Com. v. Thompson, M.

J-S41043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MAURQUIS THOMPSON

Appellant No. 2313 EDA 2013

Appeal from the Judgment of Sentence June 21, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002230-2012

BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 09, 2014

Appellant, Maurquis Thompson, appeals from the June 21, 2013

imprisonment imposed after a jury found him guilty of two counts each of

third-degree murder, homicide by vehicle while driving under the influence

(DUI), homicide by vehicle, accidents involving death, and accidents

involving death while not properly licensed; and one count each of fleeing or

attempting to elude a police officer, DUI (marijuana), DUI (metabolite of

marijuana), and possession of marijuana.1 After careful review, we vacate

the judgment of sentence and remand for the limited purpose of correcting
____________________________________________

1
18 Pa.C.S.A. § 2502(c), 75 Pa.C.S.A. §§ 3735(a), 3732(a), 3742(a),
3742.1(a), 3733(a), 3802(d)(1)(i), 3802 (d)(1)(iii), and 35 P.S. § 780-
113(a)(31), respectively.
J-S41043-14

the clerical error contained within the underlying judgment of sentence. In

all other respects, we affirm.

The trial court summarized the relevant factual and procedural history

of this case as follows.

On December 9, 2011[,] Officer Michael Fiocca,
an officer with the Folcroft police department, was on
duty and working patrol. At approximately 9:35 P.M.
Officer Fiocca observed a vehicle traveling
westbound on Chester Pike at a very high rate of
speed. Based upon his observations, Officer Fiocca
activated his emergency lights and siren and
attempted to stop the vehicle. The driver of the
vehicle, who was later identified as [Appellant],
stopped for several seconds, then fled the scene at a
very high rate of speed, entering the intersection of
Chester Pike and Glenolden Avenue, and failing to
stop at the steady red light. As he did so, the
Appellant struck two young boys that were then

path. Appellant did not stop after striking these
boys.

Ashley Hochstuhl and David Macintosh were
stopped at the red light on Chester Pike at Glenolden
Avenue at the time of the incident. Ms. Hochstuhl
observed the boys in the crosswalk before []
Appellant entered the intersection. Ms. Hochstuhl

vehicle. David Macintosh was seated in the

the vehicle after he heard the collision. Mr.
Macintosh saw that one of the boys, [M.M.], was
moving, and he spoke to him until the paramedics
arrived on the scene. [M.T.] was not moving and
was pronounced dead on the scene. [M.M] was
transported to Crozer-Chester Medical Center and
died the next day.

Within minutes of the accident, officers located
an unoccupied Chevy Lumina on Chester Pike near

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J-S41043-14

Cleveland Avenue, which was approximately two to
three blocks from the scene of the hit and run.
Officers also located and stopped [] Appellant, who
was walking along West Winona Avenue, three
blocks from where the Lumina had been located.
Appellant was charged with several crimes related to
the hit and run and the resultant deaths of [M.M.]
and [M.T.]

Following a five day trial, a jury found
Appellant guilty of [the aforementioned offenses].
On May 17, 2013[,] the Commonwealth filed notice
of its intent to seek a life sentence pursuant to 42
Pa.C.S.A. § 9715 for a second or subsequent
conviction of murder in the third degree.

Trial Court Opinion, 2/28/14, at 1-2 (citations to transcript and footnote

omitted).

On June 21, 2013,2 the trial court sentenced Appellant as follows.

Count 1 (third-degree murder)

____________________________________________

2
Within its Rule 1925(a) opinion, the trial court maintains that it sentenced
Appellant on either June 12 or June 14, 2013 and that the Notes of
Testimony from the sentencing hearing incorrectly state it sentenced
Appellant on June 21, 2013. Trial Court Opinion, 2/28/14, at 1 (reflecting
the June 14, 2013 date), 20 (reflecting the June 12, 2013 date). Upon
review of the record, we note the June 14, 2013 sentencing date is also
present within the docket entries. Yet, the following documents of record
portray that sentencing occurred on June 21, 2013: an April 18, 2013 notice
of sentencing hearing; a June 12, 2013 transport order, advising the
Superintendent of SCI Graterford to release Appellant to the Delaware
County sheriffs for a sentencing hearing on June 21, 2013; a handwritten
date and signature on the judgment of sentence, which was filed on June 22,

of the official record, when it is at variance with the certified record it
See Shelly Enters., Inc. v.
Guadagnini, 20 A.3d 491, 495 (Pa. Super. 2011) (citation omitted).
(Footnote Continued Next Page)

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J-S41043-14

(third-degree murder) mandatory term of life imprisonment to run

concurrent with Count 1; Count 3 (homicide by vehicle while DUI) 42 to 84

icide by

vehicle while DUI)

Count 3; Count 5 (homicide by vehicle)

run consecutive to Count 2; Count 6 (homicide by vehicle) 18 to 36

secutive to Count 2; Count 7 (fleeing or

attempting to elude)

Count 2; Count 8 (accidents involving death)

imprisonment to run concurrent with Count 2; Count 9 (accidents involving

death)

Count 10 (accidents involving death when not properly licensed) 12 to 24

involving death when not properly licensed)

imprisonment to run concurrent with Count 2; and Count 14 (possession of
3
marijuana)

_______________________
(Footnote Continued)

2013 and the erroneous docket entry does not negate our jurisdiction.
3
The trial court merged Count 12 (DUI) and Count 13 (DUI) with Count 3
(homicide by vehicle while DUI) and Count 4 (homicide by vehicle while DUI)

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J-S41043-14

On July 1, 2013, Appellant filed a timely post-sentence motion, which

the trial court denied on July 12, 2013. On August 7, 2013, Appellant filed a

timely notice of appeal.4

On appeal, Appellant raises the following issues for our review.

1. Whether the trial court abused its discretion in
denying [a] Batson challenge, where [the]

African-American juror, was [a] mere pretext,
not [a] legitimate race neutral explanation,

trial?

2. Whether [the] trial court abused its discretion

where the Commonwealth elicited testimony of
Detective [Lythgoe] on direct examination that
[a] recorded conversation of Appellant[,]
stating to his Uncle that he did not see [the]
victims at [the] time of [the] collision, was
acquired at Delaware County prison, [i.e.,
George W. Hill Correctional Facility,] in
violation of [an] explicit agreement that the
Commonwealth was not to elicit that Appellant
was incarcerated at [the] time of [the]
recording, as well as [the] general common
law prohibition against references to criminal
defendants involvement in other crimes?

____________________________________________

4
The trial court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925. However, Appellant elected to file a Rule 1925(b)
statement on January 14, 2014. The trial court filed its Rule 1925(a) opinion
on February 28, 2014. As the trial court relied upon Appella
1925(b) statement when authoring its opinion, we will hold Appellant to the
issues raised within said statement. See Commonwealth v. Smith, 955
A.2d 391, 393 n.4 (Pa. Super. 2008) (en banc).

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J-S41043-14

[3.] Whether the trial court abused its discretion in

day of the incident, where the Commonwealth
did not disclose or turn over the evidence prior

a fair trial?

[4.] Whether there was insufficient evidence to

of Third Degree Murder, where there was no
evidence that Appellant intentionally,
deliberately, or with malice ran over the
victims, and his conduct in fatally striking [the
victims] after [driving] through a red light,
while heavily under the influence of marijuana,
clearly constituted gross negligence, conduct
which is only actionable as Homicide by Vehicle
while [D]riving [U]nder the Influence,
Involuntary Manslaughter and/or Homicide by
Vehicle?

[5.] Whether the verdict finding Appellant guilty of
two counts of Third Degree Murder was against
the weight of the evidence, where the medical
examiners[,] who performed the autopsies of
both victims, concluded that the manner of
death for both victims was an accident, not
homicide, and Appellant, who was under the
influence of marijuana, clearly did not act with
malice, where he did not see either victim at
the time of the collision and was unaware that
he had struck anyone, [either] coincident with
the accident or its aftermath?

[6.] Whether the term of Life [Imprisonment]
imposed by the trial court, pursuant to the
Mandatory Life Imprisonment provision, under
econd]
conviction for Third Degree Murder, arising
from a single fatal automobile accident,
involving two [victims], is an illegal sentence,
where the General Assembly clearly did not
inten[d] such an absurd and unreasonable
disposition?

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J-S41043-14

[7.] Whether the term of Life [Imprisonment]
imposed by the trial court, pursuant to the
Mandatory Life Imprisonment Provision, under

conviction for Third Degree Murder, constitutes
cruel and unusual punishment, under the
Eighth Amendment of the United States
Constitution and Article 1, Section 8 of the
Pennsylvania [] Constitution, and is therefore,
illegal?

[8.] Whether the trial court abused its discretion in
[imposing] a manifestly excessive sentence,
which violates the fundamental norms of
sentencing established in 42 Pa.C.S.A.
[§]
sentence to an excessive level[,] in light of the
criminal conduct at issue in the case, [caused]
the sentence [to] far exceed[] what is
necessary to protect the public or provide for

-12.5

Initially, Appellant maintains the trial court abused its discretion when

it denied his Batson6 challenge during voir dire. Id. at 26-33. Specifically,

Appellant, who is African American7

a peremptory challenge to exclude an African American woman from the

____________________________________________

5
For ease of our disposition, we have elected to renu
issues.
6
Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal
Protection Clause forbids a prosecutor to challenge potential jurors solely on
account of their race).
7
See Criminal Complaint, 12/10/11.

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J-S41043-14

jury, i.e., Juror 82.8 N.T., 4/5/13, at 231-234.

Batson claim for clear error.

Commonwealth v. Cook, 952 A.2d 594, 603 (Pa. 2008) (stating that the

represents a finding of fact that is accorded great deference on appeal and

will not be overturned unless clearly erroneous).

Batson and its progeny established a three-part inquiry for evaluating

a claim of racial discrimination in jury selection.

[T]he [movant] has to initially establish a prima facie
showing that the circumstances give rise to an
inference that the [opposing party] struck one or
more prospective jurors on account of race. If the
prima facie showing is made, the burden shifts to the
[opposing party] to articulate a race-neutral
explanation for striking the juror(s) at issue. The
trial court ultimately makes a determination of
whether the [movant] has carried [the] burden of
proving purposeful discrimination.

Commonwealth v. Sanchez, 36 A.3d 24, 44 (Pa. 2011), cert. denied,

Sanchez v. Pennsylvania, 133 S. Ct. 122 (2012).

The requirements for a prima facie Batson showing are well settled.

requirement of demonstrating a prima facie Batson
claim, [the movant] must establish that [he or she]
is a member of a cognizable racial group, that the
[opposing party] exercised peremptory challenges to
remove from the venire members of [his or her]
____________________________________________

8
We note Appellant did not move for a mistrial when asserting this
challenge. See N.T., 4/5/13, at 231-234.

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J-S41043-14

race, and that other relevant circumstances combine
to raise an inference that the [opposing party]
removed the jurors for racial reasons. Whether the
[movant] has carried this threshold burden of
establishing a prima facie case should be determined
in light of all the relevant circumstances.

Commonwealth v. Ligons, 971 A.2d 1125, 1142 (Pa. 2009).

A showing that a number of strikes were used against venirepersons of

one race will not, without more, create the inference necessary to establish a

prima facie Batson claim. See Commonwealth v. Saunders, 946 A.2d

a number of individuals

violation of Batson appeal denied, 958 A.2d 1047 (Pa.

2008). Rather, our Supreme Court has continually recognized that a moving

party must pre Batson]

violation, as it would otherwise be impossible to conduct meaningful

appellate review of the motivations of prosecutors in individual cases[

Commonwealth v. Fletcher, 861 A.2d 898, 909

(Pa. 2004) (citation omitted), cert. denied, Fletcher v. Pennsylvania, 547

that the movant make a record identifying the race of venirepersons stricken

by the Commonwealth, the race of prospective jurors acceptable to the

Commonwealth but stricken by the defense, and the racial composition of

Id. at 910 (citation, footnote, and internal quotation marks

omitted). When a movant fails to make such a record, we cannot review the

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J-S41043-14

prima facie

case under Batson. Id. at 909-910, citing Commonwealth v. Holloway,

739 A.2d 1039 (Pa. 1999).

Herein, Appellant raised his Batson claim after the Commonwealth

exercised its ninth peremptory challenge as to Juror 82. N.T., 4/5/13, at

231-234. At that point, Appellant made a record identifying only the race of

Juror 82; Appellant failed to state the race of any other venirepersons. See

id.9 Likewise, Appellant neglected to identify on the record the racial

composition of the final jury. Id. at 239-241. Because Appellant failed to

make the requisite full and complete record to facilitate appellate review, we

cannot address this claim. See Fletcher, supra; Holloway, supra. Thus,

Appellant is entitled to no relief on his Batson claim.10

____________________________________________

9
The following exchange occurred when Appellant asserted his Batson
challenge.

THE COURT: -
Americans on the panel?

[PROSECUTOR]: Quite fran

[DEFENSE COUNSEL]:
African-Americans that I know of.

N.T., 4/5/13, at 233.
10
Assuming, arguendo, Appellant established a prima facie Batson claim,
we would ultimately deem his challenge meritless. At a sidebar conference
during voir dire, the Commonwealth explained that it struck Juror 82 based
(Footnote Continued Next Page)

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J-S41043-14

Appellant next asserts the trial court abused its discretion when it

denied his motion for mistrial following the testimony of Detective Lythgoe

that inferred Appell

34-46. George W. Hill

Correctional Facility in Delaware County

involvement in another criminal activity[ a

Id. at 43.

The standard of review we apply when addressing a motion for mistrial

is well settled.

In criminal trials, the declaration of a mistrial
serves to eliminate the negative effect wrought upon
a defendant when prejudicial elements are injected
into the case or otherwise discovered at trial. By
nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a

but, equally import
trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion
to grant a mistrial whenever the alleged prejudicial
event may reasonably be said to deprive the
_______________________
(Footnote Continued)

upon her employment as a drug and alcohol caseworker. N.T., 4/5/13, at
232. The Commonwealth was worried that Juror 82 would sympathize with
Appellant, who was alleged to be under the influence of a controlled
substance at the time of the incident. Id. at 234. Upon considering this
Batson challenge, concluding
-]racial reason for

23-24. The trial court concluded Appellant did not establish
the
See
Trial Court Opinion, 2/28/14, at 24 n.7. We conclude this finding is not
clearly erroneous. See Cook, supra.

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J-S41043-14

defendant of a fair and impartial trial. In making its
determination, the court must discern whether
misconduct or prejudicial error actually occurred, and

Our review of the resulting order is constrained to
determining whether the court abused its discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa. Super. 2012)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

It is also well established that evidence of other crimes, wrongs, or

acts may not be presented during trial against a criminal defendant as either

character or proclivity evidence. Pa.R.E. 404(b); Commonwealth v.

Padilla, 923 A.2d 1189, 1194 (Pa. Super. 2007) (citations and quotation

marks omitted) appeal denied, 934 A.2d 1277 (Pa. 2007).

However, mere passing references to prior criminal
activity will not necessarily require reversal unless
the record illustrates definitively that prejudice
results. Prejudice results where the testimony
conveys to the jury, either expressly or by
reasonable implication, the fact of another criminal
offense. Determining whether prejudice has
occurred is a fact specific inquiry.

Padilla, supra at 1194- of prior criminal activity is

inadvertently presented to the jury, the trial court may cure the improper

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008),

appeal denied, 964

Id.

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J-S41043-14

In the case sub judice, the Commonwealth presented the testimony of

Detective Lythgoe, the lead investigator in the underlying case. N.T.,

4/9/13, at 196-229.

concerns a statement that he made following the playing of a taped

telephone conversation. Id. at 203. Prior to trial, the parties stipulated to

admit this telephone conversation, which was recorded while Appellant was

incarcerated. N.T., 4/5/13, at 20-25. Also at that time, the Commonwealth

agreed that its witness would not reference from where it procured the

recording. Id. However, following the playing of this recording for the jury,

Detective Lythgoe testified as follows.

[PROSECUTOR]: Detective, as the lead detective in
this case, what other duties d[id] you perform?

[DETECTIVE]: I had prepared several search
warrants. I had to prepare correspondence to the
George W. Hill Correctional Facility to get those
recordings.

[DEFENSE COUNSEL]: Objection. Objection.
Objection.

N.T., 4/9/13, at 203. Appellant subsequently requested a mistrial, which the

trial court denied on the basis that the prosecution did not elicit the

testimony either purposefully or intentionally. Id. at 203, 213, 219. The

trial court further reasoned that Detective Lythgoe did not explicitly state

that Appellant was incarcerated; rather, the detective stated that he had to

go to the prison to retrieve the tape recordings. Id. at 218, referencing

Estelle v. Williams, 425 U.S. 501, 512-

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J-S41043-14

Commonwealth v. Johnson, 838 A.2d 663,

arcerated status

Estelle cert. denied, Johnson v. Pennsylvania, 543 U.S. 1008 (2004).

Yet, the trial court proposed to provide the jury with a cautionary instruction

regarding this reference to the prison. N.T., 4/9/13, at 216. Appellant twice

rejected this offered instruction. Id. at 217, 219.

Upon review of the record, we conclude the trial court did not abuse its

See Hogentogler,

supra. We agree with the trial court that the Commonwealth inadvertently

presented this testimony to the jury. In order to cure this inadvertent

disclosure, the trial court offered to administer a cautionary instruction,

which Appellant denied, twice. N.T., 4/9/13, at 216-217, 219. Appellant

cannot now chastise the trial court for not providing him with a cautionary

instruction regarding this slip-of-

record does not definitively illustrate that Appellant incurred prejudice from

See Padilla,

supra.

-73. Appellant asserts the trial court abused its

discretion when it admitted a text message procured from his cell phone

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J-S41043-14

because the Commonwealth did not provide the text message to him prior to

trial. Id. at 70-71. Appellant requests a new trial. Id. at 72.

standard of review is one of deference. Commonwealth v. Selenski, 18

A.3d 1229, 1232 (Pa. Super. 2011). Questions concerning the admissibility

of evidence cretion of the trial court, and its

Id.

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (internal

citations and quotation marks omitted), appeal denied, 928 A.2d 1289 (Pa.

if in reaching a conclusion the trial court over-rides

[sic] or misapplies the law, discretion is then abused and it is the duty of the

Commonwealth v. Weakley, 972

A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal denied, 986

A.2d 150 (Pa. 2009).

Pennsylvania Rule of Criminal Procedure 573 outlines pretrial discovery

procedures and provides, in pertinent part, as follows.

Rule 573. Pretrial Discovery and Inspection

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J-S41043-14

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by
the defendant, and subject to any protective order
which the Commonwealth might obtain under this
rule, the Commonwealth shall disclose to the
d
items or information, provided they are material to
the instant case. The Commonwealth shall, when

inspect and copy or photograph such items.

(g) [T]he transcripts and recordings of any
electronic surveillance, and the authority by which
the said transcripts and recordings were obtained.

occurred, the trial court functions as fact-finder, and the appellate courts

generally do not substitute their judgments for those of a fact-finder in

Commonwealth v. Sanchez, 907 A.2d 477, 491

(Pa. 2006), cert denied, Sanchez v. Pennsylvania, 551 U.S. 1106 (2007).

During the instant trial, the Commonwealth presented text messages

exchanged between Appellant and his girlfriend, Angela Potter, on the night

of the incident, through the testimony of an expert in mobile forensics. N.T.,

4/10/13, at 12-42. At the beginning of this

discussion occurred at side bar.

[DEFENSE COUNSEL]: Your Honor, I have not

[PROSECUTOR]: These documents were all
contained on the same disks that were provided and
put on the record yesterday by [Attorney] Williams[,

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J-S41043-14

same group of things that were there, one of them
being the disk from the FBI[ containing these text
messages].

THE COURT: What can I say, [defense counsel]?

[DEFENSE COUNSEL]: All right.

THE COURT: Good enough.

Id. at 20-21.

Within its Rule 1925(a) opinion, the trial court maintains this issue is

the content of text messages recovered from Appellan

Trial Court Opinion, 2/28/14, at 25. Although we disagree with the trial

court that Appellant neglected to object to the text message at issue, we

agree with t See In re T.P.,

78 A.3d 1166, 1170 (Pa. Super. 2013) -settled

doctrine in this Commonwealth that a trial court can be affirmed on any valid

basis appeal denied, 93 A.3d 463 (Pa. 2014).

had provided these text messages to him prior to trial, and the trial court

concluded disclosure occurred.11 N.T., 4/10/13, at 20-21. It is axiomatic

____________________________________________

11

told the trial court that the Commonwealth provided him with compact disks
(Footnote Continued Next Page)

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J-S41043-14

Commonwealth v.

Strunk, 953 A.2d 577, 579 (Pa. Super. 2008). Accordingly, we refuse to

substitute our judgment with that of the trial court and find an abuse of

discretion occurred. See Selenski, supra. This issue lacks merit.

Appellant next questions the sufficiency of the evidence underlying his

third- -55. Specifically,

Appellant challenges the evidence underlying his mens rea.

In the case sub judice, there was no evidence that
[Appellant] intentionally ran over [M.T.] and [M.M.],
where he did not even see them, immediately
preceding, during or shortly after the accident,
because his perception was wholly compromised by
marijuana intoxication. However, tragically
Appellant did intentionally drive into the intersection,
because he falsely perceived due to his marijuana
intoxication that the light was changing from yellow
to red, when it was plainly red, and that the
intersection was clear of pedestrians.

Id. at 51 (emphasis omitted), citing Commonwealth v. Johnson, 719 A.2d

778, 785 (Pa. Super. 1998) (en banc), appeal denied, 739 A.2d 1056 (Pa.

1999). Appellant asserts his actions constituted gross negligence, not

maliciousness. Id., citing Commonwealth v. Matroni, 923 A.2d 444 (Pa.

_______________________
(Footnote Continued)

(CDs) during discovery. N.T., 4/9/13, at 92-96. Following this assertion,

turned over these CDs to him. Id. at 95. Trial counsel further revealed that
the CDs that he chose to review contained only photographs and videos. Id.

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J-S41043-14

Super. 2007), appeal denied, 952 A.2d 675 (Pa. 2008). Accordingly,

Appellant requests this Court vacate his murder convictions. Id. at 55.

Our standard of review is well settled.

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

Commonwealth v. Caban, 60 A.3d 120, 132-133 (Pa. Super. 2012)

(emphasis added), appeal denied, 79 A.3d 1097 (Pa. 2013), quoting

Commonwealth v. Quel, 27 A.3d 1033, 1037-1038 (Pa. Super. 2011).

It is rare, but not impossible, for a death caused by a motor vehicle

accident to give rise to a third-degree murder conviction. Commonwealth

v. Pigg, 571 A.2d 438, 442 (Pa. Super. 1990), appeal denied, 581 A.2d 571

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J-S41043-14

(Pa. 1990); see e.g., Dunphy, supra; Commonwealth v. Levin, 816 A.2d

1151, 1153 (Pa. Super. 2003), appeal denied, 839 A.2d 351 (Pa. 2003).

homicide if he intentionally, knowingly, recklessly or negligently causes the

d 18 Pa.C.S.A. § 2501(a)

homicide [is] classified as murder, voluntary manslaughter, or involuntary

Id. at § 2501(b). Murder is defined, in relevant part, as

follows.

§ 2502. Murder

(a) Murder of the first degree. --A criminal
homicide constitutes murder of the first degree when
it is committed by an intentional killing.

(b) Murder of the second degree. --A criminal
homicide constitutes murder of the second degree
when it is committed while defendant was engaged
as a principal or an accomplice in the perpetration of
a felony.

(c) Murder of the third degree. --All other kinds of
murder shall be murder of the third degree. Murder
of the third degree is a felony of the first degree.

Id.

commits a killing which is neither intentional nor committed during the

Commonwealth v. Truong, 36 A.3d 592, 597 (Pa. Super. 2012) (en banc)

(citation omitted), appeal denied, 57 A.3d 70 (Pa. 2012).

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J-S41043-14

Malice is defined as: wickedness of disposition,
hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty,
although a particular person may not be intended to
be injured[.] Malice may be found where the
defendant consciously disregarded an unjustified and
extremely high risk that his actions might cause
serious bodily injury. Malice may be inferred by
considering the totality of the circumstances.

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011);

accord Truong, supra at 597-

Dunphy, supra at 1220

n.3 (citations omitted).

Herein, the trial court opines that the Commonwealth presented

-degree murder convictions.

Trial Court Opinion, 2/28/14, at 13. Specifically, the trial court reasons,

llant consciously

disregarded an extremely high risk that his actions actions which included

driving while under the influence of marijuana at a high rate of speed

through a steady red light without stopping to see if anyone or anything was

in his lane of travel Id.

Viewing the evidence adduced at trial in the light most favorable to the

Commonwealth, as the verdict winner, we conclude there was sufficient

-

degree murder. At the time of this incident, Appellant was driving at a high

rate of speed (55-61 miles per hour in a 30-40 miles per hour zone), while

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J-S41043-14

pursuit. Trial Court Opinion, 2/28/14, at 8-11; N.T., 4/11/13, at 192.

proceeded through a steady red light, fatally striking two young pedestrians.

Trial Court Opinion, 2/28/14, at 8-11. Upon being struck, M.M. and M.T.

were propelled from 50 to 100 feet. N.T., 4/8/13, at 112, 137. Instead of

stopping at the scene of the accident, Appellant fled, abandoned the vehicle

involved in the accident, and hid from police. Trial Court Opinion, 2/28/14,

at 8-11. There were no adverse weather conditions during this time that

N.T., 4/8/13, at 57-58. These actions demonstrate a complete disregard of

the unjustified and extremely high risk that his actions would cause death or

serious bodily injury. Accordingly, we conclude the Commonwealth

presented sufficient evidence to prove that Appellant acted with the requisite

malice to support his third-degree murder convictions. See Dunphy, supra

at 1219-1220 (Pa. Super. 2011) (evidence sufficient to prove malice based

upon the following factors: intoxicated condition of driver; excessive rate of

speed (60 miles per hour in a 35 miles per h

propelled; absence of any physical or climate condition that would contribute

- 22 -
J-S41043-14

Levin, supra (evidence sufficient to

prove malice when driver acknowledged: smoking marijuana and drinking a

large quantity of alcohol in early afternoon; knowing this combination caused

late afternoon); Pigg, supra at 442-443 (evidence sufficient to prove

malice of intoxicated driver of eighteen-wheeled tractor trailer where: he

forced multiple other drivers off of the road prior to the fatal accident; a

fellow driver pleaded with him to stop driving prior to the fatal accident; and

there were no weather or traffic conditions that required him to continue

driving). Accordingly, the trial court did not err, and Appellant is not entitled

relief on this issue.

Appellant next challenges the weight of the evidence supporting his

third- -

Post-Sentence Motion, 7/1/13, at 412

disregard an unjustified and extremely high risk, where he never saw the

[victims] at any time immediately preceding, during, or immediately

following the collision, and his marijuana intoxication impaired his judgment

and perception to the extent that he was not aware of any risk when he

____________________________________________

12

page a sequential page number for ease of reference.

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J-S41043-14

Id. at 46.

true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

Commonwealth v. Lewis,

911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted). Where the trial

the underlying question of whether the verdict is against the weight of the

evidence. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003), cert.

denied, Tharp v. Pennsylvania, 541 U.S. 1045 (2004).

review is limited to whether the trial court palpably abused its discretion in

Id.

It is well established that this Court is precluded from reweighing the

evidence and substituting our credibility determination for that of the fact-

finder. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)

the finder of fact who is free to believe all, part, or none of the evidence and

cert. denied, Champney v.

Pennsylvania, 542 U.S. 939 (2004)

preclude every possibility of innocence, and the fact-finder is free to resolve

inconclusive that as a matter of law no probability of fact may be drawn

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J-S41043-14

Commonwealth v. Emler, 903 A.2d

1273, 1276 (Pa. Super. 2006).

verdict is so contrary to the evidence as to shock
ense of justice and the award of a new trial is
imperative so that right may be given another
opportunity to prevail. In this regard, [t]he evidence
must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.

Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citations and

internal quotation marks omitted), cert. denied, Ross v. Pennsylvania, 547

U.S. 1045 (2006).

follows.

It is clear the jury found the requisite malice
for third[-
testimony that the manner of death was, in their
respective professional opinions, an accident.

of justice as to require a new trial. It is not for th[e
trial c]ourt to substitute its own judgment for that of

Trial Court Opinion, 2/28/14, at 5-7.

In finding Appellant guilty, the jury clearly believed the

mens rea. Upon

-

community prospective. N.T., 4/11/13, at 51, 55-56, 190-191. It was for

the jury to

- 25 -
J-S41043-14

conscious[] disregard[ of] an unjustified and extremely high risk that his

-degree murder.

Dunphy, supra. Because the evidence regarding Appel

-sentence motion for a new trial. See

Ross, supra

ee issues challenge the sentence imposed by

the trial court. See -12. Within his sixth issue,

Appellant challenges the legality of his Section 9715 mandatory life

sentence. Id. at 56-59. Appellant asserts his sentence is illegal and should

be vacated for the following reasons.

[S]ubjecting Appellant, who had no history of
violent or criminal contacts at the time of the
incident in the case sub judice, to a Life Sentence,
for causing two deaths in a single accident, is an
absurd, unreasonable outcome, which was in no way
intended by the Legislature, in fashioning the
mandatory life provision of Section 9715. Such an
outcome is in no way consistent with protecting the

but is solely punitive. The Legislature clearly wanted
to deter would be serial killers from engaging in
separate and multiple murders, not potentially
subject persons with no criminal background to life
without parole, for a single horrific event.

Id. at 59 (emphasis omitted).

Our standard and scope of review for such a challenge is well settled.

If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. In

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J-S41043-14

evaluating a
standard of review is plenary and is limited to
determining whether the trial court committed an
error of law.

Commonwealth v. Morris, 958 A.2d 569, 577-578 (Pa. 2008) (citations

and internal quotation marks omitted), appeal denied, 991 A.2d 311 (Pa.

2010); see also 18 Pa.C.S.A. § 9781(a).

In the case sub judice, the trial court imposed a mandatory sentence

of life imprisonment for his second conviction of third-degree murder

pursuant to Section 9715 of the Judicial Code, 42 Pa.C.S.A. §§ 101-9913.

pertinent part, as follows.

§ 9715. Life imprisonment for homicide.

(a) Mandatory life imprisonment. --
Notwithstanding the provisions of section 9712
(relating to sentences for offenses committed with
firearms), 9713 (relating to sentences for offenses
committed on public transportation) or 9714
(relating to sentences for second and subsequent
offenses), any person convicted of murder of the
third degree in this Commonwealth who has
previously been convicted at any time of murder or
voluntary manslaughter in this Commonwealth or of
the same or substantially equivalent crime in any
other jurisdiction shall be sentenced to life
imprisonment, notwithstanding any other provision
of this title or other statute to the contrary.

(b) Proof at sentencing. --Provisions of this section
shall not be an element of the crime and notice
thereof to the defendant shall not be required prior
to conviction, but reasonable notice of the

section shall be provided after conviction and before

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J-S41043-14

sentencing. The applicability of this section shall be
determined at sentencing. The sentencing court,
prior to imposing sentence on an offender under
subsection (a), shall have a complete record of the
previous convictions of the offender, copies of which
shall be furnished to the offender. If the offender or
the attorney for the Commonwealth contests the
accuracy of the record, the court shall schedule a
hearing and direct the offender and the attorney for
the Commonwealth to submit evidence regarding the
previous convictions of the offender. The court shall
then determine, by a preponderance of the evidence,
the previous convictions of the offender and, if this
section is applicable, shall impose sentence in
accordance with this section. Should a previous
conviction be vacated and an acquittal or final
discharge entered subsequent to imposition of
sentence under this section, the offender shall have
the right to petition the sentencing court for
reconsideration of sentence if this section would not
have been applicable except for the conviction which
was vacated.

42 Pa.C.S.A. § 9715 (emphasis added).

In Morris, we were confronted with an issue similar to that presented

defendant to life in prison under [S]ection 9715 where the two murders were

tried and sentenced together under a multiple-

Morris, supra

he offenses

requiring a life sentence is immaterial so long as, at [the] time of sentencing

on a third-degree murder conviction, a defendant has been convicted on

Id. at 579. We

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J-S41043-14

further reasoned that the legislature would have included language within

the commission of the second offense. Id.

not commit legal error in imposing the sentence of life in prison because the

plain language of the statute specifies that the timing of the primary

conviction is not relevant as long as the defendant has been convicted of the

initial murder or manslaughter at the time of sentencing on the second

murde Id. at 579.

Similarly, the trial court in this matter sentenced Appellant to a

mandatory term of life imprisonment for his second conviction of third-
13
At the time

ng, Appellant had been convicted of two counts of

third-degree murder. Verdict Slip, 4/12/13, at 1. The trial court imposed a

sentence of 20- -degree

2/13, at 1. The trial

court then sentenced Appellant to a mandatory term of life imprisonment for

his second conviction of third-degree murder. Id. As Section 9715 provides

-

degree murder conviction, the trial court is divested of any discretion in

See Commonwealth v. Gonzales, 609
____________________________________________

13
rder does not contain pagination. We have
assigned each page a sequential page number for ease of reference.

- 29 -
J-S41043-14

A.2d 1368, 1373 (Pa. Super. 1992) (stating that a sentence of life

imprisonment is required for a second murder or manslaughter conviction

pursuant to Section 9715). Accordingly, the trial court did not commit an

legality claim is meritless. See Morris, supra at 577-578.

Appellant next asserts his Section 9715 mandatory sentence of life

imprisonment constitutes a cruel and unusual punishment prohibited by the

Eighth Amendment to the United States Constitution and Article 1, Section

-64. Specifically,

Appellant contends that the application of the mandatory minimum sentence

in his case resulted in a sentence that was grossly disproportionate to the

conduct underlying his two third-degree murder convictions. Id. at 63.

While we have addressed the constitutionality of other statutes that

prescribe mandatory minimum sentences, pursuant to the Eighth

is an issue of first impression.14 See Commonwealth v. Elia, 83 A.3d 254

____________________________________________

14

constitutionality of Section 9715 against Eighth Amendment and Article 1,
Section 13 citing
Commonwealth v. Lawson, 90 A.3d 1 (Pa. Super. 2014). In Lawson, a
post-conviction relief petitioner contended his Section 9715 sentence of life
imprisonment violated the federal and state prohibitions against cruel and
unusual punishment because one of the predicate offenses upon which his
sentence was based was committed by him while he was a juvenile, to wit, a
third-degree murder conviction he committed when he was 17-years-old.
(Footnote Continued Next Page)

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J-S41043-14

(Pa. Super. 2013) (upholding the constitutionality of 42 Pa.C.S.A. § 9718(a),

which requires the imposition of certain mandatory minimum sentences to

offenders whose victims are less than 16-years-old), appeal denied, --- A.3d

---, 2014 Pa. LEXIS 1609 (Pa. 2014); Commonwealth v. Baker, 78 A.3d

1044 (Pa. 2013) (upholding the constitutionality of 42 Pa.C.S.A. § 9718.2,

which requires the imposition of certain mandatory minimum sentences for

sexual offenders); Commonwealth v. Spells, 612 A.2d 458 (Pa. Super.

1992) (en banc) (upholding the constitutionality of 42 Pa.C.S.A. § 9712,

which requires the imposition of a five-year mandatory minimum sentence

to offenders who visibly display a firearm during the commission of certain

felonies), appeal dismissed, 643 A.2d 1078 (Pa. 1994); Commonwealth v.

_______________________
(Footnote Continued)

Lawson, supra
about September 30, 1993, his Post-Conviction Relief Act (PCRA) petition
was facially untimely. 42 Pa.C.S.A. § 9545(b)(1) (providing all PCRA
petitions should be filed within one year of the date the judgment of
sentence becomes final). Lawson asserted a timeliness exception applied to

Miller v. Alabama -
without-parole
Lawson, supra at 3, citing 42 Pa.C.S.A. § 9545(b)(1)(iii) (timeliness
exception for constitutional rights recognized by the Supreme Court of the
United States that have been held to apply retroactively). Upon review of

Lawson, supra at 6, citing Commonwealth v. Cunningham, 81 A.3d 1
(Pa. 2013) (holding Miller does not apply retroactively to an inmate,
convicted as a juvenile, who is serving a life sentence without the possibility
of parole, and who has exhausted his direct appeal rights and is proceeding

of his constitutional claim.
Lawson, supra at 8.

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J-S41043-14

Parker, 718 A.2d 1266 (Pa. Super. 1998) (upholding the constitutionality of

42 Pa.C.S.A. § 9714, which requires mandatory minimum sentences for

recidivists of certain offenses), appeal denied, 747 A.2d 899 (Pa. 1999).

As the constitutionality of a statute presents a pure question of law,

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013). We note that

duly enacted legislation carries with it a strong presumption of

Id.

General Assembly does not intend to violate the Constitution of the United

Baker,

supra at 1050, quoting 1 Pa.C.S.A. § 1922(3).

Thus, a statute will not be found unconstitutional
unless it clearly, palpably, and plainly violates the
Constitution. If there is any doubt as to whether a
challenger has met this high burden, then we will
resolve
constitutionality.

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal

quotation marks and citations omitted).

Prior to engaging in this constitutional analysis, we note that Section

9715 is a recidivist statute, i.e., it punishes reoffenders more severely than

first-time offenders. Commonwealth v. Gonzales, 609 A.2d 1368, 1372

(Pa. Super. 1992); see also 42 Pa.C.S.A. § 9715.

Recidivist statutes, which have been adopted in all
fifty states, are not inherently unconstitutional. The
policy behind them is to punish more severely

- 32 -
J-S41043-14

defendants who are repeat offenders. Recidivist
statutes serve notice on defendants that if they
continue their criminal behavior they will be dealt
with more harshly by the law. By incapacitating
habitual criminals, citizens are safeguarded from
Recidivist
statutes have repeatedly been upheld against
contentions that they violate constitutional
limitations on cruel and unusual punishment.

Parke v. Raley, 506 U.S. 20 (1992), quoted by Commonwealth v.

Barnett, 50 A.3d 176, 198 (Pa. Super. 2012), appeal denied, 63 A.3d 772

(Pa. 2013); see also Baker, supra at 1048

of Eighth Amendment proportionality decisions shows that, with respect to

Herein, Appellant contests the constitutionality of Section 9715 as to

both the federal and state constitutions. -64. It is

well-

contained in the Pennsylvania Constitution, Article 1, Section 13, provides no

broader protections against cruel and unusual punishment than those

Spells, supra at 461; accord Commonwealth v. Zettlemoyer, 454 A.2d

937, 967 (Pa. 1982), cert. denied, 461 U.S. 970 (1983); Elia, supra at 267.

As these constitutional provisions are coterminous, we need only engage in

an Eighth Amendment review. See Parker, supra at 1268.

- 33 -
J-S41043-14

[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and

meaning from the evolving standards of decency that mark the progress of a

Trop v. Dulles, 356 U.S. 86, 101 (1956) (plurality).

punishment for [a] crime should be graduated and proportioned to [the]

Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), quoting

Weems v. United States

those convicted of heinous crimes, the Eighth Amendment reaffirms the duty

Hall v. Florida,

134 S. Ct. 1986, 1992 (2014) (citation omitted).

When attacking the constitutionality of a statute, an appellant can

raise two types of challenges: facial and as-applied. Commonwealth v.

Barnett, 50 A.3d 176, 198 (Pa. Super. 2012), appeal denied, 63 A.3d 772

(Pa. 2013). Appellant attempts to assert both forms in this appeal.

-64. We recently articulated the standard for facial

constitutional challenges.

[A] plaintiff can only succeed in a facial challenge by
establishing that no set of circumstances exists
under which the Act would be valid, i.e., that the law
is unconstitutional in all of its applications. ... [A]

- 34 -
J-S41043-14

facial challenge must fail where the statute has a
plainly legitimate sweep.

Barnett, supra at 197 (citations and internal quotation marks omitted),

quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 449 (2008). As was the case in Barnett ef fails to

unconstitutional

case. See Barnett, supra at 197-198. Accordingly, we conclude Appellant

has failed to properly develop a facial challenge of Section 9715 and has

only challenged the constitutionality of the statute as applied in the instant

case. See id. at 198.

does not require strict proportionality between crime and sentence. Rather,

it forbids only extreme sentences which are grossly disproportionate to the

quoting Commonwealth v. Hall, 701 A.2d

190, 209 (Pa. 1997), cert. denied, Hall v. Pennsylvania, 523 U.S. 1082

(1998), citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991).

Appellant likewise identifies the objective criteria courts should apply when

examining the alleged disproportionality of a statute under an Eighth

- 35 -
J-S41043-14

Amendment challenge.15 -62. Yet, Appellant asserts

actionable conduct in mistakenly and accidentally running over the two

[vi

Id. at 63. He claims the actions underlying his third-degree

murder convictions are more appropriately characterized as homicide by

vehicle and homicide by vehicle while DUI and should be punished as such.

Id.

In Spells, an en banc panel of this Court adopted the proportionality

the Eighth Amendment. Spells, supra at 461-464. Specifically, we

gravity of the offense and the harshness of the penalty; (ii) the sentences

imposed on other criminals in the same jurisdiction; and (iii) the sentences

imposed for commission Id. at

462, quoting Solem v. Helm, 463 U.S. 277, 292 (1983); accord Baker,

supra

relative to the first factor may determine whether a particular sentence is

constitutional. Spells, supra at 463; accord Harmelin v. Michigan, 501
____________________________________________

15
This test was promulgated by the United States Supreme Court in Solem
v. Helm, 463 U.S. 277 (1983), clarified by our high Court in Harmelin,
applied first by this Court in Spells, and adopted by the Pennsylvania
Supreme Court in Baker.

- 36 -
J-S41043-14

U.S. 957, 1005 (1991); Solem, supra at 291 n.17; Baker, supra.

Therefore, courts should initially

Spells, supra at 463, quoting Harmelin,

supra; accord Baker, supra

Parker, supra at 1269. If the

court concludes no such gross disproportionality exists, the sentence does

not violate the Eighth Amendment. See Baker, supra at 1052; Spells,

supra at 463-464.

With respect to the first prong of the proportionality test, Appellant

argues that a comparison of the gravity of the offense with the harshness of

the penalty imposed raises an inference of gross disproportionality.

the offense, we reiterate Appellant drove under the influence of marijuana

and a metabolite of marijuana, while possessing marijuana, fled from a

traffic stop, proceeded through a steady red light, struck and killed two

minor pedestrians without stopping to render aid, and, thereafter, hid from

police. Trial Court Opinion, 2/28/14, at 8-11. Appellant was convicted by a

jury of his peers of two counts of third-degree murder. Verdict Slip,

the loss of the lives of two minors. Although these losses occurred following

one fatal traffic accident, we cannot let that fact dilute the gravity of

- 37 -
J-S41043-14

Likewise, we cannot conclude that the punishment imposed for these

offenses raises an inference of gross disproportionality. When considering

-degree murder convictions, we

crimes involves a substantive penological judgment that, as a general

Spells, supra at 463 (internal quotation marks omitted), quoting

Harmelin, supra at 998. Here, the legislature deemed the taking of two

lives by third-degree murder to be punishable by a mandatory sentence of

life imprisonment. 42 Pa.C.S.A. § 9715. The language of Section 9715

sentence. Id.; Morris, supra at 579 (describing Section 9715 as an

disproportionate to the crime merely because Appellant alleges he

63. As discussed supra, the Commonwealth established the proper mens

rea -degree murder convictions. See

Dunphy, supra; Levin, supra; Pigg, supra. As the legislature clearly

intended to punish the taking of two lives with a term of life imprisonment,

second conviction of third-degree murder is not so grossly disproportionate

that it requires further inquiry or analysis. See Spells, supra. Thus, we

- 38 -
J-S41043-14

need not reach the second and third prongs of the test for proportionality

review under the Eighth Amendment. See Baker, supra. Therefore,

unusual punishment in the Eighth Amendment of the United States

Constitution or Article 1, Section 13 of the Pennsylvania Constitution.

Within his final issue, Appellant challenges the excessiveness of his

-

argument is that the trial court imposed a manifestly excessive sentence by

running some of his sentences consecutively rather than concurrently.

Ap -

-6 to run

opinion, it admits that it in

concurrent with his life sentence. Trial Court Opinion, 2/28/14, at 20; N.T.,

e trial court

requests the case be remanded to correct the sentence imposed. Trial Court

Opinion, 2/28/14, at 20.

-law authority to correct

Commonwealth v. Borrin, 12 A.3d

466, 471 (Pa. Super. 2011) (en banc) (citation omitted), affirmed, 80 A.3d

1219 (Pa. 2013) (opinion announcing judgment). This authority exists even

- 39 -
J-S41043-14

after the 30-day time limitation for the modification of orders expires. Id.,

citing 42 Pa.C.S.A. § 550

Borrin, supra at 473; see also Commonwealth v. Holmes, 933 A.2d 57,

67 (Pa. 2007) (concluding the limited, inherent judicial power of the court to

aris Borrin, supra

incorrectly by the clerk of courts, and then corrected by the trial judge, is []

Id. at 474, quoting Commonwealth v. Kubiac, 550 A.2d

219, 231 (Pa. Super. 1988), appeal denied, 563 A.2d 496 (1989).

In the case sub judice, the trial court clearly and unambiguously

[it was] making all of the

sentenc

Accordingly, the sentencing order is subject to correction by the trial court.

See Holmes, supra; Borrin, supra at 473; Kubiac, supra.

2013

judgment of sentence and remand to the trial court for the limited purpose

of correcting its order to reflect a concurrent sentencing scheme. We affirm

- 40 -
J-S41043-14

Judgment of sentence vacated. Case remanded for proceedings

consistent with this memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2014

- 41 -