Commonwealth v. Thompson

Pennsylvania, COMMONWEALTH

Appellee THOMPSON, Appellant.

Maurquis Pennsylvania. Court of

Superior June 2014.

Submitted 10, 2014.

Filed Dec. again request- before dice to CCXto raise the issue for Post Submission Communication document, 28, 2014, more ing permission to file a no panel. February merits On CCX addressing the pages length, in than four again appellee's its which raised filed brief discussing specifically quashal issue 17, 2014, quashal issue. On March Bur- Rule 229 court’s interplay of and this rules. reply response key filed a included a brief that 23, 2014, Response op- May On CCX filed argument issue. of CCX as to to this posing any pleading. further We are con- quashed appeal be whether this should has agree Burkey to with has had strained CCX. appeal. throughout this remained the same ample opportunity address this issue. CCX opportunities Burkey already has had two Quash Ap- originally Application filed its writing this issue as well as a third address September Burkey filed peal on his argument. We find that no valid time at oral Subsequently, Answer on October Quash permitting argu- purpose would be served Application denied this court 31, 2013, preju- Appeal October without ment to continue further. on Jr., Raynor, Earl D. for Philadelphia, appellant. Whelan, Attorney,

John J. District Me- dia, Commonwealth, appellee. BOWES, J., DONOHUE, J., BEFORE: MUNDY, and J. MUNDY, path. Appellant stop did not after BY J.: cle’s

OPINION striking boys. these Maurquis Thompson, appeals Appellant, Ashley David Hochstuhl and Macin- of sen- judgment June from the light were the red stopped tosh on to 72 imprisonment plus life tence of Pike at Avenue at Glenolden Chester after imposed imprisonment months’ of the Ms. Hochstuhl time incident. ob- each of jury guilty him of two counts found boys served the in the crosswalk before murder, by vehicle third-degree homicide Appellant entered the intersection. [] (DUI), influence driving under the while boys Ms. Hochstuhl watched as were vehicle, involving accidents homicide by [Appellant’s] hit vehicle. David Ma- death, while involving accidents death and passenger was in the cintosh seated seat licensed; each one count properly not and and of Ms. Hochstuhl’s vehicle exited police to elude a fleeing attempting the vehicle after he heard collision. (metabolite officer, (marijuana), DUI DUI the boys, Mr. Macintosh saw that one of possession marijua- and marijuana), [M.M.], spoke moving, was and he review, careful we vacate the na.1 After paramedics on him until arrived for the judgment of sentence and remand moving and scene. was was [M.T.] purpose correcting the clerical limited pronounced dead on the scene. [M.M.] underlying error contained within the transported was to Crozer-Chester re- of sentence. In all other judgment the next day. Medical Center and died affirm. spects, accident, Within minutes of offi- trial court summarized the relevant Chevy located an unoccupied cers Lumi- procedural history of this case factual and na on Chester Pike near Cleveland Ave- nue, follows. approximately as which was two to three blocks from the scene hit 2011[,] Mi- On December Officer and run. Officers also located and Fiocca, an chael officer with Folcroft Appellant, stopped walking who was [ ] duty department, was on police Avenue, along , West three Winona working patrol. approximately 9:35 At had blocks from where the Lumina been a vehicle P.M. Officer Fiocca observed charged located. was with Pike traveling westbound on Chester crimes to the hit and run several related high upon rate very speed. Based of [M.M.] resultant deaths observations, Fiocca activat- his Officer [M.T.] emergency lights his and siren and ed trial, Following day jury a five found attempted stop to the vehicle. The driv- guilty Appellant aforementioned [the vehicle, er who was later identi- 17, 2013[,] On May offenses]. Com- [Appellant], for several stopped fied as monwealth of its filed notice intent to seconds, very then fled the scene at life to 42 pursuant seek a sentence Pa. speed, rate of the intersec- high entering § or 9715 for a second subse- C.S.A. Ave- tion of Chester Pike and Glenolden in the quent conviction of murder third nue, failing stop steady to at the red degree. so, he did struck light. Appellant As (cita- 2/28/14, 1-2 young boys crossing Opinion, two were then Trial Court omitted). transcript of his vehi- to and footnote [on the street in front tions foot] 3733(a), 3802(d)(1)(i), 3802(d)(1)(iii), 2502(c), § Pa.C.S.A. 75 and 35 1. 18 Pa.C.S.A. 3732(a), 3742.1(a), 3735(a), 3742(a), 780113(a)(31), respectively. §§ § P.S.

749 2018,2 (accidents 21, 2; the trial court sen- rent with On June Count Count 11 tenced as follows. Count 1 Appellant involving when death not properly li- murder) years’ 40 im- (third-degree to censed) —20 to 24 imprisonment months’ to —12 (third-degree 2 mur- prisonment; Count 2; run concurrent with Count and Count der) mandatory imprison- term of life — 14 (possession marijuana) to 30 —15 1; concurrent ment to run with Count days’ imprisonment to run concurrent with DUI)— (homicide by Count 3 vehicle while Count Accordingly, 2.3 Appellant’s aggre- imprisonment 42 to to run 84 months’ con- gate life imprisonment plus sentence is 36 (homicide 2; 4 current with Count Count imprisonment. to 72 months’ DUI) by vehicle while to 84 months’ —42 2013, 1, July Appellant On timely filed a imprisonment to run to consecutive Count motion, post-sentence which the trial court (homicide vehicle) 3; by Count 5 to 36 —18 12, July 7, denied on August On to imprisonment months’ run consecutive 2013, Appellant filed a timely notice of (homicide 2; by to Count Count 6 vehi- appeal.4 cle) imprisonment to 36 months’ to —18 (flee- 2; run to Count 7 consecutive Count Appellant On appeal, raises follow- elude) ing attempting to to 12 —6 ing issues for our review. months’ imprisonment to run concurrent 1. Whether the trial court abused its (accidents 2;

with involving Count Count 8 denying discretion in Batson chal- [a] death) imprisonment to months’ —12 lenge, where [the] Commonwealth’s 2; run concurrent with Count Count 9 striking rationale for African- (accidents [an] death) involving to 24 —12 juror, pretext, American was mere [a] imprisonment months’ run concurrent (accidents legitimate not expla- [a] 2; race[-]neutral with Count Count 10 involv- licensed) nation, thereby prejudicing ing properly Appel- death when —12 to 24 imprisonment to run concur- to a fair right months’ lant’s trial? 491, 1925(a) (citation omitted). (Pa.Super.2011) Rule opinion,

2.Within its the trial Appellant Accordingly, court maintains that it sentenced on we conclude sen- 21, imposed tence either June 12 or June and that the was on June 2013 and the Testimony sentencing entry negate Notes of from the hear- erroneous docket does not our ing incorrectly jurisdiction. state it sentenced on 2/28/14, Opinion, June 2013. Trial Court date), (reflecting at 1 the June (DUI) merged 3. The trial court Count 12 date). (reflecting Upon (DUI) (homicide the June Count 13 with Count 3 record, DUI) (homicide review of the June note vehicle while Count 4 sentencing present date DUI) is also within sentencing purposes. vehicle while Yet, following Order, 6/22/13, the docket entries. docu- Sentencing Trial Court at 2. portray sentencing ments of record oc- April curred on June 2013: an 4. The trial did not order sentencing hearing; notice of a June file a concise statement of matters com- order, Superintendent transport advising the plained appeal pursuant Pennsylva- of on of Appellant SCI Graterford to release to the nia Appellate Rule of Procedure 1925. How- County sentencing ever, Delaware a 1925(b) sheriffs for Appellant elected to file a Rule 21, 2013; hearing on June a handwritten date January statement on sentence, signature judgment 1925(a) on the of opinion court filed on its Rule Febru- 2013; which was filed on June and the ary upon As the trial relied court Testimony. 1925(b) "Although Notes of the trial Appellant's Rule statement when au- record, part thoring Appellant docket of the when it opinion, is official is we will its hold to at the it variance with certified record refer- the within said See issues raised statement. ences, Smith, the certified record controls.” See Commonwealth 393 n. Enters., (era banc). Shelly Guadagnini, (Pa.Super.2008) Inc. v. accident, homicide, an not trial court abused its was 2. Whether [the] denying Appellant’s mo- discretion in the influ- who was under Appellant, mistrial, the where Common- tion for not marijuana, clearly did act ence of testimony of Detective elicited wealth malice, where he did see with examination that [Lythgoe] on direct colli- victim at the time of the either Appel- conversation of recorded [a] he sion and was unaware that had lant[,] his that he did stating to Uncle anyone, coincident with struck [either] not see time of [the] [the]/victims or its the accident aftermath? collision, acquired at Dela- was [the] [Impris the term Life Whether of County George ware W. prison, [ie., court, imposed the trial onment] Facility,] in violation Hill Correctional Mandatory the Life Im pursuant to agreement the explicit [an] of prisonment provision, under Pa. to was not elicit that Appellant’s for [sec incarcerated at C.S.A. [the] [§] was recording, as Degree time of well as [the] Third conviction for ond] prohibition law general common [the] Murder, arising single from a fatal against references criminal defen- accident, involving automobile two dants involvement in other crimes? sentence, [victims], illegal is an where trial court its

Whether the abused Assembly clearly General did not the admitting Appellant’s discretion in [] unreason such absurd and inten[d] day of messages text on the the inci disposition? able dent, the did where [Impris the Life Whether term of not disclose or turn over evidence court, imposed by the trial onment] trial, prior thereby prejudicing Ap pursuant Mandatory to the Life Im a fair trial? pellant’s right to Provision, prisonment under Pa. evi Whether there was insufficient 9715, for Appellant’s C.S.A. second [§] Appellant’s to support dence convic Murder, Degree for Third conviction for Degree tions two counts of Third punish constitutes cruel and unusual Murder, where there was no evidence ment, under the intentionally, Eighth Amendment deliber ately, or ran with malice over the of the United States Constitution and victims, fatally and his conduct Pennsylva Section 8 Article striking after [driving] [the victims] Constitution, therefore, nia [] through light, heavily while un red illegal? marijuana, clearly der the influence of Whether, the abused trial court its gross negligence, constituted conduct in [imposing] manifestly discretion as only which is actionable Homicide sentence, violates excessive which [D]riving by Vehicle while [U]nder sentencing norms es fundamental Influence, Involuntary Manslaughter - 9721(b), in 42 [§] tablished Pa.C.S.A. Homicide Vehicle? and/or the court’s where decision sentence finding Appel Whether the verdict level[,] light to an excessive guilty lant De of two counts Third case, in the criminal conduct issue gree against weight Murder was far exceed[ sentence [caused] [to] ] evidence, where medical necessary public protect what is examiners[,] performed who the au victims, provide rehabilita topsies both concluded that for manner of death both victims tive needs?

751 — Pennsylvania, -, Brief at 10-12.5 Appellant’s U.S. 133 . S.Ct. 122, 184 (2012). L.Ed.2d Initially, maintains the trial requirements for a prima its it court abused discretion when denied facie Batson are showing well settled. challenge during his voir dire. Batson6 Generally, in order satisfy ... to Id. at Specifically, Appellant, 26-33. who first requirement of demonstrating a American7, objected is African prima claim, Batson [the movant] peremptory Commonwealth’s use of a chal- facie must establish that [he she] or is a lenge to exclude an African American cognizable member of a racial group, i.e., N.T., jury, woman from Juror 82.8 party] the [opposing per- exercised 4/5/13, at 231-234.

emptory challenges to remove from the a trial denial of We review court’s a race, venire of [his her] members Batson claim for clear error. Common that other relevant circumstances com- Cook, 594, wealth v. 597 Pa. bine to raise inference that the [op- (2008) (stating court’s jurors posing party] removed the for decision question on the ultimate dis racial reasons. Whether the [movant] criminatory represents finding intent a has carried this threshold burden es- fact that great is accorded deference on tablishing prima a should case be facie appeal and will not be overturned unless light determined in of all'the relevant erroneous). clearly circumstances. v. Ligons, 601 Pa. progeny Batson and its established 1125, 1142 A.2d inquiry evaluating

a three-part for a claim showing A that a number of jury of racial discrimination in selection. against venirepersons strikes were used initially has to establish a [T]he [movant] not, more, one race will without create the ;prima showing that the circum- facie necessary prima inference a establish rise give stances to an inference that the Batson claim. See Commonwealth v. facie [opposing struck or more party] pro- one (Pa.Su Saunders, A.2d spective jurors on account of race. If per.2008) (stating, “the of a striking num made, prima showing is facie ber belonging cogni of individuals to some burden to the [opposing party] shifts minority dispositive zable ... group is not explanation articulate a race-neutral ]”), that a of Batson violation has occurred[ juror(s) striking the at issue. The trial denied, appeal 598 Pa. A.2d ultimately makes determination (2008). Rather, our Supreme Court has of whether has carried [movant] continually recognized moving that a party of proving purposeful [the] burden dis- preserve must a “full and complete record crimination. violation, [Batson asserted as it ] Sanchez, impossible 614 Pa. 36 would otherwise be to conduct (2011), meaningful cert. Sanchez appellate review of motiva- disposition, Complaint, 5. For our we have 7. See ease of elected Criminal 12/10/11. to renumber issues. 8. We note did not move for a mis- Kentucky, 6. Batson v. 476 U.S. 106 S.Ct. N.T., asserting challenge. trial when See (1986) (holding 90 L.Ed.2d that the 4/5/13, at 231-234. Equal prosecutor Protection Clause forbids solely challenge potential jurors on account race). of their jury. of the Id. at 239- composition individual cases final prosecutors tions Appellant to make the 241. Because failed a such Commonwealth record.]” [without facili- Fletcher, full and record to requisite complete Pa. v. review, (citation appellate we cannot address (2004) omitted), tate cert. Fletcher, Hollo- supra; claim. See this Pennsylvania, 547 U.S. Fletcher Thus, (2006). entitled to way, supra. Appellant is 1617, 164 L.Ed.2d 336 126 S.Ct. on no relief his Batson claim.10 require full and record complete “This make a necessitates that the movant ment court next the trial Appellant asserts identifying venireper- race of record it denied his abused its discretion when Commonwealth, stricken sons following testimony motion for mistrial acceptable prospective jurors race of Lythgoe implied Appel- Detective by the de- but stricken Commonwealth Ap- prior was incarcerated to trial. lant fense, of the composition and the racial avers Appellant Brief at pellant’s 3446. (citation, footnote, Id. at jury.” final Lythgoe’s reference to the Detective omitted). quotation internal marks Facility in George W. Hill Correctional rec- movant to make such a a fails When County spectre of Delaware “raised the ord, we cannot review the court’s involvement in another crimi- [Appellant’s] failed to es- that a movant determination activity subsequent incarcera- [and nal Batson. prima a case under tablish Id. at 43. tion].” facie 909-910, citing at Id. ap standard of review A.2d 1039 Holloway, 559 Pa. addressing a motion for mistrial ply when well settled. Herein, trials, Bat- In criminal the declaration of a raised his Appellant negative exer serves to claim after the mistrial eliminate son wrought upon as to a defendant when peremptory challenge its ninth effect cised N.T., 4/5/13, injected At that are into the prejudicial 82. at 231-234. elements Juror at trial. identifying a record case or otherwise discovered point, made 82; By nullifying process only the race of Juror failed tainted a trial to any venireper allowing the race other former trial new to state convene, Likewise, Appellant ne declaration of a mistrial serves See id.9 sons. but, identify only record the racial the defendant’s interests glected on the following Ap- exchange when The Commonwealth was worried that Juror 9. The occurred challenge. pellant asserted his Batson sympathize Appellant, who 82 would with any alleged a other Afri- was to be under the influence of THE COURT: ... are there panel? can-Americans on the substance time of the inci- controlled at the Quite frankly, Your Hon- [PROSECUTOR]: considering rea- Upon dent. Id. at 234. this or, know. ... I don't It’s soning, the trial court denied He didn’t strike COUNSEL]: [DEFENSE challenge, concluding Batson that the Com- no other African-Americans I [sic] provided "legitimate non[-]ra- monwealth a of. know N.T., striking juror.” cial reason for [the] N.T., 4/5/13, at 233. 4/5/13, 234; 2/28/14, Opinion, at Trial Court Appel- 23-24. The trial concluded at Assuming, arguendo, Appellant established claim, did not the Commonwealth's lant establish prima ulti- we would Batson facie striking "purposeful discrimination” when mately challenge deem his meritless. At a 2/28/14, dire, Opinion, during Com- 82. See Trial conference voir Juror Court sidebar explained finding that it struck Juror 82 monwealth 7. We is not n. conclude drug upon Cook, employment her as based clearly supra. erroneous. See 4/5/13, N.T., alcohol caseworker. important, public’s the five the equally interest trial court’s instruction to be just to designed specific, in fair trials end in “clear and must instruct the jury Accordingly, disregard the trial court to the judgments. improper evidence.” grant is discretion to a mis- Id. vested with alleged prejudicial

trial the whenever In judice, the case sub the Com reasonably be said to may deprive event presented testimony monwealth the of De impartial the defendant of a fair and Lythgoe, investigator tective the lead determination, making trial. In its the N.T., 4/9/13, underlying the at case. 196- discern whether misconduct must portion 229. The Lythgoe’s Detective occurred, actually prejudicial or error testimony at issue concerns a statement so, any ... degree and if assess the following that he made playing the of a the resulting prejudice. Our review of taped telephone conversation. Id. at 203. order is to resulting constrained deter- trial, parties Prior to stipulated the to the dis- mining whether court abused its conversation, admit this telephone which cretion. Appellant was recorded while was incar Hogentogler, Commonwealth v. 53 A.3d N.T., 4/5/13, cerated. Also 20-25. (citation 866, (Pa.Super.2012) 877-878 time, that agreed the Commonwealth that 720, omitted), denied, 620 Pa. 69 appeal its witness would not reference from (2013). A.3d 600 it procured recording. where Id. However, following the of this playing re is that

It also well established cording for the jury, Lythgoe Detective crimes, wrongs, evidence other or acts testified as follows. may during not trial presented against be Detective, as the [PROSECUTOR]: a criminal as either character or defendant case, detective in this lead what other 404(b); proclivity evidence. Pa.R.E. Com you perform? duties d[id] Padilla, monwealth v. 923 A.2d 1194 denied, I (Pa.Super.2007), appeal Pa. had prepared 594 several [DETECTIVE]: (2007). I prepare 934 1277 search warrants. had to cor- A.2d Hill respondence George to the W. Cor- However, mere to passing references Facility get rectional those record- prior activity criminal will necessari- ings. ly require reversal unless the record prejudice Objection. re- definitively [DEFENSE

illustrates that COUNSEL]: Prejudice Objection. Objection. sults. results where the testi- mony conveys jury, ex- either N.T., 4/9/13, at 203. subse- pressly implication, or reasonable mistrial, quently requested which the fact of another criminal offense. Deter- on trial court denied basis mining prejudice whether has occurred prosecution testimony did not elicit the specific inquiry. is a fact intentionally. purposefully either Id. at (citations Padilla, 203, 213, supra at 1194-1195 court further rea- omitted). quotation “If Lythgoe marks evidence soned Detective did not ex- prior activity inadvertently plicitly criminal is state that incarcer- pre- was rather, ated; jury, may sented to the the trial court cure the detective stated that he prejudice go to the improper appropri- prison tape with had to retrieve cautionary recordings. referencing ate Id. at Estelle jury.” instruction Hudson, Williams, 501, 512-513, v. U.S. 425 96 (conclud- (1976) (Pa.Super.2008), appeal S.Ct. L.Ed.2d Pa. A.2d 1 It State ... an ac- impera- ing, compel “the cannot (Pa.Super.2011). Questions while concern- jury stand trial before cused to clothes”); of evidence are within prison ing admissibility in identifiable dressed Johnson, court, the trial 576 Pa. “the sound discretion of (2003) “the ref- absent a (concluding, will not be reversed its discretion (citation incarcerated status to Johnson’s Id. erence clear abuse discretion.” omitted). type not the of ‘constant and “An of discretion is not passing, was abuse ]”), cert. by [ Estelle proscribed merely judgment, reminder’ error but rather of denied, Pennsylvania, law, v. U.S. of overriding misapplication Johnson or the the L.Ed.2d 471 125 S.Ct. that is judgment exercise of mani- or the (2004). Yet, to proposed trial bias, the court unreasonable, result of festly or the cautionary instruc provide jury the with a as partiality, by ill-will or shown prejudice, prison. to the regarding tion this reference of record.” Commonwealth the evidence 4/9/13, N.T., twice re Appellant (Pa.Su- at 216. Harris, 920, 924 884 A.2d Id. at jected this offered instruction. (internal quotation and per.2005) citations denied, omitted), appeal marks 593 Pa. (2007). Furthermore, 726, 928 A.2d record, conclude review of the we Upon reaching a the trial court “if conclusion did not its discretion the trial court abuse law, the dis- misapplies over-rides or denying Appellant’s request. [sic] mistrial when duty then it is the with cretion is abused and supra. agree Hogentogler, See We in- the error.” appellate that the the court to correct the trial court Commonwealth testimony Weakley, to advertently presented this Commonwealth v. (citation omitted), (Pa.Super.2009) ap- order to this inadvertent jury. In cure disclosure, denied, offered to' admin- 604 Pa. 986 A.2d 150 peal instruction, cautionary Appel- which ister a N.T.,. 4/9/13, at 216- lant twice. Pennsylvania Rule of Criminal Proce- now chastise Appellant cannot discovery proce- outlines pretrial dure 573 for not him with providing the trial court part, provides, pertinent dures and as slip- this cautionary regarding instruction follows. 43, 45. As of-tongue. Appellant’s Brief at Discovery Rule In- 573. Pretrial and definitively record does not illustrate spection from De- prejudice incurred comment, Lythgoe’s Appellant’s

tective Padilla, supra. claim fails. second See (B) by Disclosure Commonwealth. third to the Appellant’s -pertains claim (1) cases, Mandatory. In all court on Brief admission evidence. defendant, subject and request to the trial court 70-73. asserts which the any protective order Com- its discretion it admitted abused when rule, might obtain under monwealth message procured phone text from his cell shall disclose to the pro- because the Commonwealth did attorney following all of defendant’s trial. message prior the text him to vide information, provided requested items or a new Appellant requests Id. at 70-71. they are material to the instant case. trial. Id. at 72. shall, applica- The Commonwealth when ble, permit attorney the defendant’s rul In a trial court’s reviewing inspect copy photograph and such evidence, our ing admissibility on the items. standard of review is one of deference. Selenski, record THE (g) transcripts enough. Good [T]he COURT: surveillance, and ings any electronic Id. at 20-21. by which tran authority the said 1925(a) its opinion, Rule scripts recordings were obtained. Within the trial court maintains this issue is with 573(B)(1). Pa. “On the issue of R.Crim.P. out “[Appellant] merit because did not ob occurred, the whether or not disclosure ject any regarding evidence the content fact-finder, trial court as functions messages of text Appel recovered from appellate generally courts do not substi phone lant’s on the they basis that had not judgments tute their for those of a fact- been turned over the Commonwealth credibility.” finder in Com matters prior trial.” Opinion, Trial Court Sanchez, monwealth v. 589 Pa. 907 2/28/14, Although disagree at 25. with (2006), denied, cert. A.2d 491 Sanchez the court that Appellant neglected trial Pennsylvania, v. 551 U.S. S.Ct. 127 object issue, the message text at 2918, 168 (2007). 249 L.Ed.2d agree with the court’s conclusion that this T.P., issue lacks merit. See In re 78 A.3d trial, During instant Com the the (Pa.Super.2013) 1170 (providing, “it presented monwealth text ex messages is a well-settled doctrine in this Common changed girl between and his wealth that a trial court can be affirmed on friend, Potter, of Angela night on the the any record!]”), valid basis of appearing incident, the through testimony of ex — denied, Pa.-, appeal 93 A.3d 463 4/10/13, N.T., pert mobile forensics. (2014). trial, During Appellant did not expert’s At beginning 12-42. of this contest the Commonwealth’s assertion that testimony, following discussion oc messages it had these provided text to him curred at side bar. trial, prior to and the trial court concluded Honor, N.T., 4/10/13, [DEFENSE Your disclosure occurred.11 at 20- COUNSEL]: party may It is axiomatic that “[a] I ... have not received these documents and complain remain silent afterwards [PROSECUTOR]: These documents erroneous, which, if matters court were all on the disks contained same would have corrected.” Commonwealth v. provided put that were and rec- on the Strunk, A.2d (Pa.Super.2008). 579 Williams!, by ord yesterday [Attorney] Accordingly, we refuse substitute our Appellant’s were prior They counsel]. for that trial judgment of the court and part all that group things the same find an abuse of discretion occurred. See there, were of them being one the disk Selenski, supra. This issue lacks merit. from the text containing these FBI[ next questions sufficiency

messages]. of the his underlying third-degree evidence THE What can I say, COURT: [defense murder Brief Appellant’s convictions. counsel]? Specifically, Appellant challenges 50-55. right. underlying [DEFENSE All mens rea. COUNSEL]: evidence his trial, Attorney Attorney point 11. At that in the trial to the Williams Williams, counsel, prior had told over these him. Id. at turned CDs to pro- the trial court that Trial counsel further that the revealed CDs (CDs) compact during vided him with disks only photo- that he chose to review contained N.T., 4/9/13, Following discovery. at 92-96. graphs videos. Id. assertion, Appellant's stated counsel judice, there was no the combined circumstances. Com- the case sub In may its burden intentionally monwealth sustain [Appellant] evidence every [M.M.], proving he element of crime where ran over [M.T.] beyond them, a reasonable doubt means immediately pre- see not even did wholly the acci- circumstantial evidence. ceding, during shortly or after Moreover, test, wholly the above dent, applying his was perception because evaluated intoxication. the entire record must be compromised marijuana However, must actually inten- all evidence received be tragically Appellant did intersection, fact[,] the trier of Finally, into be- considered. tionally drive credibility of passing upon to his while wit- falsely he due perceived cause was and the marijuana light weight intoxication that the nesses evidence all, red, part yellow produced, when it free to believe changing from red, intersec- none of the evidence. plainly was and that the pedestrians. was clear of tion Caban, 60 A.3d added), (Pa.Super.2012) (emphasis omitted), 132-133 (emphasis citing Com- Id. at denied, 79 A.3d Johnson, appeal Pa. 719 A.2d monwealth (en (2013), Quel, quoting Commonwealth v. banc), (Pa.Super.1998) appeal 1033, 1037-1038 (Pa.Super.2011). Appel- Pa. gross lant asserts his actions constituted rare, impossible, It is but not Id., citing not negligence, maliciousness. by a motor for a death caused vehicle Matroni, v. A.2d 923 444 Commonwealth give third-degree accident to rise to a mur denied, appeal Pa. (Pa.Super.2007), 597 conviction. v. Pigg, der Commonwealth (2008). 729, Accordingly, 952 A.2d 675 438, Pa.Super. 391 571 A.2d 442 requests vacate his this Court (1990), denied, appeal Pa. 525 581 convictions. at 55. murder Id. (1990); also, e.g., 571 A.2d see Common v. 20 A.3d Dunphy, wealth 1219

Our standard of review is well Levin, (Pa.Super.2011); settled. (Pa.Super.2003), ap reviewing the apply The standard denied, A.2d peal Pa. sufficiency of the is whether evidence (2003). Pennsylvania Pursuant to the tri- viewing all the admitted at evidence Code, of person guilty “[a] is crimi Crimes light to the al in the most favorable intentionally, if he knowingly, nal homicide winner, evi- verdict there is sufficient recklessly or causes the negligently death to enable to find dence the fact-finder being.” of another human 18 Pa.C.S.A. beyond of every element the crime a 2501(a). § [is] “Criminal homicide classi doubt. In the applying reasonable murder, voluntary manslaughter, fied as or test, we the evi- may weigh above 2501(b). § involuntary Id. manslaughter.” judgment dence and substitute our defined, part, Murder is in relevant as addition, the fact-finder. In we note follows. that the facts and circumstances estab- § 2502. Murder by lished the Commonwealth need not (a) Murder degree. crimi- every possibility of innocence. preclude of first —A of nal homicide constitutes murder Any regarding doubts a defendant’s degree first when it is committed an may fact-finder guilt be resolved intentional killing. in- the evidence weak and unless is so (b) degree. that as law no Murder conclusive a matter of the second of —A of fact from murder probability may be drawn criminal homicide constitutes of marijuana when it a of degree high speed through is committed at rate second a engaged prin- steady light as a stopping while defendant was red without to see perpetra- anyone an in the if cipal accomplice anything or or was in his lane of felony. a tion of might cause death serious bodi- travel — ly injury.” Id. (c) degree. the third oth- Murder of —All shall murder of er of murder be kinds Viewing the evidence adduced at trial in degree. Murder of third the third the light most favorable to the Common- degree. is a degree felony first wealth, winner, the verdict as we conclude there was sufficient evidence to enable the Accordingly, § “[t]hird[-]degree Id. (cid:127) trial court to sustain convic- person a murder occurs when commits a third-degree tions for At murder. is intentional nor killing which neither incident, Appellant time of this was driv- during perpetration committed of a (55-61 ing high speed at a rate of miles felony, requisite but contains malice.” per zone), a per hour in 30-40 miles hour Truong, while under the influence of marijuana, (en (citation banc) (Pa.Super.2012) an attempt to flee from Officer Fiocca’s omitted), appeal Pa. 2/28/14, pursuit. Opinion, Trial Court at A.3d 70 8-11; N.T., 4/11/13, at 192. fled Malice defined as: wickedness dis- Officer Fiocca’s initial traffic stop a heart, position, cruelty, hardness of high speed rate proceeded through consequences, and a recklessness steady light, fatally striking red two regardless duty, although social mind young pedestrians. Opinion, Trial Court particular person may not be intended 2/28/14, struck, Upon being at 8-11. M.M. injured[.] may to be Malice be found and propelled M.T. were from 50 to 100 consciously where defendant disre- N.T., 4/8/13, feet. Instead garded unjustified extremely accident, the stopping Ap- at scene of the high might risk that his actions cause fled, pellant abandoned the vehicle in- bodily injury. may Malice be serious accident, police. volved in the hid and from by considering totality the of inferred 2/28/14, Opinion, Trial at 8-11. Court the circumstances. There no weather were adverse conditions Dunphy, v. 20 A.3d Commonwealth impeded time during Appellant’s this that (Pa.Super.2011); Truong, accord su- sight precluded or him from after stopping pra “[Fjleeing may at 597-598. the scene N.T., 4/8/13, the accident. at 57-58. in determining be considered if an individ- complete These demonstrate a dis- actions supra ual with at Dunphy, acted malice.” regard unjustified extremely of the (citations omitted). 1220 n. 3 high risk that his actions would cause Herein, injury. According- death opines bodily the trial court that or serious presented ly, pre- the sufficient the conclude to to support Appellant’s prove evidence third-de sented sufficient evidence gree Appellant requisite murder convictions. Trial Court acted with the malice 2/28/14, Opinion, third-degree the to his murder convic- Specifically, support at reasons, Dunphy, supra trial court at trial tions. See at 1219-1220 evidence “[t]he (evidence clearly Appellant prove established that con sufficient to malice based extremely sciously disregarded high upon following an the factors: intoxicated driver; excessive rate of risk that his actions—actions which includ condition of (60 per in a miles driving speed per ed while under the influence of miles hour zone); pedes- Appellant’s Brief 48. Within hour driver’s awareness section.” area; presented, al- question admission that his also trians the driver’s although testimony light leges to make the medical examiners’ speeded up he the him; dis- pedestrians jury’s he saw front of convictions. Id. at contradicts body was ab- propelled; tance victim’s or climate condition any physical sence recognized has long This Court to that would contribute the accident true of the chal weight evidence “[a] immediately to stop failure driver’s lenge that sufficient evidence ex concedes after; hitting after flight and the driver’s questions to sustain verdict but ists Levin, (evidence victim); supra suffi- which evidence is to be believed.” Com prove cient to malice when driver acknowl- Lewis, v. monwealth 911 A.2d marijuana drinking a edged: smoking (citation omitted). (Pa.Super.2006) Where large quantity early of alcohol in after- claim, court a weight the trial has ruled on noon; caused knowing combination role is not appellate court’s to consider out[;]” driving him to and then “black[] underlying question whether busy down a residential in the late street against weight is of the evi verdict (evi- afternoon); Pigg, supra at 442-443 Tharp, Commonwealth v. 574 Pa. dence. prove of intoxi- dence sufficient malice (2003), cert. eighteen-wheeled cated tractor driver Tharp Pennsylvania, U.S. multiple he forced other trailer where: 2161, 158 (2004). Rather, L.Ed.2d 736 S.Ct. prior the road to the fatal drivers off of review the trial is limited whether “[our] accident; him pleaded a fellow driver with palpably its discretion in rul abused accident; stop driving prior the fatal Id. ing weight on the claim.” no traffic con- there were weather or him driv- required ditions that to continue It is well established that this

ing). Accordingly, the court did not precluded reweighing Court from err, and relief on Appellant is entitled substituting credibility evidence and our this issue. determination for that fact-finder. challenges weight Champney, next 574 Pa. See Commonwealth (2003) (citations supporting thirdTdegree the evidence his omitted) weight murder Brief at Appellant’s (stating, convictions. of the evi “[t]he 46-49; Motion, exclusively Post-Sentence dence is for the finder of fact Appellant’s 7/1/13, brief, all, he free to part, 4.12Within who is believe or none of argu- essentially sufficiency reiterates his evidence and to determine the credibil denied, ment, ]”), consciously asserting ity did of the cert. “[he] witnesses[ not extremely disregard unjustified Champney Pennsylvania, and 542 U.S. (2004). risk, high where he never saw the 124 S.Ct. 159 L.Ed.2d 816 [victims] any immediately need preceding, during, preclude time evidence at trial “[T]he innocence, collision, immediately following every or and the fact- possibility and free marijuana impaired any regard his intoxication his finder is to resolve doubts judgment unless perception ing guilt and to the extent a defendant’s the evidence he was he a mat any not aware risk when is so weak and inconclusive that as fatefully may inter- no probability drove his vehicle into the ter of law fact be Appellant’s pag- quential page ease motion does not contain number for of reference. assigned page ination. We have each a se- uncertain!,]” drawn from the combined circumstances.” the trial court did not Emler, Commonwealth v. 903 A.2d abuse its discretion in denying Appellant’s (Pa.Super.2006). post-sentence motion for a new trial. See Ross, A Thus, new trial should be supra. awarded when the Appellant’s weight jury’s contrary verdict is so claim to the evi- is without merit. dence as to shock one’s justice sense of Appellant’s remaining three issues chal- and the award of a new impera- trial is lenge the sentence imposed by the trial right may tive so that given be another court. See Appellant’s Brief at 11-12. opportunity to prevail. In regard, issue, Within his sixth Appellant chal- tenuous, evidence must be vague [t]he so lenges the legality of his Section 9715 man- and uncertain that the verdict shocks datory life sentence. Id. at 56-59. Appel- the conscience of the court. lant asserts his sentence is illegal and Ross,

Commonwealth v. should be vacated for the following rea- (citations (Pa.Super.2004) and internal sons. quotation omitted), marks cert. Pennsylvania, Ross v. [Subjecting Appellant, 547 U.S. who had no 1630, 164 S.Ct. L.Ed.2d 343 history of violent or criminal contacts at the time of the incident in the case sub The trial court found no Appel- merit to judice, Sentence, to a Life causing claim, lant’s weight stating as follows. accident,, two deaths in single is an It jury is clear the requisite found the absurd, outcome, unreasonable which malice for third[-]degree despite murder was in way no intended Legisla- the doctors’ testimony that the manner ture, in fashioning mandatory life was, of death respective their profes- provision of Section 9715. Such an out- opinions, sional an accident. Respectful- come way is in no consistent pro- with ly, their verdict did not shock one’s tecting public meeting justice sense of require as to a new trial. needs, rehabilitative but solely puni- cjourt

It is not for th[e to substitute tive. The Legislature clearly wanted to its own judgment for that of jury in deter would[-]be serial killers from en- Appellant’s case. gaging separate multiple mur- 2/28/14, Trial Opinion, Court at 5-7. ders, not potentially subject persons In finding Appellant guilty, the with no criminal background to life with- jury clearly believed the Commonwealth’s parole, out single for a horrific event. evidence offered to establish Appellant’s mens rea. Upon omitted). our review (emphasis Id. at 59 medical testimony, examiners’ experts these testi Our standard scope of re fied they deemed the victims’ deaths view for such a challenge is well settled. as solely accidents from a medical-commu nity N.T., 4/11/13, prospective. If statutory 55- no authorization exists for a 56, 190-191. It was for the jury particular sentence, to decide that sentence is ille- whether these deaths were by Ap gal subject caused to correction. An illegal pellant’s disregard! “conscious[ ] an un of] sentence must be vacated. In evaluat-. justified extremely high risk that ing his a trial application court’s of a stat- might actions bodily inju ute, cause serious our standard of plenary review is ry^]” for third-degree murder. Dunphy, and is limited to determining whether supra. Because the evidence regarding the trial court committed an error of “tenuous, malice was not vague law. Morris, complete previous record of the have a

Commonwealth bane) (cita offender, (en copies of convictions (Pa.Super.2008) 577-578 of. to the offender. which shall be furnished marks omit quotation and internal tions attorney or the If the offender ted), 605 Pa. appeal accuracy of contests the (2010); see also 18 Pa.C.S.A. record, 9781(a). shall schedule a the court § and the hearing and direct the offender judice, the trial In the case sub to sub- attorney for the Commonwealth mandatory sentence of life imposed a court previous regarding mit evidence for his second conviction imprisonment of the offender. The convictions to Section third-degree pursuant murder determine, by preponder- shall then Code, 42 of the Judicial Pa.C.S.A. evidence, the con- previous ance of the Sentencing Or §§ Trial Court 101-9913. and, the offender if this sec- victions of states, der, 6/22/13, in at 1. Section 9715 sentence applicable, impose tion is shall follows. pertinent part, as in this section. Should accordance with imprisonment § Life for homi- conviction be vacated and previous cide. sub- discharge or final entered acquittal (a) Mandatory imprisonment.— life under sequent imposition to of sentence of sec- Notwithstanding provisions section, the offender shall have the this to for of- (relating tion 9712 sentences sentencing court for right petition to firearms), 9713 fenses committed with of sentence if this sec- reconsideration com- (relating to sentences for offenses ex- applicable would not have been tion transportation) public mitted on conviction which was vacat- cept for the (relating to sentences for second ed. offenses), any person subsequent added). § (emphasis 42 Pa.C.S.A. 9715 degree convicted of murder of the third previ- in who has this Commonwealth called previously has been This Court any ously been convicted at time of In upon interpret to Section 9715. Com- voluntary manslaughter in murder or Smith, 710 A.2d 1179 monwealth this or of the same or con- (Pa.Super.1998), the defendant was any in substantially equivalent crime third-degree mur- victed of two counts of jurisdiction other shall be sentenced der, from a among charges, arising other any imprisonment, notwithstanding life single incident. Id. at 1180. This Court title or other provision other of this that, guilty was found held because Smith contrary. statute to the third-degree counts of jury for two time, (b) “it sentencing. strain[ed] of murder at same Proof —Provisions interpret plain meaning of the statute to this section shall not be an element of encompass this ‘previously thereof to the de- convicted’ the crime and notice compared required prior not be situation.” Id. at 1181. We fendant shall statute, conviction, penalty to the death notice of the Section 9715 but reasonable penalty noting that the text the death proceed intention to Commonwealth’s phrase af- statute included the “the defendant provided under this section shall be has been convicted of another sentencing. [offense] ter conviction and before either before or at the time of section shall be committed applicability (emphasis Id. sentencing. The sentenc- the offense at issue.” determined court, original), quoting Pa.C.S.A. ing prior imposing sentence on 9711(d)(12). 9711(d)(10), 9711(d)(ll), (a), §§ an offender under subsection shall considerations, Smith on these make any Based distinction between convic- court concluded the trial did not err tions that single Court arise from a criminal refusing 9715. apply episode Section and multiple criminal episodes. We are bound the unambiguous lan- Morris, Subsequently, in we were con- guage of this statute and we cannot pre- fronted with an issue similar to that insert requirements additional that the wit, by Appellant, to “whether sented legislature has not included. According- a may trial court sentence criminal defen- ly, because the Smith Court’s decision [Sjection to life in prison dant under read requirements into the statute that the two were where murders tried and plainly do appear, not we conclude that a together multiple-count sentenced under its reasoning is flawed and that the deci- Moms, supra complaint.” criminal at sion must be overruled. Following “explicit- 578. our review the Id. Thus, the Morris Court statute, concluded “the ly and unambiguously ]” written! “ trial court did not legal commit error in opined phrase any that the time’ ‘[a]t imposing the prison sentence life in clearly ... means that order of com- because the mission, plain language of conviction, the statute offenses re- specifies timing of the primary quiring life sentence is immaterial so conviction is not as, relevant as long as the long sentencing time of [the] on a defendant has been convicted conviction, of the initial third-degree murder a defen- murder or manslaughter at the has on time of dant been convicted another charge sentencing on the second murder.” Id. voluntary of murder or manslaughter.” Id. at 579. We further reasoned that the

legislature would have included that lan- Similarly, the court in this matter if guage within the it statute intended for sentenced to a mandatory term previous the defendant’s conviction to of life imprisonment for his second convic- antedate the commission of the second of- tion of third-degree murder. Trial Court Id. at 580. The Morris Court ex- fense. Order, 6/22/18, Sentencing at l.13 At the Smith, Smith time of Appellant’s sentencing, Appellant plicitly concluding overruled wrongly decided because the Smith had been convicted of two counts of third- was had panel “essentially require- read new degree 4/12/13, murder. Slip, Verdict at 1. ments into the statutory language.” Id. at The trial imposed court a sentence of 20- years’ incarceration on first specifically

Section 9715 upon third-degree focuses murder conviction. Trial whether, Order, at the of sentencing, 6/22/13, time a Court Sentencing at 1. The defendant has been previously convicted trial court then sentenced ato any “at time.” The statute does mandatory imprisonment term of life state that the two murders must be his second of third-degree conviction mur- Indeed, Id. As Section 9715 separately. tried and sentenced der. provides that the plain language of the statute re- sentence of life imprisonment “shall be” quires that imposed trial court third-degree determine for a second murder conviction, previous whether a conviction exists at the trial any divested of sentencing, the time of giving fashioning without discretion in Appellant’s sen- Gonzales, See consideration to when the conviction tence. oc- Further, curred. the statute 415 Pa.Super. does not sentencing page 13. The trial sequential page court’s order does not number for ease of pagination. assigned have contain We each reference. 762 Elia, A.3d

(1992) im- 83 254 that of life See Commonwealth v. (stating a sentence (upholding the constitu (Pa.Super.2013) mur- required for a second prisonment 9718(a), § 42 which tionality of Pa.C.S.A. manslaughter pursuant conviction der or certain manda 9715). requires imposition the Accordingly, the Section to offenders tory .minimum sentences when an error of law court did commit 16-years-old), are than whose victims less imprisonment, life sentencing — denied, Pa. -, 1007, 94 A.3d appeal claim is meritless. Appellant’s legality and (2014); LEXIS Common 2014 Pa. 1609 Morris, supra at 577-578. See Baker, 401, A.3d 621 Pa. 78 1044 wealth v. next Section 9715 asserts his (2013) constitutionality of (upholding the mandatory imprisonment sentence of life 9718.2, requires § which the 42 Pa.C.S.A. punish- a cruel unusual constitutes mandatory of certain minimum imposition Amend- prohibited Eighth the ment offenders); for sexual sentences Common to the States Constitution ment United 233, 612 Spells, Pa.Super. v. 417 wealth 1, Pennsylva- Article Section 13 of (1992) (en banc) (upholding 458 61- Brief at nia Constitution. 9712, § constitutionality of 42 Pa.C.S.A. Specifically, Appellant contends requires the of a five- imposition which mandatory minimum application to of mandatory minimum sentence year in his case in a sentence sentence resulted visibly firearm dur display fenders who a to the grossly disproportionate that was felonies), ing the commission of certain third-degree underlying conduct his two dismissed, 350, Pa. 643 A.2d appeal 537 convictions. at 63. murder Id. . (1994); Parker, v. 1078 we have the constitu- While addressed A.2d 1266 (Pa.Super.1998) (upholding prescribe other tionality of statutes constitutionality of 42 Pa.C.S.A. sentences, mandatory pursuant minimum 9714, mini- requires mandatory § which 1, Article Eighth to the Amendment and sentences for recidivists of certain mum 655, offenses), to Sec- Pa. Appellant’s challenge appeal Section impression.14 9715 is an of first A.2d 899 tion issue petition upon Supreme we re- Court assertion that his based Commonwealth’s cently constitutionality of Sec- the bama, States’ in Miller Ala addressed the United decision - -, against Eighth and Ar- U.S. 132 S.Ct. tion 9715 Amendment (2012) (holding "mandatory challenges ticle Section is mistaken. 183 L.Ed.2d 46, citing life-without-parole juveniles vio Common- sentences for Commonwealth’s Brief at Lawson, Lawson, ]”). Eighth (Pa.Super.2014). late the su wealth v. Amendment! Lawson, 9545(b)(1)(iii) citing § post-conviction petitioner pra a In relief Pa.C.S.A. (timeliness exception rights his sentence of life for constitutional contended Section 9715 recognized by Supreme and state of the Unit imprisonment violated the federal Court against pun- apply have retro- prohibitions and unusual ed States that been held to cruel claim, actively). Upon predicate because one review Lawson’s ishment offenses jurisdiction com- that we over upon which his was based was concluded lacked his sentence wit, Lawson, 6, citing juvenile, petition,. supra him while Common- mitted he was a third-degree Cunningham, he commit- Pa. 81 A.3d 1 a murder conviction wealth Lawson, (2013) (holding apply 17-years-old. he was su- does not retroac- ted when Miller inmate, tively juvenile, pra underlying As sentence to an convicted as a at 3. Lawson's serving September without final on or who is life sentence became about (PCRA) parole, petition possibility of who has exhausted his Post-Conviction Relief Act appeal facially untimely. rights proceeding 42 Pa.C.S.A. direct and is was his PCRA). 9545(b)(1) petitions Accordingly, we (providing § all PCRA under the affirmed peti- year filed the date the PCRA court's of Lawson's should be within one dismissal final). judgment Law- and did not merits of his con- of sentence becomes tion reach the Lawson, supra exception applied claim. at 8. son asserted timeliness stitutional constitutionality As the of a Eighth Amendment to the law, presents question states, statute a pure Federal Constitution “[e]xcessive our bail standard of review is de novo and our shall not required, be nor excessive scope plenary. imposed, of review fines Common nor cruel and pun unusual Const, amend, Turner, 318, 754, wealth v. Pa. ishments 622 80 A.3d inflicted.” U.S. (2013). 759 viii. The duly Eighth “We note that Amendment is unique enacted constitutional legislation jurisprudence it a strong pre carries with because it (cita its from sumption constitutionality.” meaning “draw[s] the evolving Id. omitted). standards of decency tion that mark the presumption prog “A exists ress of a maturing society.” Trop v. Assembly ‘[t]hat the General does not in Dulles, 101, 86, 590, 356 U.S. 78 S.Ct. 2 tend to violate the Constitution of the (1956) L.Ed.2d 630 (plurality). “[T]he United States or Commonwealth’ Eighth protection Amendment’s against Baker, promulgating legislation.” when excessive or cruel and punish unusual supra 1050, 1 quoting Pa.C.S.A. ments flows from the basic 1922(3). ‘precept of § justice that punishment crime [a] Thus, a not be statute will found uncon- should be graduated proportioned clearly, stitutional palpably, unless it ” Louisiana, offense.’ Kennedy [the] 554 plainly violates the Constitution. If 407, 419, 2641, U.S. 128 S.Ct. 171 L.Ed.2d any there is to whether a doubt as chal- (2008), 525 quoting Weems United lenger burden, high has met this then States, 367, 349, 544, 217 U.S. 30 S.Ct. 54 will we resolve doubt in favor of the (1910). “By L.Ed. 793 protecting even constitutionality. statute’s crimes, those convicted of heinous — Neiman, Pa. -, Commonwealth v. Eighth Amendment reaffirms the duty of (internal 603, (2013) 84 A.3d 611 quotation government respect the dignity of — omitted). marks Florida, and citations persons.” all Hall v. U.S. -, 1992, 1986, 134 S.Ct. 188 L.Ed.2d Herein, Appellant contests (2014)(citation omitted). 1007 constitutionality of Section 9715 as to both attacking When constitutional the federal and state constitutions. Appél statute, ity of a appellant can raise two lant’s Brief at 61-64. It is well-settled types challenges: and as-applied. facial guarantee against that “the cruel and un Barnett, 176, Commonwealth v. punishment usual contained in the Penn (Pa.Super.2012), appeal 619 sylvania Constitution, 1, 13, Article Section (2013). Pa. A.3d 772 provides protections against no broader attempts ap to assert both forms in this cruel and unusual punishment than those peal. at 61-64. Appellant’s Brief We re Eighth extended under the Amendment to cently articulated the standard for facial the United Spells, States Constitution.” constitutional challenges. 461; supra at accord Commonwealth v.

Zettlemoyer, 500 Pa. plaintiff can succeed in a only [A] facial (1982), denied, Zettlemoyer cert. challenge by establishing v. Penn that no set of sylvania, 461 U.S. under S.Ct. circumstances exists which the Elia, (1983); ie., valid, L.Ed.2d 1327 supra at 267. Act would be that the law is As these provisions constitutional applica- are co unconstitutional in all of its terminous, only .... engage challenge need in an tions facial fail [A] must Eighth Parker, plainly legiti- Amendment review. See where the statute has supra at sweep. mate malice act with the (citations clearly did not

Barnett, and inter- “[he] supra at Id. at 63. omitted), for such a conviction.” requisite quoting marks nal quotation underlying his third- claims the actions He Repub- Grange v. Wash. State State Wash. ap- more convictions are degree murder 128 S.Ct. 552 U.S. Party, lican as homicide propriately characterized As was the L.Ed.2d 151 vehicle while DUI and homicide vehicle Barnett, fails to brief case such. Id. punished be as and should suggestion that any argument or invoke in all of is “unconstitutional Section panel an en banc of this Spells, In statute fails or that the applications” its test adopted proportionality the Court sweep” Ap- test. legitimate “plainly the a examining when apply should courts only arguments contains brief pellant’s Eighth the constitutionality under statute’s unconstitutional its the statute is that supra at 461-464. Spells, Amendment. present in to the circumstances application following the we concluded Specifically, Barnett, supra at case. See Appellant’s analysis: govern should such criteria Appel- we conclude Accordingly, 197-198. “(i) the offense and the gravity the develop a facial properly failed to lant has (ii) the sen penalty; of the harshness only 9715 and has challenge of Section criminals in the imposed on other tences constitutionality the stat- the challenged (iii) and the sentences jurisdiction; same case. See id. applied in the instant ute as the same crime for commission of imposed at 198. 462, jurisdictions.” quoting Id. at in other 277, 292, Helm, brief, ac Solem v. U.S. Appellant’s he Within (1983); 3001, accord 77 L.Ed.2d 637 does S.Ct. Eighth “the Amendment knowledges Baker, single Although no supra at 1047. between require proportionality not strict findings the court’s Rather, dispositive, factor is it forbids and sentence. crime may determine to the first factor grossly are relative sentences which only extreme is constitu particular sentence Appel crime.” whether to the disproportionate 463; accord 62, Spells, supra tional. quoting lant’s Brief at 957, 1005, 501 U.S. Hall, Michigan, Harmelin v. 549 Pa. (1991); 115 L.Ed.2d 836 (1997), Pennsylvania, 111 S.Ct. Hall v. cert. 3001; Solem, 17, 103 at 291 n. S.Ct. supra 140 L.Ed.2d 118 S.Ct. 523 U.S. Baker, Therefore, courts should (1998), supra. Michigan, citing Harmelin grossly is 957, 1001, initially consider if “a sentence S.Ct. 501 U.S. su Spells, to a crime.” disproportionate likewise L.Ed.2d 836 Harmelin, supra; ac quoting pra criteria courts objective the identifies Baker, In other supra at 1048. alleged cord apply examining when should words, whether the must examine “[we] a statute under an disproportionality of Parker, supra the crime.” Appel punishment fits challenge.15 Amendment Eighth Yet, concludes no such at 1269. If the court Appellant as lant’s Brief at 61-62. exists, the sen gross disproportionality is 9715 lifetime sentence serts his Section Amend Eighth not violate the action tence does disproportionate to “grossly [his] 1052; Baker, Spells, supra at and accidental ment. See mistakenly conduct in able at 463-464. supra because ly running [victims]” over the two lin, Spells, by applied first this Court promulgated the United 15. This test was Helm, Pennsylvania Supreme Supreme adopted by Court in Solem v. Court States 3001, 77 L.Ed.2d 637 U.S. 103 S.Ct. in Baker. (1983), high Court in Harme- clarified our statute). Here, to the respect prong With first written” punishment test, Appellant argues proportionality disproportionate crime merely comparison gravity alleges because he “mistakenly” penalty “accidentally” with the harshness of the offense two killed individuals. inference of dis- imposed gross Appellant’s raises an Brief at 63. As discussed su- at 63. proportionality. Appellant’s pra, Brief the Commonwealth established the considering cannot When agree. proper We mens rea support offense, gravity Appel third-degree we reiterate two murder convictions. See Levin, marijua supra; lant drove under the influence of Dunphy, supra; Pigg, su- marijuana, pra. na and a metabolite of while the legislature clearly As intended to fled traffic possessing marijuana, punish taking from a of two lives with a term stop, proceeded through light, a steady imprisonment, red of life we conclude Ap- pedestrians pellant’s struck killed two minor mandatory sentence of life impris- aid, and, render stopping without to there for onment his second conviction of third- after, hid police. Opin degree from Trial murder grossly Court is not so dispropor- ion, 2/28/14, at 8-11. was con tionate it requires further inquiry or by jury peers victed a of his of analysis. Spells, supra. Thus, two counts See we third-degree Slip, of murder. Verdict need not reach the second and third 4/12/13, incident, at night 1. On the of the of the prongs test for proportionality re- in Appellant’s actions resulted the loss of view under the Eighth Amendment. See Baker, Therefore, lives of Although supra. the two minors. these Appellant’s sen- following losses occurred one traffic fatal tence does not prohibition offend the accident, we let that against punishment cannot fact dilute the cruel and unusual gravity Appellant’s of Eighth actions. the of the Amendment United States or Article Constitution Section 13 Likewise, cannot we conclude Pennsylvania of the Constitution. punishment for imposed the these offenses issue, gross raises an inference of disproportion- his final Within ality. considering When the punishment challenges the of excessiveness his sen Appellant’s third-degree Appellant’s for two murder tence. Brief at 65-69. Here convictions, in, cognizant Appellant’s argument remain the crux of is that fixing prison fact “that the for court imposed manifestly terms trial a exces a specific peno- crimes involves substantive running sive sentence some of his sen that, matter, logical judgment general consecutively as a than tences rather concur province legis 65-66; properly rently. Appellant’s within the of the at Brief Trial latures, Order, 6/22/13, Spells, supra not courts.” Sentencing at Court at 1 (internal (where omitted), quotation quot marks the trial court Appellant’s ordered Harmelin, at ing supra 111 S.Ct. convictions as to 4-6 to run Counts consec Here, 3). legislature deemed utive either Count or Within the 1925(a) taking of two third-degree opinion, lives murder trial court’s Rule it admits punishable aby mandatory to be sentence that it intended to of Appellant’s run all imprisonment. § life Pa.C.S.A. 9715. convictions concurrent his life with sen 2/28/14, language clearly 20; ex Opinion, of Section 9715 tence. Trial Court (where 6/21/13, N.T., presses legislature’s subject intent to at 83 the trial court Id.; stated, such offender to this “I’m making sentence. all the sentences Morris, ]”). supra (describing at 579 Section concurrent to the life sentence[ As result, 9715 as an “explicitly unambiguously requests the trial court the case be limited, correcting its order imposed. purpose the sentence remanded correct 2/28/14, sentencing at 20. reflect scheme. a concurrent Opinion, Court Trial judg- We affirm June court has the inher “[A] respects. in all ment of sentence other ent, authority to correct ‘clear common-law Judgment vacated. Case of sentence clerical in its orders.” Common errors’ (Pa.Su Borrin, proceedings consistent with 12 A.3d remanded wealth (en (citation banc) omitted), opinion. relinquished. Jurisdiction per.2011) af (2013) 422, A.3d firmed, 622 Pa. au announcing judgment). Judge joins opinion. This (opinion DONOHUE 30-day time thority exists even after Judge concurring files a BOWES limitation for the modification of orders joins. opinion Judge in which DONOHUE Id., § expires. citing 42 Pa.C.S.A. previously have concluded that a “clear We OPINION BY CONCURRING error” on the face of the clerical exists BOWES, J.: record “when trial court’s intentions are join opinion I the well-reasoned clearly unambiguously during declared only I write majority. learned further Borrin, sentencing hearing[.]” supra prior address our decision Common- Holmes, 473; see also Commonwealth (Pa.Su- Morris, 958 wealth v. A.2d 569 (2007) (con 593 Pa. (en banc), a in which I per.2008) decision limited, cluding judicial inherent power joined, seeming inconsistency in the and a patent of the court to correct errors arise in our have con- manner which courts in clear in the “involving] cases errors strued the terms “convicted” and “convic- incompa that imposition sentences [are] tion” in other statutes. record”). When tible with the this situa arises, sentencing tion order sub The an inter- “the Morris decision involved [is] Borrin, ject supra § to later pretation correction.” of 42 That stat- Pa.C.S. 9715. “an oral Accordingly, “any sentence which imprisonment ute authorizes life for record, incorrectly by is on the written the person the third convicted of murder of courts, by clerk of and then the corrected degree in this who has Commonwealth judge, trial a clerical Id. at is error.” previously [ ] any been convicted at time of 474, Kubiac, quoting voluntary 42 manslaughter[.]” murder or Pa.Super. A.2d 379 550 231 9715(a) added). (emphasis § This Pa.C.S. (1988), appeal 522 Pa. 563 phrase “any that the time” Court held A.2d 496 meant guilty that an individual found third-degree charges two separate murder judice, In the court case sub at the trial could be to life same sentenced clearly during and unambiguously declared imprisonment. expressly overruled We sentencing hearing that mak “[it was] prior in our decision Commonwealth v. ing all of the to the sentences concurrent Smith, 1179 (Pa.Super.1998), 710 A.2d N.T., 6/21/13, life sentence.” Ac at 83. interpreted “previous- which had term cordingly, sentencing subject order is ly convicted” to mean that an individual by to correction the trial court. See could imprison- not be sentenced to life Holmes, Borrin, 473; supra; Ku supra ment guilty if found of two counts of third- biac, supra. degree murder at same trial. upon foregoing, Based we vacate judgment panel recently opined, June 2013 sen- A of this Court tence and to the trial for the ‘conviction’ its related “[t]he remand term and a distinct ited legal term ‘convicted’have mean- a “conviction” both burglary and “the ing under the law.” Commonwealth v. offense which it was his intent Hale, commit (Pa.Super.2014), after the burglarious entry A.3d or for — offense,” granted, attempt appeal allowance commit - (Pa.2014) (filed 2, 2014). 3502(d), § only precluded Pa.C.S. July multiple Dis- Palarino, sentences. See cussing id. (1951),

Pa.Super. the Hale We reached a in similar result Common- Court “[t]he set forth that word ‘convic- wealth v. Maguire, Pa.Super. tion’ and a popular has both a technical (1982). There, A.2d 1047 the defendant understood, meaning. commonly As it challenged multiple guilty verdicts for the guilty, a perhaps means verdict of or inchoate possession crimes of of an instru- plea of some guilty, purposes and for crime, ment of conspiracy, criminal is the to it meaning attributed attempted burglary. only The court sen- Hale, courts.” at 581 supra (quoting Pa count, tenced on the attempted burglary larino, 667). However, the supra at term but the defendant maintained that imply ‘judgment’ also “has been held to or guilty verdicts for conspiracy attempt- upon plea.” ‘sentence’ verdict Id. ed burglary then-applicable violated the § version of 18 Maguire Pa.C.S. Indeed, the recognized Hale Court panel disagreed. Importantly, it conclud- dating back the Pennsyl- to at least ed, “appellant construes ‘convicted’ as. that, vania had Supreme opined Court equivalent ‘verdict,’ jury’s to the which it is conviction, “When the speaks law it not.” According Id. at 1049. to the Ma- means a judgment, merely a ver- Court, guire judge “the convicted appel- dict, which, parlance, common called a lant of one imposing inchoate crime (quoting Id. Smith v. Com- conviction.” judgment attempted of sentence for bur- monwealth, (1826) & Serg. Rawle 69 (italics glary.” original). Id. at 1050 (italics in original)). In Smith v. Common- wealth, our High Court reversed a recidi- The panel Hale also cited to Common vist burglary “subjected sentence that Grekis, 513, wealth v. Pa.Super. 411 601 defendant to life imprisonment because the A.2d 1284 Grekis Court not burglary indictment for ed, his second did not interpreted “we have the term ‘convic provide judgment what the defendant re- tion’ in entry section 906 to mean of a Hale, ceived for prior burglary.” his su- judgment of sentence a finding guilt of pra at (discussing 581 Smith v. Common- by jury.” 1294. Id. at This Court wealth, supra). reached a similar in conclusion Common- Hassine, Pa.Super. wealth v. 340 490 panel The Hale continued that this (1985), posited, A.2d where we Court has reading followed the technical “we accept the word ‘conviction’ as refer- expressed the word “conviction” in Smith ring post-verdict by court, judgment v. other Commonwealth in contexts. In by and not jury to the verdict itself[.]” Black, 267 Pa.Super. v. (1979), Instantly, following A.2d 403 this Court ad- technical inter- dressed a finding guilt burglary pretation both “convicted” words and the underlying theft offense. The de- “conviction” in that we have utilized oth- guilty charges fendant was found of both er cases interpreting various criminal statutes, but only § the court sentenced the defendant “any read that could be on burglary This person count. Court found sentenced for murder of the third degree the statute in which in question, prohib- the Commonwealth who has any time of sentenced at been

previously Pennsylvania, COMMONWEALTH in this voluntary manslaughter murder Appellee .... be sentenced shall time, At the same imprisonment.” to life v. the word “convict- usage of popular Tyrell FREELAND, Appellant. Keyon not a finding guilt connotes a ed” Pennsylvania. Superior Court See also Com- of sentence.

judgment Kimmel, July 523 Pa. Submitted monwealth (1989) (quoting 427 n. Com- A.2d Filed Dec. Pa. Beasley,

monwealth (1984), stating, “the term and not guilty’ means ‘found

‘convicted’ ”). Indeed, guilty and sentenced.’

‘found entire statute and from the apparent

it is mandatory that the related statutes

other “conviction” used “convicted” and

terms popular § used in their 9715 were Moreover, we are bound

sense.1 Nonetheless, I am troubled

Moms. inconsistency in our inter- apparent “convicted” and

pretation of the words view, my legisla- In

“conviction.”2 the words would do well to define

ture to reflect or “convicted”

“conviction” using those words either

when it popular or technical sense.

their joins Concurring

Judge DONOHUE

Opinion. recognize did not cognizant presumption that the I Monis Court I am analysis the use of the word legislature prior law focus its on is aware of decisional crafting statutory language. “convicted.” when

Case Details

Case Name: Commonwealth v. Thompson

Court Name: Superior Court of Pennsylvania

Date Published: Dec 10, 2014

Citation: 106 A.3d 742

Docket Number: 2313 EDA 2013

Court Abbreviation: Pa. Super. Ct.