J-S03024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHANIEL W. JOHNSON                       :
                                               :
                       Appellant               :   No. 1196 EDA 2016

            Appeal from the Judgment of Sentence December 9, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003440-2011


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED JUNE 28, 2018

        Nathaniel W. Johnson appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas. On appeal, he challenges

the mandatory minimum sentence imposed pursuant to the “third strike”

provision in 42 Pa.C.S.A. § 9714. We affirm.

        We briefly recount the relevant facts of this case. Appellant brought his

brother’s eleven-year-old goddaughter to his house and raped her. Following

the incident, the victim exhibited extreme behavioral changes. She later

revealed a page in her diary recounting the incident to a social worker, who

reported it to authorities. Appellant was charged with rape of a child, unlawful




____________________________________________


   Former Justice specially assigned to the Superior Court.
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contact with a minor, unlawful restraint, corruption of minors, and indecent

assault.1 And a jury convicted him of all those offenses.

       At sentencing, Appellant challenged the Commonwealth’s assessment

that his crimes qualified for Pennsylvania’s “third strike” mandatory minimum.

That statute provides, in part, that any person convicted of two or more crimes

of violence shall be sentenced to a minimum of 25 years’ incarceration. See

42 Pa.C.S.A. § 9714(a)(2). Appellant admitted his 1984 conviction for robbery

qualified as a crime of violence under the statute, but countered that his 1965

conviction for second-degree murder did not. Appellant indicated § 9714(g),

defining “crimes of violence,” lists third-degree murder and voluntary

manslaughter, but does not specifically include second-degree murder. In

response, the Commonwealth argued when Appellant was convicted, only first

and second-degree murder were codified crimes. The Commonwealth cited

caselaw indicating the crime of second-degree murder in 1965 closely

mirrored the present definition of third-degree murder. The sentencing court

agreed, and imposed an aggregate term of 25-50 years’ incarceration. This

appeal is now before us.

       Appellant’s sole issue on review challenges the sentencing court’s

assessment of his 1965 second-degree murder conviction as a crime of

violence under § 9714(g). Appellant argues that because second-degree

murder is not specifically enumerated in § 9714(g), it cannot qualify as a crime
____________________________________________


1 18 Pa.C.S.A. §§ 3121(c); 6318(a)(1); 2902(a)(1); 6301(a)(1)(ii); and
3126(a)(7), respectively.

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of violence. Appellant deduces he should not have been sentenced pursuant

to the mandatory minimum, as he did not commit two qualifying crimes of

violence, and concludes we must vacate his judgment of sentence, and

remand for resentencing. He is mistaken.

      Appellant challenges the legality of his sentence. “The classic claim of

an ‘illegal sentence’ is one that exceeds the statutory limits.” Commonwealth

v. Hansley, 47 A.3d 1180, 1189 (Pa. 2012) (citation omitted). “Issues

relating to the legality of a sentence are questions of law, as are claims raising

a court’s interpretation of a statute. Our standard of review over such

questions is de novo and our scope of review is plenary.” Commonwealth v.

Brougher, 978 A.2d 373, 377 (Pa. Super. 2009) (citation omitted).

      The Sentencing Code provides, in relevant part:

      Where the person had at the time of the commission of the current
      offense previously been convicted of two or more such crimes of
      violence arising from separate criminal transactions, the person
      shall be sentenced to a minimum sentence of at least 25 years of
      total confinement, notwithstanding any other provision of this title
      or other statute to the contrary. Proof that the offender received
      notice of or otherwise knew or should have known of the penalties
      under this paragraph shall not be required. …

42 Pa.C.S.A. § 9714(a)(2).

      As the trial court notes in its opinion, § 9714(g) specifically enumerates

qualifying crimes of violence, and includes any “equivalent crime under the

laws of this Commonwealth in effect at the time of the commission of that

offense[.]” 42 Pa.C.S.A. § 9714(g). Subsection (g) lists murder of the third

degree as a crime of violence.


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     At the time Appellant committed second-degree murder in 1965, that

crime was defined as follows:

           (a) Murder of the first degree.—A criminal homicide
           constitutes murder of the first degree when it is committed
           by means of poison, or by lying in wait, or by any other kind
           of willful, deliberate, and premeditated killing. A criminal
           homicide constitutes murder of the first degree if the actor
           is engaged in or is an accomplice in the commission of, or
           an attempt to commit, or flight after committing, or
           attempting to commit robbery, rape, or deviate sexual
           intercourse by force or threat of force, arson, burglary, or
           kidnapping.

           (b) Murder of the second degree.—All other kinds of
           murder shall be murder of the second degree. Murder of the
           second degree is a felony of the first degree.

18 Pa.C.S.A. § 2502 (Historical and Statutory Notes).

     Presently, the Crimes Code classifies the crime of murder using three

degrees:

           (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.

18 Pa.C.S.A. § 2502(a)-(c).

     And the Pennsylvania Supreme Court has acknowledged, “murder of the

second degree has been reclassified as murder of the third degree and felony


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murder   has    been   reclassified   as   murder   of   the   second   degree.”

Commonwealth v. Moore, 373 A.2d 1101, 1103 n. 4 (Pa. 1977) (citation

omitted). Second-degree murder as defined at the time of Appellant’s

conviction in 1965 is effectively aligned with the present definition of third-

degree murder, making these “equivalent” crimes under § 9714(g). Thus,

Appellant’s contention that his second-degree murder conviction does not

qualify as a prior crime of violence for sentencing purposes is unavailing, and

we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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