[ J
- 30 - 2022 ] [MO: Donohue, J. ] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

MARIE SCOTT, NORMITA JACKSON, MARSHA SCAGGS, REID EVANS, WYATT EVANS, TYREEM RIVERS

v.

PENNSYLVANIA BOARD OF PROBATION AND PAROLE

APPEAL OF: MARIE SCOTT, NORMITA JACKSON, MARSHA SCAGGS, TYREEM RIVERS : : : : : : : : : : : : : : : No. 16 WAP 2021 Appeal from the Order of the Commonwealth Court entered May 28, 2021 at No. 397 MD 2020.
ARGU ED: April 13, 2022

CONCURRING O PINION

JUSTICE MUNDY DECIDED: OCTOBER 19, 2022 I agree with the result reached by the majority , but I am not aligned with all of its reasoning. For example, I have difficulty with the majority’s description of this Court’s
decision in Hudson v. Pennsylvania Board of Probation & P arole , 204 A.3d 392 (Pa. 2019) , as accepting as a general matter that “claims challenging parole [in]eligibility are properly within the Commonwealth Court’s original and exclusive jurisdiction

. ” Majority Op. at 15 . The majority suggests Hudson therefore “facially supports the Appellants.” Id

. at 16. It then characterizes Hudson ’s failure to discuss jurisdiction as an “omission” that must be “rectified,” id

. at 17, and it goes to some length in distinguishing the nature of the
claim in Hudson from that of the present claim. While I agree the claim here is different in character from that in Hudson , I believe the majo rity overcomplicates matters. Hudson , very simply , was about statutory[ J

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construction . The question was what Pennsylvania statutory law means when it states a person convicted of second

- degree murder “ shall be sentenced to a term of life imprisonment. ” 18 Pa.C.S. §1102(b) ; s ee Hudson , 204 A.3d at 395 (summarizing the prisoner’s statutory

- construction arguments); see also id . at 3 94 (explaining that the prisoner had argued to the Commonwealth Court that his sentence should be construed to have an implie d minimum of one day). T here was no impediment to jurisdiction because the prisoner did not contend his sentence was illegal or otherwise invalid, only that the Parole Board misunderstood it as not embodying a minimum sentence of one day. As he therefore did not seek habeas relief, the exception to the Commonwealth Court’s jurisdiction for such matters was not implicated , s ee 42 Pa.C.S. § 761(a)(1)(i) , and so neither party thought to raise the jurisdictional issue

. Here, by contrast, Appellants

are asser ting that an integral part of their sentences , the lack of parole eligibility , i s unconstitutional. Th at is quite clearly a challenge to the legality of the ir sentence s , see Majority Op. at 9 (“Eligibility for parole consideration is entirely a function of the sentence.”) (internal quotation marks and citation omitted), which falls under the PCRA

. S ee 42 Pa.C.S. § 9545(a) ; Com monwealth v. Moore , 247 A.3d 990, 997 (Pa. 2021)

. A final observation relates to the way the issue has been briefed. Appellants
i nclude extraneous detail about their age, health, time in prison, and achievements. This may have multiple objectives, but one seems to be to show that, as applied to them, precluding parole serves no penological purpose. See Brief for Appellants at 11, 13. A subsidiary contention is that denying jurisdiction will place them in a Catch

- 22 because they had to wait many years to forward such case - specific arguments , but that in turn precludes them from complying with the PCRA’s one

- year time bar. S ee 42 P a.C.S. § 9545(b)(1)

. Appellants also maintain , however, that anyone who commits second

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degree murder without killing or intending to kill is categorically less culpable under the Eight Amendment

. See Brief for Appellants at 8, 11

. I believe the correct way to view the merits of the substantive issue is on a categorical basis , and not premised on a particular defendant’s age, health, time served, accomplishments, or the like

. In this regard, the Parole Board plausibly offers that th e proper judicial avenue for individuals sentenced to life without parole on a second

- degree murder conviction is to challenge the lack of parole eligibility on direct appeal or in a timely PCRA petition . I f they prevail, and the new constitutional right is held to apply retroactively, relief may then be available to Appellants under the PCRA , s ee 42 Pa.C.S. § 9545(b)(1)(iii) , just as juvenile offenders who were sentenced to life without parole were able to use the holding in Miller v. Alabama , 567 U.S. 460 (2012), to obtain relief through the PCRA. See Brief for Appellee at 11

- 12. Accordingly, I respectfully concur in the result.