Commonwealth v. Brooker

J-A20018-14

2014 PA Super 209

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MIKECHEL BROOKER

Appellant No. 96 EDA 2013

Appeal from the Judgment of Sentence December 17, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006874-2009

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

OPINION BY MUNDY, J.: FILED SEPTEMBER 23, 2014

Appellant, Mikechel Brooker, appeals from the December 17, 2012

after a jury found him and his co-defendants, Ferock Smith and Alonzo

Ellison1, guilty of murder in the first degree, criminal conspiracy, firearms

not to be carried without a license, and possession of an instrument of a

crime (PIC).2 After careful review, we affirm.

relevant facts and procedural history of this case as follows.

____________________________________________
1

2
18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively.
J-A20018-14

was shot and killed on the 8700 Block of Glenoch
Place in Philadelphia, by [Alfonso Ellison (Ellison)],

apparent dispute over drug territory after Antoniette

[Ellison]. When Gray[,] shortly thereafter[,]
purchased drugs from Jacobs, [Ellison], Smith, and
[Appellant] shot Jacobs multiple times. At trial, Gray
testified that she did not remember the shooting and
her July 20, 2008, statement to police was admitted.
In her statement, Gray identified [Ellison], Smith,
and [Appellant] as the three people who shot Jacobs.
Gray also saw [Ellison], Smith, and [Appellant] the
next day and heard them laughing about shooting
Jacob[s]. Another eyewitness, Jeffrey Gould

over Jacobs and shoot him in the head. Gould had
identified that person as [Ellison] in a July 18, 2008
statement to police, which was introduced at trial.

testified that she did not remember the events after
the shooting and her July 19, 2008 statement to
police was admitted. In her statement, Sampson
stated that [Ellison], Smith, and [Appellant] came to
her apartment on the night of July 18, 2008.
Sampson stated that she let [Ellison], Smith, and
Brooker use her apartment because they gave her
drugs. [Ellison], Smith and [Appellant], had a
night,
during which she heard Smith say he shot Jacobs.
Smith and [Appellant] had handguns with them

Sampson asked [Ellison] to remove the guns from
her apartment and [Ellison] took a 9 millimeter
handgun from Smith. [Appellant] and Smith left

time, [Ellison] gave the 9 millimeter handgun back to

apartment and was arrested leaving from the rear of
the apartment when the police were knocking at the
front door. A .32 caliber handgun was found during

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Trial Court Opinion, 2564 EDA 2012, 12/26/12, at 2-3.

On June 1, 2009, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses, as well as one count each of

persons not to use a firearm and carrying firearms in public in Philadelphia.3

On July 10, 2012, Appellant proceeded to a jury trial. At the conclusion of

said trial, on July 16, 2012, the jury found Appellant guilty of first-degree

murder, criminal conspiracy, firearms not to be possessed without a license,

and PIC. The Commonwealth nolle prossed the remaining two charges.

Relevant to this appeal, on November 21, 2012, Appellant filed a

motion to declare 18 Pa.C.S.A. § 1102.1 unconstitutional as violating the

Eighth Amendment and Ex Post Facto Clause of the Federal Constitution as

well as the Original Purpose, Single Subject, and Ex Post Facto Clauses of

the Pennsylvania Constitution. The Commonwealth filed its answer to

-degree murder, s

imprisonment for criminal conspiracy and no further penalty on any of the

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3
18 Pa.C.S.A. §§ 6105(a.1)(1) and 6108, respectively.

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remaining charges.4 See N.T., 12/17/12, at 16. The sentences were to run

concurrently. Appellant did not file a post-sentence motion. On January 2,

2013, Appellant filed a timely notice of appeal.

On January 17, 2013, the trial court entered an order directing

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant

timely filed his statement on January 22, 2013. The trial court did not file a

Rule 1925(a) opinion, as the trial judge who presided over the trial retired

from the bench in the interim. Upon application from Appellant, on August

20, 2013, this Court entered an order remanding this case to the trial court

for the filing of a supplemental Rule 1925(b) statement. Appellant filed his

supplemental Rule 1925(b) statement on September 5, 2013, and the record

was re-transmitted to this Court.

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

1. Was the evidence sufficient to find [Appellant]
guilty of first[-]degree murder where the
Commonwealth failed to establish beyond a
reasonable doubt that [Appellant] had the
specific intent to kill?
____________________________________________
4
The written sentencing order in the certified record states the sentence as
35 years to life imprisonment. See Sentencing Order, 12/17/12, at 1. It is
axiomatic that if there is a conflict between the sentence imposed in open
court versus that co
the written sentencing order controls. See Commonwealth v. Willis, 68
[i]t is well settled that, where
there is a discrepancy between the sentence as written and orally

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2. Did the trial court err in denying the defense
motion for mistrial where the improper
question regarding prior bad acts by the
[Commonwealth] had the unavoidable effect of
prejudicing the jury against the [Appellant],
and which could not be cured by court
instruction or admonition to the jury?

3. Was the law under which [Appellant] was
sentenced unconstitutional because the original
purpose of the bill for which he was sentenced
dramatically changed during the legislative
process in violation of Article III, Section 1 of
the Pennsylvania Constitution?

4. Was the law under which [Appellant] was
sentenced unconstitutional because it contains
more than one subject in violation of Article
III, Section 3 of the Pennsylvania Constitution?

5. Was the law under which [Appellant] was
sentenced unconstitutional because it violates
the United States and Pennsylvania
constitutional bans on cruel and unusual
punishment?

6. Was the law under which [Appellant] was
sentenced unconstitutional because it violates
the [E]x [P]ost [F]acto [C]lauses of the United
States and Pennsylvania Constitutions?

-4.

the In reviewing

the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, viewed in a light

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J-A20018-14

most favorable to the Commonwealth as the verdict winner, support the

Commonwealth v. Patterson,

its burden by wholly circumstantial evidence and any doubt about the

defend

weak and inconclusive that, as a matter of law, no probability of fact can be

Commonwealth v. Watley, 81

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014).

Id. the

credibility of witnesses and the weight of the evidence produced is free to

Commonwealth v. Kearney, 92

sufficiency is a question of law, our standard of review is de novo and our

Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted).

regarding his conviction for murder in the first degree. Specifically,

Appellant argues the Commonwealth did not present sufficient evidence of a

specific intent to kill for murder in the first degree. Id. at 11. The relevant

statute provides as follows.

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§ 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.

(d) Definitions.--As used in this section the
following words and phrases shall have the meanings
given to them in this subsection:

Killing by means of poison, or
by lying in wait, or by any other kind of willful,
deliberate and premeditated killing.

A person who is the actor or
perpetrator of the crime.

18 Pa.C.S.A. § 2502. Furthermore, our Supreme Court has consistently

stated when proving the sufficiency of the evidence for first degree murder,

as follows.

In order to sustain a conviction for first-degree
murder, the Commonwealth must prove that: (1) a
human being was unlawfully killed; (2) the
defendant was responsible for the killing; and (3) the
defendant acted with malice and a specific intent to
kill. Specific intent and malice may be established
through circumstantial evidence, such as the use of a
deadl

Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal

citation omitted).

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J-A20018-14

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

Gray. Gray testified that she could not recall the events that transpired on

the night of the shooting. N.T., 7/10/12, at 112-113. As a result, the

statement, Gray told the police that she was only a few feet away from

Jacobs when he was killed, and that she knew who killed him. Id. at 122.

Recalling the events of July 18, 2008, Gray told the police that prior to the

obs. Id. at 123.5 Gray

Id. at

123, 124-125. She further testified that after Jacobs fell to the ground, two

other men named Butter and Doughnut each shot Jacobs in the head and in

the chest while he was on the ground. Id. at 123-125. Gray was shown a

photo array and picked out photographs of Appellant and his co-defendants

as those who shot Jacobs. Id. at 14

Eleanore Sampson, who was an acquaintance of all three defendants,

argument. The Commonwealth presented substantive evidence that
____________________________________________
5

123.

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J-A20018-14

identified Appellant as one of the three men who shot Jacobs in the head

and in the chest, through the account of an eyewitness who was only a few

feet away at the time of the shooting. Pennsylvania courts have consistently

held that such evidence is sufficient for a first-degree murder conviction.

See Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)

(concluding sufficient ev eye witness testimony

head at close range while the victim was lying defenseless on the

Commonwealth v. Chine, 40 A.3d 1239, 1242 (Pa. Super.

2012

appeal denied, 63 A.3d 773 (Pa. 2013). As a result, Appellant is

not entitled to relief on this issue. See Diamond, supra.

In his second issue, Appellant avers the trial court erred when it

denied his request for a mistrial when the Commonwealth insinuated that

Appellant was a drug dealer and that a dispute over drug turf was his

alleged motive for th

We begin by stating our standard of review.

It is well-
denial of a motion for a mistrial is limited to
determining whether the trial court abused its
discretion. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-

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J-A20018-14

abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is
of such a nature that its unavoidable effect is to
deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict. A
mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation

omitted); see also Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.

trial was warranted due to prosecutorial misconduct for abuse of

incident, which occurred during the redirect examination of

Detective Thomas Gaul.

[Commonwealth]: Based on the information you
received -- and [defense counsel] has asked about
[Jacobs], and the information that he was actively
dealing in that same area; correct?

[Detective Gaul]:

[Commonwealth]: Based on the information
that you received from the witnesses -- were these
three defendants also actively dealing in that area?

[Defense Counsel]: Objection.

[Trial Court]: Sustained. The jury will absolutely
disregard that last question.

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J-A20018-14

direct.

Members of the jury, you will totally disregard
the last question. It insinuated things that are not
relevant to this case. That should not be considered
by you. That should have no part in any
consideration or discussions that you have during
your deliberations.

Just for the record,
notwithstanding the admonition, for the record, I

question.

[Trial Court]: Denied.

We join in that, Your Honor.

N.T., 7/12/12, at 131-132, 134.

Assuming arguendo

error may be considered harmless only when the Commonwealth proves

beyond a reasonable doubt that the error could not have contributed to the

Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super.

2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013).

The Commonwealth bears the burden of establishing
the harmlessness of the error. This burden is
satisfied when the Commonwealth is able to show
that: (1) the error did not prejudice the defendant or
the prejudice was de minimis; or (2) the erroneously
admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to

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J-A20018-14

the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial
[e]ffect of the error so insignificant by comparison
that the error could not have contributed to the
verdict.

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation

omitted), appeal denied, 87 A.3d 318 (Pa. 2014).

In this case, the Commonwealth presented independent evidence that

direct examination with the Commonwealth.

[Commonwealth]: Do you see Butter in the
courtroom today?

[Sampson]:

one is Butter I think.

[Commonwealth]: Okay. Your Honor, for the
record identifying Alonzo Ellison by point of finger
and also by location in relation to the other

[Sampson]: Through drug activity.

[Commonwealth]: What do you mean?

[Sampson]: I would get drugs from him.

[Commonwealth]: Do you know someone by the
name of AI or Doughnut?

[Sampson]: Yes.

[Commonwealth]: Do you see that person in the
courtroom today?

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J-A20018-14

[Sampson]: I think this one on the end in the
blue shirt.

[Commonwealth]: Your Honor, for the record,

you know Doughnut or AI?

[Sampson]: For the same thing, for the same
reasons, drugs.

[Commonwealth]: Would you get drugs from
Doughnut?

[Sampson]: Yes.

Id. at 213-214.

Based on this testimony, at a minimum, we conclude that any error

was harmless in this instance. At no point did Appellant lodge an objection

reference in question by the Commonwealth du

regarding Appellant selling drugs was harmless as it was de minimis and

Green, supra.

Therefore, Appellant is not entitled to relief on this issue.

ng issues on appeal pertain to the constitutionality

of 18 Pa.C.S.A. § 1102.1, the statute under which he was sentenced.

Appellant raises four separate constitutional challenges under the Federal

and Pennsylvania Constitutions. Section 1102.1 provides, in relevant part,

as follows.

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J-A20018-14

§ 1102.1. Sentence of persons under the age of
18 for murder, murder of an unborn child and
murder of a law enforcement officer

(a) First degree murder.--A person who has been
convicted after June 24, 2012, of a murder of the
first degree, first degree murder of an unborn child
or murder of a law enforcement officer of the first
degree and who was under the age of 18 at the time
of the commission of the offense shall be sentenced
as follows:

(1) A person who at the time of the
commission of the offense was 15 years of age
or older shall be sentenced to a term of life
imprisonment without parole, or a term of
imprisonment, the minimum of which shall be
at least 35 years to life.

(2) A person who at the time of the
commission of the offense was under 15 years
of age shall be sentenced to a term of life
imprisonment without parole, or a term of
imprisonment, the minimum of which shall be
at least 25 years to life.

18 Pa.C.S.A. § 1102.1(a). This statute was enacted in response to the

Miller v. Alabama, 132 S. Ct.

2455 (2012). As we explain in more detail below, in Miller, the Supreme

Court held the Cruel and Unusual Punishment Clause of the Federal

Constitution forbids the imposition of a mandatory sentence of life

imprisonment without the possibility of parole upon a minor, even for a

homicide.

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J-A20018-14

We note that duly enacted legislation carries with it a strong

Commonwealth v. Turner, 80 A.3d 754,

75

Assembly does not intend to violate the Constitution of the United States or

Commonwealth v.

Baker, 78 A.3d 1044, 1050 (Pa. 2013) (citation omitted), accord 1

Pa.C.S.A. § 1922(3).

In conducting our review, we are guided by the
principle that acts passed by the General Assembly
are strongly presumed to be constitutional, including
the manner in which they were passed. 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

constitutionality.

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

quotation marks and citations omitted). 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. Turner, supra.

Section 1102.1 violates the Original Purpose Clause of the Pennsylvania

law shall be passed except by bill, and no bill shall be so altered or

amended, on its passage through either House, as to change its original

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J-A20018-14

Our Supreme Court has directed that

courts follow a two-part inquiry to determine whether legislation violates the

Original Purpose Clause.

First, the court will consider the original purpose of
the legislation and compare it to the final purpose
and determine whether there has been an alteration
or amendment so as to change the original purpose.
Second, a court will consider, whether in its final
form, the title and contents of the bill are deceptive.

Pennsylvanians Against Gambling Expansion Fund, Inc. v.

Commonwealth, 877 A.2d 383, 408-409 (Pa. 2005) (hereinafter PAGE).6

is loathe to substitute our judgment for that of the

legislative branch under the pretense of determining whether an

unconstitutional change in purpose of a piece of legislation has occurred

Id. at 409. It is for this reason that

Id.

In the case sub judice, the parties appear to agree on what the

original and final versions of the bills accomplished. The original bill, S.B.
____________________________________________
6
Our Supreme Court has also noted that the statute in question must satisfy
both inquiries in order to survive Original Purpose Clause scrutiny. See
PAGE, supra [i]f the legislation passes both the purpose

this case, Appellant rests his entire argument on the first prong and does not
make any argument regarding deceptiveness. See generally
Brief at 17-22. As this issue is waiveable, we confine our discussion to the
PAGE See generally Watley, supra at 117

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J-A20018-14

850 was to create new offenses regarding cyberbullying and sexting by

minors, modify expungement for, exclude the public from, and create

referrals to alternative adjudication programs following hearings regarding

summary offenses by minors, and create a presumption of indigency in

-

Brief at 24. Whereas the final version of the bill modified expungement

requirements for underage drinking and summary offenses by minors,

created the new Section 1102.1 and enacted a new chapter in the Crimes

cri -

final bill also excluded the public from juvenile summary offense hearings,

created referrals to alternative adjudication programs for juvenile summary

offenses, eliminated juvenile summary offenses as a basis for dependency,

and established five-year intervals for parole applications for juvenile

sentences under Section 1102.1. Id. The only disagreement between

Appellant and the Commonwealth over the purpose of the legislation is the

characterization of the original draft and final version of the bill and how

broadly this Court should interpret their respective purposes for the Original

Purpose Clause.

above, we must read the purpose of legislation broadly when analyzing it

under the Original Purpose Clause. PAGE, supra. The Commonwealth

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J-A20018-14

argues, both the original and final versions of the bill amended various parts

of the Juvenile Act as described above. The only significant change during

the legislative process appears to be the removal of the new cyberbullying

offense and, in its stead, the creation of Section 1102.1 and its

corresponding parole statute. This is understandable because, as Appellant

points out, Miller occurred during the legislative process.

The Pennsylvania Constitution also expressly contemplates legislative

amendments. See generally Pa. Const. art. III, § 4

amendments made thereto shall be printed for the use of the members

before the final vote is taken on the bill and before the final vote is

Supreme Court does not give the General Assembly carte blanche to make

amendments to a pending bill. However, it does not follow that adding

remedial provisions that regulate other aspects of juvenile proceedings alters

en the original and

final purposes of the bill reveals that all parts of the legislation continued to

pertain to regulating delinquency of juveniles, including sentencing for

offenders under the age of 18. In our view, this commonality is sufficient for

the Original Purpose Clause. See, e.g.,

Welfare, 71 A.3d 1070, 1079-1080 (Pa. Cmwlth. 2013) (rejecting Original

requirements for certain public assistance

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J-A20018-14

still made its purpose] the regulation and funding of human services

affirmed, 76

A.3d 536 (Pa. 2013); ,

911 A.2d 624, 637 (Pa. Cmwlth. 2006) (rejecting Original Purpose challenge

to the original bill, authorizing annual inspections on nursing homes although

the final bill amended 24 other parts of the Public Welfare Code, where

B 1168 share the central purpose

affirmed, 951 A.2d 255 (Pa. 2008).7 Based on these considerations, we

conclude that Appellant is not entitled to relief under the Original Purpose

Clause.

concerns the Single Subject Clause. Appellant argues that Act 204 of 2012

single omnibus bill that had no conne

at 29.

____________________________________________
7
We note that decisions of the Commonwealth Court are not binding on this
Court; however, they may be cited as persuasive authority. Joseph v.
Glunt, --- A.3d ---, 2014 WL 2155396, *5 (Pa. Super. 2014) (citation
omitted).

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J-A20018-14

Article III, Section 3 of the Pennsylvania Constitution states

bill shall be passed containing more than one subject, which shall be clearly

expressed in its title, except a general appropriation bill or a bill codifying or

Subject

organic charter in 1864, and then readopted as part of the 1874

legislative practices that it viewed with susp Commonwealth v.

Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal quotations marks and

disdain for two legislative practices.

The first involved the insertion into a single bill of a
number of distinct and independent subjects of
legislation in order to deliberately hide the real
purpose of the bill. The second was the practice of

several distinct matters, none of which could singly
obtain the assent of the legislature, and procuring its
passage by combining the minorities who favored the
individual matters to form a majority that would

Id. (some internal quotation marks and citations omitted). The Clause

historical purpose was also to engender more efficient policymaking. Id. at

611-612.

The requirement that each piece of legislation
pertain to only one subject creates a greater
likelihood that it will receive a more considered and
thorough review by legislators than if it is
aggregated with other pieces of legislation pertaining

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thereby creating a jumbling together of incongruous
subjects. Additionally, and significantly, the single
subject requirement proscribe[s] the inclusion of
provisions into legislation without allowing for fair
notice to the public and to legislators of the
existence of the same. It, thus, provides a vital
assurance to residents of this Commonwealth that
they will be able to make their views and wishes
regarding a particular piece of legislation known to
their duly elected representatives before its final
passage, and it concomitantly ensures that those
representatives will be adequately apprised of the
full scope and impact of a legislative measure before
being required to cast a vote on it.

Id. at 612 (some internal quotation marks and citations omitted; emphasis

in original). From these textual and historical guideposts, our Supreme

Court has mandated a two-part test for the Single Subject Clause.

Id. (citation omitted).

Similar to the Original Purpose Clause, in reviewing challenges to the

legislation is required, due to the normal fluidity inherent in the legislative

process, and, thus, [it has] deemed it is appropriate for a reviewing court to

Id. (citation omitted). Recognizing

that some topics could be so broad as to render the Clause a dead letter, our

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J-A20018-14

contained within a legislative enactment and determine whether they have a

Id. (citation omitted).

Appellant argues that the various subjects contained within Act 204 do

Id.; see also

multiple and vastly different aspects of the criminal and juvenile justice

differently. The

that the Single Subject Clause is not intended to hamper the legislative

Id.

at 32-33.

As noted above, the final version of Act 204 created Section 1102.1,

modified

from juvenile summary offense hearings, created referrals to alternative

programs for juvenile offenders, eliminated juvenile summary offenses as a

basis for dependency, and established five-year intervals for parole

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J-A20018-14

at 20-

consequences of criminal offenses committed by those under the age of 18.

Although Section 1102.1 and the parole section each pertain to minors

the Single Subject Clause inherently requires the General Assembly to

change the juvenile division and criminal division in different legislation

when each pertains to minors. The General Assembly addressed many

changes it believed were required in order to remedy specific problems with

minors charged with criminal offenses.

As noted above, Miller occurred during the legislative process. The

legislature is permitted to make changes to pending legislation in order to

respond to a constitutional decision of the United States Supreme Court, as

long as the remedial changes are on the same subject. Here, the General

could not be mandatorily sentenced to life imprisonment without the

possibility of parole. The creation of new mandatory minimum sentences for

juvenile offenders convicted of first-degree murder squarely fits within the

subject of the consequences of criminal offenses committed by those

ns is

previous Single Subject Clause cases. Cf. Neiman, supra at 613 (rejecting

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J-A20018-14

too sweeping and broad for

City of Phila. v.

Commonwealth

as too broad a topic for the purposes of the Single Subject Clause). Instead,

consequences of their criminal conduct. Based on these considerations, we

conclude that Act 204 does not violate the Single Subject Clause.

avers that Section 1102.1 violates the Cruel and Unusual Punishment Clause

individualized sentencing and [the] requirement that children have a

The Eighth Amendment to the Federal Constitution states that

[e]xcessive bail shall not be required, nor excessive fines imposed, nor
8
U.S. Const. amend. viii. The

draw its meaning from the evolving standards of decency that mark the

progress of a maturing soc Trop v. Dulles, 356 U.S. 86, 101 (1956)

____________________________________________
8
The Eighth Amendment is applicable to the States via incorporation under
the Due Process Clause of the Fourteenth Amendment. Hall v. Florida, 134
S. Ct. 1986, 1992 (2014) (citation omitted).

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J-A20018-14

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

of the government to respect th Hall v. Florida,

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

In this case, Appellant argues that Section 1102.1 violates the Cruel

and Unusual Punishment Clause because the statute imposes a mandatory

minimum sentence of 35 years to life, and 35 years is essentially a life

Appellant also argues that Section 1102.1

Miller that sentences be

Id. In addition, Appellant

claims that a 35-

opportunity to obtain release. Id. at 34.

Recently, this Court considered a similar Eighth Amendment challenge

to Section 1102.1. In Commonwealth v. Lawrence, --- A.3d ---, 2014 WL

the statute impose[d] a

mandatory minimum sentence of 35 years to life without giving any

consideration to [Lawrence]

Id. at *2 (internal quotation marks, brackets, and citation omitted).

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J-A20018-14

taking into account [his] age at the time of the crime, his role in the crime,

whether he posed a danger to society, and the familial and peer pressures

Id. at *4 (citation omitted). We rejected

The only preclusive effect of Section 1102.1 is that it

sentence him to
imprisonment. We decline to extend Miller beyond
the mandatory schemes that it considered. Miller is
require[ed] that
all children convicted of homicide receive lifetime
incarceration without possibility of parole, regardless
of their age and age-related characteristics and the
Id. at 2475]. Section
1102.1 does not contain such a sentencing scheme.
In fact, Section 1102.1(d) does require the trial
court to consider various age-related factors before
the trial court may impose a sentence of life without
parole. See 18 Pa.C.S.A. § 1102.1(d).

We do not read Miller to mean that the Eighth
Amendment categorically prohibits a state from
imposing a mandatory minimum imprisonment
sentence upon a juvenile convicted of a crime as
serious as first-
argument against a mandatory minimum of 35 years
presents the same concerns as would a mandatory
r

conclude that open-ended minimum sentencing is
constitutionally required by the Cruel and Unusual
Punishment Clause. We decline to announce such a
rule.

our decision would be contrary to the cases that the
Supreme Court has already decided. See [Graham
v. Florida, 560 U.S. 48, 75 (2010)]

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J-A20018-14

State is not required to guarantee eventual freedom
to a Graham held that the
Eighth Amendment required juveniles convicted of
[a] non-
opportunity to obtain release based on demonstrated
Id. Miller does not
contain this requirement for juveniles convicted of
first-degree murder, such as Appellant. Even under
Miller, a state still may impose life without parole
for homicide offenses, preventing a juvenile like
Appellant, from ever obtaining any hope of release
from confinement. Based on these considerations,
we conclude that Section 1102.1 does not offend the
Cruel and Unusual Punishment Clause of the Eighth
Amendment.

Id. (footnotes omitted; emphasis in original).

We conclude Lawrence controls this case. Appellan

this case, like the argument advanced in Lawrence, requires us to conclude

that the Eighth Amendment inherently forbids mandatory minimum

sentences. We disagree and reject that conclusion. In addition, we decline

tation in this case to extend Graham beyond the

context in which it was decided. Although 35 years is a lengthy sentence, in

Amendment does not dictate a specific minimum sentence, nor does it divest

state legislatures of their authority to decide on such a minimum sentence. 9

____________________________________________
9
Appellant does not argue that a national consensus against 35-year
minimum sentences exists so as to render it constitutionally prohibited under
the Eighth Amendment. See generally Hall, supra at 1996, 1999; Miller,
supra at 2470; Graham, supra at 61; Kennedy, supra at 426; Roper v.
Simmons, 543 U.S. 551, 563 (2005); Atkins v. Virginia, 536 U.S. 304,
(Footnote Continued Next Page)

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J-A20018-14

Additionally, our cases have concluded that even the chance of parole when

a defendant is in his or her eighties is not the equivalent of a life sentence.

See, e.g., Commonwealth v. Dodge, 77 A.3d 1263, 1275 (Pa. Super.

ledges in his brief, Appellant will be

eligible for parole in his fifties, which does not render the instant sentence

equivalent to a life sentence. See id. Based on these considerations, we

conclude that Appellant is not entitled to relief on Eighth Amendment

grounds.

violates the Ex Post Facto Clause. Specifically, Appellant argues that Section

Ex Post Facto Clause because it

greater punishment[] than the punishment available for the

_______________________
(Footnote Continued)

316 (2002). In his reply brief, Appellant cites to one case from the Supreme
Court of Iowa, invalidating a 35-year minimum sentence for a juvenile,
however, this does not rise to the
Reply Brief at 17, citing State v. Pearson, 836 N.W.2d 88 (Iowa 2013). We
also note that the Supreme Court of Iowa decided to independently apply
the protections of Article I, Section 17 of the Iowa Constitution, meaning
that Pearson is not an Eighth Amendment case. See Pearson at 96
we need only decide that [A]rticle I, [S]ection 17 requires an
individualized sentencing hearing where, as here, a juvenile offender
receives a minimum of thirty-five years imprisonment without the possibility
of parole for these offenses and is effectively deprived of any chance of an
earlier release and the possibility of leading a more normal adult life

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J-A20018-14

Commonwealth counters that Section 1102.1 is not an ex post facto law

because it decreased his punishment, and did not lengthen

Ex Post Facto Clause argument, but on slightly

different grounds than those urged by the Commonwealth.10

Article I, Section 10 of the Federal Constitution prohibits the several
11
ex post facto

The Supreme Court has historically analyzed challenges under the Ex Post

Facto Clause pursuant to four distinct categories, as identified by Justice

Samuel Chase in Calder v. Bull, 3 U.S. (Dall.) 386 (1798).

1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2d. Every
law that aggravates a crime, or makes it greater
than it was, when committed. 3d. Every law that
____________________________________________
10
We may affirm the trial court on any legal basis supported by the record.
Commonwealth v. Charleston, 16 A.3d 505, 529 n.6 (Pa. Super. 2011)
(citation omitted).
11
Likewise, Article I, Section 17 of the Pennsylvania Constitution states that
[n]o ex post facto law, nor any law impairing the obligation of contracts, or
making irrevocable any grant of special privileges or immunities, shall be

standards applied to determine an ex post facto violation under the
Pennsylvania Constitution and the United States Constitution are
Commonwealth v. Rose, 81 A.3d 123, 127 (Pa. Super.
2013) (en banc), appeal granted, --- A.3d ---, 2014 WL 3107989 (Pa. 2014).
As Appellant does not argue that the Pennsylvania Constitution provides
greater protection than the Federal Ex Post Facto Clause, we confine our
discussion to Article I, Section 10 of the Federal Constitution.

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J-A20018-14

changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime,
when committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or
different, testimony, than the law required at the
time of the commission of the offence, in order to
convict the offender.

Id. at 390 (Opinion of Chase, J.).12 Appellant argues that this case deals

with Calder hment, and

inflicts a greater punishment, than the law annexed to the crime, when

Id.

punishment attached to t Peugh v. United States,

133 S. Ct. 2072, 2082 (2013) (citation omitted).

ex post

facto

Id. at 2081. Many of the early justices of the Supreme Court

ex post facto unjust and oppressive.

Carmell v. Texas, 529 U.S. 513, 532 (2000) (emphasis in original), quoting

Calder, supra at 391 (Opinion of Chase, J.). Indeed, Alexander Hamilton

Id., quoting The Federalist, No. 84, at

512 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Therefore, the
____________________________________________
12
I
for the Court and the justices delivered their opinions seriatim.

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J-A20018-14

framers sought to vindicate several important interests of the People

through the Ex Post Facto

assure that legislative Acts give fair warning of their effect and permit

individuals Weaver v.

Graham, 450 U.S. 24, 28-

governmental power by restraining arbitrary and potentially vindictive

Id. Ex Post Facto Clause jurisprudence

has developed, a general proposition has emerged that any prohibition

against a law to be applied retroactively must serve some of the interests of

the Clause.

In Dobbert v. Florida, 432 U.S. 282 (1977), the defendant was

convicted of two counts of first-degree murder of his children, committed

between December 31, 1971 and April 8, 1972. Id. at 284. At the time of

unless the verdict included a recommendation of mercy by a majority of the

Id. at 288 (citations omitted). On June 22, 1972, the Supreme Court

struck down a Georgia death penalty statute as violating the Cruel and

Unusual Punishment Clause of the Eighth Amendment, which resulted in a

sea of change across the country regarding death penalty legislation. See

generally Furman v. Georgia, 408 U.S. 238 (1972). Shortly thereafter,

the Supreme Court of Florida struck down the Florida death penalty statute

as inconsistent with Furman and the Florida legislature enacted a new

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J-A20018-14

statute at the end of 1972. See generally Donaldson v. Sack, 265 So. 2d

499 (Fla. 1972). The new statute mandated a separate sentencing hearing,

required that certain aggravating or mitigating evidence be admitted, and

that the jury render an advisory decision by a majority vote that is not

binding on the trial court.13 Dobbert, supra at 289 (citations omitted). In

Dobbert, the new statute was applied and the jury voted 10-2 against the

death penalty, but the trial court over

sentenced Dobbert to death. Id. at 287.

Similar to what Appellant argues in this case, Dobbert argued that he

was subject to an ex post facto law because the judicial determination that

the existing death penalty statute was unconstitutional and the retroactive

application14 of Furman

Id. at 297. Therefore, Dobbert argued

____________________________________________
13
This statute was upheld as constitutional by the Supreme Court in 1976.
See generally Proffitt v. Florida, 428 U.S. 242 (1976).
14
At the time of Dobbert, the controlling rule was that new federal
applied to cases still pending on direct review
at the time it was Linkletter v. Walker, 381 U.S. 618, 622
(1965). In 1989, the Supreme Court displaced Linkletter in Teague v.
Lane, 489 U.S. 288 (1989). However, even under Teague new rules of
criminal procedure must be applied in future trials and in cases pending on
Teague Danforth v.
Minnesota, 552 U.S. 264, 266 (2008). Teague is now considered the
leading case for the scope of retroactive effect to be given to new
constitutional Supreme Court rules to future trials, cases on direct appeal,
and on collateral review. Nevertheless, there was no doubt that Furman

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J-A20018-14

the application of the new death penalty statute to his case was ex post

facto. Id. at 298.

inconsistent with the guiding interests of the Ex Post Facto Clause.

substance of the Ex Post Facto Clause. Whether or
not the old statute would in the future, withstand

view of the severity of murder and of the degree of
punishment which the legislature wished to impose
upon murderers. The statute was intended to
provide maximum deterrence, and its existence on
the statute books provided fair warning as to the
degree of culpability which the State ascribed to the
act of murder.

odds with the statement of this Court in Chicot
County Drainage District v. Baxter State Bank,
308 U.S. 371, 374 (1940):

The courts below have proceeded on the
theory that the Act of Congress, having been
found to be unconstitutional, was not a law;
that it was inoperative, conferring no rights
and imposing no duties, and hence affording
no basis for the challenged decree. It is quite
clear, however, that such broad statements as
to the effect of a determination of
unconstitutionality must be taken with
qualifications. The actual existence of a
statute, prior to such a determination, is
an operative fact and may have
consequences which cannot justly be
ignored.

Here the existence of the [old] statute served

the penalty which Florida would seek to impose
on him if he were convicted of first-degree

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J-A20018-14

murder. This was sufficient compliance with the ex
post facto provision of the United States
Constitution.

Id. at 297-298 (parallel and some internal citations omitted; emphases

added).

In this case, Appellant argues that because of Miller and its

35. e only constitutional sentence

available to Appellant[] at the time of [his] crimes and convictions was the

sentence for the most serious lesser included offense, which in this case was

third- Id. Therefore, Appellant concludes because he

parole constitutes an unconstitutional ex post facto Id.

However, like in Dobbert, the very existence of the old statute

requiring life without parole, put Appellant on notice that the Commonwealth

would seek to impose a sentence of life imprisonment without the possibility

of parole for the crime of murder in the first degree.15 See 18 Pa.C.S.A. §

1102(a
____________________________________________
15
As Appellant was a minor at the time of the offenses, the Eighth
Amendment precluded him from being eligible for the death penalty.
Roper, supra at 578.

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J-A20018-14

such a case. See Weaver, supra; Dobbert, supra. The fact that the old

statute, Section 1102, would later be declared constitutionally void as

applied to him on Eighth Amendment grounds is of no moment. 16 See

Dobbert, supra. Rather, as we have explained in great detail, the

underpinnings of the Ex Post Facto Clause protect fairness, fair warning and

notice. See Carmell, supra; Weaver, supra. Because Section 1102

provided Appellant with fair notice and warning that he would receive life

without the possibility of parole, he cannot complain of a retroactive

imposition of a 35-year mandatory minimum, even though he may not have

received such a high minimum sentence under Batts.

These considerations lead us to conclude that the underlying interests

of the Ex Post Facto Clause were fulfilled in this case. See Dobbert, supra.

unjust and oppressive See

Calder, supra

application to Appellant is consistent with the text, history of, and the cases

____________________________________________
16
Section 1102 stated that
the first degree or of murder of a law enforcement officer of the first degree
shall be sentenced to death or to a term of life imprisonment in accordance
with ile not constitutionally
void on its face, Section 1102 no longer has any constitutional application to
minors in light of Roper and Miller.

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J-A20018-14

interpreting the Ex Post Facto

the contrary must fail.

of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014

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