Com. v. Smith, B.

J-A01039-19
2019 Pa. Super. 157
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON SMITH :
:
Appellant : No. 3573 EDA 2017
Appeal from the Judgment of Sentence Entered September 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004956-2015
BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: FILED MAY 14, 2019
Brandon Smith appeals from the judgment of sentence entered following
his jury trial convictions for second-degree murder, robbery, and related
offenses.1 Smith argues that the court erred in denying his motion to suppress
his statement to the police and in sentencing him to a mandatory minimum
sentence of 30 years’ incarceration. We affirm.
Just before 8:30 p.m. on March 12, 2015, James Stuhlman was shot
and killed while he was walking his dog. Six days later, on March 18, 2015,
police arrested Smith, who was 15 years old at the time, and took him to the
homicide unit for questioning. Smith made a statement in which he confessed
that he, Alston Zou-Rutherford, and Tyfine Hamilton had planned to commit a
robbery and split the proceeds. They walked around for 20 minutes while
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1 Smith was convicted of committing second-degree murder, robbery,
conspiracy to commit robbery, and possession of an instrument of crime. See
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1), 903, and 907, respectively.
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looking for someone to rob. Hamilton had a firearm. When they saw Stuhlman,
they decided to rob him, because “even the dog looked weak and small.”
Statement, 3/18/15, at 2. Smith and Hamilton approached Stuhlman while
Zou-Rutherford stood behind as a lookout. Hamilton instructed Stuhlman to
give them his belongings, and Smith instructed him to put his belongings on
the ground. When Stuhlman reached for Hamilton’s gun, Hamilton shot him.
The police filed charges against Smith. Prior to trial, Smith moved to
suppress his statement. The testimony presented at the suppression hearing
was as follows.
Detective Thomas Gaul testified that Smith was arrested at
approximately 6:30 p.m., and Detective Gaul met him approximately three
hours later, around 9:25 or 9:30 p.m. By that time, other law enforcement
officers had already questioned Smith’s brother, Zou-Rutherford. Zou-
Rutherford had confessed that both he and Smith were involved in the
shooting, and Detective Gaul had learned the substance of Zou-Rutherford’s
confession.
Detective Gaul initially spoke with Smith for approximately ten or 15
minutes, during which time he introduced himself and told Smith he was a
suspect in the shooting. Shortly thereafter, Detective Gaul attempted to
contact Victoria Zou, Smith’s legal guardian, who Smith refers to as his
mother. He left her a voicemail message.
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Detective Gaul then read Smith his Miranda2 rights, and Smith
completed, initialed, and signed a form reflecting that he was waiving his
Miranda rights. The form, which was introduced into evidence at the hearing,
stated that the police were questioning Smith in relation to a murder/robbery.
Detective Gaul testified that Sergeant Robert Wilkins was also present during
the administration of the Miranda warnings.
Detective Gaul testified that four or five minutes after he left Zou a
voicemail, she returned his call and spoke with Detective Thorsten Lucke.
Detective Lucke thereafter communicated to Detective Gaul that Zou had
given her permission for the detectives to question Smith.
Detective Gaul testified that after Smith waived his Miranda rights, he
and Smith had a discussion wherein Smith confessed to his involvement in the
shooting. Detective Gaul stated that Sergeant Wilkins and Detective Lucke
were also present during the questioning, intermittently.
Detective Gaul testified that he did not promise Smith anything in
exchange for his cooperation or tell Smith that he would be permitted to go
home if he made a statement. Detective Gaul stated he told Smith that his
involvement in a murder could potentially result in life imprisonment.
Detective Gaul claimed he encouraged Smith to cooperate by telling him the
following:
[Y]ou know all of the people that have been brought in within
these last few hours and if you are confident enough if they are
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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going to be able to stand all this pressure that is going on—
because it is pressure—everyone is brought in, everything is
coming together[.]
N.T., 4/18/17, at 173. Detective Gaul stated, “that is the only thing I laid upon
him.” Id.
Detective Gaul testified that Smith did not ask to speak with anyone the
entire evening, and was “adamant” that he did not want a lawyer or Zou
present. Id. at 168, 172. Detective Gaul testified that Smith “was very clear
as to everything that was going on” and “[t]he whole time [he was] dealing
with him, he understood clear and concise everything that was going on.” Id.
at 13-14, 170. Detective Gaul stated, “You could tell he knew exactly what he
was doing.” Id. at 168. Detective Gaul testified that Smith said he had prior
experience within the criminal justice system, and that he had previously been
detained for a robbery and that he gave a statement to the police after waiving
his Miranda rights.
Detective Gaul testified that his discussion with Smith was reduced to a
written statement in question and answer form beginning approximately four
hours after Smith’s arrest, at 10:20 p.m. The written statement was
introduced as evidence at the hearing. In the statement, Smith confirmed that
he was not under the influence of drugs, does not suffer from mental illness,
and was given the opportunity to eat, drink, and use the bathroom. Smith
acknowledged he was being interviewed in reference to the murder, that he
understood his Miranda warnings, and that he understood Zou had given
permission for him to be interviewed.
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Smith signed the statement, and at 11:50 p.m., signed a form in which
he consented to give a video-recorded statement. Detective Gaul testified that
he and Detective Lucke made a video-recording of Smith’s confession around
12:30 a.m. The prosecution played the video during the hearing. Detective
Gaul testified that Smith’s demeanor on the video was similar to his demeanor
when they were preparing the written statement.
Detective Lucke testified that he spoke with Zou when she returned
Detective Gaul’s phone call, around ten or 15 minutes after Detective Gaul
had left her a message. Detective Lucke said that he told Zou that Detective
Gaul was “busy,” but that he would take a message, and that “we had reached
out to her in an effort to gain her permission to speak with Mr. Smith in
reference to the ongoing investigation that he was at our office for.” Id. at
184. Detective Lucke told Zou that they were investigating a murder that
occurred during a robbery, and that Smith was one of several young men the
police were talking to “in effort to determine everybody’s involvement[.]” Id.
at 185. Detective Lucke testified that he told Zou,
[W]hen Detective Gaul has a minute, when he is done speaking
to your son, I can let him know he can call you or you can call
here to speak with him later on and when your son is able, I would
have him call you, if he desires to do so.
Id. at 194. According to Detective Lucke, Zou did not ask to speak to Smith,
and gave the detectives her permission to question Smith. Detective Lucke
testified that after the call was finished, he walked across the building to seek
out Detective Gaul, and relayed to him that Zou had given her permission for
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the interview. Detective Lucke testified that he did not put Zou on hold while
he went to find Detective Gaul because he was not sure where Detective Gaul
was, and he believed Detective Gaul could call Zou back again if necessary.
In addition to the testimony of Detectives Gaul and Lucke, the
Commonwealth introduced, by stipulation, a statement made by Smith to the
police in 2013 during an unrelated robbery investigation. The statement
indicated that during that investigation, Zou had given the police permission
to question Smith, and Smith had waived his Miranda rights.
Smith introduced, by stipulation, a psychologist’s report showing that
Smith’s I.Q. on the Wechsler Abbreviated Scale of Intelligence (“WASI”) test
was 81, putting him the tenth percentile. That report also reflected that
Smith’s “cognitive abilities are somewhat lower than would be expected for
the majority of the individuals in the population,” and that Smith “performed
mildly more poorly than would be expected for an average individual of his
age and grade level.” Id. at 203-04.
Zou testified that she was present when Smith was taken into custody,
at a house where the police were executing a search warrant, and that at that
time, she told Smith she would get him a lawyer. Zou testified that she called
the police at 9:37 p.m. and spoke with a detective for seven minutes,3 mainly
in order to locate Zou-Rutherford. Zou testified that the detective who
answered told her Smith was with another detective, who would call her back.
____________________________________________
3 Smith submitted Zou’s phone records as evidence, but these were not
included in the certified record.
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Zou testified that the police did not offer to let her speak to Smith. According
to Zou, she did not tell the police they could not talk to Smith, but also did
not give them permission to speak with him. Zou testified that she has an
associate’s degree in criminal justice, and understands Miranda rights.
Finally, Smith testified. He stated that he cried throughout the interview,
had asked Detective Gaul if he could speak to a lawyer or to Zou, and that
Detective Gaul told him he could go home if he cooperated. However, Smith
also testified that he had understood his Miranda rights and wanted to waive
them, and that no one had threatened him or forced him to make a statement.
Smith testified that he would have waived his Miranda rights even if Zou had
not given her permission to the detectives, because he had wanted to confess.
Smith testified that he was being “hardheaded,” because Zou had advised him
to get an attorney. Id. at 266. Smith stated that when he was previously
questioned, in relation to another robbery, he had told the truth about his
involvement, and the detectives had released him. Smith believed if he came
clean about his involvement in the instant case, he would receive similar
treatment. Smith stated, “I believe the truth will set you free. So that is why
I was there, to tell the truth and hopefully I will get a second chance but that
is just my belief.” Id. at 271. Smith also testified that he made a statement
because he did not know he could be tried as an adult.
The court denied the motion to suppress the statement. At Smith’s jury
trial, the Commonwealth introduced into evidence both Smith’s written
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statement and the video-recording of Smith adopting the content of his written
statement.
Smith’s brother, Zou-Rutherford, testified for the defense, and verified
that he, Smith, and Hamilton had committed the robbery, and that Hamilton
had pulled the trigger. Zou-Rutherford also testified that after Hamilton
pointed a gun at Stuhlman, Smith told Hamilton to “chill,” and that Smith’s
body language and facial expression at the time indicated that he did not want
Hamilton to shoot Stuhlman. N.T., 4/20/17, at 43, 67, 78.
The jury found Smith guilty. The court thereafter sentenced Smith to
serve 30 years to life imprisonment for the second-degree murder conviction,
pursuant to 18 Pa.C.S.A. § 1102.1(c)(1). The court also sentenced Smith to a
consecutive term of ten years’ probation for conspiracy to commit murder,
and to no further penalty on the remaining convictions.
Smith appealed, and presents two issues for our review:
A. Did not the lower court err and abuse its discretion by denying
the defense motion to suppress the statement of Mr. Smith, a
juvenile, because it was taken in violation of his rights to due
process under the Fifth and Fourteenth Amendments to the United
States Constitution, Article I, Section 9 of the Pennsylvania
Constitution, and his Fifth Amendment right to remain silent
pursuant to the requirements of Miranda v. Arizona, 384 U.S.
436 (1966), and its progeny[?]
B. Did not the sentence of thirty (30) years to life, that was
statutorily required in this case by 18 Pa.C.S. § 1102.1(c)(1),
violate the Eighth Amendment to the United States Constitution,
in that application of the statute (1) presents a mismatch between
the liability of a class of offenders (children) and the severity of
penalty; (2) precludes consideration of the general and specific
mitigation qualities of youth, making them irrelevant to the
imposition of the mandatory minimum sentence[;] and (3) due in
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part significantly reduced life expectancy in prison,
unconstitutionally impairs the rehabilitative ideal enshrined in
Graham v. Florida, 560 U.S. 48, 74 (2010) and Miller v.
Alabama, 567 U.S. 460, 473 (2012)[?]
Smith’s Br. at 4 (answers below omitted).
I. Motion to Suppress
Smith argues the court erred in denying his motion to suppress the
statement he made to the police for three reasons. First, Smith contends that
the interrogation was coercive because Detective Gaul told Smith that the
other people the police were questioning would not be able to withstand police
pressure and might confess before Smith did. Specifically, Smith complains
that Detective Gaul advised Smith,
[Y]ou know all of the people that have been brought in within
these last few hours and if you are confident enough if they are
going to be able to stand all this pressure that is going on—
because it is pressure—everyone is brought in, everything is
coming together[.]
N.T. 4/18/17, at 173. Smith contends these words were designed to interfere
with his evaluation of his need for counsel and to induce him to confess. Smith
additionally argues that the Commonwealth’s evidence “did not disprove” that
Detective Gaul said these words to Smith before he administered the Miranda
warnings. Smith’s Br. at 28.
Second, Smith argues the police actively prevented him from consulting
with Zou, an interested adult, prior to the interrogation. Smith points out that
Detective Gaul testified he started speaking with Smith before calling Zou and
before reading Smith his Miranda warnings. According to Smith, during that
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time, Detective Gaul had already begun pressuring Smith. Smith also argues
that Detective Gaul administered the Miranda warnings and began
interrogating Smith before they received permission from Zou. Smith
additionally argues that when Zou called and asked to speak with Detective
Gaul, Detective Lucke told her Detective Gaul was “busy” and that she could
not speak to him until the interrogation was over. Smith argues that Detective
Lucke’s testimony that he did not put Detective Gaul on the phone because
he did not know where to find Detective Gaul was incredible. Smith also
complains that Detective Lucke did not tell Zou that Smith was a murder
suspect, or explain to her Smith’s rights under Miranda.
Finally, Smith argues that his age, experience, psychological state, and
comprehension level all demonstrate that his waiver of his Miranda rights
was not intelligent. Smith was fifteen and one-half years old at the time. He
claims he was “cognitively compromised,” as he received the same score on
the WASI test, 81, as the defendant in Commonwealth v. Williams, 61 A.3d
979, 980 (Pa. 2013), whom the Supreme Court deemed mentally retarded
and ineligible for the death penalty. Smith argues he clearly did not
understand the gravity of his situation, as he believed he would not get into
trouble if he admitted his involvement in the robbery, and there was no
testimony that Smith was told he was being charged with murder before he
made the oral confession. In addition, Smith claims the fact that he waived
his Miranda rights and questioned once before, at age 13, does not indicate
he had enough experience to understand the criminal system, as there was
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no evidence regarding the coerciveness of that questioning or his
understanding at that time.
When reviewing an order denying a suppression motion, we reverse only
if the trial court’s factual findings are not supported by the record or the court
erred in its legal conclusions. Commonwealth v. Knox, 50 A.3d 732, 746
(Pa.Super. 2012). We consider only the Commonwealth’s evidence and the
uncontradicted evidence of the defense. Id.
When a defendant challenges the admission of a statement made during
a custodial interrogation, the Commonwealth bears the burden to prove by a
preponderance of the evidence that the defendant’s Miranda waiver was
knowing, intelligent, and voluntary. In re T.B., 11 A.3d 500, 505 (Pa.Super.
2010). We engage in a two-part inquiry:
First[,] the relinquishment of the right must have been voluntary
in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion or deception. Second, the
waiver must have been made with a full awareness both of the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the “totality of the circumstances
surrounding the interrogation” reveal both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that Miranda rights have been waived.
Id. at 505-06 (quoting Commonwealth v. Cephas, 522 A.2d 63, 65
(Pa.Super. 1987)).
An examination of the totality of the circumstances includes a
consideration of “(1) the duration and means of an interrogation; (2) the
defendant’s physical and psychological state; (3) the conditions attendant to
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the detention; (4) the attitude of the interrogator; and (5) ‘any and all other
factors that could drain a person’s ability to withstand suggestion and
coercion.’” Id. at 506 (quoting Commonwealth v. Nester, 709 A.2d 879,
882 (Pa. 1998)). When the defendant is a juvenile, the inquiry also includes
“a consideration of the juvenile’s age, experience, comprehension and the
presence or absence of an interested adult.” id. (quoting In Interest of N.L.,
711 A.2d 518, 520 (Pa.Super. 1998)).
We first address Smith’s contention that Detective Gaul coerced Smith
to waive his rights and confess by stressing to him the likelihood that one of
his friends would confess first. This argument is waived by Smith’s failure to
argue it at the suppression hearing or otherwise raise it before the trial court.
See Pa.R.A.P. 302(a); N.T., 4/18/17, at 283-99. Further, in his Rule 1925(b)
statement, Smith complains the statement was involuntary “based on the
totality of circumstances, which include but are not limited to, [Smith’s] youth
and that he was not given the chance to consult with an interested adult.”
Rule 1925(b) Statement at 1-2. Because Smith failed to raise this aspect of
his argument with specificity in his Rule 1925(b) statement, the trial court’s
Rule 1925(a) opinion does not refer to this particular statement by Detective
Gaul. This challenge is therefore also waived by Smith’s failure to include it in
his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule
1925(b) statement to “concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for the
judge”).
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Even if Smith had properly preserved this issue, it would not merit relief.
Police may make coercive statements when questioning suspects, so long as
the totality of the circumstances suggests the confession was voluntary.
Commonwealth v. Roberts, 969 A.2d 594, 601 (Pa.Super. 2009); see also
Commonwealth v. Jones, 322 A.2d 119, 126 (Pa. 1974). Police may even
tell a juvenile defendant they have other evidence of his guilt—whether or not
they do—in order to induce a Miranda waiver and confession. See Jones,
322 A.2d at 126-27 (affirming denial of suppression where police falsely
informed 17-year- old defendant that another suspect had inculpated him
before defendant waived his Miranda rights and confessed);
Commonwealth v. Fogan, 296 A.2d 755, 757-58 (Pa. 1972) (affirming
denial of suppression where police told 17-year-old defendant with an 84 I.Q.
that his fellow gang-member implicated him as the shooter, and defendant
waived his Miranda rights and confessed). Here, even assuming Detective
Gaul made the complained-of statement in the ten or 15 minutes before he
advised Smith of his Miranda rights, it is uncontested that Smith did not
confess his involvement in the murder until after he waived his Miranda
rights. And, the information imparted by Detective Gaul—that the police were
questioning other suspects in relation to the crime—was not of the sort so
coercive as to render Smith’s waiver involuntary. See Jones, 322 A.2d at
126-27; Fogan, 296 A.2d at 757-58.
We next address Smith’s second contention, that the police prevented
him from speaking with an interested adult. His argument has no basis in law
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or fact. A juvenile has no per se right to speak with an interested adult prior
to questioning by the police. See T.B., 11 A.3d at 507. Rather, whether a
juvenile defendant was afforded the opportunity to speak with an interested
adult before waiving Miranda rights is but one factor in the totality-of-the-
circumstances analysis the court must apply when determining whether the
waiver was knowing, intelligent, and voluntary. Id.
Because the totality of the circumstances varies from case to case, we
have both affirmed and reversed orders denying suppression where a juvenile
defendant waived Miranda without first consulting with an interested adult.
Compare Knox, 50 A.3d at 747 (affirming denial of suppression in murder
trial where 17-year-old defendant’s father declined to come to police station,
court credited detective’s testimony that defendant understood what was
happening, defendant had a prior adjudication for robbery, questioning was
brief, and statement was exculpatory) with T.B., 11 A.3d at 507-09 (holding
waiver not knowing and intelligent where 15-year-old defendant had I.Q. of
67, no prior experience with legal system, and no consultation with an
interested adult prior to his Miranda waiver; although defendant’s mother
gave police consent to question him, police did not apprise her of defendant’s
Miranda rights).
Here, the trial court found as a fact that Zou gave the police her
permission to speak to Smith. Trial Court Opinion, filed February 26, 2018, at
14. The court also found that Zou understood that Smith was being questioned
in relation to a murder, and credited Zou’s own testimony that she understood
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Smith’s Miranda rights. N.T., 4/18/17, at 322. In addition, the court credited
Smith’s testimony that he understood his Miranda rights because he had
previously waived them when he was questioned in connection to a prior
robbery, and that he intended to waive his rights and make a statement
regardless of whether Zou granted the police permission. Id. at 323, 326; Tr.
Ct. Op. at 14. We add that Detective Lucke testified Zou gave her permission
even though he told her that the interrogation would not proceed without it,
and that Zou did not ask to see Smith. Detective Gaul testified Smith was
adamant he did not want Zou or an attorney present during questioning. We
cannot conclude that the police violated Smith’s constitutional rights by
questioning him even though he had not consulted with Zou.
Moreover, the trial court considered the totality of the circumstances in
concluding that Smith’s waiver was knowing, intelligent, and voluntary. The
court found that the questioning was not protracted and that Smith was not
under the influence of any substance or deprived of food, drink, or use of a
bathroom. Tr. Ct. Op. at 14; N.T., 4/18/17, at 324-25. The court found no one
threatened Smith or otherwise forced him to make a statement. Tr. Ct. Op. at
15; N.T., 4/18/17, at 324. The court credited Detective Gaul’s testimony that
he did not promise Smith he could go home if he made a statement. N.T.,
4/18/17, at 324. The court recounted Detective Gaul’s testimony that Smith
“appeared to understand what was going on, that his answers were clear and
concise, [and] that he told [Smith] what [Smith] is implicated in had the
potential to get [him] a life sentence.” Id. at 312. The court found that
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although Smith had an I.Q. of 81, “he has a certain amount of intelligence,”
id. at 325, and that he was self-motivated to tell the police that he was not
the shooter and explain his version of events. Tr. Ct. Op. at 14-15. The court
stated that it had observed Smith’s demeanor on the video-recorded
statement, and noted that Smith voluntarily made an additional statement of
remorse at the end of the recording. Tr. Ct. Op. at 14; N.T., 4/18/17, at 326.
The record supports the court’s factual findings, and the totality of
circumstances indicates that Smith made a knowing, intelligent, and voluntary
waiver of his Miranda rights.
We are unpersuaded by Smith’s third contention, that his cognitive
impairment and his stated motivation for confessing evince that his Miranda
waiver was unintelligent. A defendant’s low I.Q. does not necessarily establish
that a Miranda waiver was made unintelligently. Commonwealth v.
Hughes, 555 A.2d 1264, 1275 (Pa. 1989); see also Commonwealth v.
Crosby, 346 A.2d 768, 772 (Pa. 1975) (collecting cases). We have previously
held that a defendant with an I.Q. of 81 was capable of making a valid
Miranda waiver where he had prior experience with Miranda warnings. See
Hughes, 555 A.2d at 1274-75. Although the defendant in Williams scored
an 81 on the WASI test, the Supreme Court noted “the test cannot be used
diagnostically because it is solely a screening tool.” Williams, 61 A.3d at 992.
The Court’s actual holding in Williams was to affirm the lower court’s
determination that the defendant was mentally retarded, such that his
sentence of death could not stand. Id. The Court did not hold that the
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defendant’s I.Q. rendered a Miranda waiver per se unenforceable. Williams
is thus inapposite.
Smith’s further claim that his statement was unintelligent because he
was unaware that he could face murder charges is similarly unavailing. The
record reflects that Smith knew he was being questioned in relation to the
murder and robbery, and the trial court concluded that Smith’s ignorance that
his involvement in the shooting could subject him to a finding of second-
degree murder did not render his Miranda waiver unintelligent. N.T.,
4/18/17, at 326-27. We agree. There is no requirement that police advise a
defendant at the time of administering Miranda warnings, prior to taking a
defendant’s statement, as to his level of culpability and what charges might
be filed against him. Rather, as we have explained,
[A]n accused must be aware of the nature of the investigation at
the time of the questioning before a waiver of Miranda rights can
be held to be effective. It does not mean that an accused must be
aware of all the consequences which might flow from a waiver of
his Miranda rights before he can effectively waive them. . . . We
also hold that a defendant need not be aware of every conceivable
consequence which might flow from a waiver of his Miranda
rights in order to effectuate such a waiver as it is impossible to
foresee every such possible consequence. We merely hold that the
defendant must be informed that his statements can and will be
used against him in a court of law as required in Miranda.
Commonwealth v. Gotto, 452 A.2d 803, 807 (Pa.Super. 1982) (quoting
Commonwealth v. Reaves, 421 A.2d 351, 354 (Pa.Super. 1980)).
Accordingly, there is no requirement that police administering Miranda
warnings explain whether the defendant could be liable under the felony
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murder rule or whether a juvenile defendant could be tried as an adult. See
Commonwealth v. Weeden, 322 A.2d 343, 346 (Pa. 1974) (finding
defendants knowingly waived Miranda although the police did not explain
that they could be liable under the felony murder rule); Reaves, 421 A.2d at
354 (finding officers’ Miranda warning that defendant’s statements could be
used against him in a juvenile proceeding did not constitute a promise that
defendant would be treated as a juvenile, and resulting waiver effective). We
affirm the court’s order denying Smith’s motion to suppress.
II. Sentence
In his second issue, Smith argues that the 30-year mandatory minimum
sentence imposed by the court pursuant to 18 Pa.C.S.A § 1102.1(c)(1)
violates the Eighth Amendment to the United States Constitution. Smith
contends that the statute is unconstitutional for three interrelated reasons.
First, the imposition of the mandatory 30-year sentence “presents a mismatch
between the culpability of a class of offenders (children) and the severity of
penalty.” Smith’s Br. at 43. Second, he argues it “precludes consideration of
the general and specific mitigating qualities of youth, making them irrelevant
. . . and thus poses too great a risk for disproportionate punishment.” Id.
Third, he maintains that because of the “significantly reduced life expectancy
in prison, [the mandatory minimum sentence] unduly circumscribes the
rehabilitative idea enshrined in Graham v. Florida, 560 U.S. 48 (2010) and
Miller v. Alabama, 567 U.S. 460 (2012).” Id.
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Smith acknowledges, as he must, that in Commonwealth v.
Lawrence, 99 A.3d 116, 121 (Pa.Super. 2014), we held the 35-year
mandatory minimum sentence imposed upon juveniles who commit first-
degree murder did not violate the Eighth Amendment. See 18 Pa.C.S.A. §
1102.1(a)(1). However, he argues we should not extend this holding to the
30-year mandatory minimum sentence for juveniles who commit second-
degree murder, because the degree of culpability significantly varies between
those who commit first- and second-degree murder. Specifically, Smith claims
his 30-year mandatory sentence is disproportionate to his crime as he never
possessed the murder weapon, he had no specific intent to kill, he did not
agree to a plan that explicitly involved killing, and he even attempted to
prevent Hamilton from firing.
Although Smith did not raise this issue in the court below, he may do so
now, as it is a challenge to the legality of his sentence, and thus unwaivable.
See Lawrence, 99 A.3d at 123-24. We review the legality of a sentence de
novo standard. Commonwealth v. Foust, 180 A.3d 416, 422 (Pa.Super.
2018). Our scope of review is plenary. Id.
“[D]uly enacted legislation carries with it a strong presumption of
constitutionality.” Lawrence, 99 A.3d at 118. We will not find a statute
violative of the Eight Amendment’s prohibition on cruel and unusual
punishment unless it calls for a sentence “so greatly disproportionate to an
offense as to offend evolving standards of decency or a balanced sense of
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justice.” Knox, 50 A.3d at 741 (quoting Commonwealth v. Ehrsam, 512
A.2d 1199, 1210 (Pa.Super. 1986)).
In Miller, the United States Supreme Court held that the imposition of
a mandatory minimum sentence of life imprisonment upon a juvenile
defendant violated the Eighth Amendment. Commonwealth v. Brooker, 103
A.3d 325, 334 (Pa.Super. 2014). In response, the Pennsylvania General
Assembly enacted a new sentencing statute, 18 Pa.C.S.A. § 1102.1.
Commonwealth v. Batts, 163 A.3d 410, 419 (Pa. 2017). The statute
outlines the penalties for juvenile defendants convicted of first- and second-
degree murder. 18 Pa.C.S.A. § 1102.1. It distinguishes between defendants
convicted of first-degree murder and second-degree murder, and
differentiates those who were younger than 15 years old at the time of the
offense from those who were 15 years old and older. Id. The subsection under
which the court sentenced Smith, subsection (c)(1), applies to juvenile
defendants, like Smith, convicted of second-degree murder who were at least
15 years old at the time of the murder, and requires a minimum sentence of
30 years, with a maximum sentence of life imprisonment. Id. at (c)(1).
As Smith points out, we previously considered the constitutionality of
the subsection that mandates a sentence of 35 years to life for juveniles
convicted of first-degree murder, subsection (a)(1). See Lawrence, 99 A.3d
at 121. Like the subsection under which Smith was sentenced, it applies to
juveniles who committed their crime when they were at least 15 years old. 18
Pa.C.S.A. § 1102.1(a)(1). In Lawrence, the defendant argued, based on the
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U.S. Supreme Court’s holding in Miller, that subsection (a)(1) was
unconstitutional under the Eighth Amendment because it precludes
consideration of a defendant’s age, his role in the crime, or other factors in
determining the juvenile’s minimum sentence. See Lawrence, 99 A.3d at
121. We declined to extend Miller to subsection (a)(1) because, unlike the
statute at issue in Miller, it does not require a flat sentence of life
imprisonment. Id. We also specifically rejected the argument that the Eighth
Amendment prohibits all mandatory minimum sentences for juveniles as
beyond the rule of Miller. We pointed out that mandatory minimum
sentences, whether measured in days or years, by their nature preclude
consideration of a defendant’s individual circumstances. Id.
Similarly, in Brooker, we rejected a claim that the mandatory minimum
35-year sentence that subsection (a)(1) requires is essentially a life sentence.
We concluded that such a sentence “still provides a ‘meaningful’ opportunity
for release.” 103 A.3d at 339. We also disagreed that the sentence violated
Miller because it is not sufficiently tailored to a juvenile’s individual level of
culpability. Id.
Given the foregoing, we reject Smith’s claims that imposition of a
mandatory minimum sentence under Section 1102.1(c)(1) is unconstitutional
because such a sentence precludes consideration of the offender’s youth,
rehabilitative needs, or level of culpability. See Brooker, 103 A.3d at 338-
40; Lawrence, 99 A.3d at 121. We also reject Smith’s argument that due to
diminished life expectancy in prison, a 30-year sentence imposed on a juvenile
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equates to a sentence of life imprisonment. See Brooker, 103 A.3d at 338-
40.
We additionally decline Smith’s invitation to invalidate his sentence
because he was convicted under the felony-murder rule. In Commonwealth
v. Olds, 192 A.3d 1188 (Pa.Super.) appeal denied, 199 A.3d 334 (Pa. 2018),
we held that the imposition of a mandatory maximum sentence of life
imprisonment on a juvenile convicted of second-degree murder is not cruel
and unusual, provided there is an opportunity for parole. Id. at 1191.
Although the defendant in Olds was convicted prior to the enactment of
Section 1102.1, and was therefore not sentenced under that statute, and
although Smith does not challenge his mandatory maximum sentence of life
imprisonment, we find the discussion in Olds instructive.
In Olds, the defendant was found guilty of second-degree murder under
the felony-murder rule. Id. at 1192 n.12. On appeal, he argued that the intent
to kill should not be inferred for juveniles convicted under the felony-murder
rule, as “they have diminished capacity to appreciate outcomes,” and that a
maximum sentence of life imprisonment is cruel and unusual when imposed
mandatorily on juveniles who had not killed or intended to kill. Id. at 1192,
1192 n.12. We rejected these arguments, and noted that the Eighth
Amendment allows for imposition of a mandatory maximum sentence of life
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imprisonment, even upon juveniles convicted of non-homicide offenses. Id.
at 1196. Relevant to the felony-murder rule, we stated the following:
In the future, our nation’s standards of decency may evolve to the
point where sentencing a juvenile convicted of second-degree
murder under an accomplice or co-conspirator theory of liability is
considered disproportionate and, therefore, cruel and unusual
punishment. Appellant does not cite a single appellate case, and
we are unaware of any, which have extended the Eighth
Amendment this far. . . .
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. Accordingly, we hold that the Eighth
Amendment permits imposition of [a] mandatory maximum term
of life imprisonment for juveniles convicted of second-degree
murder, who did not kill or intend to kill.
Id. at 1197–98 (footnotes and citations omitted).
Here, despite Smith’s protestations regarding his level of intent, he
admitted that he prowled the streets for 20 minutes, intending to help his
companions commit an armed robbery, and that he decided to rob Stuhlman,
who was out walking his dog, because “even the dog looked weak and small.”
Statement, 3/18/15, at 2. Considering that our precedent has established the
Eighth Amendment permits the imposition of mandatory minimum sentences
under Section 1102.1 – sentences that necessarily preclude a consideration of
an individual’s level of culpability – and because Smith was appropriately
convicted of second-degree murder under the facts of this case, we do not
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find that the imposition of the 30-year mandatory minimum sentence was
cruel and unusual.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/19
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