Com. v. Parker, J. (memorandum)
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J-S13038-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JUJUAN PARKER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2177 EDA 2012 Appeal from the Judgment of Sentence entered on February 13, 2012 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0007463-2010 BEFORE: BOWES, GANTMAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED MAY 29, 2013 Jujuan Parker ( Parker ) appeals from the judgment of sentence imposed after a jury convicted him of two counts of third-degree murder. See 18 Pa.C.S.A. § 2502(c). We affirm. On the evening of September 5, 2010, Tyrone Thompson ( Thompson ) and Jeffrey Joyner, Jr., ( Joyner ) were shot to death on the 2700 block of Kane Street in the City of Chester. Eyewitnesses testified that shortly prior to the shooting, they saw a black van, driven by Brian Selby ( Selby ), come to a stop on the 2700 block of Kane Street. Parker was in the passenger s seat of the van. The eyewitnesses saw Selby exit the van and attempt to put a mask on his face. When Selby noticed the group of eyewitnesses watching him, he reentered the van and drove off. Shortly thereafter, the same black van reappeared on the 2700 block of Kane J-S13038-13 Street, driven by Parker. Parker stopped the vehicle, whereupon Selby exited and approached the victims. Parker remained in the vehicle. Selby fired eleven shots at the victims, striking each victim five times. Selby then reentered the van, whereupon Parker drove off and fled the scene. Emergency responders transported the victims to a hospital, where they were pronounced dead. One of the eyewitnesses to the crime, Shanecia Word ( Word ), initially gave a police statement implicating Parker and Selby in the shooting. Subsequently, however, Word recanted her statement. Notable to this appeal, Word did not testify at Parker s jury trial, but she did testify at Selby s separate, subsequent jury trial and stated that the police had coerced her into making a false eyewitness statement. At Parker s trial, a detective involved in the investigation of the shooting testified that his efforts to locate Word for Parker s trial were unsuccessful, despite repeated attempts. Following the shooting, the police arrested Parker and Selby and charged them each with two counts of criminal homicide and various other offenses. Thereafter, the Commonwealth filed a Petition to sever Selby s case from the Parker case, which the trial court granted. At the close of Parker s trial, the jury found him guilty of two counts of third-degree -2- J-S13038-13 murder.1 Approximately two months after Parker s conviction, the jury in Selby s case acquitted Selby of all charges. Prior to sentencing in Parker s case, the Commonwealth gave notice of its intent to seek imposition of a mandatory sentence of life in prison under 42 Pa.C.S.A. § 9715 (stating that any person convicted of murder of the third degree and who had been previously convicted at any time of murder or voluntary manslaughter must be sentenced to life in prison). On February 13, 2012, the trial court sentenced Parker to a prison term of 18 to 40 years for his murder conviction regarding the death of Joyner ( the Joyner conviction ). The court then imposed a sentence of life in prison as to Parker s murder conviction regarding the death of Thompson, using the Joyner conviction to apply the mandatory sentencing provision under section 9715. Parker timely filed a post-sentence Motion alleging that the Commonwealth s failure to present Word as a witness during his trial entitled him to a new trial. According to Parker, Word s recantation of her initial police statement at Selby s trial called into question the truthfulness of the inculpatory testimony of the other eyewitnesses who testified at Parker s trial. After conducting a hearing, the trial court denied Parker s Motion. Parker then filed a timely Notice of appeal. On appeal, Parker raises the following issues for our review: 1 The jury also found Parker guilty of two counts of aggravated assault, which merged for sentencing purposes. -3- J-S13038-13 1. [Whether the Trial] Court erred when it imposed a mandatory sentence of life imprisonment pursuant to 42 Pa.C.S. [§] 9715[? Parker], pursuant to the Commonwealth s evidence presented at trial, acted as an accomplice to the actual killer of the victims, the homicides occurred within seconds of one another[,] and the imposition of a mandatory [sentence of] life [in prison] was not applicable under the facts of this conviction. 2. The Commonwealth did not call an alleged eyewitness, [] Word, in its case in chief against [Parker]. Subsequent to [Parker s] trial, [] Word recanted her adverse statement during her testimony in the severed trial of [Parker s] codefendant, [] Selby. The Commonwealth failed to take sufficient steps to locate [] Word for [] Parker[ s] trial and knew or should have known that her testimony would be adverse to the Commonwealth and favorable to [Parker]. The content of [] Word s testimony was so significant that [Parker] must be given an opportunity to present her testimony to a finder of fact. [The Trial] Court conducted an evidentiary hearing on this issue and erred when it chose to deny [Parker s M]otion for a new trial. Brief for Appellant at 4. In his first issue, Parker argues that the trial court imposed an illegal sentence when it sentenced him to life in prison pursuant to 42 Pa.C.S.A. § 9715, since the mandatory sentencing statute was inapplicable to the facts presented in this case. See Brief for Appellant at 7-8. The scope and standard of review applied to determine the legality of a sentence are well established. 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, 578 (Pa. Super. 2008) (en banc) (citation omitted). -4- J-S13038-13 Section 9715 states the following, in relevant part: § 9715. Life imprisonment for homicide (a) Mandatory life imprisonment. --Notwithstanding the provisions of section 9712 (relating to sentences for offenses committed with firearms), 9713 (relating to sentences for offenses committed on public transportation) or 9714 (relating to sentences for second and subsequent offenses), any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary. (b) Proof at sentencing. --Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the 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 ¦. 42 Pa.C.S.A. § 9715(a), (b). Here, Parker points out that the trial court relied upon this Court s en banc decision in Morris, supra, in holding that section 9715 applied to his case. According to Parker, however, Morris is inapposite as it is factually distinguishable from the instant case. Brief for Appellant at 8. In Morris, this Court considered whether the defendant could legally be sentenced to a mandatory term of life in prison pursuant to section 9715 where the trial court convicted the defendant of two separate murders at the same trial and sentenced him on the same date for both counts. At the close of the defendant s trial, the jury found him guilty of two counts of third-degree murder for killing two of his children at different times. Morris, -5- J-S13038-13 958 A.2d at 575.2 On the same date, the trial court sentenced the defendant to twenty to forty years in prison on one of the murder convictions. Id. The court then imposed a sentence of life in prison as to the second murder conviction, using the first murder conviction to apply the mandatory sentencing provision under section 9715. Id. In construing the statutory language of section 9715 on appeal, this Court noted at the outset that section 9715 is explicitly and unambiguously written[.] Id. at 579 (citing, inter alia, Commonwealth v. Lark, 504 A.2d 1291, 1296 (Pa. Super. 1986) (stating that the statutory language of section 9715 is explicit and should be construed as written)). The Morris Court then pointed out that, in order to apply section 9715, the trial court must, at sentencing, determine whether the defendant 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[.] Morris, 958 A.2d at 579 (emphasis in original) (quoting 42 Pa.C.S.A. § 9715(a)). The Court then held as follows: The operative words of the statute are at any time and in analyzing these words, we must construe them according to their common usage. At 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. Therefore, the trial court did not commit legal error in imposing the sentence of life in prison because the plain 2 The homicides at issue in Morris were separated by approximately one year. See Morris, 958 A.2d at 572-74. -6- J-S13038-13 language of the statute specifies that the timing of the primary conviction is not relevant as long as the defendant had been convicted of the initial murder or manslaughter at the time of sentencing on the second murder. Morris, 958 A.2d at 579 (citations, quotation marks and ellipses omitted). In the instant case, Parker contends that Morris is distinguishable for the following reasons: The deaths of the victims in Morris were separated by more than one year. In the instant case, the facts do not distinguish which victim was shot first and which victim was the first to die. The evidence established that Selby shot both victims. The trial testimony and exhibits did not establish that Thompson was the first or second victim to be shot and the first or second victim to die. Nor did the Commonwealth attempt to tell the jury the sequence of the shooting and the time when the second victim expired. ¦ The Morris facts involve two separate incidents. The facts in this appeal involve a single incident. [Parker] was not the actual killer in this case[,] as contrasted by the facts of Morris[,] wherein Morris was the principle and only actor involved in the actual killing. Imposition of the mandatory life sentence provisions of [section] 9715 was improper w[h]ere the sequence of the shootings and deaths [was] not established to any degree. Brief for Appellant at 8 (paragraph break omitted). Relevant to this case, the en banc Morris Court, in announcing its holding, expressly overruled the three-judge panel decision of this Court in Commonwealth v. Smith, 710 A.2d 1179 (Pa. Super. 1998), appeal denied, 737 A.2d 742 (Pa. 1999). See Morris, 958 A.2d at 580. The en banc Court explained its ruling in this regard as follows: In Smith, the defendant was convicted of two counts of third-degree murder after he opened fire on a group of men during a dispute. Smith, 710 A.2d at 1180. In sentencing the defendant, the trial court did not apply section 9715, and a panel -7- J-S13038-13 of this Court affirmed. Id. at 1181. The panel concluded that section 9715 was not implicated because the defendant was found guilty at the same time and by the same jury of two counts of third degree murder arising out of the same incident. Id. The panel reasoned that the two convictions were essentially simultaneous and that section 9715 could not be interpreted to encompass this circumstance. Id. ( We believe it strains the plain meaning of the statute to interpret previously convicted to encompass this situation. ). The Smith Court essentially read new requirements into the statutory language. 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. See [Commonwealth v. Drummond, 775 A.2d 849, 855-56 (Pa. Super. 2001) (en banc)]. 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. Morris, 958 A.2d at 581 (emphasis added).3 Based upon the unambiguous holding in Morris, we conclude that Parker s challenge to the legality of his sentence lacks merit. Additionally, we agree with the trial court s following reasoning rejecting Parker s claim that the holding in Morris is inapplicable where the defendant is convicted of third-degree murder as an accomplice: 3 The Pennsylvania Supreme Court denied allowance of appeal in the Morris case. See Commonwealth v. Morris, 991 A.2d 311 (Pa. 2010). -8- J-S13038-13 [Parker s] claim that Section 9715 is not applicable where a defendant is not the shooter but an accomplice has no merit. The statute makes no exception for defendants convicted of murder based on a theory of accomplice liability and it would be error for the trial court to graft that exception onto the statute in this case. [Cf.] Commonwealth v. Dickson, 918 A[.]2d 95[, 108-09] (Pa. 2007) (by its terms[,] 42 Pa.C.S.A. § 9712, imposing mandatory sentence enhancement on person who visibly possessed a firearm during commission of crime of violence, did not apply to unarmed co-conspirator co-defendant where his accomplice brandished a firearm during the commission of a robbery). Trial Court Opinion, 10/26/12, at 10; see also 18 Pa.C.S.A. § 306 (assessing equal criminal culpability for an accomplice). Next, Parker contends that the trial court erred in denying his postsentence Motion seeking a new trial based upon Word s recantation of her initial police statement, which inculpated Parker in the shooting, and the Commonwealth s failure to call Word as a witness during Parker s trial. See Brief for Appellant at 9-11. Parker points out that although the Commonwealth presented evidence that the efforts of the police to locate Word prior to his trial were unsuccessful, Word subsequently testified at Selby s trial that the police had coerced her into making a false statement against Selby and Parker. Id. at 9. According to Parker, the difference between his trial and the trial of Selby, which resulted in Selby s acquittal of all charges, was the absence of Word s testimony from Parker s trial. Id. at 10. Parker further argues that the trial court erred when it found that the Commonwealth made sufficient efforts to locate [] Word before the start of [Parker s] trial. ¦ The trial court erred when it held that the failure to -9- J-S13038-13 present the testimony of [Word] did not have an adverse effect upon [Parker s] trial. ¦ [Word s] trial testimony in the Selby case cast doubt on the credibility of the other two eyewitnesses. The prejudice to [Parker] is apparent. The only remedy to cure this defect is [to] award [Parker] a new trial. Id. at 10-11. In its Opinion, the trial court adeptly set forth the applicable law, thoroughly addressed Parker s challenge to the denial of his post-sentence Motion, and cogently explained the court s reasons for determining that Parker s claim lacks merit. See Trial Court Opinion, 10/26/12, at 11-17.4 Our review confirms that the trial court s sound rationale is supported by the record and the law, and we thus affirm on this basis. See id. Judgment of sentence affirmed. Judgment Entered. Prothonotary Date: 5/29/2013 4 On page 13 of its Opinion, the trial court references that the Commonwealth presented evidence of recorded telephone calls made by Parker while in prison, calls which Parker placed using his inmate Telephone Identification Number ( TID ) and the TID of another inmate. - 10 -
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