OPINION BY MUNDY, J.:
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.
The trial court summarized the relevant factual and procedural history of this case as follows.
Trial Court Opinion, 2/28/14, at 1-2 (citations to transcript and footnote omitted).
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.
On appeal, Appellant raises the following issues for our review.
Initially, Appellant maintains the trial court abused its discretion when it denied his Batson
We review a trial court's denial of a Batson claim for clear error. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 603 (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.
Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 44 (2011), cert. denied, Sanchez v. Pennsylvania, ___ U.S. ___, 133 S.Ct. 122, 184 L.Ed.2d 58 (2012).
The requirements for a prima facie Batson showing are well settled.
Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1142 (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, 598 Pa. 774, 958 A.2d 1047 (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
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.
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.
Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super.2012) (citation omitted), appeal denied, 620 Pa. 720, 69 A.3d 600 (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, 594 Pa. 696, 934 A.2d 1277 (2007).
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 (Pa.Super.2008), appeal denied, 600 Pa. 739, 964 A.2d 1 (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.
N.T., 4/9/13, at 203. Appellant subsequently requested a mistrial, which the trial court denied on the basis that the prosecution did not elicit the testimony either purposefully or intentionally. Id. at 203, 213, 219. The trial court further reasoned that Detective Lythgoe did not explicitly state that Appellant was incarcerated; rather, the detective stated that he had to go to the prison to retrieve the tape recordings. Id. at 218, referencing Estelle v. Williams, 425 U.S. 501, 512-513, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (concluding, "the State cannot ... compel an accused
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.
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, 593 Pa. 726, 928 A.2d 1289 (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, 604 Pa. 696, 986 A.2d 150 (2009).
Pennsylvania Rule of Criminal Procedure 573 outlines pretrial discovery procedures and provides, in pertinent part, as follows.
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, 589 Pa. 43, 907 A.2d 477, 491 (2006), cert. denied, Sanchez v. Pennsylvania, 551 U.S. 1106, 127 S.Ct. 2918, 168 L.Ed.2d 249 (2007).
During the instant trial, the Commonwealth presented text messages exchanged between Appellant and his girlfriend, Angela Potter, on the night of the incident, through the testimony of an expert in mobile forensics. N.T., 4/10/13, at 12-42. At the beginning of this expert's testimony, the following discussion occurred at side bar.
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, ___ Pa. ___, 93 A.3d 463 (2014). During trial, Appellant did not contest the Commonwealth's assertion that it had provided these text messages to him prior to trial, and the trial court concluded disclosure occurred.
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.
Id. at 51 (emphasis omitted), citing Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa.Super.1998) (en banc), appeal denied, 559 Pa. 689, 739 A.2d 1056 (1999). Appellant asserts his actions constituted gross negligence, not maliciousness. Id., citing Commonwealth v. Matroni, 923 A.2d 444 (Pa.Super.2007), appeal denied, 597 Pa. 729, 952 A.2d 675 (2008). Accordingly, Appellant requests this Court vacate his murder convictions. Id. at 55.
Our standard of review is well settled.
Commonwealth v. Caban, 60 A.3d 120, 132-133 (Pa.Super.2012) (emphasis added), appeal denied, 622 Pa. 747, 79 A.3d 1097 (2013), quoting Commonwealth v. Quel, 27 A.3d 1033, 1037-1038 (Pa.Super.2011).
It is rare, but not impossible, for a death caused by a motor vehicle accident to give rise to a third-degree murder conviction. Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, 442 (1990), appeal denied, 525 Pa. 644, 581 A.2d 571 (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, 576 Pa. 711, 839 A.2d 351 (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.
Id. § 2502. Accordingly, "[t]hird[-]degree murder occurs when a person commits a killing which is neither intentional nor committed during the 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, 618 Pa. 688, 57 A.3d 70 (2012).
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 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
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.
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, 574 Pa. 202, 830 A.2d 519, 528 (2003), cert. denied, Tharp v. Pennsylvania, 541 U.S. 1045, 124 S.Ct. 2161, 158 L.Ed.2d 736 (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, 574 Pa. 435, 832 A.2d 403, 408 (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, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004). "[T]he evidence at trial need not 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
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, 126 S.Ct. 1630, 164 L.Ed.2d 343 (2006).
The trial court found no merit to Appellant's weight claim, stating as follows.
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 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.
Id. at 59 (emphasis omitted).
Our standard and scope of review for such a challenge is well settled.
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.
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. 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
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 decided because the Smith panel had "essentially read new requirements into the statutory language." Id. at 581.
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.
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.
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.
Commonwealth v. Neiman, ___ Pa. ___, 84 A.3d 603, 611 (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, 500 Pa. 16, 454 A.2d 937, 967 (1982), cert. denied, Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (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, 78 S.Ct. 590, 2 L.Ed.2d 630 (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] offense.'" Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (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, ___ U.S. ___, 134 S.Ct. 1986, 1992, 188 L.Ed.2d 1007 (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, 619 Pa. 684, 63 A.3d 772 (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.
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, 549 Pa. 269, 701 A.2d 190, 209 (1997), cert. denied, Hall v. Pennsylvania, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998), citing Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Appellant likewise identifies the objective criteria courts should apply when examining the alleged disproportionality of a statute under an Eighth Amendment challenge.
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, 103 S.Ct. 3001, 77 L.Ed.2d 637 (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, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Solem, supra at 291 n. 17, 103 S.Ct. 3001; 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.
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, 111 S.Ct. 2680. 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 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 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
"[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, 622 Pa. 422, 80 A.3d 1219 (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, 593 Pa. 601, 933 A.2d 57, 67 (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 [] a clerical error." Id. at 474, quoting Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219, 231 (1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (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.
CONCURRING OPINION BY BOWES, J.:
I join the well-reasoned opinion of the learned majority. I write further only to address our prior decision in Commonwealth v. Morris, 958 A.2d 569 (Pa.Super.2008) (en banc), a decision in which I joined, and a seeming inconsistency in the manner in which our courts have construed the terms "convicted" and "conviction" in other statutes.
The Morris decision involved an interpretation of 42 Pa.C.S. § 9715. That statute authorizes life imprisonment for "any person
A panel of this Court recently opined, "[t]he term `conviction' and its related
Indeed, the Hale Court recognized that dating back to at least 1826, the Pennsylvania Supreme Court had opined that, "When the law speaks of conviction, it means a judgment, and not merely a verdict, which, in common parlance, is called a conviction." Id. (quoting Smith v. Commonwealth, 14 Serg. & Rawle 69 (1826) (italics in original)). In Smith v. Commonwealth, our High Court reversed a recidivist burglary sentence that "subjected the defendant to life imprisonment because the indictment for his second burglary did not provide what judgment the defendant received for his prior burglary." Hale, supra at 581 (discussing Smith v. Commonwealth, supra).
The Hale panel continued that this Court has followed the technical reading of the word "conviction" expressed in Smith v. Commonwealth in other contexts. In Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979), this Court addressed a finding of guilt for both burglary and the underlying theft offense. The defendant was found guilty of both charges but the court only sentenced the defendant on the burglary count. This Court found that the statute in question, which prohibited a "conviction" for both burglary and "the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense," 18 Pa.C.S. § 3502(d), only precluded multiple sentences. See id.
We reached a similar result in Commonwealth v. Maguire, 307 Pa.Super. 80, 452 A.2d 1047 (1982). There, the defendant challenged multiple guilty verdicts for the inchoate crimes of possession of an instrument of crime, criminal conspiracy, and attempted burglary. The court only sentenced on the attempted burglary count, but the defendant maintained that the guilty verdicts for conspiracy and attempted burglary violated the then-applicable version of 18 Pa.C.S. § 906. The Maguire panel disagreed. Importantly, it concluded, "appellant construes `convicted' as equivalent to the jury's `verdict,' which it is not." Id. at 1049. According to the Maguire Court, "the judge convicted appellant of one inchoate crime by imposing a judgment of sentence for attempted burglary." Id. at 1050 (italics in original).
The Hale panel also cited to Commonwealth v. Grekis, 411 Pa.Super. 513, 601 A.2d 1284 (1992). The Grekis Court noted, "we have interpreted the term `conviction' in section 906 to mean entry of a judgment of sentence not a finding of guilt by the jury." Id. at 1294. This Court reached a similar conclusion in Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438, 460 (1985), where we posited, "we accept the word `conviction' as referring to post-verdict judgment by a court, and not to the verdict by the jury itself[.]"
Instantly, following the technical interpretation of the words "convicted" and "conviction" that we have utilized in other cases interpreting various criminal statutes, § 9715 could be read that "any person sentenced for murder of the third degree in the Commonwealth who has
Judge DONOHUE joins this Concurring Opinion.
N.T., 4/5/13, at 233.