J-S71037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MALIK HOWIE                                :
                                               :
                       Appellant               :   No. 2502 EDA 2017

             Appeal from the Judgment of Sentence June 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004087-2012


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 27, 2020

        Malik Howie appeals from the judgment of sentence entered following

his jury trial conviction for second-degree murder, robbery, conspiracy to

commit robbery, and possessing instruments of crime.1 Howie challenges the

constitutionality of his sentence of life imprisonment without the possibility of

parole. We affirm.

        A jury convicted Howie of the above-referenced offenses for the

shooting death of Ronald Coleman, which occurred during the course of a

robbery. The trial court imposed the mandatory sentence of life imprisonment

without the possibility of parole for the second-degree murder conviction,

found the robbery conviction merged with the murder conviction for




____________________________________________


1   18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903, and 907(A), respectively.
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sentencing purposes, and imposed concurrent terms of imprisonment for the

remaining convictions.

         Howie’s trial counsel filed a Notice of Appeal. The court permitted

counsel to withdraw and appointed new counsel, who filed a statement

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), asserting a

prosecutorial misconduct claim and claims challenging the sufficiency and

weight of the evidence. Howie filed a petition in this Court requesting the

removal of counsel and appointment of new counsel. We remanded the matter

to the trial court. After a Grazier2 hearing, the trial court granted appellate

counsel leave to withdraw and appointed new counsel, who filed the appellate

brief.

         In his appellate brief, Howie raises a single issue: “Is a ‘life without

parole’ sentence for second-degree murder disproportional to Pennsylvania’s

sentencing scheme for homicide offenses and thus ‘cruel and unusual

punishment’ under the Pennsylvania State and Federal Constitutions?”

Howie’s Br. at 7.

         Howie did not raise this issue—the constitutionality of his life without

parole sentence—in his 1925(b) statement. However, because it challenges

the legality of his sentence, it is not waivable, and we must address the issue

on appeal. Commonwealth v. Middleton, 467 A.2d 841, 845-46, 846 n.5

(Pa.Super. 1983) (concluding claim that imposition of life without parole

____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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sentence for felony-murder was cruel and unusual punishment was challenge

to legality of sentence); Commonwealth v. Foster, 17 A.3d 332, 345 (Pa.

2011) (noting challenge to legality of sentence is nonwaivable).

       Howie argues the mandatory punishment for second-degree murder—

life   imprisonment    without   the    possibility   of   parole—“is   relatively

disproportionate to those offenses that come before or after it and

distinguishable for the mens rea it requires.” Howie’s Br. at 12. He notes that

second-degree murder does not require a specific intent to kill, but may result

in imposition of the same sentence as first-degree murder, which does require

such an intent. He argues that all offenders are different and it is “illogical to

subject every criminal to the same punishment, even if the crimes that were

committed were the same.” Id. at 15. He argues the prohibition against cruel

and unusual punishment is “meant to prohibit excessive punishments as well

as barbaric ones,” and claims that “[b]y refocusing its proportionality

jurisprudence to the category of offenses within it falls, the Court could use

the Cruel and Unusual Punishments Clause to affirm that a [life without parole]

sentence for an offender who possessed no specific intent to kill is

disproportionate and unjust.” Id. at 17. Howie claims that, because he lacked

the specific intent to kill, “the more appropriate punishment would be one that

leaves open the possibility of parole.” Id. at 18. He thus concludes that the

mandatory life-without-parole sentence for second-degree murder is not

proportional to the crime.




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      We apply a de novo standard of review to challenges to the legality of a

sentence. Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa.Super. 2019),

appeal denied 218 A.3d 1199 (Pa. 2019). The Eighth Amendment of 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. Likewise, the Pennsylvania Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel

punishments inflicted.” Pa.Const.Art. 1, § 13. “[T]he guarantee against cruel

and unusual punishment contained in the Pennsylvania Constitution, Article 1,

Section 13, provides no broader protections against cruel and unusual

punishment than those extended under the Eighth Amendment to the United

States Constitution.” Commonwealth v. Thompson, 106 A.3d 742, 763

(Pa.Super. 2014) (citation omitted).

      Howie fails to address–let alone distinguish–our cases that have rejected

his arguments. In Commonwealth v. Middleton, 467 A.2d at 846-47, this

Court concluded that imposition of a life without parole sentence following a

conviction for second-degree murder did not violate the Eighth Amendment of

the United States Constitution. We noted that the statute, “being a legislative

determination,   carries   a   strong   presumption    of   validity,   and   of

constitutionality.” Id. at 846 (citing Snider v. Thornburgh, 436 A.2d 593

(Pa. 1981)). We pointed out that “[t]he offense of felony-murder is

undoubtedly one of the gravest and most serious which can be committed.”

Id. at 847. The Court compared the sentences available for crimes in

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Pennsylvania, noting that the death penalty may be imposed only on those

convicted of first-degree murder, subject to the provisions found in 42

Pa.C.S.A. § 9701, et seq., and that only those convicted of first- and second-

degree murder can receive a sentence of life imprisonment without the

possibility of parole. Id. We stated that “[i]t is clear that the legislature

contemplated that the seriousness of second degree murder—that is, murder

in the course of a first degree felony—should be matched by an equally severe

penalty.” Id. The Court further compared the sentence to those imposed for

the same crime in other jurisdictions, and concluded that “a sentence of life

imprisonment for felony-murder comports with the range of sentences found

proper in other jurisdictions.” Id. (citing Enmund v. Florida, 458 U.S. 782

(1982)).

      More recently, in Commonwealth v. Henkel, 938 A.2d 433, 446

(Pa.Super. 2007), the appellants challenged the imposition of a life sentence

as unconstitutional “cruel and unusual punishment” under the United States

and Pennsylvania constitutions. We concluded that we had previously

dismissed an identical challenge in Middleton, and the appellants “g[a]ve us

no reason to revisit this precedent aside from a bald allegation that their

sentences ‘seem to constitute cruel and unusual punishment’ and are

‘arguably disproportionate.’” Id. (emphasis in original).

      We are similarly bound by Middleton. We thus conclude that Howie’s

sentence of life imprisonment without the possibility of parole does not violate

the constitutional prohibitions on cruel and unusual punishment.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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