F. Boyd v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Francis Boyd, :
Petitioner :
:
v. : No. 515 M.D. 2020
: SUBMITTED: July 22, 2022
Pennsylvania Board of Probation and :
Parole, Pennsylvania General Assembly, :
Pro Tem Joe B. Scarnati III/or Current :
Pro Tem Speaker of the House of :
Representatives Mike Turzai or Current :
Speaker, :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 4, 2022
Before this Court are the preliminary objections of Respondents, the
Pennsylvania General Assembly, President Pro Tempore Jake Corman, Speaker of
the House of Representatives Bryan Cutler (collectively, General Assembly) and the
Pennsylvania Parole Board to Francis Boyd’s Amended Petition for Review.1 After
review, this Court sustains the General Assembly’s preliminary objections thereby
dismissing the General Assembly from the above-captioned action. As for the
Board, we sustain its first and third preliminary objections based on the fact that
1
The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole
Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective
February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as
amended, 61 Pa. C.S. §§ 6101, 6111(a).
Boyd is essentially challenging his sentence and confinement, thereby raising a
claim sounding in habeas corpus, over which this Court lacks jurisdiction.
Consequently, we transfer this matter, which sounds in habeas corpus, to the Court
of Common Pleas of Philadelphia County, the sentencing court, as the court of
proper jurisdiction pursuant to Section 5103(a) of the Judicial Code.2
Boyd was convicted of second-degree homicide in December 1976, and
sentenced to life imprisonment. In August 2020, Boyd filed a parole application
with the Board requesting a parole hearing because the sentencing judge did not state
that his sentence was without parole. On August 30, 2020, Boyd received the
Board’s denial of his request based upon Section 6137(a) of the Prisons and Parole
Code (Parole Code), 61 Pa.C.S. § 6137(a), which provides that the Board may parole
any offender, except an offender serving life imprisonment.
On September 4, 2020, Boyd filed a Petition for Review in this Court’s
original jurisdiction against the Board and the General Assembly seeking that this
Court: (1) declare Section 6137 of the Parole Code unconstitutional under the
Pennsylvania and United States Constitutions as applied to Boyd and other
individuals serving life sentences for felony-murder convictions pre- and post-1974;
(2) sever Section 2502(b) of the Crimes Code, 18 Pa.C.S. § 2502(b) (relating to
second-degree murder), from Section 6137 of the Parole Code and order a
resentencing hearing sentencing Boyd to either a minimum sentence of 30 years and
a maximum sentence of life, or a sentence of life with the possibility of parole; and
(3) order the Board to develop plans to review Boyd’s case, and all other felony-
murder convictions, for parole consideration.
2
42 Pa.C.S. § 5103(a). Section 5103(a) provides that, if a matter is brought in a court of this
Commonwealth which does not have jurisdiction, the court shall not quash the matter, but shall
transfer the record thereof to the proper tribunal of this Commonwealth.
2
On October 27, 2020, the Board filed preliminary objections to Boyd’s
Petition. On November 23, 2020, Boyd filed a Motion for Leave to File an Amended
Complaint. On February 12, 2021, the General Assembly filed a response to the
motion titled “Response to Motion for Leave to File an Amended Complaint of
Respondent the Pennsylvania General Assembly, In the Nature of Preliminary
Objections.” By February 25, 2021 Order, this Court granted the motion and
accepted for filing the attached Amended Petition for Review. The Amended
Petition added Respondents Corman and Cutler, seeking the same relief as the
original Petition.
On March 19, 2021, the General Assembly filed preliminary objections
to the Amended Petition seeking that the Court dismiss it with prejudice or,
alternatively, dismiss the General Assembly Respondents from the action. The
General Assembly objects to the Amended Petition, alleging: (1) lack of jurisdiction
based on the legal insufficiency of a pleading pursuant to Pennsylvania Rule of Civil
Procedure (Rule) 1028(a)(4) - demurrer; (2) lack of jurisdiction or improper venue
pursuant to Rule 1028(a)(1); (3) failure to state a claim upon which relief can be
granted pursuant to Rule 1028(a)(4) - demurrer (no specific allegation against the
General Assembly Respondents); (4) failure to state a claim upon which relief can
be granted pursuant to Rule 1028(a)(4) - demurrer (claims against the
constitutionality of the statute creating the penalty for second-degree murder are too
stale to be cognizable); and (5) lack of jurisdiction based on speech and debate
immunity pursuant to Rule 1028(a)(1), (4).
On March 25, 2021, the Board filed preliminary objections seeking
dismissal of the Amended Petition, with prejudice. The Board objects to the
Amended Petition, alleging: (1) lack of jurisdiction/improper venue pursuant to Rule
3
1028(a)(1); (2) failure to state a claim upon which relief can be granted pursuant to
Rule 1028(a)(4) - demurrer (asserting the staleness of Boyd’s challenge); (3)
improper party pursuant to Rule 1028(a)(5); and (4) demurrer pursuant to Rule
1028(a)(4) (binding precedent precludes Boyd’s assertion that a life sentence
without parole for felony murder committed by an adult is cruel and unusual
punishment under the United States and Pennsylvania Constitutions).
Initially,
[i]n ruling on preliminary objections, we must accept as
true all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the complaint and all inferences
reasonably deducible therefrom. It tests the legal
sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
Respondents argue that Boyd’s Amended Petition should be dismissed
for failure to state a legally sufficient claim.3 Specifically, Respondents contend that
Boyd’s assertion that the statutory scheme related to second-degree murder is
inapplicable is meritless based on Hudson v. Pennsylvania Board of Probation &
3
This is the General Assembly’s first Preliminary Objection, and the Board’s fourth
Preliminary Objection.
4
Parole, 204 A.3d 392 (Pa. 2019). Respondents further contend that the United States
Supreme Court and Pennsylvania state courts have consistently rejected the
argument that a mandatory life sentence without parole for second-degree murder is
violative of any constitutional prohibition against cruel and unusual punishment.
Boyd rejoins that Section 9756(c) of the Sentencing Code (relating to
sentences without parole) omits second-degree murder from the statute. Boyd
asserts that the statute was amended by the General Assembly eight times since it
was enacted in 1974 but that the General Assembly has not added second-degree
murder to this provision. Boyd maintains that this shows legislative intent to exclude
second-degree murder from the statute. However, Section 1102(b) of the Crimes
Code provides:
Except as provided under [S]ection 1102.1 of the Crimes
Code[, 18 Pa.C.S. § 1102.1] (relating to sentence of
persons under the age of 18 for murder),] a person who
has been convicted of murder of the second degree, of
second[-]degree murder of an unborn child or of second[-
]degree murder of a law enforcement officer shall be
sentenced to a term of life imprisonment.
18 Pa.C.S. § 1102(b) (emphasis added).
Additionally, Section 6137(a)(1) of the Parole Code declares:
The [B]oard may parole subject to consideration of
guidelines established under [Section 2154.5 of the
Sentencing Code,] 42 Pa.C.S. § 2154.5 (relating to
adoption of guidelines for parole) or subject to [S]ection
6137.1 [of the Parole Code, 61 Pa.C.S. § 6137.1] (relating
to short sentence parole)[,] and such information
developed by or furnished to the [B]oard under [S]ection
6174 [of the Parole Code] (relating to right of access to
offenders), or both, and may release on parole any
offender to whom the power to parole is granted to the
[B]oard by this chapter, except an offender condemned
to death or serving life imprisonment…
5
61 Pa.C.S. § 6137(a)(1) (emphasis added).
In Hudson, the Pennsylvania Supreme Court rejected the argument that,
because Section 9756(c) of the Sentencing Code omits second-degree murder from
sentences without parole, an inmate convicted of second-degree murder should be
eligible for parole. The Hudson Court explained:
Section 9765 [of the Sentencing Code] was never intended
specifically to create a personal right to be reviewed for
parole. Rather, it was meant to direct common pleas
courts in discharging their sentencing obligations. . . .
Since [an a]ppellant lacks any legal right to parole
eligibility, there is no warrant for a reviewing court to alter
his sentence.
Relatedly, it is important to recognize that the Board is an
administrative agency of the Commonwealth. Thus, it
“can only exercise those powers which have been
conferred upon it by the [l]egislature in clear and
unmistakable language.” Aetna Cas. & Sur. Co. v. Ins.
Dep’t, . . . 638 A.2d 194, 200 ([Pa.] 1994) (quoting Hum[.]
Rel[s.] Comm’n v. Transit Cas. Ins. Co., . . . 387 A.2d 58,
62 ([Pa.] 1978)). There is no statutory authorization for
the Board to grant parole to an individual sentenced to a
mandatory life term. Indeed, to the contrary, the Board
may “release on parole any inmate to whom the power to
parole is granted to the [B]oard by this chapter, except an
inmate condemned to death or serving life imprisonment.”
61 Pa.C.S. § 6137(a)(1) (emphasis added).
We therefore conclude that the Board lacks the power to
release on parole an inmate servicing [sic] a mandatory
life sentence for second-degree murder.
Hudson, 204 A.3d at 399 (bold emphasis added; citations omitted). Accordingly,
Boyd’s argument that he should be eligible for parole because Section 9765(c) of
the Sentencing Code omits second-degree murder is meritless.
6
Further, with respect to Boyd’s contention that a life sentence without
parole violates the Pennsylvania and United States Constitutions because it is cruel
and unusual punishment, the United States Supreme Court has long held:
[T]his claim has no support in the text and history of the
Eighth Amendment [to the United States Constitution,
U.S. Const. amend. VIII]. Severe, mandatory penalties
may be cruel, but they are not unusual in the
constitutional sense, having been employed in various
forms throughout our [n]ation’s history. . . . [M]andatory
death sentences abounded in our first Penal Code. They
were also common in the several [s]tates-both at the time
of the founding and throughout the 19th century. See
Woodson v. N[.] Carolina, 428 U.S. [280,] 289-[]90
[1976]. . . . There can be no serious contention, then, that
a sentence which is not otherwise cruel and unusual
becomes so simply because it is “mandatory.” See
Chapman v. U[.]S[.], 500 U.S. 453, 467 . . . (1991).
Hamelin v. Michigan, 501 U.S. 957, 994-95 (1991) (italics added).
Moreover, as the Pennsylvania Superior Court has noted:
Pennsylvania courts have repeatedly and unanimously
held that “[t]he Pennsylvania prohibition against cruel and
unusual punishment is coextensive with the Eighth and
Fourteenth Amendments [to] the United States
Constitution,” and that “the Pennsylvania Constitution
affords no broader protection against excessive sentences
than that provided by the Eighth Amendment to the United
States Constitution.” [Commonwealth v.] Barnett, 50
A.3d [176,] 197 [(Pa. Super. 2012)] (quoting
Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa.
Super. 2008)).
Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013). Consequently, a life
sentence without parole does not violate either the United States or the Pennsylvania
Constitution.
7
Accordingly, the General Assembly’s preliminary objections are
sustained, and those parties are dismissed from the above-captioned action. Further,
notwithstanding our determination that Boyd has failed to state a claim in our
original jurisdiction, we believe that he is essentially challenging the legality of his
sentence and confinement such that he has asserted a habeas corpus claim.
Consequently, we sustain the Board’s first and third preliminary objections.
Consistent with our holdings in Ellis v. Wolf (Pa. Cmwlth., No. 596 M.D. 2019, filed
April 13, 2021), and Cook v. Wolf (Pa. Cmwlth., No. 472 M.D. 2019, filed May 13,
2020), therefore, we transfer this matter to the Court of Common Pleas of
Philadelphia County, the sentencing court.4
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
Judge Covey, Judge Fizzano Cannon and Judge Wallace did not participate on the
decision for this case.
4
After this case was decided, our Supreme Court decided Scott v. Pennsylvania Board of
Probation and Parole, ___ A.3d ___ (Pa., No. 16 WAP 2021, filed October 19, 2022), which
further confirms the result here.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Francis Boyd, :
Petitioner :
:
v. : No. 515 M.D. 2020
:
Pennsylvania Board of Probation and :
Parole, Pennsylvania General Assembly, :
Pro Tem Joe B. Scarnati III/or Current :
Pro Tem Speaker of the House of :
Representatives Mike Turzai or Current :
Speaker, :
Respondents :
ORDER
AND NOW, this 4th day of November, 2022, the preliminary objections
of the Pennsylvania General Assembly Respondents to Francis Boyd’s (Boyd)
Amended Petition for Review are SUSTAINED, and the General Assembly
Respondents are hereby DISMSSED from the action.
In addition, the first and third preliminary objections of the
Pennsylvania Board of Probation and Parole are SUSTAINED, and this matter is
transferred to the Court of Common Pleas of Philadelphia County. The
Commonwealth Court Prothonotary shall transfer the record, together with a
certified copy of the docket entries, to the prothonotary of the Court of Common
Pleas of Philadelphia County.
Jurisdiction relinquished.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Francis Boyd, :
Petitioner :
:
v. : No. 515 M.D. 2020
:
Pennsylvania Board of Probation and :
Parole, Pennsylvania General Assembly, : Submitted: July 22, 2022
Pro Tem Joe B. Scarnati III/or :
Current Pro Tem Speaker of the :
House of Representatives Mike :
Turzai or Current Speaker, :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: November 4, 2022
I concur with the Majority to the extent that it disposes of Francis
Boyd’s second issue, namely, whether the General Assembly intended felony-
murder convictions to be parole-eligible under 61 Pa. C.S. § 6137(a). However,
because I also believe that the Majority unnecessarily delves into an issue that we
cannot consider in this posture, namely, whether a mandatory life sentence is an
unconstitutional cruel and unusual punishment, I respectfully dissent from that
portion of the Majority’s analysis.
The Majority correctly concludes that the recent Pennsylvania Supreme
Court decision in Hudson v. Pennsylvania Board of Probation and Parole, 204 A.3d
392 (Pa. 2019), held that the General Assembly did not intend defendants convicted
of second-degree murder to be eligible for parole. See Id. at 399. To the extent that
Boyd challenges his parole denial on that ground, our disposition must be guided by
Supreme Court precedent.
However, after correctly concluding that we do not have jurisdiction to
address Boyd’s overarching challenge to his conviction and sentence, the Majority
nevertheless goes on to conclude that life sentences without parole do not violate
either the United States or the Pennsylvania Constitutions. We have no jurisdiction
over that issue, and it is immaterial to our disposition of the parole eligibility
question.1 Accordingly, as this Court is without jurisdiction to address this issue
here, I would limit our holding to the question of parole eligibility and transfer the
remaining claims to the Court of Common Pleas. To the extent that the Majority
goes any further, I respectfully dissent.2
.
________________________________
PATRICIA A. McCULLOUGH, Judge
1
Both the General Assembly Respondents and the Pennsylvania Parole Board argue in
their preliminary objections that this Court has no jurisdiction to entertain a challenge to Boyd’s
conviction and sentence. See General Assembly Preliminary Objection II; Board Preliminary
Objection I. Moreover, the Board’s argument that life sentences are not cruel and unusual
punishment is contained in its fourth preliminary objection, upon which the Majority does not rule.
See Board Preliminary Objection IV; Majority Opinion at 6, Order.
2
The Majority’s constitutional analysis therefore is, at best, dicta. See Rendell v.
Pennsylvania State Ethics Commission, 983 A.2d 708, 714 (Pa. 2009) (any statement in a court’s
opinion that is “ancillary and, ultimately unnecessary to the resolution of the controversy” is not
decisional and is merely non-binding dicta) (citations omitted).
PAM - 2