Provisions, Statutes, Regulations.... 1c i

3 TABLE OF CITATIONS Page Cases Atkins v. Virginia, 536 U.S. 304 (2002). 14 Burnham v. Superior Court of Cal. County of Marin, 495 U.S. 604 (1990).. 13 Caldwell v. Mississippi, 472 U.S. 320 (1985) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)... 28, 30 Commonwealth v. Albert, 758 A.2d 1149 (Pa. S.Ct. 2000).. 28, 30 Commonwealth v. Bullock, 913 A.2d 207 (Pa. S.Ct. 2006) 28 Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013)... 26, 30, 31 Commonwealth v. Cunningham, 81 A.3d 1 (2013) Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) Commonwealth v. Laird, 988 A.2d 618 (Pa. S.Ct. 2010) County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989).. 13 Eddings v. Oklahoma, 455 U.S. 104 (1982) Estelle v. Gamble, 429 U.S. 97, 102 (1976) Graham v. Florida, 560 U.S. 48 (2010).. passim Hall v. Florida, 134 S.Ct (2014).. 23 Kennedy v. Louisiana, 554 U.S. 407 (2008) Kremens v. Bartley, 431 U.S. 119 (1977) ii

4 Lockett v. Ohio, 438 U.S. 586 (1978). 14 McGautha v. California, 402 U.S. 183 (1971) Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380 (3d Cir. 2010) Miller v. Alabama, 132 S.Ct (2012).. passim Montgomery v. Louisiana 136 S.Ct. 718 (2016). passim Moore v. Texas, 137 S.Ct (2017) Plyler v. Doe, 457 U.S. 202 (1982) 28 Reed v. Reed, 404 U.S. 71 (1971).. 28 Roper v. Simmons, 543 U.S. 551 (2005). passim Royster v. Guano Co. v. Virginia, 253 U.S. 412 (1920). 28 Secretary of Public Welfare of Pennsylvania v. Institutionalized Juveniles et al., 442 U.S. 640 (1979). 24 Seminole Tribe v. Fla., 517 U.S. 44 (1996) , Trop v. Dulles, 356 U.S. 86 (1958) 27 Weems v. United States, 217 U.S. 349 (1910) 27 Woodson v. North Carolina, 428 U.S. 280 (1976). 14 Statutes 18 Pa.C.S. 1102(a)(1) U.S.C. 922(b)(1) Pa.C.S , 25, Pa.C.S. 9545(b)(1)(iii) 10 iii

5 50 P.S Regulations Pa. R.A.P passim Constitutional Provisions Pa. Const. Art. I, , 30 U.S. Const. Amend. VIII. passim U.S. Const. Amend. XIV.. 11, 29 Secondary Sources Brief for the American Psychological Association, et al. as Amici Curiae, Roper v. Simmons, 543 U.S. 551 (2005) 16 Emerging Adulthood: A Theory of Development From the Late Teens Through the Twenties, Jeffrey Jensen Arnett, 55 Am. Psychologist 469 (2000).. 22 (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, Elizabeth Cauffman, Ph.D. and Laurence Steinberg, Ph.D., 18 Behav. Sci. & L. 741(2000) iv

6 I. OPINIONS DELIVERED IN COURTS BELOW The Superior Court of Pennsylvania issued a non-precedential opinion denying Petitioner s appeal on May 3, The opinion is attached as Appendix A. Judge Anthony Mariani of the Allegheny Court of Common Pleas issued an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) on November 28, Judge Mariani s opinion is attached as Appendix B. II. ORDER IN QUESTION On May 3, 2017, the Superior Court of Pennsylvania issued a nonprecedential opinion affirming the order of the PCRA Court and relinquishing jurisdiction. See Appendix A at 14. III. QUESTIONS PRESENTED FOR REVIEW 1. Does Miller v. Alabama s constitutional requirement that sentencers consider age-related facts prior to imposing life without parole sentences apply to Petitioner, who was considered a child under Pennsylvania law and possessed those characteristics of youth identified as constitutionally significant for sentencing purposes by the U.S. Supreme Court? 1

7 2. Does the rule of law announced in Miller require retroactive invalidation of a mandatory life without parole sentence imposed on an offender with categorically diminished culpability by virtue of suffering extreme childhood physical, psychological, and sexual abuse? 3. Does the combined effect of Ms. Pfender s youth and her experience of extreme childhood and adolescent physical, psychological and sexual abuse render her categorically less culpable under Miller and therefore require reversal of her sentence? 4. Does Pennsylvania law permitting mandatory sentences of life without parole for crimes committed by 18-year-olds lack rational basis in light of Miller s prohibition against such sentences for offenders aged 17 years and younger, therefore violating the Equal Protection Clauses of the United States and Pennsylvania Constitutions? IV. STATEMENT OF THE CASE Petitioner Charmaine Pfender was convicted of first degree murder and mandatorily sentenced to life without parole on October 25, 1985 in the Allegheny County Court of Common Pleas. Ms. Pfender was born on January 18, 1966 and was 18 years old at the time of the events that led to her conviction, which occurred on August 7, Ms. Pfender is challenging the mandatory imposition of her life without parole sentence based on the recent rulings by the Supreme Court of the 2

8 United States in Miller v. Alabama, 132 S.Ct (2012) and Montgomery v. Louisiana 136 S.Ct. 718 (2016). Between the ages of 6 and 14, Ms. Pfender was brutally and repeatedly abused by her father. She was beaten with a belt, punched, slapped, and kicked at least once per week on average by her father during this time. Her father s beatings frequently left bruises, abrasions, and welts and on one occasion severed a muscle in her arm. Ms. Pfender was not the only recipient of abuse in her household. Ms. Pfender frequently witnessed her father beat her mother and her sister. On numerous occasions, Ms. Pfender was unable to tolerate watching her sister being beaten and intervened, subjecting herself to his abuse instead. Ms. Pfender s father also engaged in more sadistic and torturous forms of abuse on Ms. Pfender and her sister. He would force the sisters to run up and down hundreds of steps, telling them that he would not beat them if they completed the task 100 times. When they inevitably became too physically exhausted to continue, he beat them anyway. On other occasions, her father forced Ms. Pfender and her sister to hold their hands behind their backs while they balanced a coin on the wall with their nose until they were unable to continue. From around age 11 through age 13, Ms. Pfender s father sexually abused her on a weekly basis. In addition to fondling her, Ms. Pfender s father forced her to perform manual and oral sexual stimulation on him. During the sexual abuse, Ms. 3

9 Pfender s father often called her a dirty little whore or dirty little bitch. The persistent and horrific abuse from her father led Ms. Pfender to begin drinking alcohol at age 8. By the time she was 13 years old, she was drinking approximately 2-4 days per week. On several occasions, Ms. Pfender s mother attempted to flee the abusive home environment with her daughters. When they ran out of money and were forced to return, Ms. Pfender witnessed her father viciously beat her mother and threaten to blow up her grandmother s home for sheltering them. Ms. Pfender remembers the police being called approximately 10 times in response to her father s violence. He was never arrested. After enduring her father s abuse for about seven years, Ms. Pfender reported the sexual abuse to a counseling clinic when she was 13. The clinic did not act on Ms. Pfender s reports, instead requiring her to undergo treatment and referring her to another organization. Ms. Pfender s father agreed to attend counseling, but only attended one session, after which Ms. Pfender was released into his custody. In response to her reporting the abuse, Ms. Pfender s father savagely beat her with an iron-studded belt. Soon after, Ms. Pfender was adjudicated dependent and became a ward of the state, living in a group home until she was 17 when her grandmother assumed custody of her. 4

10 Because Ms. Pfender was adjudicated dependent, she was still a child under Pennsylvania law the night she shot and killed Engin Aydin. 42 Pa.C.S After being forced out of her home and away from her family due to her father s abuse, Ms. Pfender was left with the impression that she was the one who was punished for reporting her father s abuse. He was not made to suffer any consequences, nobody intervened to prevent further abuse, and she was forced to undergo treatment and be separated from her mother and sister while he remained free to continue his actions. Despite numerous calls to police to intervene, Ms. Pfender s father was never even taken into custody. Ms. Pfender s experiences of physical, psychological, and sexual abuse at the hands of her father and the lack of intervention from anyone in an authority position profoundly shaped her perceptions and actions the night she killed Mr. Aydin. On August 7, 1984, Ms. Pfender and her friend, Sara Mae Richardson, left softball practice to meet Engin Aydin and Suat Erdogan, two men they had met two nights earlier. The next night, on August 6, 1984, Ms. Pfender and Ms. Richardson met Mr. Aydin and Mr. Erdogan at a bar for a date. During their date, Mr. Aydin attempted to force himself on Ms. Pfender several times, once cornering her as she exited the restroom. Ms. Pfender refused his advances each time. As a result, Ms. Pfender initially did not want to meet Mr. Aydin and Mr. Erdogan again, but was persuaded by Ms. Richardson to accompany her on a date with them. 5

11 On August 7, Ms. Pfender and Ms. Richardson left softball practice and drank beer in Ms. Richardson s car prior to meeting Mr. Aydin and Mr. Erdogan. They picked up Mr. Aydin and Mr. Erdogan and drove out of the city of Pittsburgh. Mr. Aydin sat in the backseat of the car with Ms. Pfender, and Mr. Erdogan sat next to Ms. Richardson as she drove. They eventually pulled into an isolated area down a dirt road. Mr. Aydin again tried to force himself on Ms. Pfender, pulling out a knife and telling her she would not tease him anymore. Ms. Pfender struggled free, grabbed a gun that was beneath the front seat, exited the car, and fired a warning shot. When Mr. Aydin pursued her with the knife in hand, she fired the gun, striking him twice. Mr. Aydin died from his wounds. Mr. Erdogan exited the car, and in a state of extreme fear, Ms. Pfender pointed the gun at him. Ms. Richardson attempted to tie Mr. Erdogan s hands, but he broke free and began to run. Ms. Pfender shot him in the back as he ran away. At Ms. Richardson s suggestion, the two teenagers left Mr. Aydin s body in a shallow grave, left the scene, and the next day drove to Virginia Beach where Ms. Richardson had family. They turned themselves in on August 10, Mr. Erdogan, the prosecution s sole material witness against Ms. Pfender, told a different version of events, one that did not involve Mr. Aydin attempting to force himself on Ms. Pfender. Appellant s account of the events of that night has not changed in 32 years. In the prosecution s version of the case, this is a crime without any motive or explanation. Even under the prosecution s putative theory of a motiveless murder, Ms. Pfender s experience of daily torment and sexual violence as a young child is critical for contextualizing her actions and determining her culpability under the Eighth Amendment on the night of August 7, 1984, which was the only instance in her life before or since that she engaged in any acts of violence. 6

12 The experience of physical and sexual violence influenced Ms. Pfender s reactions the night that Engin Aydin was killed in three crucial ways. First, when Mr. Aydin attempted to force himself upon her, Ms. Pfender instantly experienced the same feelings of anger and helplessness that she suffered when abused by her father. This led her to fight back, grab the gun beneath the seat of the car, and, after exiting the car, shoot the still-advancing Mr. Aydin twice. Second, following the shooting Ms. Pfender was triggered, experiencing flashbacks to the abuse suffered by her father, and in a state of extreme fear and panic. In this highly charged psycho-emotional state she believed that Suat Erdogan, who exited the car after Mr. Aydin was shot, was part of a plot to hurt her. Ms. Pfender was terrified of being violated again. In this context, she shot Mr. Erdogan when he ran away based on her presumption that Mr. Erdogan also wanted to harm her. This behavior, fueled by her panic-induced state of traumatic flashback, led to a separate criminal charge and constituted highly damning evidence against Ms. Pfender on the first-degree homicide charge. Third, after returning to the vehicle, Ms. Pfender agreed with her co-defendant not to go to the authorities. Ms. Pfender s past experiences of watching her father not face any consequences when she reported his abuse, and her feeling that she was the one who was punished for reporting his abusive behavior because she was forced to undergo treatment and become a ward of the state, was racing through her mind 7

13 at this time. She did not think that she would be believed. Ms. Pfender s decision not to immediately report the shooting to the police and explain the reason for it was highly injurious to her defense, and it was motivated in substantial part by her adolescent experience of sexual abuse and the failure of authorities to effectively intervene to protect her and her family and prevent her father from perpetrating further violence against them. Since her incarceration over 32 years ago, Ms. Pfender s life in prison been marked by a complete absence of any violence, an exemplary disciplinary record, and an impressive list of achievements and record of service. She has participated in and completed several programs aimed at violence prevention, assisting survivors of sexual abuse, and utilizing restorative justice practices. Ms. Pfender has worked at numerous jobs during her incarceration, including many pertaining to her skills in carpentry and building and construction trades, skills that she obtained while in prison. Currently, she works with the Canine Partners for Life program as a dog handler for a Lion s Club program that trains service dogs; she works as a Braille transcriber for the Lion s Club; Create for Kids community work program; and she is the chairperson of special events committee in the progressive housing unit she lives on, which is an honors unit for inmates with exceptional disciplinary records. Ms. Pfender s maturation into a community-oriented adult with an impressive record of service, educational and vocational achievement is also reflected in the fact that 8

14 she has never engaged in an act of violence while in prison and maintained an exemplary disciplinary record over the course of 32 years. The 18-year-old who made a fateful decision to accompany her friend for what she presumed would be a typical date has transformed her life. Ms. Pfender is a living testament to the rectitude of the U.S. Supreme Court s recognition that mandatory life without parole is an inappropriate and disproportionate punishment for teenagers, in part, due to their possessing less fixed characters and therefore being more amenable to rehabilitation. As anticipated by Miller and Montgomery, the continued incarceration of Ms. Pfender serves no penological purpose. Following her conviction and sentencing, Ms. Pfender pursued her direct appeal. The Superior Court affirmed her sentence for the homicide charge, vacated her sentences on the other charges, and remanded for further proceedings. The Pennsylvania Supreme Court denied allocatur and Petitioner was resentenced to the same sentence on March 17, All direct appeals from the resentencing were denied. In 1996, Ms. Pfender filed a PCRA petition. Her claims for relief were denied. In 2009, Ms. Pfender filed another PCRA petition. Her claims for relief were again denied. Ms. Pfender filed another PCRA on August 23, 2012, seeking relief under the U.S. Supreme Court s decision in Miller v. Alabama, 132 S.Ct (2012). 9

15 Following the U.S. Supreme Court s ruling in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), on January 25, 2016, Ms. Pfender filed the instant PCRA on March 24, Ms. Pfender s petition was based on the newly-established constitutional right announced in Miller and held to be retroactive in Montgomery. See Montgomery, 136 S.Ct. at 736; 42 Pa.C.S. 9545(b)(1)(iii). The PCRA Court dismissed her petition on May 10, 2016 and the Superior Court affirmed the dismissal on May 3, V. MS. PFENDER S PETITION FOR ALLOWANCE OF APPEAL SHOULD BE GRANTED The Supreme Court of Pennsylvania s review of an order of the Superior Court is discretionary. Pa. R.A.P. 1114(a). The Rules of Appellate Procedure set forth seven reasons a petition for allowance of appeal may be granted, any one of which is sufficient to grant the petition. Pa. R.A.P. 1114(b). Ms. Pfender s petition invokes several of these reasons in the questions presented for review. First, the Superior Court s order conflicts with the U.S. Supreme Court s holdings in Miller v. Alabama and Montgomery v. Louisiana. Pa. R.A.P. 1114(b)(2). Second, the questions presented by Ms. Pfender are all issues of first impression in the Supreme Court of Pennsylvania. Pa. R.A.P. 1114(b)(3). The questions presented are also of substantial public importance and require prompt and definitive resolution by this Court. Pa. R.A.P. 1114(b)(4). Finally, the questions 10

16 presented challenge the constitutionality of the Commonwealth s sentencing statute for first degree murder, which violates the Eighth Amendment to the U.S. Constitution or, in the alternative, the Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution and Article I, Section 26 of the Pennsylvania Constitution when applied to Ms. Pfender. Pa. R.A.P. 1114(b)(5). Due to the weight of these considerations both individually and in combination, this Court should grant this Petition for Allowance of Appeal and address the questions presented for review herein. A. The Superior Court s holding conflicts with the U.S. Supreme Court s holdings in Miller v. Alabama and Montgomery v. Louisiana A Petition for Allowance of Appeal may be granted when a holding of the appellate court conflicts with a holding of the U.S. Supreme Court on the same legal question. Pa. R.A.P. 1114(b)(2). The Superior Court found that Ms. Pfender s petition was not timely under the PCRA s newly-established constitutional right exception because the right established by Miller and held to apply retroactively by Montgomery was limited to those who were younger than 18 at the time of the offense that led to their conviction. This interpretation conflicts with Miller and Montgomery and fails to give proper weight to the U.S. Supreme Court s admonition that [w]hen an opinion issues for the Court, it is not only the result but also those 11

17 portions of the opinion necessary to the result that constitute binding precedent. Seminole Tribe v. Fla., 517 U.S. 44, 67 (1996). i. The Superior Court committed legal error in its interpretation of Miller by failing adhere to U.S. Supreme Court precedent that requires courts to give full effect to the substantive basis and governing principles of law of its decisions In affirming the PCRA Court s denial of Ms. Pfender s PCRA petition, the Superior Court limited Miller s holding to apply only to individuals who were younger than 18 at the time of their offense of conviction. See Appendix A, 10. The court characterized Ms. Pfender s petition and arguments as overstating Miller s holding which was simply (and explicitly) that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment s prohibition on cruel and unusual punishments. Id. (internal quotations and emphasis omitted). The court found that it lacked jurisdiction under the PCRA because Ms. Pfender was seeking an extension of the right [established in Miller], based upon the underlying reasoning contained within the Supreme Court s opinion. Id. at 12. The Superior Court s interpretation of Miller and its refusal to take into account the underlying reasoning contained within the Supreme Court s opinion contravenes the U.S. Supreme Court s own mandates on how its holdings are to be applied. We adhere in this case, however not to mere obiter dicta, but to the well-established rationale upon which the Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only 12

18 the result but also those portions of the opinion necessary to that result by which we are bound. Seminole Tribe, 517 U.S. at 67 (emphases added) (citing Burnham v. Superior Court of Cal. County of Marin, 495 U.S. 604, 613 (1990)) (exclusive basis of a judgment is not dicta). Stare decisis requires adherence not only to the holdings of [the Supreme Court s] prior cases, but also to their explications of the governing rules of law. County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (Kennedy, J. concurring and dissenting). Thus, in constructing the right established in Miller, courts must adhere to the well-established rationale upon which Miller s result was based. Seminole Tribe, 517 U.S. at The Superior Court was not required to extend Miller based on its underlying reasoning. Rather, Miller s underlying reasoning is an integral part of the right established. Adhering to the principles and analyses (i.e. the underlying reasoning ) that formed the basis of Miller s decision is therefore not an extension of Miller, but an application that is required by the U.S. Supreme Court s explication of how to construe its decisions. ii. The constitutional right established by Miller prohibits mandatory life without parole sentences for individuals with diminished culpability In Miller, the U.S. Supreme Court merged two strands of Eighth Amendment sentencing jurisprudence to establish a categorical bar to mandatory sentences of life without parole for offenses committed by juveniles. Miller, 132 S.Ct. at Under 13

19 its Eighth Amendment proportionality precedent, the Court has forbidden certain punishments from being imposed on categories of individuals with diminished culpability. See e.g. Graham v. Florida, 560 U.S. 48, 68 (2010) (holding life without parole sentences for juveniles convicted of non-homicide offenses unconstitutional); Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding capital punishment for nonhomicide offense unconstitutional); Roper v. Simmons, 543 U.S. 551 (2005) (holding capital punishment for juveniles unconstitutional); Atkins v. Virginia, 536 U.S. 304 (2002) (holding capital punishment for individuals with an intellectual disability unconstitutional). Prior to Miller, the Court also proscribed the mandatory imposition of death sentences, instead requiring that offenders receive an individualized sentencing procedure that accounts for the characteristics of a defendant and the details of his offense prior to the imposition of a death sentence. Miller, 132 S.Ct. at 2464; See e.g. Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio, 438 U.S. 586 (1978). Under the first line of analysis, the penological justifications for the harshest punishments collapse when imposed on certain categories of offenders with diminished culpability. In Miller, the Court reiterated and emphasized that youth is more than a chronological fact. Id. at 2467 (quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). Youth is marked by developmental characteristics of immaturity, irresponsibility, impetuousness, and recklessness, and is a condition of life when 14

20 a person may be most susceptible to influence and to psychological damage. Miller, 132 S.Ct. at 2467 (internal citations and punctuation omitted). These characteristics of youth, and the way they weaken rationales for punishment, can render a lifewithout-parole sentence disproportionate because most fundamentally youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. Id. at Children are distinct from adults in at least three constitutionally-significant ways, and, as Ms. Pfender alleges in her PCRA petition, each of these factors identified in Miller as being constitutionally relevant for sentencing purposes applies to her. First, children are less mature and possess an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Id. (citing Roper, 543 U.S. at 569). Children are also more vulnerable to negative peer and familial influences and lack the ability to extricate themselves from horrific, crime-producing settings. Id. Third, a child s character is not as well-formed as an adult s and children have greater capacity for change. Id. at 2465 (citing Graham, 560 U.S. at 74). These distinctive attributes of youth diminish the penological justifications for life without parole sentences. Miller, 132 S.Ct. at Characteristics of youth such as immaturity, recklessness, and impetuosity render an offender less culpable and less blameworthy, thereby weakening the retributive value of a life without 15

21 parole sentence. Id. (quoting Graham, 560 U.S. at 72). Deterrence is likewise not served by life without parole sentences because these same characteristics of youth make them less likely to consider potential punishment. Id. In light of a child s greater capacity for change, incapacitation is insufficient to justify life without parole because such a sentence would require making a judgment that [a child] is incorrigible, which is inconsistent with youth. Id. (internal quotations omitted). For the same reason, life without parole conflicts with a rehabilitation rationale because it forswears altogether the rehabilitative ideal and is at odds with a child s capacity for change. Id. (internal quotations omitted). As in Roper and Graham, the Court s reasoning with respect to youth was not merely based on common sense, but was substantially bolstered by and dependent upon science and social science. Miller, 132 S.Ct. at Significantly for purposes of the case sub judice, the Court in Graham cited approvingly to an amicus curiae brief submitted by the American Psychological Association that describes how the areas of the brain involved in impulse control and risk evaluation continue developing through late adolescence and into early adulthood at age 22. Graham, 560 U.S. at 68 (Citing Brief for the American Psychological Association, et al. as Amici Curiae at 22-27). 2 2 This amicus brief can be accessed at: _07_08_08_7412_PetitionerAmCu4HealthOrgs.authcheckdam.pdf. 16

22 Under the second line of proportionality analysis, Miller invoked the similarities between sentences of death and life without parole to find the mandatory life without parole sentencing scheme unconstitutional. Both penalties involve [i]mprisoning an offender until he dies, altering the remainder of his life by a forfeiture that is irrevocable. Miller, 132 S.Ct. at 2466 (quoting Graham, 560 U.S. at 69). Life without parole sentences are especially harsh when imposed on children because children will spend a greater proportion of their lives in prison than adult offenders. Id. A life without parole sentence imposed on a teenager, as compared with an older person, is therefore the same... in name only. Id. at 2467 (emphasis added) (quoting Graham, 560 U.S. at 70). Thus, Miller found that the mandatory life without parole sentencing scheme poses too great a risk of disproportionate punishment because it precludes the sentencer from considering an individual s age and characteristics of youth. Miller 132 S.Ct. at Subjecting a child to mandatory life without parole precludes consideration of his chronological age and its hallmark features among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him and from which he cannot usually extricate himself no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth for example, his inability to deal with police officers or prosecutors or his incapacity to assist his own attorneys. 17

23 Miller, 132 S.Ct. at Again, each of these factors are constitutionally required to be considered by a sentencer and each applies to Ms. Pfender. When imposing the harshest available sentences, the sentencer must have the ability to assess mitigating factors to ensure that these sentences are reserved only for the most culpable defendants committing the most serious offenses. Id. at Especially relevant are the mitigating qualities of youth. Id. Following Miller, the Supreme Court of Pennsylvania ruled that Miller did not apply retroactively to cases on collateral appeal in Commonwealth v. Cunningham, 81 A.3d 1 (2013). The U.S. Supreme Court addressed this issue in Montgomery, holding that Miller applies retroactively. Montgomery, 136 S.Ct. at 733. Like in Miller, the petitioner in Montgomery was challenging a sentence imposed for an offense committed when the petitioner was younger than 18 years old. Montgomery, 136 S.Ct. at 725. Montgomery reiterated Miller s prohibition on mandatory life without parole sentences for juvenile offenders, emphasizing that the penological justifications for life without parole collapse in light of the distinctive attributes of youth. Montgomery, 136 S.Ct. at 734 (quoting Miller, 132 S.Ct. at 2465) (emphasis added). In finding that Miller announced a substantive rule of constitutional law and therefore applies retroactively, the Montgomery Court emphasized that Miller also established a categorical bar to life without parole sentences imposed on juvenile 18

24 offenders whose crimes reflect the transient immaturity of youth, regardless of whether the sentence was mandatory or discretionary. Montgomery, 136 S.Ct. at 734. Montgomery clarified that while age is a relevant consideration, it is not determinative in assessing whether a life without parole sentence is disproportionate under the Eighth Amendment, because [e]ven if a court considers a child s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity. Id. (quoting Miller, 132 S.Ct. at 2469). In affirming the PCRA Court s denial of Ms. Pfender s PCRA petition, the Superior Court limited Miller s holding to apply only to individuals who were younger than 18 at the time of their offense of conviction. Appendix A, 10. The court characterized Ms. Pfender s petition and arguments as overstating Miller and seeking an extension of the right [established in Miller], based upon the underlying reasoning contained within the Supreme Court s opinion. Id. at 12. As the Superior Court recognized, Miller and Montgomery established a categorical prohibition on mandatory life without parole sentences for individuals who were younger than 18 at the time of their offense. However, the wellestablished rationale upon which the Court based the results of Miller and Montgomery dictate that individuals with categorically-diminished culpability due to their youth, experiences of childhood abuse, and a combination thereof also may 19

25 not be subjected to mandatory life without parole sentences. Seminole Tribe, 517 U.S. at To give full effect to Miller, the right established in Miller and held to apply retroactively in Montgomery must be construed to incorporate those portions of the opinion necessary to [the] result. Id. at 67. Montgomery is instructive in determining which portions of Miller were necessary to the result. Montgomery explicitly recognized that Miller s applicability is broader than the narrow holding articulated by the Superior Court. Miller did not merely establish that mandatory life without parole sentences imposed on offenders younger than 18 are disproportionate under the Eighth Amendment, but also that a life without parole sentence imposed on a child whose crime reflects unfortunate yet transient immaturity is disproportionate regardless of whether it was imposed pursuant to a mandatory or discretionary sentencing scheme. Montgomery, 136 S.Ct. at 734 (internal quotations omitted). This holding was derived from Miller s reasoning and the principles recognized and relied upon throughout the opinion. Id. at 732. Montgomery recognized that [t]he foundation stone for Miller s analysis was this Court s line of precedent holding certain punishments disproportionate when applied to juveniles. Id. As in Miller, the Montgomery Court focused primarily on the characteristics of youth rather than age in itself that render children different from adults for sentencing purposes, including recklessness, impulsivity, and heedless risk- 20

26 taking; vulnerability to negative influences and outside pressures and inability to control their environment or extricate themselves from horrific, crime-producing settings; and undeveloped character traits that have greater potential to change. Id. at 733 (quoting Miller, 132 S.Ct. at 2464.). Diminished culpability on the basis of these characteristics of youth vitiate the penological rationales for imposing a life without parole sentence. Id. at 733. Montgomery emphatically states that a life without parole sentence, whether imposed in a mandatory or discretionary setting, may not be imposed when an individual possesses these distinctive attributes of youth: Miller, then, did more than require a sentencer to consider a juvenile offender s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of the distinctive attributes of youth. Even if a court considers a child s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity. Montgomery, 132 S.Ct. at 734 (internal citations and quotations omitted). The touchstone of Miller, then, is not merely the age of the individual at the time of the offense, but the distinctive attributes of youth that render a life without parole sentence disproportionate. Miller s categorical rule barring mandatory life without parole sentences for juveniles does not rest on the chronological age of juveniles, but instead on the characteristics and qualities that juveniles almost invariably possess and that render life without parole a disproportionate sentence. Thus, while 21

27 the chronological fact of age is relevant, the characteristics of youth, and the way they weaken rationales for punishment, are the determinative factors in assessing whether individualized sentencing is required and a life without parole sentence violates the Eighth Amendment. Miller, 132 S.Ct. at Moreover, the U.S. Supreme Court requires states to consider relevant medical or scientific principles in applying Eighth Amendment limitations on disproportionate punishment. A bright-line rule precluding consideration of youth and other factors related to diminished culpability for those even marginally older than 17 is out of step with current medical and scientific consensus on adolescent development and other areas of Pennsylvania law, which recognize that 18 is an age during which the social and neurological development relevant to the Court s holdings in Miller and Montgomery is ongoing. See Emerging Adulthood: A Theory of Development From the Late Teens Through the Twenties, Jeffrey Jensen Arnett, 55 Am. Psychologist 469, 476 (2000) (noting that [t]he cover of every issue of the Journal of Research on Adolescence, the flagship journal of the Society for Research on Adolescence, proclaims that adolescence is defined as the second decade of life. ); (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, Elizabeth Cauffman, Ph.D. and Laurence Steinberg, Ph.D., 22

28 18 Behav. Sci. & L. 741, 742 n.1 (2000) (defining adolescence from about age 13 to age 18 ). 3 In Moore v. Texas, 137 S.Ct (2017), the U.S. Supreme Court evaluated the weight to be given to the scientific principles relied upon in its prohibition on death sentences for the intellectually disabled another class of offenders with categorically diminished culpability. Permitting states to disregard current medical standards in the Eighth Amendment context would render the prohibition on sentencing those with intellectual disabilities to death a nullity, and the Eighth Amendment s protections of human dignity would not become a reality. Id. at 1053 (quoting Hall v. Florida, 134 S.Ct. 1986, 1999 (2014)). Furthermore, the Court found persuasive the fact that Texas used more medically-appropriate standards for diagnosing and defining intellectual disability in contexts outside the death penalty. Id. at In support of its ruling, the Court reasoned: Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual s life is at stake. Id. Justice Kennedy s discussion in Hall of the central role of the medical community in establishing the framework wherein the Court defined intellectual disability applies with equal force 3 Both of the academic articles cited in this paragraph were cited in the Brief for the American Psychological Association, et al. that the Supreme Court cited with approval in Roper. 23

29 to the scientific community s role in establishing the framework for defining who is an adolescent: It is the Court's duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community's diagnostic framework. Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community's teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession. Hall, 134 S.Ct. at It is undisputed in the scientific community that age 18 is considered a time of ongoing childhood development where the same factors identified by the Miller Court may be sufficiently present to justify a lesser sentence. Similar to the unconstitutional standards at issue in Moore, other areas of Pennsylvania law indicate that some individuals over the age of 17 remain children or juveniles. Under Pennsylvania s Mental Health and Intellectual Disability Act of 1966, for example, juveniles 18 years of age or younger may be admitted for voluntary admission to a mental health facility by a parent, guardian, or individual standing in loco parentis. 50 Pa.C.S. 4402; see Kremens v. Bartley, 431 U.S. 119, 125 (1977) (involving challenge by juveniles ages pursuant to 50 Pa.C.S. 4402); Secretary of Public Welfare of Pennsylvania v. Institutionalized Juveniles et al., 442 U.S. 640, (1979) (involving challenge by children 18 years old and younger admitted to hospital under 50 Pa.C.S. 4402). The definition of child 24

30 in the chapter on Juvenile Matters of the Judiciary and Judicial Procedure title of the Pennsylvania Consolidated Statutes includes individuals who are: 1) under the age of 18 years; 2) under the age of 21 years and who committed an act of delinquency prior to reaching age 18; 3) under the age of 21 years and who were adjudicated dependent prior to reaching age Pa.C.S In fact, at the time of Ms. Pfender s offense, she was not even old enough to buy the ammunition for the gun used in the offense, which Ms. Pfender and her codefendant, Ms. Richardson, intended to use to do target practice. At trial, the owner of a sporting goods store testified that he had known Ms. Richardson since she was in elementary school and refused to sell her ammunition because neither she nor Ms. Pfender were legally permitted to purchase it. See Trial Transcript, 690; 18 U.S.C. 922(b)(1). That the state of Pennsylvania has enacted legislation recognizing that children who are adjudicated delinquent or dependent (as Ms. Pfender was) prior to age 18 possess characteristics justifying their continued recognition as children under the law is consonant with Roper, Graham, and Miller, and the social and neuroscience that formed the foundation of their holdings. Combined with Miller s application of precedent prohibiting the harshest punishments for individuals with categorically diminished culpability and precedent prohibiting mandatory 25

31 sentencing for the harshest punishments, the scientific underpinnings of Miller render Ms. Pfender s mandatory life without parole sentence unconstitutional due to 1) her age and characteristics of youth; 2) her experiences of extreme childhood physical, psychological, and sexual abuse; and 3) the combination of her age, characteristics of youth, and experiences of extreme childhood physical, psychological, and sexual abuse. Such a holding is not only consistent with the reasoning of Miller but is compelled by it for the simple fact that a child is a child, as confirmed by common sense, science, and the holdings of the U.S. Supreme Court. B. The questions presented are ones of first impression in the Pennsylvania Supreme Court The Pennsylvania Supreme Court has yet to address the questions presented in Ms. Pfender s petition. As questions of first impression in this Court, her petition should be granted. Pa. R.A.P. 1114(b)(3). The Superior Court has issued two precedential decisions involving petitioners who were 18 or older at the time of their offense seeking relief under Miler. See Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013); Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016). These decisions were relied upon extensively by the Superior Court in Ms. Pfender s appeal. As discussed in detail supra, the Superior Court s opinion conflicts with Miller and Montgomery, 26

32 making it even more important that the Pennsylvania Supreme Court address the questions presented and give proper guidance to lower courts. C. The questions presented are of substantial public importance and require a prompt and definitive resolution This Court may grant a Petition for Allowance of Appeal to address questions of substantial public importance that require prompt and definitive resolution. Pa. R.A.P. 1114(b)(4). Ms. Pfender s claims are based on recent U.S. Supreme Court decisions interpreting the Eighth Amendment to the U.S. Constitution, one of the most fundamental safeguards of human dignity and societal decency. See e.g. Trop v. Dulles, 356 U.S. 86, 101 (1958); Estelle v. Gamble, 429 U.S. 97, 102 (1976). Ensuring that Ms. Pfender s criminal sentence does not violate the Eighth Amendment s prohibition on cruel and unusual punishments implicates not only Ms. Pfender s right to be free from such punishments, but the public interest in ensuring that those condemned to die in prison by the Commonwealth are not punished disproportionately. Eighth Amendment protections against excessive punishments are a basic precept of justice. Roper, 543 U.S. at 560 (internal quotations omitted); see also Weems v. United States, 217 U.S. 349, 367 (1910); Graham, 560 U.S. at 59. The nature of Ms. Pfender s sentence also renders the questions presented of substantial public importance. Life without parole sentences are similar to death sentences in that both sentences condemn a person to die in state custody and require 27

33 a forfeiture that is irrevocable. Miller, 132 S.Ct. at 2466 (quoting Graham, 560 U.S. at 69). It is precisely this similarity to the death penalty that led the U.S. Supreme Court to impose limitations on when an individual may be sentenced to life without parole in Graham and Miller. Graham, 560 U.S. at 60; Miller, 132 S.Ct. at Like the death penalty, the state s imposition of a sentence that requires an individual to die in prison is a truly awesome responsibility and should be not be treated trivially. McGautha v. California, 402 U.S. 183, 208 (1971); see also Caldwell v. Mississippi, 472 U.S. 320, 329 (1985); Commonwealth v. Laird, 988 A.2d 618, 639 (Pa. S.Ct. 2010). Furthermore, Ms. Pfender s claims implicate equal protection concerns. The foundation of equal protection is that all persons similarly situated to be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)); see also Reed v. Reed, 404 U.S. 71, 76 (1971); Royster v. Guano Co. v. Virginia, 253 U.S. 412, 415 (1920); Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 394 (3d Cir. 2010); Commonwealth v. Bullock, 913 A.2d 207, 215 (Pa. S.Ct. 2006); Commonwealth v. Albert, 758 A.2d 1149, 1151 (Pa. S.Ct. 2000) ( The essence of equal protection under the law is that like persons in like circumstances will be treated similarly. ). Equal protection under the law is, like the Eighth Amendment s prohibition on cruel and unusual punishments, a hallmark of a fair and civilized society. Ensuring that the 28

34 Commonwealth of Pennsylvania s citizens are treated equally is therefore of great public importance and should be a basis for granting Ms. Pfender s petition. D. The questions presented involve the constitutionality of Pennsylvania s sentencing statute for first degree murder This Court may grant review of a question involving the constitutionality of a state statute. Pa. R.A.P. 1114(b)(5). Ms. Pfender s PCRA petition and the questions presented for review challenge the constitutionality of Pennsylvania s sentencing statute for murder when applied to Ms. Pfender, thus this petition should be granted on this basis. Ms. Pfender s PCRA petition and the questions presented for review herein present an as-applied challenge to Pennsylvania s sentencing law for first degree murder, which prescribes the penalty for first degree murder as either death or life imprisonment. 18 Pa.C.S. 1102(a)(1). As discussed in detail supra, 1102(a)(1) fails to provide for any individualized sentencing considerations that would have enabled the sentencer to consider Ms. Pfender s age, characteristics of youth, experiences of extreme childhood physical, psychological, and sexual abuse, and propensity for rehabilitation, among other factors. Thus, the mandatory sentencing provision pose[s] too great a risk of disproportionate punishment and violates the Eighth Amendment to the U.S. Constitution. Miller, 132 S.Ct. at

35 Even if this Court refuses to apply the right established in Miller to Ms. Pfender s case, her sentence would still be unconstitutional as a violation of the Equal Protection clauses of U.S. Const. Amend. XIV and Pa. Const. Art. I, 26. Equal protection requires all persons similarly situated to be treated alike. See City of Cleburne, 473 U.S. at 439; Albert, 758 A.2d at 1151 ( The essence of equal protection under the law is that like persons in like circumstances will be treated similarly. ). As a result of the U.S. Supreme Court s decisions in Miller and Montgomery, 18-year-olds recognized as children under Pennsylvania law are subject to unequal treatment compared to younger children under Pennsylvania s sentencing statute for first degree murder without a rational basis. That an individual born a mere six months prior to Ms. Pfender, but identical in all other respects, must receive an individualized resentencing proceeding while Ms. Pfender continues to serve a sentence condemning her to die in prison a sentence imposed without any consideration of her characteristics of youth, family and home environment, circumstances surrounding the offense, or her remarkable growth over the past 33 years is the height of irrationality and arbitrariness. The Superior Court found that Ms. Pfender s equal protection claim was foreclosed by its ruling in Commonwealth v. Cintora, 69 A.3d 759, where the court rejected as untimely the claims that it would be a violation of equal protection for the courts to treat [petitioners] or anyone else with an immature brain, as adults, 30