J-S03024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL W. JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1196 EDA 2016

Appeal from the Judgment of Sentence December 9, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0003440-2011

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JUNE 28, 2018

Nathaniel W. Johnson appeals from the judgment of sentence entered 

in the Philadelphia County Court of Common Pleas. On appeal, he challenges 

the mandatory minimum sentence imposed pursuant to the “third strike”

provision in 42 Pa.C.S.A. § 9714. We affirm.

We briefly recount the relevant facts of this case. Appellant brought his 

brother’s eleven-year-old goddaughter to his house and raped her. Following 

the incident, the victim exhibited extreme behavioral changes. She later 

revealed a page in her diary recounting the incident to a social worker, who 

reported it to authorities. Appellant was charged with rape of a child, unlawful 

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 Former Justice specially assigned to the Superior Court.
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contact with a minor, unlawful restraint, corruption of minors, and indecent 

assault.

1 And a jury convicted him of all those offenses.

At sentencing, Appellant challenged the Commonwealth’s assessment 

that his crimes qualified for Pennsylvania’s “third strike” mandatory minimum. 

That statute provides, in part, that any person convicted of two or more crimes 

of violence shall be sentenced to a minimum of 25 years’ incarceration. See

42 Pa.C.S.A. § 9714(a)(2). Appellant admitted his 1984 conviction for robbery 

qualified as a crime of violence under the statute, but countered that his 1965 

conviction for second-degree murder did not. Appellant indicated § 9714(g), 

defining “crimes of violence,” lists third-degree murder and voluntary 

manslaughter, but does not specifically include second-degree murder. In 

response, the Commonwealth argued when Appellant was convicted, only first 

and second-degree murder were codified crimes. The Commonwealth cited

caselaw indicating the crime of second-degree murder in 1965 closely 

mirrored the present definition of third-degree murder. The sentencing court 

agreed, and imposed an aggregate term of 25-50 years’ incarceration. This 

appeal is now before us.

Appellant’s sole issue on review challenges the sentencing court’s 

assessment of his 1965 second-degree murder conviction as a crime of 

violence under § 9714(g). Appellant argues that because second-degree 

murder is not specifically enumerated in § 9714(g), it cannot qualify as a crime 

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1 18 Pa.C.S.A. §§ 3121(c); 6318(a)(1); 2902(a)(1); 6301(a)(1)(ii); and 

3126(a)(7), respectively.
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of violence. Appellant deduces he should not have been sentenced pursuant 

to the mandatory minimum, as he did not commit two qualifying crimes of 

violence, and concludes we must vacate his judgment of sentence, and 

remand for resentencing. He is mistaken.

Appellant challenges the legality of his sentence. “The classic claim of 

an ‘illegal sentence’ is one that exceeds the statutory limits.” Commonwealth 

v. Hansley, 47 A.3d 1180, 1189 (Pa. 2012) (citation omitted). “Issues 

relating to the legality of a sentence are questions of law, as are claims raising 

a court’s interpretation of a statute. Our standard of review over such 

questions is de novo and our scope of review is plenary.” Commonwealth v. 

Brougher, 978 A.2d 373, 377 (Pa. Super. 2009) (citation omitted).

The Sentencing Code provides, in relevant part:

Where the person had at the time of the commission of the current 

offense previously been convicted of two or more such crimes of 

violence arising from separate criminal transactions, the person 

shall be sentenced to a minimum sentence of at least 25 years of 

total confinement, notwithstanding any other provision of this title 

or other statute to the contrary. Proof that the offender received 

notice of or otherwise knew or should have known of the penalties 

under this paragraph shall not be required. ... 

42 Pa.C.S.A. § 9714(a)(2). 

As the trial court notes in its opinion, § 9714(g) specifically enumerates 

qualifying crimes of violence, and includes any “equivalent crime under the 

laws of this Commonwealth in effect at the time of the commission of that 

offense[.]” 42 Pa.C.S.A. § 9714(g). Subsection (g) lists murder of the third 

degree as a crime of violence. 
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At the time Appellant committed second-degree murder in 1965, that 

crime was defined as follows:

(a) Murder of the first degree.—A criminal homicide 

constitutes murder of the first degree when it is committed 

by means of poison, or by lying in wait, or by any other kind 

of willful, deliberate, and premeditated killing. A criminal 

homicide constitutes murder of the first degree if the actor 

is engaged in or is an accomplice in the commission of, or 

an attempt to commit, or flight after committing, or 

attempting to commit robbery, rape, or deviate sexual 

intercourse by force or threat of force, arson, burglary, or 

kidnapping.

(b) Murder of the second degree.—All other kinds of 

murder shall be murder of the second degree. Murder of the 

second degree is a felony of the first degree.

18 Pa.C.S.A. § 2502 (Historical and Statutory Notes). 

Presently, the Crimes Code classifies the crime of murder using three 

degrees: 

(a) Murder of the first degree.—A criminal homicide 

constitutes murder of the first degree when it is committed 

by an intentional killing.

(b) Murder of the second degree.—A criminal homicide 

constitutes murder of the second degree when it is 

committed while defendant was engaged as a principal or 

an accomplice in the perpetration of a felony.

(c) Murder of the third degree.—All other kinds of 

murder shall be murder of the third degree. Murder of the 

third degree is a felony of the first degree.

18 Pa.C.S.A. § 2502(a)-(c).

And the Pennsylvania Supreme Court has acknowledged, “murder of the 

second degree has been reclassified as murder of the third degree and felony 
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murder has been reclassified as murder of the second degree.” 

Commonwealth v. Moore, 373 A.2d 1101, 1103 n. 4 (Pa. 1977) (citation 

omitted). Second-degree murder as defined at the time of Appellant’s 

conviction in 1965 is effectively aligned with the present definition of thirddegree murder, making these “equivalent” crimes under § 9714(g). Thus, 

Appellant’s contention that his second-degree murder conviction does not 

qualify as a prior crime of violence for sentencing purposes is unavailing, and 

we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/18