[J-56-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BERT HUDSON, : No. 17 WAP 2018
Appellant :
: Appeal from the Order of the
: Commonwealth Court entered on
: 5/29/18 at No. 444 MD 2017
v. :
:
PENNSYLVANIA BOARD OF :
PROBATION AND PAROLE, :
:
Appellee : SUBMITTED: March 21, 2019
OPINION
CHIEF JUSTICE SAYLOR DECIDED: MARCH 26, 2019
This is a direct appeal from a Commonwealth Court order dismissing Appellant’s
petition for review, in which he argued that he is entitled to be considered for parole
after having received a sentence of life imprisonment for second-degree murder.
In 1978, Appellant burglarized a home and shot two individuals with a handgun,
killing one of them. He was convicted of second-degree murder, see 18 Pa.C.S.
§2502(b), and related offenses. See Commonwealth v. Hudson, 489 Pa. 620, 636, 414
A.2d 1381, 1389 (1980). The court imposed a sentence of life imprisonment on the
murder conviction, see 18 Pa.C.S. §1102(b) (requiring a “term of life imprisonment” for
second-degree murder), and a separate, consecutive sentence of fifteen-to-thirty years
on the other convictions, to be served first. Appellant completed this latter sentence in
2009, and is now serving his life sentence for second-degree murder.
In 2017, Appellant applied for parole. The Pennsylvania Board of Probation and
Parole (the “Board”) denied his application on the basis that his life sentence had no
minimum date. After exhausting administrative remedies, Appellant filed a petition for
review in the Commonwealth Court’s original jurisdiction, contending that because the
common pleas court had failed to specify a minimum sentence, he should be deemed to
have an implied minimum of one day of confinement. Appellant thus asked the court to
direct the Board to review him for parole.
In advancing this position, Appellant relied on Commonwealth v. Ulbrick, 462 Pa.
257, 341 A.2d 68 (1975) (per curiam), which held that an inmate had a presumed
minimum sentence of one day of confinement where the sentencing court imposed a
“flat sentence” of twenty years but failed to include a minimum sentence as required by
law. Id. at 259, 341 Pa. at 69. Separately, Appellant acknowledged that the
Commonwealth Court had previously determined a life sentence for second-degree
murder precludes any possibility of parole. See Castle v. PBPP, 123 Pa. Cmwlth. 570,
577, 554 A.2d 625, 629 (1989). He asserted, however, that Castle was wrongly
decided and should be overruled.
The Board filed a preliminary objection in the nature of a demurrer, indicating that
the Probation and Parole Code does not authorize it to grant parole to an inmate who is
serving a life sentence. See 61 Pa.C.S. §6137(a)(1). In an unpublished disposition, the
Commonwealth Court agreed with the Board, sustained the demurrer, and dismissed
the petition. See Hudson v. PBPP, No. 444 M.D. 2017, Order, at 1 (Pa. Cmwlth. May
29, 2018).1
Presently, Appellant renews his assertion that he should be presumed to have a
minimum sentence of one day and, as such, that he should immediately be reviewed for
1 The Court did not address Appellant’s contention that Castle should be overruled.
[J-56-2019] - 2
parole.2 He also repeats his contention that Castle was wrongly decided, and asks this
Court to overturn it. In particular, Appellant observes that Section 9756 of the
Sentencing Code, see 42 Pa.C.S. §9756 (relating to sentences of total confinement),
requires that a defendant be given the right to parole after a minimum sentence of no
more than half the maximum sentence. He notes that the provision enumerates three
exceptions – namely, maximum sentences of less than thirty days, sentences for
summary offenses, and sentences for nonpayment of fines or costs – and that these
exceptions do not include sentences of life imprisonment. See id. §9756(c).
Further, Appellant points out that an individual who commits second-degree
murder by means of arson is required to be sentenced to “life imprisonment without right
to parole,” 18 Pa.C.S. §3301(b)(1) (emphasis added), and an offender convicted of a
third crime of violence may, under some circumstances, be sentenced to “life
imprisonment without parole.” 42 Pa.C.S. §9714(a)(2) (emphasis added). Appellant
maintains that, by highlighting the unavailability of parole in these circumstances, the
language of such provisions differs from that of the statute under which he was
sentenced, which only states that a second-degree murderer “shall be sentenced to a
term of life imprisonment.” 18 Pa.C.S. §1102(b). Appellant concludes from this that the
General Assembly intended that life sentences for second-degree murder carry the
possibility of parole after some portion of the sentence has been served.3
2 Appellant has acted pro se throughout this litigation.
3 Appellant forwards a similar comparison-based argument with regard to life sentences
imposed for first-degree murder. However, the statutory life-sentence language for first-
degree murder is substantively identical to that for second-degree murder.
Separately, Appellant maintains that Article I, Section 14 of the Pennsylvania
Constitution mandates that all life sentences are maximum, not minimum, ones. That
provision states in full:
(continued…)
[J-56-2019] - 3
A demurrer will only be sustained where, on the facts alleged, the law says with
certainty that relief is unavailable. See Bundy v. Wetzel, ___ Pa. ___, ___, 184 A.3d
551, 556 (2018). In considering a demurrer, reviewing courts accept all well-pleaded
material averments and all inferences fairly deducible from them, but they need not
accept any of the complaint’s conclusions of law or argumentative allegations. See
Small v. Horn, 554 Pa. 600, 608, 722 A.2d 664, 668 (1998). The issues forwarded by
appellant raise questions of statutory interpretation as to which our review is de novo
and plenary. See Commonwealth v. Cullen-Doyle, 640 Pa. 783, 786, 164 A.3d 1239,
1241 (2017).
Release on parole is “a matter of grace and mercy shown to a prisoner who has
demonstrated to the Parole Board’s satisfaction his future ability to function as a law-
abiding member of society upon release before the expiration of the prisoner’s
maximum sentence.” Rogers v. PBPP, 555 Pa. 285, 292, 724 A.2d 319, 322-23 (1999).
Parole is not a right, but “a penological measure for the disciplinary treatment of
prisoners who seem capable of rehabilitation outside of prison walls.” Commonwealth
(…continued)
All prisoners shall be bailable by sufficient sureties, unless for capital
offenses or for offenses for which the maximum sentence is life
imprisonment or unless no condition or combination of conditions other
than imprisonment will reasonably assure the safety of any person and the
community when the proof is evident or presumption great; and the
privilege of the writ of habeas corpus shall not be suspended, unless when
in case of rebellion or invasion the public safety may require it.
PA. CONST. art. I, §14. This provision pertains to the right to bail as balanced against
the need for public safety, and indicates that the normal bail rules do not apply to
defendants accused of capital crimes or “offenses for which the maximum sentence is
life imprisonment.” Contrary to Appellant’s assertion, it does not purport to address
whether all life sentences in Pennsylvania are, or are presumed to be, maximum
sentences for which a minimum sentence of less than life applies.
[J-56-2019] - 4
v. Brittingham, 442 Pa. 241, 246, 275 A.2d 83, 85 (1971) (internal quotation marks
omitted). Further, “[t]he prisoner on parole is still in the legal custody of the state
through the warden of the institution from which he was paroled, and is under the
control of the warden and of other agents of the Commonwealth until expiration of the
term of his sentence.” Id. (internal quotation marks and citations omitted). Hence, the
actual sentence of a prisoner subject to total confinement is his maximum sentence,
and his minimum sentence merely sets the time after which he is eligible to serve the
remainder of his sentence on parole. Accord Commonwealth ex rel. Jones v. Rundle,
413 Pa. 456, 457, 199 A.2d 135, 138 (1964); Gundy v. PBPP, 82 Pa. Cmwlth. 618, 623,
478 A.2d 139, 141 (1984). See generally Martin v. PBPP, 576 Pa. 588, 595-96, 840
A.2d 299, 303 (2003) (explaining that, following a parole violation, the Board can require
the defendant to serve the remainder of his sentence as “backtime” before any
sentence for a different offense begins).
Sentencing courts are required to select from a list of options, including total
confinement. See 42 Pa.C.S. §9721(a). When total confinement is imposed, the court
must, as a general rule, state a minimum sentence of confinement no greater than one-
half of the maximum sentence. See id. §9756(b)(1). When a defendant is convicted of
second-degree murder, the court is required to impose total confinement for life. See
18 Pa.C.S. §1102(b) (stating that, with exceptions not presently relevant, a person
convicted of second-degree murder “shall be sentenced to a term of life imprisonment”).
Appellant does not dispute this, but contends that a life sentence for second-degree
murder is a maximum sentence that should be imposed together with a minimum
sentence. Since no minimum sentence for second-degree murder was stated in his
sentencing order, Appellant suggests that, under Ulbrick, a minimum sentence of one
day should be presumed and retroactively applied to him.
[J-56-2019] - 5
Ulbrick is distinguishable from the present controversy. In that matter, the
sentencing court had issued a flat sentence of twenty years without specifying a
minimum sentence. A maximum sentence along these lines lends itself to the general
directive that a minimum sentence of confinement be specified which does not exceed
one-half of the maximum sentence. A life sentence is qualitatively different in that it
expires when the prisoner dies, not after a specified number of years.
With that said, the question remains whether parole eligibility after a certain
amount of time can otherwise attach to a life sentence for second-degree murder. In
advocating for this outcome, Appellant notes that some statutes which require
imposition of a life sentence clarify that parole is unavailable, whereas the provision
under which he was sentenced does not. His argument relies on the concept that,
where the General Assembly includes specific language in one section of a statute but
excludes it from another section, “the language should not be implied where excluded,”
and hence, “the omission of such a provision from a similar section is significant to show
a different legislative intent.” In re Vencil, 638 Pa. 1, 16, 152 A.3d 235, 244 (2017)
(quoting Fletcher v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 603 Pa. 452, 462, 985 A.2d 678,
684 (2009)).
While that is true as a general matter, it does not pertain in all situations. In
Commonwealth v. Smith, ___ Pa. ___, 186 A.3d 397 (2018), for example, the Court
found the precept inapplicable where an alternate explanation for the textual difference
was evident. See id. at ___, 186 A.3d at 402-03. There, the deadly-weapon-possessed
sentencing enhancement contained an intent qualifier so that it could only be imposed
for possession of a non-weapon instrumentality where the offender intended to use the
item as a weapon. See id. at ___ n.4, 186 A.3d at 401 n.4. Although the similarly-
worded deadly-weapon-used enhancement lacked a similar qualifier, the Court did not
[J-56-2019] - 6
ascribe significance to its absence because the latter enhancement was already
focused, inherently, on how the item was used during the offense. See id. at ___, 186
A.3d at 403. The guiding principle which brought this distinction into focus was that
statutory words should be interpreted within the context in which they appear. See id. at
___, 186 A.3d at 402 (citing Rendell v. Pa. State Ethics Comm’n, 603 Pa. 292, 303–04,
983 A.2d 708, 715 (2009)).
In the present matter as well, the difference in statutory language highlighted by
Appellant is not dispositive. Whereas context was a crucial factor in Smith, here we find
salience in the Statutory Construction Act’s directive that courts should presume the
General Assembly does not intend results that are “absurd, impossible of execution, or
unreasonable.” 1 Pa.C.S. §1922(1). Under Appellant’s theory, in the case of second-
degree murder sentencing courts should impose a minimum sentence no greater than
one-half of the mandated life sentence. This, however, would be “impossible of
execution” because a sentencing court cannot know, at the time of sentencing, the
number of years the defendant will continue to live. Thus, the court cannot ascertain a
minimum term of years as required by paragraph (b)(1).
To the extent Appellant means to suggest that sentencing courts should always
impose a minimum sentence of one day when sentencing a defendant to life
imprisonment, such result would be unreasonable because life sentences are reserved
for the most serious crimes, and the Legislature is otherwise able to specify a minimum
parole date in connection with life sentences if that is its intent. See, e.g., 18 Pa.C.S.
§1102.1(a)(1) (referring to a sentence of imprisonment “which shall be at least 35 years
to life”). Indeed, the fact that in some statutes, such as the one just cited, the
Legislature has expressly indicated a minimum sentence of a term of years in
conjunction with a maximum term of life imprisonment, suggests that the principle on
[J-56-2019] - 7
which Appellant relies – again, that differences in statutory language ordinarily reflect
differences in legislative intent – undermines his position in an equal measure as it
supports it. In this latter regard, whereas second-degree murder carries a penalty which
“shall be” life imprisonment, 42 Pa.C.S. §1102(b), other crimes implicate a “maximum
term” of life imprisonment. See, e.g., 42 Pa.C.S. §9720.2 (providing that the sentence
for human trafficking or human servitude “shall be . . . up to a maximum term of life
imprisonment” (emphasis added)); 18 Pa.C.S. §3121(e)(2) (same with regard to rape of
a child under thirteen years old resulting in serious bodily injury); id. §3123(d)(2) (same
with regard to involuntary deviate sexual intercourse with a child under thirteen years
old resulting in serious bodily injury); cf. Castle, 123 Pa. Cmwlth. at 575-76, 554 A.2d at
628 (concluding that, because Section 1102(b) indicates a life sentence “shall” be
imposed for second-degree murder, courts may not impose a lesser term).
In light of the foregoing, we hold that the Legislature did not intend for Section
9756(b)’s minimum-sentence provision to apply to mandatory life sentences for second-
degree murder.
The question becomes, then, whether there is any other basis on which to
conclude that a minimum parole date can or should attach to such a sentence. In this
regard, Appellant emphasizes that Section 9756(c) contains a list of categories of
sentences for which parole is prohibited, and the list does not include life sentences for
second-degree murder. At the time of Appellant’s sentencing, the statute provided:
(c) Prohibition of parole.—Except in the case of murder of the first
degree, the court may impose a sentence to imprisonment without the
right to parole only when:
(1) a summary offense is charged;
[J-56-2019] - 8
(2) sentence is imposed for nonpayment of fines or costs, or
both, in which case the sentence shall specify the number of
days to be served; and
(3) the maximum term or terms of imprisonment imposed on
one or more indictments to run consecutively or concurrently
total less than 30 days.
42 Pa.C.S. §9756(c) (1974). Since these were stated to be the “only” times when
parole was precluded, Appellant contends that his life sentence should be viewed as a
maximum in relation to which a minimum sentence of confinement should have been
imposed. See, e.g., Reply Brief for Appellant at 4.
This language is admittedly somewhat confounding, as it does seem to imply
that, in every other instance besides the four categories mentioned, i.e., first-degree
murder plus the three enumerated categories, a sentencing court may not impose a
sentence which omits a parole-eligibility date. At the same time, however, and as
developed above, the sole statutory directive for courts in imposing a minimum term of
total confinement does not apply to mandatory life sentences. Consequently, courts
sentencing defendants to a mandatory term of life imprisonment were, at the time
Appellant was sentenced, unable to specify a parole-availability date in accordance with
law, and unable to omit one in accordance with law.4
Facing this challenge, the Commonwealth Court in Castle reasoned that Section
9765 of the Sentencing Code
does not have as its stated purpose the creation of eligibility for parole nor
does it refer to the power of the Board to parole, but states only what a
trial court may or may not do when imposing a sentence in certain
instances. Section 21, 61 P.S. § 331.21 [repealed and replaced by
4 The provision as quoted above was in effect at the time Appellant was sentenced in
1979. See generally Castle, 123 Pa. Cmwlth. at 574 n.3, 554 A.2d at 627 n.3
(summarizing its history). The prefatory text has since been amended. See Act of June
22, 2000, P.L. 345, No. 41, §4.
[J-56-2019] - 9
Section 6137], specifically prohibits the Board from paroling a prisoner
condemned to death or life imprisonment. In addition, section 21 prohibits
the Board from paroling any prisoner before the expiration of the minimum
term of a sentence. . . . We hold that section 9756(c) does not
affirmatively create a right to apply for parole enforceable before the Board
in this case.
Castle, 123 Pa. Cmwlth. at 577, 554 A.2d 628-29; accord Commonwealth v. Lewis, 718
A.2d 1262, 1265 (Pa. Super. 1998); cf. Commonwealth v. Yount, 419 Pa. Super. 613,
623, 615 A.2d 1316, 1320-21 (1992) (applying similar reasoning with regard to a life
sentence imposed for first-degree murder).
We agree with the fundamental premise of the above passage to the extent it
articulates that Section 9765 was never intended specifically to create a personal right
to be reviewed for parole. Rather, it was meant to direct common pleas courts in
discharging their sentencing obligations. The common pleas court which sentenced
Appellant evidently settled on the concept that, in view of the mandatory nature of the
life sentence associated with his offense, it was required to sentence Appellant to life
without parole. Since Appellant lacks any legal right to parole eligibility, there is no
warrant for a reviewing court to alter his sentence.
Relatedly, it is important to recognize that the Board is an administrative agency
of the Commonwealth. See Bronson v. PBPP, 491 Pa. 549, 556, 421 A.2d 1021, 1024
(1980). Thus, it “can only exercise those powers which have been conferred upon it by
the Legislature in clear and unmistakable language.” Aetna Cas. & Sur. Co. v. Ins.
Dep’t, 536 Pa. 105, 118, 638 A.2d 194, 200 (1994) (quoting Human Relations Comm’n
v. Transit Cas. Ins. Co., 478 Pa. 430, 438, 387 A.2d 58, 62 (1978)). See Young v.
PBPP, 189 A.3d 16, 22 (Pa. Cmwlth. 2018) (explaining the Board “is not a free agent;
rather, it operates within the confines of its statutory authorization and mandate”).
There is no statutory authorization for the Board to grant parole to an individual
sentenced to a mandatory life term. See Commonwealth v. Brenizer, 477 Pa. 534, 539-
[J-56-2019] - 10
40, 384 A.2d 1218, 1221 (1978). Indeed, to the contrary, the Board may “release on
parole any inmate to whom the power to parole is granted to the board by this chapter,
except an inmate condemned to death or serving life imprisonment.” 61 Pa.C.S.
§6137(a)(1) (emphasis added).
We therefore conclude that the Board lacks the power to release on parole an
inmate servicing a mandatory life sentence for second-degree murder.5 That being the
case, the Commonwealth Court correctly sustained the Board’s demurrer and dismissed
the petition for review.
Accordingly, the order of the Commonwealth Court is affirmed.
Justices Baer, Todd, Dougherty and Mundy join the opinion.
Justice Wecht files a concurring opinion in which Justice Donohue joins.
5 To the extent Appellant presently seeks to raise claims based on due process and
equal protection, see Brief for Appellant at 22, those claims are waived as they were not
raised before the Commonwealth Court. See Pa.R.A.P. 302(a).
[J-56-2019] - 11