J. S51041/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
MATTHEW BALDWIN,                          :         No. 2613 EDA 2017
                                          :
                          Appellant       :


                   Appeal from the PCRA Order, July 13, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0010832-2013


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 26, 2018

        Matthew Baldwin appeals pro se the order of October 30, 2017, issued

by the Court of Common Pleas of Philadelphia County that denied his petition

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

After careful review, we affirm.

        The factual history of this matter, as initially recounted by the trial

court during appellant’s direct appeal, is as follows:

              On September 10, 2012 at approximately 5:45 p.m.,
              Kharee Tillmon was with some friends at the Cecil B.
              Moore Recreation Center located at 22nd Street and
              Huntingdon Street.      [Appellant][1] entered the
              playground and began talking with Tillmon and his
              friends. Eventually, [appellant] began arguing with
              Tillmon about $10 that Tillmon owed [appellant].
              [Appellant] stated, “Man, you’ve been owing me my
              bread for the longest. Give me my bread.” When

1   Appellant was 17 years old at the time.
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           Tillmon stated he did not have [appellant’s] money,
           [appellant] drew a .22 caliber revolver, pointed it at
           Tillmon, and shot him once in the chest. [Appellant]
           then kicked Tillmon once in the head, after Tillmon
           had fallen to the ground, and left the scene.

           Tillmon suffered a single gunshot wound to the
           chest, which penetrated his heart and both of his
           lungs.    Doctors pronounced Tillmon dead at
           approximately 6:11 p.m.

Trial court opinion, 10/30/17 at 3, citing trial court opinion, 7/2/15 at 2

(footnote omitted).

     The trial court recounted the following procedural background:

           On November 20, 2014, following a jury trial before
           this Court, [appellant] was convicted of one count
           each of first-degree murder (18 Pa.C.S.[A].
           § 2502(a)), carrying a firearm without a license
           (18 Pa.C.S.[A.] § 6106), carrying a firearm on a
           public street in Philadelphia (18 Pa.C.S.[A.] § 6108),
           and      possessing    an    instrument    of    crime
           (18 Pa.C.S.[A.] § 907). On January 23, 2015, the
           Court imposed an aggregate sentence of 50 years to
           life in state prison (18 Pa.C.S.[A.] § 1102.1(a)(1)).
           [Appellant] did not file post-sentence motions.
           [Appellant] was represented at trial and at
           sentencing by Brian J. McMonagle, Esquire.
           [Appellant] was represented on direct appeal by
           James Ephraim Lee, Esquire.

           On January 21, 2016, while his direct appeal was
           pending, [appellant] prematurely filed a pro se
           petition under the [PCRA]. This Court deemed the
           [p]etition to have been timely re-filed after the
           Superior Court affirmed [appellant’s] judgment of
           sentence on May 9, 2016, and [appellant] did not
           seek review of that decision in the Supreme Court of
           Pennsylvania.    James Lammendola, Esquire was
           appointed to represent [appellant] on October 27,
           2016.



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            On March 3, 2017, pursuant to Commonwealth v.
            Finley,    550    A.2d     213     (Pa.Super.    1988),
            Mr. Lammendola filed a letter stating there was no
            merit to [appellant’s] claims for collateral relief. On
            March 28, 2017, [appellant] filed a response to PCRA
            counsel’s Finley letter. On March 31, 2017, the
            Court issued notice pursuant to Pa.R.Crim.P. 907
            (“907 Notice”) of its intention to dismiss [appellant’s]
            PCRA Petition without an evidentiary hearing.
            [Appellant] responded to the Court’s 907 Notice on
            May 11, 2017 (“907 Response”), repeating the same
            arguments made in his response to the Finley
            Letter.   On July 13, 2017, the Court formally
            dismissed [appellant’s] PCRA Petition and granted
            Mr.    Lammendola’s      motion     to  withdraw     his
            appearance.

Trial court opinion, 10/30/17 at 1-2 (citations omitted).

      On August 7, 2017, appellant filed a notice of appeal. On August 10,

2017, the trial court ordered appellant to prepare a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).            On

September 18, 2017, appellant complied with the order.         On October 31,

2017, the trial court filed an opinion, pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for this court’s review:

            1.    Is it unconstitutional to sentence a juvenile to
                  50 to Life a de facto sentence of Life
                  Imprisonment [without] the possibility of
                  parole, [without] a factual basis to determine if
                  the juvenile was permanently incorrigible,
                  irreparably corrupt, or irretrievably depraved?

            2.    Absent a judicial finding, a juvenile is
                  permanently incorrigible, irreparably corrupt,
                  or irretrievably depraved, is it unconstitutional
                  to sentence a juvenile to 50 to Life, a de facto
                  sentence of Life imprisonment [without] the
                  possibility of parole[?]


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               3.         Under the circumstances of this case[,] was it
                          unconstitutional to sentence [appellant] to 50
                          to Life, a de facto sentence of Life
                          Imprisonment [without] the possibility of
                          parole?

               4.         As the United States Supreme Court in Miller
                          v. Alabama, [567 U.S. 460 (2012),] struck
                          down the Pennsylvania First and Second
                          Degree Murder statutes for juveniles, was the
                          only Constitutional Sentence here one for
                          Voluntary or Involuntary Manslaughter, due to
                          Third Degree Murder in Pennsylvania being
                          Unconstitutionally Vague?

               5.         Did the Trial Court impose an Illegal Sentence
                          upon [appellant] when it imposed the 50 years
                          to Life Sentence in state prison, pursuant to 18
                          Pa.C.S.[A.]    §     1102.1(a)(1),    which    is
                          unconstitutional in its entirety?

Appellant’s brief at 3.2

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in        the     light   most   favorable    to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.              Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).            We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.                Commonwealth v.


2 Appellant’s brief is not numbered. However, for ease in locating items in
appellant’s brief, we count the first page after the table of contents and table
of citations as “1” and proceed forward from that point in counting the
pages.


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Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).            In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      Appellant’s first three issues are essentially the same:        that he

received an unconstitutional de facto life sentence without possibility of

parole of 50 years’ to life when he was a juvenile and was not found to be

permanently incorrigible, irreparably corrupt, or irretrievably depraved.

(Appellant’s brief at 3.)

      Appellant raises a claim pertaining to the legality of his sentence. “The

determination as to whether a trial court imposed an illegal sentence is a

question of law; an appellate court’s standard of review in cases dealing with

questions of law is plenary.”   Commonwealth v. Crosley, 180 A.3d 761,

771 (Pa.Super. 2018), quoting Commonwealth v. Rotola, 173 A.3d 831,

834-835 (Pa.Super. 2017).       An appeal pertaining to the legality of a

sentence is nonwaivable.    Commonwealth v. Foster, 17 A.3d 332, 345

(Pa. 2011).3

      On June 25, 2012, the Supreme Court of the United States announced

its decision in Miller v. Alabama, 567 U.S. 460 (2012).         In Miller, the

High Court held that mandatory sentences of life imprisonment without the

possibility of parole for juvenile offenders violated the Eighth Amendment’s




3 The Commonwealth contends that appellant waived all issues because he
did not raise these issues in his PCRA petition. Because the claims address
the legality of the sentence imposed upon appellant, we will address them.


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prohibition against cruel and unusual punishment unless there was a

determination that the offender was permanently incorrigible, irreparably

corrupt, or irretrievably depraved. Id. at 471-473, 479-480.

      In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme

Court of the United States held that Miller applied retroactively.

      In response to Miller, our General Assembly passed 18 Pa.C.S.A.

§ 1102.1 which provides that a person between 15 and 17 years of age

convicted of first degree murder after June 24, 2012, must be sentenced to

a maximum term of life imprisonment and a minimum sentence can be set

anywhere from 35 years’ to life.       Appellant was not resentenced to life

without parole, so Miller, on its face, does not apply.

      With respect to a de facto life sentence without possibility of parole,

in Commonwealth v. Foust, 180 A.3d 416 (Pa.Super. 2018), this court

held that a trial court may not impose a term-of-years sentence on a

juvenile convicted of homicide if that sentence is equivalent to a de facto

life without possibility of parole sentence, unless the trial court finds, beyond

a reasonable doubt, that the juvenile is incapable of rehabilitation.        Id.

at 433.    This court also held that de facto life sentences are cruel and

unusual punishment when imposed on juveniles convicted of non-homicide

offenses    or   juvenile   homicide   offenders   capable   of   rehabilitation.

Furthermore, when determining whether a sentence is a de facto life

sentence, this court held that the individual sentences must be examined



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rather than the aggregate sentence.      Id. at 434.   In so doing, the court

determined that each individual sentence did not represent a de facto life

sentence.   With respect to appellant’s argument, he will be in his sixties

when eligible for parole, hardly a de facto life sentence.

      Appellant next contends that the Supreme Court of the United States

in Miller struck down the first and second-degree murder statutes for

juveniles and the third degree murder statute was vague so that the only

crime for which he could be convicted for voluntary or involuntary

manslaughter. (Appellant’s brief at 16.)

      The trial court termed this argument frivolous and opined:

            Miller did not render our murder statutes incapable
            of being applied to juveniles. Rather, Miller “held
            that a sentencing scheme that mandates the
            imposition of a life-without-parole sentence for a
            juvenile violates the Eighth Amendment to the
            United States Constitution.”   Commonwealth v.
            Batts, 163 A.3d 410, 432 (Pa. 2017). After Miller,
            our legislature enacted a sentencing statute to
            ensure that all of the mandates of Miller were
            consistent with Pennsylvania law.     18 Pa.C.S.A.
            § 1102.1. The constitutionality of section 1102.1
            has been upheld by our Superior Court, which held
            that section 1102.1 is fully compliant with the
            mandate of Miller and the requirements of the
            Eighth Amendment.        See Commonwealth v.
            Brooker, 103 A.3d 325, 339 (Pa.Super. 2014).

            [Appellant] was sentenced for first degree murder
            under section 1102.1, with the sentencing court
            making all of the findings mandated by that statute.
            Accordingly, there is nothing in Miller, nor in any
            other authority, that would render his conviction and
            sentencing for first degree murder unlawful. No
            relief is due.


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Trial court opinion, 10/30/17 at 7 (citation to record omitted).

      The trial court has succinctly and accurately analyzed this issue.

Appellant fails to persuade this court that the trial court erred when it failed

to find that appellant, at most, could be sentenced to manslaughter.

      Finally, appellant contends that the trial court imposed an illegal

sentence upon him because 18 Pa.C.S.A. § 1102.1(a)(1) is unconstitutional

in its entirety because he believes that statutes governing sentencing for

crimes must be contained in the Sentencing Code at 42 Pa.C.S.A. §§ 9701-

9799.75. (Appellant’s brief at 20.) This court does not agree. Chapter 11

of the Crimes Code, 18 Pa.C.S.A. §§ 1101-1110, is entitled Authorized

Disposition of Offenders and contains sections dealing with the amount of a

fine that can be imposed based on the offense (Section 1101), 18 Pa.C.S.A.

§ 1101, and sentences for murder, felonies, misdemeanors, and summary

offenses (Sections 1102-1105), 18 Pa.C.S.A. §§ 1102-1105. Most of these

sections have been effective since 1973. Appellant does not cite any case

law that supports his contention that the enactment of Section 1102.1 is

invalid and an unconstitutional ex post facto law. This issue has no merit.

      Appellant has failed to prove that the PCRA court’s decision contained

legal error or that any findings were unsupported by the evidence of record.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/26/18




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