Com. v. Banks, R.

J-S46013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMIK BANKS :
:
Appellant : No. 1038 EDA 2020
Appeal from the PCRA Order Entered February 20, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002500-2011
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 5, 2021
Appellant, Ramik Banks, appeals pro se from the trial court’s February
20, 2020, order denying his petition for writ of habeas corpus. After careful
review, we affirm.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. We only note that on April 20, 2012, a jury convicted
Appellant of first-degree murder and related offenses. He was sentenced that
same day to life imprisonment without the possibility of parole (“LWOP”).
Appellant filed a timely appeal and, after this Court affirmed his judgment of
sentence, our Supreme Court denied his petition for allowance of appeal.
Commonwealth v. Banks, 83 A.3d 1064 (Pa. Super. 2013) (unpublished
memorandum), appeal denied, 87 A.3d 317 (Pa. 2014). Appellant thereafter
filed a timely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, which was ultimately dismissed by the PCRA court. We
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affirmed the PCRA court’s dismissal of Appellant’s petition on appeal.
Commonwealth v. Banks, 215 A.3d 688 (Pa. Super. 2019) (unpublished
memorandum).
On July 23, 2019, Appellant filed a pro se petition for writ of habeas
corpus, which underlies his present appeal. Therein, he claimed, inter alia,
that the statute under which his LWOP sentence was imposed, 18 Pa.C.S. §
1102, is void for vagueness, as it does not provide adequate notice of the
impossibility of parole. On February 20, 2020, the trial court issued an order
denying Appellant’s petition for writ of habeas corpus. Appellant filed a timely,
pro se notice of appeal, and he also complied with the trial court’s order to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Therein, he preserved the following, single issue that he raises on appeal:
A. Whether the trial court abused its discretion in dismissing
Appellant’s state habeas corpus petition alleging penal statute 18
Pa.C.S. [§] 1102(a) is unconstitutional and void under the
vagueness doctrine because the statute fails to give a person of
ordinary intelligence fair notice that its true penalty is life
imprisonment “without parole?”
Appellant’s Brief at 3.
Initially, we observe that Appellant raised this exact same claim in his
timely-filed PCRA petition, which was denied by the PCRA court and addressed
by this Court in Appellant’s prior appeal. See Commonwealth v. Banks, No.
356 EDA 2018, unpublished memorandum (Pa. Super. filed June 8, 2018)
(“[Appellant] claims that the statute authorizing his sentence is
unconstitutionally vague, as it fails to state that a sentence of life in prison
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under the statute is without the possibility of parole.”). In affirming the PCRA
court’s denial of Appellant’s petition, we noted that this Court had rejected the
same void-for-vagueness challenge to section 1102 in Commonwealth v.
Rouse, 191 A.3d 1 (Pa. Super. 2018). There, Rouse filed a PCRA petition
alleging that section 1102 failed to give adequate notice of the impossibility
of parole and was, therefore, void for vagueness. The Rouse panel held that
the claim did not implicate the legality of Rouse’s sentence and, therefore, it
was not cognizable under the PCRA. Id. at 6-7. Next, the panel concluded
that Rouse had waived his section 1102 challenge by not raising it at
sentencing or in a post-sentence motion. Id. at 7.
Applying Rouse in Appellant’s prior PCRA appeal, this Court first
determined that Appellant had improperly raised his void-for-vagueness claim
in a PCRA petition. See Banks, No. 356 EDA 2018, at *7. Second, we held
that, even had Appellant properly raised his claim in a petition for writ of
habeas corpus, he had waived it by failing to raise it at sentencing or in a
post-sentence motion. Id. Alternatively, we noted that we would have
rejected Appellant’s void-for-vagueness challenge on the merits, adopting the
following rationale set forth by the PCRA court:
“[D]uly enacted legislation carries with it a strong presumption of
constitutionality.” Commonwealth v. Turner, 80 A.3d 754, 759
(Pa. 2013). It will therefore be upheld, “unless it clearly, palpably,
and plainly violates the constitution.” Commonwealth v.
Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal quotations
omitted). Under the void-for-vagueness standard, a statute is
unconstitutional if it is “so vague that persons of common
intelligence must necessarily guess at its meaning and differ as to
its application.” Commonwealth v. Davidson, 938 A.2d 198,
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207 (Pa. 2007). On the other hand, a statute will pass
constitutional muster[] if it “define[s] the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Id. (quoting
Kodender v. Lawson, 461 U.S. 352, 357 (1983)). Specifically,
a sentencing statute is constitutional if it states with specific clarity
the consequences of violating a criminal statute.
Commonwealth v. Berryman, 649 A.2d 961, 985 (Pa. Super.
1994) (citing U.S. v. Batchelder, 442 U.S. 114, 123 (1979)).
Here, the sentencing statute at issue, 18 Pa.C.S. §
1102(a)(1), plainly states that a person convicted of first[-]degree
murder “shall be sentenced to death or a term of life
imprisonment.” While section 1102(a)(1) is silent about parole
eligibility, a separate statute unambiguously provides that the
parole board is without power to parole anyone serving a sentence
of life imprisonment. 61 Pa.C.S. § 6137(a)(1) (“The board may
parole … any inmate to whom the power to parole is granted to
the board by this chapter, except an inmate condemned to death
or serving life imprisonment….”). Moreover, the fact that parole
eligibility is codified in a separate statute is irrelevant, since both
statutes read together put [a] defendant on notice that the
penalty for first[-]degree murder is life without parole or death.
See Commonwealth v. Bell, 645 A.2d 211, 218 (Pa. 1994)
(mandatory minimum statute … was not unconstitutionally vague
for failing to specify a [] sentence since the [sentence] was implied
when read together with other statutes).
Id. at 7-8 (quoting PCRA Court Opinion, 4/11/18, at 11-12).
Reviewing this Court’s decision in Appellant’s prior, PCRA appeal, it is
clear that we have already rejected, as waived and/or meritless, the same
challenge to section 1102 that Appellant presents herein. Accordingly, we are
bound to affirm, for the same reasons set forth in Appellant’s previous appeal,
the trial court’s order dismissing his void-for-vagueness challenge to section
1102. See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)
(“[T]his Court has long recognized that judges of coordinate jurisdiction sitting
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in the same case should not overrule each others’ decisions.”) (citation
omitted).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2021
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