Com. v. Howie, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK HOWIE :
:
Appellant : No. 2502 EDA 2017
Appeal from the Judgment of Sentence June 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004087-2012
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 27, 2020
Malik Howie appeals from the judgment of sentence entered following
his jury trial conviction for second-degree murder, robbery, conspiracy to
commit robbery, and possessing instruments of crime.1 Howie challenges the
constitutionality of his sentence of life imprisonment without the possibility of
parole. We affirm.
A jury convicted Howie of the above-referenced offenses for the
shooting death of Ronald Coleman, which occurred during the course of a
robbery. The trial court imposed the mandatory sentence of life imprisonment
without the possibility of parole for the second-degree murder conviction,
found the robbery conviction merged with the murder conviction for
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1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903, and 907(A), respectively.
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sentencing purposes, and imposed concurrent terms of imprisonment for the
remaining convictions.
Howie’s trial counsel filed a Notice of Appeal. The court permitted
counsel to withdraw and appointed new counsel, who filed a statement
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), asserting a
prosecutorial misconduct claim and claims challenging the sufficiency and
weight of the evidence. Howie filed a petition in this Court requesting the
removal of counsel and appointment of new counsel. We remanded the matter
to the trial court. After a Grazier2 hearing, the trial court granted appellate
counsel leave to withdraw and appointed new counsel, who filed the appellate
brief.
In his appellate brief, Howie raises a single issue: “Is a ‘life without
parole’ sentence for second-degree murder disproportional to Pennsylvania’s
sentencing scheme for homicide offenses and thus ‘cruel and unusual
punishment’ under the Pennsylvania State and Federal Constitutions?”
Howie’s Br. at 7.
Howie did not raise this issue—the constitutionality of his life without
parole sentence—in his 1925(b) statement. However, because it challenges
the legality of his sentence, it is not waivable, and we must address the issue
on appeal. Commonwealth v. Middleton, 467 A.2d 841, 845-46, 846 n.5
(Pa.Super. 1983) (concluding claim that imposition of life without parole
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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sentence for felony-murder was cruel and unusual punishment was challenge
to legality of sentence); Commonwealth v. Foster, 17 A.3d 332, 345 (Pa.
2011) (noting challenge to legality of sentence is nonwaivable).
Howie argues the mandatory punishment for second-degree murder—
life imprisonment without the possibility of parole—“is relatively
disproportionate to those offenses that come before or after it and
distinguishable for the mens rea it requires.” Howie’s Br. at 12. He notes that
second-degree murder does not require a specific intent to kill, but may result
in imposition of the same sentence as first-degree murder, which does require
such an intent. He argues that all offenders are different and it is “illogical to
subject every criminal to the same punishment, even if the crimes that were
committed were the same.” Id. at 15. He argues the prohibition against cruel
and unusual punishment is “meant to prohibit excessive punishments as well
as barbaric ones,” and claims that “[b]y refocusing its proportionality
jurisprudence to the category of offenses within it falls, the Court could use
the Cruel and Unusual Punishments Clause to affirm that a [life without parole]
sentence for an offender who possessed no specific intent to kill is
disproportionate and unjust.” Id. at 17. Howie claims that, because he lacked
the specific intent to kill, “the more appropriate punishment would be one that
leaves open the possibility of parole.” Id. at 18. He thus concludes that the
mandatory life-without-parole sentence for second-degree murder is not
proportional to the crime.
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We apply a de novo standard of review to challenges to the legality of a
sentence. Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa.Super. 2019),
appeal denied 218 A.3d 1199 (Pa. 2019). The Eighth Amendment of the United
States Constitution provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
Const. amend. viii. Likewise, the Pennsylvania Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
punishments inflicted.” Pa.Const.Art. 1, § 13. “[T]he 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.” Commonwealth v. Thompson, 106 A.3d 742, 763
(Pa.Super. 2014) (citation omitted).
Howie fails to address–let alone distinguish–our cases that have rejected
his arguments. In Commonwealth v. Middleton, 467 A.2d at 846-47, this
Court concluded that imposition of a life without parole sentence following a
conviction for second-degree murder did not violate the Eighth Amendment of
the United States Constitution. We noted that the statute, “being a legislative
determination, carries a strong presumption of validity, and of
constitutionality.” Id. at 846 (citing Snider v. Thornburgh, 436 A.2d 593(Pa. 1981)). We pointed out that “[t]he offense of felony-murder is
undoubtedly one of the gravest and most serious which can be committed.”
Id. at 847. The Court compared the sentences available for crimes in
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Pennsylvania, noting that the death penalty may be imposed only on those
convicted of first-degree murder, subject to the provisions found in 42
Pa.C.S.A. § 9701, et seq., and that only those convicted of first- and second-
degree murder can receive a sentence of life imprisonment without the
possibility of parole. Id. We stated that “[i]t is clear that the legislature
contemplated that the seriousness of second degree murder—that is, murder
in the course of a first degree felony—should be matched by an equally severe
penalty.” Id. The Court further compared the sentence to those imposed for
the same crime in other jurisdictions, and concluded that “a sentence of life
imprisonment for felony-murder comports with the range of sentences found
proper in other jurisdictions.” Id. (citing Enmund v. Florida, 458 U.S. 782(1982)).
More recently, in Commonwealth v. Henkel, 938 A.2d 433, 446
(Pa.Super. 2007), the appellants challenged the imposition of a life sentence
as unconstitutional “cruel and unusual punishment” under the United States
and Pennsylvania constitutions. We concluded that we had previously
dismissed an identical challenge in Middleton, and the appellants “g[a]ve us
no reason to revisit this precedent aside from a bald allegation that their
sentences ‘seem to constitute cruel and unusual punishment’ and are
‘arguably disproportionate.’” Id. (emphasis in original).
We are similarly bound by Middleton. We thus conclude that Howie’s
sentence of life imprisonment without the possibility of parole does not violate
the constitutional prohibitions on cruel and unusual punishment.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2020
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