Com. v. Perry, D. ( 2018 )

J-S62022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID J. PERRY :
:
Appellant : No. 2881 EDA 2017
Appeal from the Judgment of Sentence August 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0710451-1981
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY McLAUGHLIN, J.: FILED DECEMBER 19, 2018
David J. Perry appeals from the judgment of sentence of 35 years to
life, imposed on August 17, 2017, following resentencing for his conviction for
murder in the second degree, as required pursuant to Montgomery v.
Louisiana, --- U.S. ---, 136 S. Ct. 718 (2016), and Miller v. Alabama, 567
U.S. 460 (2012). Perry asserts that this sentence is unconstitutional. However,
as this case is controlled by recent decisions in this Commonwealth, including
Commonwealth v. Olds, 192 A.3d 1188 (Pa.Super. 2018), we affirm.
We adopt the following statement of facts:
On June 10, 1981, … Shuh-Yung Ping was jogging alone through
Hunting Park in Northeast Philadelphia when [Perry], who was 15
years old at the time, came up behind him and accosted him. Ping
ran but was quickly caught by [Perry], who wrapped a towel
around Ping’s neck to subdue him. Ping was also kicked during
the attack. Ping fell and hit the ground face first, which rendered
him unconscious. When he came to, his glasses, watch, and
money were missing. Although able to walk home, he went to a
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doctor’s office at about 11:00 a.m., where he was advised to
proceed to a hospital immediately. Ping began walking to the
hospital[,] but after he became too weak to continue[,] a rescue
wagon was called[,] and he was transported to a nearby hospital.
He died as a result of bleeding on the brain that day at
approximately 4:40 p.m.
Sentencing Court Opinion, filed March 27, 2018, at 2.
Following a bench trial, in July 1982, Perry was convicted of second-
degree murder and robbery. In January 1983, the court imposed a sentence
of life imprisonment without the possibility of parole on the murder conviction.
In June 2013, Perry pro se and timely filed a petition seeking collateral
relief, and in February 2016, Perry pro se filed an amended petition. In May
2016, counsel was appointed to represent him. Based on Montgomery and
Miller, Perry’s sentence was vacated. In August 2017, the court resentenced
Perry to 35 years to life, with credit for time served, and deemed him eligible
for immediate parole.
Perry timely filed a post-sentence motion, asserting that the mandatory
maximum term of life imprisonment was unconstitutional. Prior to disposition
of the motion, in August 2017, Perry pro se filed a notice of appeal. Thereafter,
the post-sentence motion was denied by operation of law. In March 2018,
with the benefit of counsel, Perry timely filed a court-ordered Pa.R.A.P.
1925(b) statement, and the sentencing court issued a responsive opinion.1
____________________________________________
1In November 2017, this Court issued a rule to show cause why Perry’s appeal
should not be quashed as premature. Following Perry’s response, we
discharged the rule and permitted this appeal to proceed. See Order,
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In this appeal, Perry asserts that his sentence is unconstitutional. Perry’s
Br. at 3. According to Perry, “a mandatory lifetime parole tail is not an
individualized sentence and does not consider any relevant factors.” Id. at 8
(thereafter citing in support Miller; Graham v. Florida, 560 U.S. 48 (2010)).
Further, according to Perry, such a sentence provides the Parole Board with
ultimate control over an individual’s term of incarceration and, thus, “reflects
an abdication of judicial responsibility.” Id. at 12 (quoting Songster v.
Beard, 201 F.Supp.3d 639, 642 (E.D.Pa. 2016). Thus, Perry concludes, this
Court should vacate the sentence imposed and remand for resentencing. Id.
at 16.2
This Court has recently held as follows:
Our society deems the taking of a life, either directly or as an
accomplice or co-conspirator, sufficiently grievous as to require
that the defendant not be entitled to release without first going
through the parole process.
...
In sum, we reaffirm that trial courts must sentence juveniles
convicted of second-degree murder prior to June 25, 2012[,] to a
maximum term of life imprisonment under [18 Pa.C.S.A. §]
1102(b). We hold that such mandatory maximums do not violate
the Eighth Amendment’s ban on cruel and unusual punishment.
____________________________________________
01/30/2018; see also Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa.
2011) (holding premature, pro se notice of appeal deemed timely filed);
Pa.R.A.P. 905(a)(5).
2The Commonwealth has submitted a brief that similarly advocates vacating
Perry’s sentence and remanding for resentencing. See Commonwealth’s Br.
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Olds, 192 A.3d at 1197-98 (affirming judgment of sentence imposed on
juvenile convicted of second-degree murder). This holding reaffirms the law
in this Commonwealth. See Commonwealth v. Batts, 163 A.3d 410 (Pa.
2017) (Batts II); Commonwealth v. Seskey, 170 A.3d 1105 (Pa.Super.
2017).
Accordingly, we reject Perry’s arguments and affirm the judgment of
sentence.3 Olds, 192 A.3d at 1198.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/18
____________________________________________
3We note further that, in Olds, we expressly rejected an appellant’s reliance
on Songster. See Olds, 192 A.3d at 1197 n.18 (“[W]e do not agree with
Songster and hold that it is not binding authority in Pennsylvania.”).
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