Com. v. Marshall, Q.

J-S01028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUINZEL MARSHALL :
:
Appellant : No. 444 EDA 2019
Appeal from the PCRA Order Entered January 16, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0336001-1985,
CP-51-CR-0336111-1985, CP-51-CR-0500391-1985
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
CONCURRING MEMORANDUM BY STRASSBURGER, J.:
FILED SEPTEMBER 22, 2020
I join the Majority. I write separately to express my continuing
dissatisfaction with the state of the law in this Commonwealth regarding
consecutive sentences. This case presents a classic example of what I have
previously inveighed against, which is the virtually unfettered discretion given
to trial judges as to whether a consecutive or concurrent sentence should be
imposed. See Commonwealth v. Zirkle, 107 A.3d 127, 136 (Pa. Super. Ct.
2014) (Strassburger, J., concurring).
Appellant was sentenced to an aggregate of 60 to 120 years’
incarceration. His horrific crimes could have easily resulted in the victims’
deaths, and 60 to 120 years is certainly defensible. On the other hand, the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01028-20
trial judge could have emphasized that Appellant was only 16 years old and
ran the sentences concurrently. Had the sentences run concurrently, he could
have received 10-20 years’ incarceration.
In this case Appellant presents the issue in terms of the legality of the
sentence under Eighth Amendment, and the Majority correctly concludes that
we do not have jurisdiction. But even if we had jurisdiction, our hands would
be tied. See Commonwealth v. Foust, 180 A.3d 416, 438 (Pa. Super. 2018)
(holding that this Court “must consider the individual sentences, not the
aggregate, to determine if the trial court imposed a term-of-years sentence
which constitutes a de facto [life without parole] sentence”). And even if this
case were postured for this Court to address the discretionary aspects of
Appellant’s sentence, as I explained in Zirkle, supra, there is often little we
can do. Appellant and others in his position could serve a minimum of
anywhere from 10 years to 60 years, without oversight by the appellate
courts. To me, this is untenable.
Judge Kunselman joins in this concurring memorandum.
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