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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                       -2-
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)


                                           -3-
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)




                                            -4-
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).



                                           -5-
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?

                                    -6-
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.



                                           -7-
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.



                                           -8-
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

                                    -9-
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)


                                          - 10 -
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.



                                           - 11 -
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.


                                    - 12 -
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-

                                    - 13 -
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


                                        - 14 -
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




                                     - 15 -
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[,

                                    - 16 -
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)


                                          - 17 -
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.



                                           - 18 -
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


                                    - 19 -
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).


                                     - 20 -
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


                                    - 21 -
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.



                                          - 23 -
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


                                     - 24 -
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

                                    - 26 -
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

                                   - 27 -
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

                                    - 28 -
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)


                                          - 30 -
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.



                                           - 31 -
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 -
