J-S41043-14



                                  2014 PA Super 273



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.

OPINION BY MUNDY, J.:                             FILED DECEMBER 10, 2014

       Appellant, Maurquis Thompson, appeals from the June 21, 2013

judgment of sentence of life imprisonment plus 36 to 72 months’

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

____________________________________________
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 judgment of sentence and remand for the limited purpose of correcting

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
            crossing the street [on foot] in front of his vehicle’s
            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
            watched as the boys were hit by [Appellant’s]
            vehicle.    David Macintosh was seated in the
            passenger seat of Ms. Hochstuhl’s vehicle and exited
            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.


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J-S41043-14


                    Within minutes of the accident, officers located
              an unoccupied Chevy Lumina on Chester Pike near
              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) – 20 to 40 years’ imprisonment; Count 2


____________________________________________
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,
2013; and the Notes of Testimony. “Although the trial court docket is part
of the official record, when it is at variance with the certified record it
references, the certified record controls.” See Shelly Enters., Inc. v.
(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

months’ imprisonment to run concurrent with Count 2; Count 4 (homicide by

vehicle while DUI) – 42 to 84 months’ imprisonment to run consecutive to

Count 3; Count 5 (homicide by vehicle) – 18 to 36 months’ imprisonment to

run consecutive to Count 2; Count 6 (homicide by vehicle) – 18 to 36

months’ imprisonment to run consecutive to Count 2; Count 7 (fleeing or

attempting to elude) – 6 to 12 months’ imprisonment to run concurrent with

Count 2; Count 8 (accidents involving death) – 12 to 24 months’

imprisonment to run concurrent with Count 2; Count 9 (accidents involving

death) – 12 to 24 months’ imprisonment to run concurrent with Count 2;

Count 10 (accidents involving death when not properly licensed) – 12 to 24

months’ imprisonment to run concurrent with Count 2; Count 11 (accidents

involving   death      when     not   properly    licensed)   –   12   to   24   months’

imprisonment to run concurrent with Count 2; and Count 14 (possession of

marijuana) – 15 to 30 days’ imprisonment to run concurrent with Count 2.3



                       _______________________
(Footnote Continued)

Guadagnini, 20 A.3d 491, 495 (Pa. Super. 2011) (citation omitted).
Accordingly, we conclude Appellant’s sentence was imposed on June 21,
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)
for sentencing purposes. Trial Court Sentencing Order, 6/22/13, at 2.



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Accordingly, Appellant’s aggregate sentence is life imprisonment plus 36 to

72 months’ imprisonment.

       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]
                     Commonwealth’s rationale for striking [an]
                     African-American juror, was [a] mere pretext,
                     not [a] legitimate race[-]neutral explanation,
                     thereby prejudicing Appellant’s right to a fair
                     trial?

              2.     Whether [the] trial court abused its discretion
                     in denying Appellant’s motion for mistrial,
                     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
____________________________________________
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 Appellant’s Rule
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-
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                 law prohibition against references to criminal
                 defendants involvement in other crimes?

          [3.]   Whether the trial court abused its discretion in
                 admitting [] Appellant’s text messages on the
                 day of the incident, where the Commonwealth
                 did not disclose or turn over the evidence prior
                 to trial, thereby prejudicing Appellant’s right to
                 a fair trial?

          [4.]   Whether there was insufficient evidence to
                 support Appellant’s convictions for two counts
                 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
                 42 Pa.C.S.A. [§] 9715, for Appellant’s [second]
                 conviction for Third Degree Murder, arising
                 from a single fatal automobile accident,
                 involving two [victims], is an illegal sentence,

                                    -6-
J-S41043-14


                     where the General Assembly clearly did not
                     inten[d] such an absurd and unreasonable
                     disposition?

              [7.]   Whether the term of Life [Imprisonment]
                     imposed by the trial court, pursuant to the
                     Mandatory Life Imprisonment Provision, under
                     42 Pa.C.S.A. [§] 9715, for Appellant’s second
                     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.
                     [§] 9721(b), where the court’s decision to
                     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
                     Appellant’s rehabilitative needs?

Appellant’s Brief at 10-12.5

       Initially, Appellant maintains the trial court abused its discretion when

it denied his Batson6 challenge during voir dire. Id. at 26-33. Specifically,




____________________________________________
5
   For ease of our disposition, we have elected to renumber Appellant’s
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-
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Appellant, who is African American7, objected to the Commonwealth’s use of

a peremptory challenge to exclude an African American woman from the

jury, i.e., Juror 82.8 N.T., 4/5/13, at 231-234.

       We review a trial court’s denial of a Batson claim for clear error.

Commonwealth v. Cook, 952 A.2d 594, 603 (Pa. 2008) (stating that the

trial court’s decision on the ultimate question of discriminatory intent

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.

                     Generally, in order … to satisfy the first
____________________________________________
7
 See Criminal Complaint, 12/10/11.
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


            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]
            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

776, 783 (Pa. Super. 2008) (stating, “the striking of a number of individuals

belonging to some cognizable minority group… is not dispositive that a

violation of Batson has occurred[]”), appeal denied, 958 A.2d 1047 (Pa.

2008). Rather, our Supreme Court has continually recognized that a moving

party must preserve a “full and complete record of the asserted [Batson]

violation, as it would otherwise be impossible to conduct meaningful

appellate review of the motivations of prosecutors in individual cases

[without such a record.]” Commonwealth v. Fletcher, 861 A.2d 898, 909

(Pa. 2004) (citation omitted), cert. denied, Fletcher v. Pennsylvania, 547

U.S. 1041 (2006). “This full and complete record requirement necessitates

that the movant make a record identifying the race of venirepersons stricken

by the Commonwealth, the race of prospective jurors acceptable to the


                                    -9-
J-S41043-14


Commonwealth but stricken by the defense, and the racial composition of

the final jury.” Id. at 910 (citation, footnote, and internal quotation marks

omitted). When a movant fails to make such a record, we cannot review the

trial court’s determination that a movant failed to establish a 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



____________________________________________
9
  The following exchange occurred when Appellant asserted his Batson
challenge.

              THE COURT:       … are there any other African-
              Americans on the panel?

              [PROSECUTOR]: Quite frankly, Your Honor, I don’t
              know. It’s…

              [DEFENSE COUNSEL]: He didn’t strike no [sic] other
              African-Americans that I know of.

N.T., 4/5/13, at 233.




                                          - 10 -
J-S41043-14


cannot address this claim. See Fletcher, supra; Holloway, supra. Thus,

Appellant is entitled to no relief on his Batson claim.10

       Appellant next asserts the trial court abused its discretion when it

denied his motion for mistrial following the testimony of Detective Lythgoe

that implied Appellant was incarcerated prior to trial. Appellant’s Brief at 34-

46.   Appellant avers Detective Lythgoe’s reference to the George W. Hill

Correctional Facility in Delaware County “raised the spectre of [Appellant’s]

involvement in another criminal activity[ and subsequent incarceration].”

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
____________________________________________
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
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
reasoning, the trial court denied Appellant’s Batson challenge, concluding
that the Commonwealth provided a “legitimate non[-]racial reason for
striking [the] juror.” N.T., 4/5/13, at 234; Trial Court Opinion, 2/28/14, at
23-24.      The trial court concluded Appellant did not establish the
Commonwealth’s “purposeful discrimination” when striking Juror 82. See
Trial Court Opinion, 2/28/14, at 24 n.7. We conclude this finding is not
clearly erroneous. See Cook, supra.



                                          - 11 -
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            allowing a new trial to convene, declaration of a
            mistrial serves not only the defendant’s interests
            but, equally important, the public’s interest in fair
            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
            defendant of a fair and impartial trial. In making its
            determination, the court must discern whether
            misconduct or prejudicial error actually occurred, and
            if so, … assess the degree of any resulting prejudice.
            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), 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 1194-1195 (citations and quotation marks omitted). “If

evidence of prior criminal activity is inadvertently presented to the jury, the

trial court may cure the improper prejudice with an appropriate cautionary

instruction to the jury.” Commonwealth v. Hudson, 955 A.2d 1031, 1034

                                    - 12 -
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(Pa. Super. 2008), appeal denied, 964 A.2d 1 (Pa. 2009). It is imperative

for the trial court’s instruction to be “clear and specific, and must instruct

the jury to disregard the improper evidence.” Id.

      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. The portion of Detective Lythgoe’s testimony at issue

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

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J-S41043-14


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, 512-513 (1976) (concluding, “the State

cannot… compel an accused to stand trial before a jury while dressed in

identifiable prison clothes”); Commonwealth v. Johnson, 838 A.2d 663,

681 (Pa. 2002) (concluding, “the reference to Johnson’s incarcerated status

was passing, and not the type of ‘constant reminder’ proscribed by

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

discretion when denying Appellant’s mistrial request.      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-tongue. Appellant’s Brief at 43, 45. As the

record does not definitively illustrate that Appellant incurred prejudice from

Detective Lythgoe’s comment, Appellant’s second claim fails. See Padilla,

supra.


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      Appellant’s   third   claim    pertains    to   the   admission   of   evidence.

Appellant’s Brief at 70-73.         Appellant asserts the trial court abused its

discretion when it admitted a text message procured from his cell phone

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.

      In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference. Commonwealth v. Selenski, 18

A.3d 1229, 1232 (Pa. Super. 2011). Questions concerning the admissibility

of evidence are within “the sound discretion of the trial court, and its

discretion will not be reversed absent a clear abuse of discretion.”               Id.

(citation omitted).    “An abuse of discretion is not merely an error of

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-will or partiality, as shown by the evidence of record.”

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (internal

citations and quotation marks omitted), appeal denied, 928 A.2d 1289 (Pa.

2007).   Furthermore, “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

appellate court to correct the error.”       Commonwealth v. Weakley, 972

A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal denied, 986

A.2d 150 (Pa. 2009).




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      Pennsylvania Rule of Criminal Procedure 573 outlines pretrial discovery

procedures and provides, in pertinent part, as follows.

            Rule 573. Pretrial Discovery and Inspection

                                      …

            (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
            defendant’s attorney all of the following requested
            items or information, provided they are material to
            the instant case. The Commonwealth shall, when
            applicable, permit the defendant’s attorney to
            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.

Pa.R.Crim.P. 573(B)(1).      “On the issue of whether or not disclosure

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

matters of credibility.”   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.,




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4/10/13, at 12-42. At the beginning of this expert’s testimony, the following

discussion occurred at side bar.

            [DEFENSE COUNSEL]: Your          Honor,   I   have   not
            received these documents…

            [PROSECUTOR]: These         documents     were     all
            contained on the same disks that were provided and
            put on the record yesterday by [Attorney] Williams[,
            Appellant’s prior counsel]. They were all part of the
            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

without merit because “[Appellant] did not object to any evidence regarding

the content of text messages recovered from Appellant’s phone on the basis

that they had not been turned over by the Commonwealth prior to trial.”

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 the court’s conclusion that this issue lacks merit. See In re T.P.,

78 A.3d 1166, 1170 (Pa. Super. 2013) (providing, “it is a well-settled

doctrine in this Commonwealth that a trial court can be affirmed on any valid

basis appearing of record[]”), appeal denied, 93 A.3d 463 (Pa. 2014).

During trial, Appellant did not contest the Commonwealth’s assertion that it

                                    - 17 -
J-S41043-14


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

that “[a] party may not remain silent and afterwards complain of matters

which, if erroneous, the court would have corrected.”         Commonwealth v.

Strunk, 953 A.2d 577, 579 (Pa. Super. 2008).            Accordingly, we refuse to

substitute our judgment for 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-degree murder convictions.          Appellant’s Brief at 50-55.     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.
____________________________________________
11
   At that point in the trial, Attorney Williams, Appellant’s prior counsel, had
told the trial court that the Commonwealth provided him with compact disks
(CDs) during discovery. N.T., 4/9/13, at 92-96. Following this assertion,
Appellant’s trial counsel stated to the trial court that Attorney Williams
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


1999).   Appellant asserts his actions constituted gross negligence, not

maliciousness. Id., citing Commonwealth v. Matroni, 923 A.2d 444 (Pa.

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
           defendant’s guilt may be resolved by the fact-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).




                                   - 19 -
J-S41043-14


      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

(Pa. 1990); see also, e.g., Commonwealth v. Dunphy, 20 A.3d 1215,

1219 (Pa. Super. 2011); Commonwealth v. Levin, 816 A.2d 1151, 1153

(Pa. Super. 2003), appeal denied, 839 A.2d 351 (Pa. 2003). Pursuant to the

Pennsylvania Crimes Code, “[a] person is guilty of criminal homicide if he

intentionally, knowingly, recklessly or negligently causes the death of

another human being.”     18 Pa.C.S.A. § 2501(a).     “Criminal homicide [is]

classified as murder, voluntary manslaughter, or involuntary manslaughter.”

Id. § 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. § 2502.   Accordingly, “[t]hird[-]degree murder occurs when a person

commits a killing which is neither intentional nor committed during the


                                    - 20 -
J-S41043-14


perpetration   of   a      felony,   but   contains   the   requisite   malice.”

Commonwealth v. Truong, 36 A.3d 592, 597 (Pa. Super. 2012) (en banc)

(citation omitted), appeal denied, 57 A.3d 70 (Pa. 2012).

            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 597-598. “[F]leeing the scene may be considered

in determining if an individual acted with malice.” Dunphy, supra at 1220

n.3 (citations omitted).

      Herein, the trial court opines that the Commonwealth presented

sufficient evidence to support Appellant’s third-degree murder convictions.

Trial Court Opinion, 2/28/14, at 13.       Specifically, the trial court reasons,

“[t]he evidence at trial clearly established that Appellant 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 – might cause death or serious bodily injury.” Id.

      Viewing the evidence adduced at trial in the light most favorable to the

Commonwealth, as the verdict winner, we conclude there was sufficient


                                      - 21 -
J-S41043-14


evidence to enable the trial court to sustain Appellant’s convictions for third-

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

under the influence of marijuana, in an attempt to flee from Officer Fiocca’s

pursuit.   Trial Court Opinion, 2/28/14, at 8-11; N.T., 4/11/13, at 192.

Appellant fled Officer Fiocca’s initial traffic stop at a high rate of speed and

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

impeded Appellant’s sight or precluded him from stopping after the accident.

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 (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 hour zone); driver’s awareness of pedestrians in the

area; driver’s admission that he speeded up to make the light although he


                                     - 22 -
J-S41043-14


saw pedestrians in front of him; distance victim’s body was propelled;

absence of any physical or climate condition that would contribute to the

accident or the driver’s failure to stop immediately after; and the driver’s

flight after hitting the victim); 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 him

to “black[] out[;]” and then driving down a busy residential street in the 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-degree murder convictions.           Appellant’s Brief at 46-49; Appellant’s

Post-Sentence Motion, 7/1/13, at 4.12 Within Appellant’s brief, he essentially

reiterates his sufficiency argument, asserting “[he] did not consciously

disregard an unjustified and extremely high risk, where he never saw the

[victims] at any time immediately preceding, during, or immediately
____________________________________________
12
  Appellant’s motion does not contain pagination. We have assigned each
page a sequential page number for ease of reference.



                                          - 23 -
J-S41043-14


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

fatefully drove his vehicle into the intersection.”     Appellant’s Brief at 48.

Within his question presented, Appellant also alleges the medical examiners’

testimony contradicts the jury’s convictions. Id. at 46.

      This Court has long recognized that “[a] true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions which evidence is to be believed.”        Commonwealth v. Lewis,

911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted).         Where the trial

court has ruled on a weight claim, an appellate court’s role is not to consider

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).             Rather, “[our]

review is limited to whether the trial court palpably abused its discretion in

ruling on the weight claim.” 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)

(citations omitted) (stating, “[t]he weight of the evidence is exclusively for

the finder of fact who is free to believe all, part, or none of the evidence and

to determine the credibility of the witnesses[]”), cert. denied, Champney v.

Pennsylvania, 542 U.S. 939 (2004).            “[T]he evidence at trial need not


                                     - 24 -
J-S41043-14


preclude every possibility of innocence, and the fact-finder is free to resolve

any doubts regarding a defendant’s guilt 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.”       Commonwealth v. Emler, 903 A.2d

1273, 1276 (Pa. Super. 2006).

            A new trial should be awarded when the jury’s
            verdict is so contrary to the evidence as to shock
            one’s sense 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).

      The trial court found no merit to Appellant’s weight claim, stating as

follows.

                   It is clear the jury found the requisite malice
            for third[-]degree murder despite the doctors’
            testimony that the manner of death was, in their
            respective professional opinions, an accident.
            Respectfully, their verdict did not shock one’s sense
            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
            the jury in Appellant’s case.

Trial Court Opinion, 2/28/14, at 5-7.

      In   finding   Appellant   guilty,   the   jury   clearly   believed   the

Commonwealth’s evidence offered to establish Appellant’s mens rea. Upon

our review of the medical examiners’ testimony, these experts testified that

                                     - 25 -
J-S41043-14


they deemed the victims’ deaths as accidents from solely a medical-

community prospective. N.T., 4/11/13, at 51, 55-56, 190-191. It was for

the jury to decide whether these deaths were caused by Appellant’s

“conscious[] disregard[ of] an unjustified and extremely high risk that his

actions might cause serious bodily injury[,]” for third-degree murder.

Dunphy, supra.      Because the evidence regarding Appellant’s malice was

not “tenuous, vague and uncertain[,]” the trial court did not abuse its

discretion in denying Appellant’s post-sentence motion for a new trial. See

Ross, supra. Thus, Appellant’s weight claim is without merit.

      Appellant’s remaining three issues challenge the sentence imposed by

the trial court.   See Appellant’s Brief at 11-12.    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
            public or meeting Appellant’s rehabilitative needs,
            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).

                                    - 26 -
J-S41043-14


      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
            evaluating a trial court’s application of a statute, our
            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. Super. 2008) (en

banc) (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.

Trial Court Sentencing Order, 6/22/13, at 1.         Section 9715 states, in

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.




                                     - 27 -
J-S41043-14


           (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
           Commonwealth’s intention to proceed under this
           section shall be provided after conviction and before
           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).

     This Court has previously been called upon to interpret Section 9715.

In Commonwealth v. Smith, 710 A.2d 1179 (Pa. Super. 1998), the

defendant was convicted of two counts of third-degree murder, among other

charges, arising from a single incident. Id. at 1180. This Court held that,

because Smith was found guilty by the jury for two counts of third-degree

murder at the same time, “it strain[ed] the plain meaning of the statute to

interpret ‘previously convicted’ to encompass this situation.”   Id. at 1181.

                                   - 28 -
J-S41043-14


We compared Section 9715 to the death penalty statute, noting that the text

in the death penalty statute included the phrase “the defendant has been

convicted of another [offense] committed either before or at the time of

the offense at issue.”   Id. (emphasis in original), quoting 42 Pa.C.S.A.

§§ 9711(d)(10), 9711(d)(11), 9711(d)(12). Based on these considerations,

the Smith Court concluded the trial court did not err in refusing to apply

Section 9715.

       Subsequently, in Morris, we were confronted with an issue similar to

that presented by Appellant, to wit, “whether the trial court may sentence a

criminal defendant to life in prison under [S]ection 9715 where the two

murders were tried and sentenced together under a multiple-count criminal

complaint.” Morris, supra at 578. Following our review of the “explicitly

and unambiguously written[]” statute, we opined that the phrase “‘[a]t any

time’ … clearly means that the order of commission, or conviction, of the

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 another charge of murder or voluntary manslaughter.” Id. at

579.   We further reasoned that the legislature would have included that

language within the statute if it intended for the defendant’s previous

conviction to antedate the commission of the second offense.     Id. at 580.

The Morris Court explicitly overruled Smith, concluding Smith was wrongly




                                   - 29 -
J-S41043-14


decided because the Smith panel had “essentially read new requirements

into the statutory language.” Id. at 581.

              Section 9715 specifically focuses upon whether, at
              the time of sentencing, a defendant has been
              previously convicted “at any time.” The statute does
              not state that the two murders must be tried and
              sentenced separately. Indeed, the plain language of
              the statute requires that the trial court determine
              whether a previous conviction exists at the time of
              sentencing, without giving consideration to when the
              conviction occurred. Further, the statute does not
              make any distinction between convictions that arise
              from a single criminal episode and multiple criminal
              episodes.    We are bound by the unambiguous
              language of this statute and we cannot insert
              additional requirements that the legislature has not
              included. Accordingly, because the Smith Court’s
              decision read requirements into the statute that
              plainly do not appear, we conclude that its reasoning
              is flawed and that the decision must be overruled.

Id. Thus, the Morris Court concluded “the trial court did 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 murder.” 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-

degree murder. Trial Court Sentencing Order, 6/22/13, at 1.13 At the time


____________________________________________
13
  The trial court’s sentencing order does not contain pagination. We have
assigned each page a sequential page number for ease of reference.



                                          - 30 -
J-S41043-14


of Appellant’s sentencing, 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 20-40 years’ incarceration on Appellant’s first third-degree

murder conviction. Trial Court Sentencing Order, 6/22/13, 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

that the sentence of life imprisonment “shall be” imposed for a second third-

degree murder conviction, the trial court is divested of any discretion in

fashioning Appellant’s sentence.   See Commonwealth v. Gonzales, 609

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

error of law when sentencing Appellant to life imprisonment, and Appellant’s

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

13 of the Pennsylvania Constitution. Appellant’s Brief at 61-64. 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.




                                    - 31 -
J-S41043-14


       While we have addressed the constitutionality of other statutes that

prescribe    mandatory       minimum       sentences,   pursuant   to   the   Eighth

Amendment and Article 1, Section 13, Appellant’s challenge to Section 9715

is an issue of first impression.14 See Commonwealth v. Elia, 83 A.3d 254

(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
____________________________________________
14
    The Commonwealth’s assertion that we recently addressed the
constitutionality of Section 9715 against Eighth Amendment and Article 1,
Section 13 challenges is mistaken. Commonwealth’s Brief at 46, 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.
Lawson, supra at 3. As Lawson’s underlying sentence became final on or
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
his petition based upon the Supreme Court of the United States’ decision in
Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012) (holding “mandatory life-
without-parole sentences for juveniles violate the Eighth Amendment[]”).
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’s claim, we concluded that we lacked jurisdiction over his petition.
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
under the PCRA). Accordingly, we affirmed the PCRA court’s dismissal of
Lawson’s petition and did not reach the merits of his constitutional claim.
Lawson, supra at 8.



                                          - 32 -
J-S41043-14


---, 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.

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

constitutionality.” Id. (citation omitted). “A presumption exists ‘[t]hat the

General Assembly does not intend to violate the Constitution of the United

States or of this Commonwealth’ when promulgating legislation.”             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 that doubt in favor of the statute’s
            constitutionality.

                                         - 33 -
J-S41043-14



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

quotation marks and citations omitted).

      Herein, Appellant contests the constitutionality of Section 9715 as to

both the federal and state constitutions.     Appellant’s Brief at 61-64.       It is

well-settled that “the 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.”

Spells, supra at 461; accord Commonwealth v. Zettlemoyer, 454 A.2d

937, 967 (Pa. 1982), cert. denied, Zettlemoyer v. Pennsylvania, 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.

      The Eighth Amendment to the Federal Constitution states, “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.”     U.S. Const. amend. viii.           The Eighth

Amendment is unique in constitutional jurisprudence because it “draw[s] its

meaning from the evolving standards of decency that mark the progress of a

maturing society.”   Trop v. Dulles, 356 U.S. 86, 101 (1956) (plurality).

“[T]he Eighth Amendment’s protection against excessive or cruel and

unusual   punishments    flows   from   the   basic   ‘precept   of   justice   that

punishment for [a] crime should be graduated and proportioned to [the]

                                    - 34 -
J-S41043-14


offense.’”   Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), quoting

Weems v. United States, 217 U.S. 349, 367 (1910). “By protecting even

those convicted of heinous crimes, the Eighth Amendment reaffirms the duty

of the government to respect the dignity of all persons.”      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.

Appellant’s Brief at 61-64.    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]
             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, Appellant’s brief fails to

invoke any argument or suggestion that Section 9715 is “unconstitutional in

all of its applications” or that the statute fails the “plainly legitimate sweep”

test.     Appellant’s brief only contains arguments that the statute is

unconstitutional in its application to the circumstances present in Appellant’s

case. See Barnett, supra at 197-198. Accordingly, we conclude Appellant

                                     - 35 -
J-S41043-14


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.

       Within Appellant’s brief, he acknowledges “the Eighth Amendment

does not require strict proportionality between crime and sentence. Rather,

it forbids only extreme sentences which are grossly disproportionate to the

crime.” Appellant’s Brief at 62, 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

Amendment challenge.15 Appellant’s Brief at 61-62. Yet, Appellant asserts

his Section 9715 lifetime sentence is “grossly disproportionate to [his]

actionable conduct in mistakenly and accidentally running over the two

[victims]” because “[he] clearly did not act with the malice requisite for such

a conviction.” 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.
____________________________________________
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.



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     In Spells, an en banc panel of this Court adopted the proportionality

test courts should apply when examining a statute’s constitutionality under

the Eighth Amendment.        Spells, supra at 461-464.            Specifically, we

concluded the following criteria should govern such an analysis: “(i) the

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 of the same crime in other jurisdictions.”             Id. at

462, quoting Solem v. Helm, 463 U.S. 277, 292 (1983); accord Baker,

supra at 1047. Although no single factor is dispositive, the court’s findings

relative to the first factor may determine whether a particular sentence is

constitutional. Spells, supra at 463; accord Harmelin v. Michigan, 501

U.S. 957, 1005 (1991); Solem, supra at 291 n.17; Baker, supra.

Therefore,   courts should   initially   consider   if   “a   sentence   is   grossly

disproportionate to a crime.”    Spells, supra at 463, quoting Harmelin,

supra; accord Baker, supra at 1048. In other words, “[we] must examine

whether the punishment fits the crime.”       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.


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Appellant’s Brief at 63. We cannot agree. When considering the gravity of

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,

4/12/13, at 1. On the night of the incident, Appellant’s actions resulted in

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

Appellant’s actions.

      Likewise, we cannot conclude that the punishment imposed for these

offenses raises an inference of gross disproportionality.    When considering

the punishment for Appellant’s two third-degree murder convictions, we

remain cognizant of the fact “that the fixing of prison terms for specific

crimes involves a substantive penological judgment that, as a general

matter, is properly within the province of the legislatures, not courts.”

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

clearly expresses the legislature’s intent to subject such an offender to this


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sentence.   Id.; Morris, supra at 579 (describing Section 9715 as an

“explicitly and unambiguously written” statute). Here, the punishment is not

disproportionate   to   the   crime   merely    because   Appellant   alleges    he

“mistakenly” and “accidentally” killed two individuals.      Appellant’s Brief at

63.   As discussed supra, the Commonwealth established the proper mens

rea to support Appellant’s two third-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,

we conclude that Appellant’s mandatory sentence of life imprisonment for his

second conviction of third-degree murder is not so grossly disproportionate

that it requires further inquiry or analysis.    See Spells, supra. Thus, we

need not reach the second and third prongs of the test for proportionality

review under the Eighth Amendment.             See Baker, supra.       Therefore,

Appellant’s sentence does not offend the prohibition against cruel and

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

sentence.   Appellant’s Brief at 65-69.         Herein, the crux of Appellant’s

argument is that the trial court imposed a manifestly excessive sentence by

running some of his sentences consecutively rather than concurrently.

Appellant’s Brief at 65-66; Trial Court Sentencing Order, 6/22/13, at 1

(where the trial court ordered Appellant’s convictions as to Counts 4-6 to run


                                      - 39 -
J-S41043-14


consecutive to either Count 2 or 3).      Within the trial court’s Rule 1925(a)

opinion, it admits that it intended to run all of Appellant’s convictions

concurrent with his life sentence. Trial Court Opinion, 2/28/14, at 20; N.T.,

6/21/13, at 83 (where the trial court stated, “I’m making all of the

sentences concurrent to the life sentence[]”).      As a result, the trial court

requests the case be remanded to correct the sentence imposed. Trial Court

Opinion, 2/28/14, at 20.

      “[A] trial court has the inherent, common-law authority to correct

‘clear clerical errors’ in its orders.”   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

after the 30-day time limitation for the modification of orders expires. Id.,

citing 42 Pa.C.S.A. § 5505.      We have previously concluded that a “clear

clerical error” exists on the face of the record “when a trial court's intentions

are clearly and unambiguously declared during the sentencing hearing[.]”

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

correct patent errors arise in cases “involv[ing] clear errors in the imposition

of sentences that [are] incompatible with the record”). When this situation

arises, “the sentencing order [is] subject to later correction.” Borrin, supra

at 473.    Accordingly, “an oral sentence which is on the record, written

incorrectly by the clerk of courts, and then corrected by the trial judge, is []


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a clerical error.” Id. at 474, quoting Commonwealth v. Kubiac, 550 A.2d

219, 231 (Pa. Super. 1988), appeal denied, 563 A.2d 496 (Pa. 1989).

      In the case sub judice, the trial court clearly and unambiguously

declared during the sentencing hearing that “[it was] making all of the

sentences concurrent to the life sentence.”           N.T., 6/21/13, at 83.

Accordingly, the sentencing order is subject to correction by the trial court.

See Holmes, supra; Borrin, supra at 473; Kubiac, supra.

      Based upon the foregoing, we vacate Appellant’s June 21, 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

Appellant’s June 21, 2013 judgment of sentence in all other respects.

      Judgment of sentence vacated.           Case remanded for proceedings

consistent with this opinion. Jurisdiction relinquished.

      Judge Donohue joins the opinion.

      Judge Bowes files a concurring opinion in which Judge Donohue joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2014




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