Com. v. Lee, D.

• Court: Superior Court of Pennsylvania
• Decided: June 13, 2023
• Docket: 1008 WDA 2021
• Status: Unpublished

Opinion

J-A22010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEREK LEE : : Appellant : No. 1008 WDA 2021

Appeal from the Judgment of Sentence Entered December 19, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016878-2014

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: JUNE 13, 2023

Appellant, Derek Lee, appeals from the judgment of sentence entered

on December 19, 2016. We affirm.

The trial court ably summarized the underlying facts of this case:

On October 14, 2014, at approximately three o'clock in the afternoon, two men entered the residence shared by Leonard Butler, Tina Chapple, and their young son. While Chapple was upstairs, she was called to come down . . . to the living room by Butler. When she got to the living room, she observed two males with guns and partially covered faces. Both Butler and Chapple were forced into the basement of the home, and then were forced to kneel. Both males were yelling at Butler to give up his money and one used a taser on Butler several times during the attack. One of the men, referred to by Chapple in interviews with police as "the meaner one," pistol whipped Butler in the face before taking his watch and running up the stairs. The second male remained with the couple and when Butler began to struggle with him over the gun, a shot was fired killing Butler. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A22010-22

During the investigation, it was determined that a rental vehicle under [Appellant’s] name had been present outside of the home around the time of the shooting. Additionally, on October 29, 2014, Chapple was shown a photo array by police and positively identified [Appellant] as the male involved in the incident that was not the shooter.

Trial Court Opinion, 3/23/22, at 1-2.

Following trial, the jury found Appellant guilty of second-degree murder,

robbery, and conspiracy.1 On December 19, 2016, the trial court sentenced

Appellant to serve a mandatory term of life in prison without the possibility of

parole for his second-degree murder conviction2 and to serve a consecutive

term of ten to 20 years in prison for his criminal conspiracy conviction.3

Appellant did not file an immediate appeal to this Court.

On November 5, 2020, after proceedings under the Post Conviction

Relief Act (“PCRA”), the PCRA court reinstated Appellant’s post-sentence and

appellate rights. See PCRA Court Order, 11/5/20, at 1. Appellant’s

post-sentence motion was denied by operation of law on July 26, 2021 and

Appellant filed a timely notice of appeal on August 25, 2021. Appellant raises

the following claims to this Court:

____________________________________________

1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), and 903, respectively.

2 18 Pa.C.S.A. § 1102(b) provides a mandatory sentence of life imprisonment for second-degree murder. 61 Pa.C.S.A. § 6137(a)(1) then declares that offenders serving life imprisonment are ineligible for parole.

3 The trial court imposed no further penalty for Appellant’s robbery conviction.

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1. Is [Appellant’s] mandatory sentence of life imprisonment with no possibility of parole unconstitutional under the Eighth Amendment to the [United States] Constitution where he was convicted of second-degree murder in which he did not kill or intend to kill and therefore had categorically-diminished culpability under the Eighth Amendment?

2. Is [Appellant’s] mandatory sentence of life imprisonment with no possibility of parole unconstitutional under Article I, § 13 of the Constitution of Pennsylvania where he was convicted of second-degree murder in which he did not kill or intend to kill and therefore had categorically-diminished culpability and where Article I, § 13 should provide greater protections in these circumstances than the Eighth Amendment?

Appellant’s Brief at 2.

Both of Appellant’s claims challenge the legality of his sentence. “We

note that legality of sentence questions are not waivable and may be raised

sua sponte on direct review by this Court.” Commonwealth v. Wright, 276

A.3d 821, 827 (Pa. Super. 2022) (quotation marks, citations, and corrections

omitted). “Further, since Appellant's claim implicates the legality of his

sentence, the claim presents a pure question of law. As such, our scope of

review is plenary and our standard of review de novo.” Id. (quotation marks

and citations omitted).

First, Appellant claims that his mandatory sentence of life imprisonment

without the possibility of parole is unconstitutional under the Eighth

Amendment to the United States Constitution,4 as he was convicted of ____________________________________________

4 The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. viii.

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second-degree murder and did not kill or intend to kill anyone during the

commission of a robbery, the underlying predicate felony. Specifically,

Appellant argues, his sentence violates the Eighth Amendment because: he

did not kill or intend to kill anyone and, thus, he has diminished culpability; a

mandatory sentence of life imprisonment without the possibility of parole for

individuals who did not kill or intend to kill is unduly harsh in relation to

legitimate penological purposes; and, “Pennsylvania’s mandatory life-without-

parole sentencing scheme is objectively out of step with contemporary”

national and global standards. Appellant’s Brief at 22.

Appellant acknowledges our recent opinion in Commonwealth v.

Rivera, 238 A.3d 482 (Pa. Super. 2020), where this Court rejected the precise

claims that Appellant raises on appeal. See Rivera, 238 A.3d at 501-503

(rejecting the appellant’s claims that his sentence of life in prison without the

possibility of parole for second-degree murder “constitutes cruel and unusual

punishment because under the felony-murder rule, no regard is given to the

culpability or the mental state of a defendant who causes the death of another

person, and thus the rule dictates a punishment that is without proportionality

between the crime and has little legitimate deterrent or retributive rationale”)

(quotation marks, citations, and corrections omitted). However, Appellant

argues that Rivera was wrongly decided because:

this Court analyzed the proportionality of the sentence under Solem v. Helm, 463 U.S. 277 (1983), and relied on this Court’s prior decision in Commonwealth v. Middleton, 467 A.2d 841 (Pa. Super. 1983). Under this line of Eighth Amendment analysis, courts assess whether a punishment is

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grossly disproportionate to the offense and apply a different standard than that which was previously applied only in the death penalty context.

Appellant’s Brief at 14-15.

According to Appellant, Rivera’s analysis was incorrect because, in

Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460

(2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), the United

States Supreme Court “instruct[ed] that life-without-parole sentences are

sufficiently similar to the death penalty that they may be unconstitutional

when applied to people with categorically-diminished culpability based on their

offense or characteristics.” Appellant’s Brief at 15.

Appellant is entitled to no relief. At the outset, the Eighth Amendment

does not require uniformity in penological approaches across the States.

Hence, Pennsylvania’s mandatory scheme of punishment for second-degree

murder does not run afoul of the Constitution simply because it differs from

that of other States. Also, Appellant concedes there is no authority which

raises doubts about the constitutional validity of any specific feature of the

challenged scheme. See Appellant’s Brief at 14 (conceding that no precedent

holds that Eighth Amendment forbids a mandatory sentence of life without

parole for an adult second-degree murder defendant). Thus, Appellant cites

no decision which has ever concluded that an individual, charged with

homicide and who has attained the age of majority, may be viewed as having

categorically-diminished culpability for purposes of considering whether the

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Eighth Amendment proscribes the imposition of a life-without-parole

sentence.

Appellant questions the precedential value of our prior decision in

Rivera. However, this Court decided Rivera in 2020 – which is after

Graham, Miller, and Montgomery were decided. Thus, in the absence of

intervening precedent from a higher court, we are bound by Rivera,

regardless of whether Appellant believes Rivera was wrongly decided. See

Commonwealth v. Taggart, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010)

(“one three-judge panel of [the Superior] Court cannot overrule another”

three-judge panel); see also Rummel v. Estelle, 445 U.S. 263 (1980) (the

petitioner was convicted of three felony theft crimes and sentenced, under a

recidivist sentencing statute, to a mandatory term of life in prison; the United

States Supreme Court held that this punishment “does not constitute cruel

and unusual punishment under the Eighth and Fourteenth Amendments”);

Commonwealth v. Henkel, 938 A.2d 433, 446-447 (Pa. Super. 2007)

(rejecting the appellant’s claim that “imposition of a life sentence for second-

degree murder is ‘cruel and unusual punishment’ under both the United States

and Pennsylvania Constitutions”); Commonwealth v. Middleton, 467 A.2d

841 (Pa. Super. 1983) (rejecting the appellant’s claim that “the imposition of

a mandatory life sentence on one convicted of felony-murder constitutes cruel

and unusual punishment in derogation of the Eighth and Fourteenth

Amendments to the United States Constitution”); Commonwealth v.

Cornish, 370 A.2d 291, 293 and 293 n.4 (Pa. 1977) (rejecting the appellant’s

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challenge to the mandatory nature of his sentence of life imprisonment for

second-degree murder because “[i]t can hardly be said that the circumstances

wherein a murder is committed during the commission of a felony vary to such

an extent that the legislative determination to mandate one penalty is

unreasonable”); Commonwealth v. Howie, 229 A.3d 372 (Pa. Super. 2020)

(non-precedential decision), at *2 (rejecting the appellant’s claim that his

mandatory punishment of life in prison for second-degree murder constituted

cruel and unusual punishment);5 Commonwealth v. Michaels, 224 A.3d 798

(Pa. Super. 2019) (non-precedential decision), at **2-3 (rejecting the

appellant’s claim “that a mandatory sentence of life without the possibility of

parole violates the United States and Pennsylvania Constitutions’ proscription

against cruel and unusual punishment”).

We also note that Graham, Miller, and Montgomery were all

concerned with juveniles and, as the United States Supreme Court held,

“children are constitutionally different from adults for purposes of sentencing.”

Miller, 567 U.S. at 471. Appellant, on the other hand, was 26 years old at

the time he committed his crimes. Further, in Jones v. Mississippi, 141

S.Ct. 1307 (2021), the United States Supreme Court limited the holdings of

Miller and Montgomery. As the Pennsylvania Supreme Court summarized,

under Jones, “[a] life-without-parole sentence for a juvenile murderer is []

5 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019 may be cited for their persuasive value).

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constitutional, and hence no viable Miller claim exists, ‘so long as the

sentence is not mandatory — that is, [] so long as the sentencer has discretion

to consider the mitigating qualities of youth and impose a lesser punishment.’”

Commonwealth v. Felder, 269 A.3d 1232, 1243 (Pa. 2022), quoting Jones,

141 S.Ct. at 1314. However, as noted above, Appellant was not a juvenile at

the time he committed his crimes and, thus, the specific holdings of Miller,

Montgomery, and Jones do not apply to him. Appellant’s first claim on

appeal thus fails.

Next, Appellant claims that his mandatory sentence of life imprisonment

without the possibility of parole is unconstitutional under Article I, § 13 of the

Constitution of Pennsylvania.6 As Appellant argues:

the prohibition on “cruel punishments” under Article I, § 13 can and should be interpreted to afford broader protection than the Eighth Amendment’s prohibition on “cruel and unusual punishments.” This is especially so given the distinctive text and historical context in which Pennsylvania’s anti-cruelty provision was drafted, strongly anchoring this constitutional right in a conception of justice that understood that the outer limits of punishment must be demarcated by what was necessary to further rehabilitation and deterrence.

Appellant’s Brief at 52.

Again, Appellant’s claim on appeal fails because this Court has

specifically rejected the claim in a prior opinion. See Henkel, 938 A.2d at

6 Article I, Section 13 of the Pennsylvania Constitution declares: “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.” Pa.Const.Art. I, § 13.

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446-447 (rejecting the appellant’s claim that “imposition of a life sentence for

second-degree murder is ‘cruel and unusual punishment’ under both the

United States and Pennsylvania Constitutions”) (emphasis added). As noted

above, “one three-judge panel of [the Superior] Court cannot overrule

another” three-judge panel. Taggart, 997 A.2d at 1201 n.16. Thus, we are

bound by Henkel’s holding and Appellant’s claim on appeal immediately fails.

Further, as the Pennsylvania Supreme Court expressly held, “the rights

secured by the Pennsylvania prohibition against ‘cruel punishments’ are co-

extensive with those secured by the Eighth and Fourteenth Amendments.”

Commonwealth v. Zettlemoyer, 454 A.2d 937, 967 (Pa. 1982), overruled

on other grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003);

see also Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013)

(“Pennsylvania courts have repeatedly and unanimously held that the

Pennsylvania prohibition against cruel and unusual punishment is coextensive

with the Eighth and Fourteenth Amendments to the United States

Constitution, and that the Pennsylvania Constitution affords no broader

protection against excessive sentences than that provided by the Eighth

Amendment to the United States Constitution”) (quotation marks, citations,

and corrections omitted). Therefore, since Appellant’s Eighth Amendment

claim fails, Appellant’s Article I, Section 13 claim likewise fails. See

Zettlemoyer, 454 A.2d at 967; Elia, 83 A.3d at 267.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judge Colins joins this Memorandum.

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Judge Dubow files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/13/2023

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