J-A20018-14

2014 PA Super 209 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

MIKECHEL BROOKER 

 Appellant No. 96 EDA 2013 

Appeal from the Judgment of Sentence December 17, 2012 

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006874-2009 

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

OPINION BY MUNDY, J.: FILED SEPTEMBER 23, 2014 

 Appellant, Mikechel Brooker, appeals from the December 17, 2012 

aggregate judgment of sentence of 35 to 70 years’ imprisonment, imposed 

after a jury found him and his co-defendants, Ferock Smith and Alonzo 

Ellison1

, guilty of murder in the first degree, criminal conspiracy, firearms 

not to be carried without a license, and possession of an instrument of a 

crime (PIC).2 After careful review, we affirm. 

In its opinion on Ellison’s appeal, the trial court summarized the 

relevant facts and procedural history of this case as follows. 

____________________________________________ 

1 Smith’s appeal is currently pending in this Court at 188 EDA 2013, and 

Ellison’s appeal is currently pending at 2564 EDA 2012.

2

 18 Pa.C.S.A. §§ 2502(a), 903(a)(1), 6106(a)(1), and 907(a), respectively. 
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On July 18, 2008, Barry Jacobs, Jr. (“Jacobs”) 

was shot and killed on the 8700 Block of Glenoch 

Place in Philadelphia, by [Alfonso Ellison (Ellison)],

Ferock Smith (“Smith”) and [Appellant] in an 

apparent dispute over drug territory after Antoniette 

Gray (“Gray”) refused to purchase drugs from 

[Ellison]. When Gray[,] shortly thereafter[,] 

purchased drugs from Jacobs, [Ellison], Smith, and 

[Appellant] shot Jacobs multiple times. At trial, Gray 

testified that she did not remember the shooting and 

her July 20, 2008, statement to police was admitted. 

In her statement, Gray identified [Ellison], Smith, 

and [Appellant] as the three people who shot Jacobs. 

Gray also saw [Ellison], Smith, and [Appellant] the 

next day and heard them laughing about shooting 

Jacob[s]. Another eyewitness, Jeffrey Gould 

(“Gould”), testified that he saw someone standing 

over Jacobs and shoot him in the head. Gould had 

identified that person as [Ellison] in a July 18, 2008 

statement to police, which was introduced at trial. 

At trial, Eleanore Sampson (“Sampson”) 

testified that she did not remember the events after 

the shooting and her July 19, 2008 statement to 

police was admitted. In her statement, Sampson 

stated that [Ellison], Smith, and [Appellant] came to 

her apartment on the night of July 18, 2008. 

Sampson stated that she let [Ellison], Smith, and 

Brooker use her apartment because they gave her 

drugs. [Ellison], Smith and [Appellant], had a 

conversation in Sampson’s apartment that night, 

during which she heard Smith say he shot Jacobs. 

Smith and [Appellant] had handguns with them 

which they placed in Sampson’s apartment. 

Sampson asked [Ellison] to remove the guns from 

her apartment and [Ellison] took a 9 millimeter 

handgun from Smith. [Appellant] and Smith left 

Sampson’s apartment shortly thereafter, at which 

time, [Ellison] gave the 9 millimeter handgun back to 

Smith. [Ellison] stayed and slept at Sampson’s 

apartment and was arrested leaving from the rear of 

the apartment when the police were knocking at the 

front door. A .32 caliber handgun was found during
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a search of Sampson’s apartment after [Ellison]’s 

arrest. ...

Trial Court Opinion, 2564 EDA 2012, 12/26/12, at 2-3.

 On June 1, 2009, the Commonwealth filed an information charging 

Appellant with the above-mentioned offenses, as well as one count each of 

persons not to use a firearm and carrying firearms in public in Philadelphia.3

 

On July 10, 2012, Appellant proceeded to a jury trial. At the conclusion of 

said trial, on July 16, 2012, the jury found Appellant guilty of first-degree 

murder, criminal conspiracy, firearms not to be possessed without a license, 

and PIC. The Commonwealth nolle prossed the remaining two charges. 

 Relevant to this appeal, on November 21, 2012, Appellant filed a 

motion to declare 18 Pa.C.S.A. § 1102.1 unconstitutional as violating the 

Eighth Amendment and Ex Post Facto Clause of the Federal Constitution as 

well as the Original Purpose, Single Subject, and Ex Post Facto Clauses of 

the Pennsylvania Constitution. The Commonwealth filed its answer to 

Appellant’s motion on December 11, 2012. On December 17, 2012, the trial 

court denied Appellant’s motion and sentenced him to an aggregate term of 

35 to 70 years’ imprisonment for first-degree murder, six to 12 years’ 

imprisonment for criminal conspiracy and no further penalty on any of the 

____________________________________________ 

3

 18 Pa.C.S.A. §§ 6105(a.1)(1) and 6108, respectively.
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remaining charges.4

 See N.T., 12/17/12, at 16. The sentences were to run 

concurrently. Appellant did not file a post-sentence motion. On January 2, 

2013, Appellant filed a timely notice of appeal. 

 On January 17, 2013, the trial court entered an order directing 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant 

timely filed his statement on January 22, 2013. The trial court did not file a 

Rule 1925(a) opinion, as the trial judge who presided over the trial retired 

from the bench in the interim. Upon application from Appellant, on August 

20, 2013, this Court entered an order remanding this case to the trial court 

for the filing of a supplemental Rule 1925(b) statement. Appellant filed his 

supplemental Rule 1925(b) statement on September 5, 2013, and the record 

was re-transmitted to this Court. 

 On appeal, Appellant raises the following six issues for our review. 

1. Was the evidence sufficient to find [Appellant] 

guilty of first[-]degree murder where the 

Commonwealth failed to establish beyond a 

reasonable doubt that [Appellant] had the 

specific intent to kill? 

____________________________________________ 

4

 The written sentencing order in the certified record states the sentence as 

35 years to life imprisonment. See Sentencing Order, 12/17/12, at 1. It is 

axiomatic that if there is a conflict between the sentence imposed in open 

court versus that contained in the trial court’s written order, the sentence in 

the written sentencing order controls. See Commonwealth v. Willis, 68 

A.3d 997, 1010 (Pa. Super. 2013) (stating, “[i]t is well settled that, where 

there is a discrepancy between the sentence as written and orally 

pronounced, the written sentence generally controls[]”) (citation omitted). 
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2. Did the trial court err in denying the defense 

motion for mistrial where the improper 

question regarding prior bad acts by the 

[Commonwealth] had the unavoidable effect of 

prejudicing the jury against the [Appellant], 

and which could not be cured by court 

instruction or admonition to the jury? 

3. Was the law under which [Appellant] was 

sentenced unconstitutional because the original 

purpose of the bill for which he was sentenced 

dramatically changed during the legislative 

process in violation of Article III, Section 1 of 

the Pennsylvania Constitution? 

4. Was the law under which [Appellant] was 

sentenced unconstitutional because it contains 

more than one subject in violation of Article 

III, Section 3 of the Pennsylvania Constitution? 

5. Was the law under which [Appellant] was 

sentenced unconstitutional because it violates 

the United States and Pennsylvania 

constitutional bans on cruel and unusual 

punishment? 

6. Was the law under which [Appellant] was 

sentenced unconstitutional because it violates 

the [E]x [P]ost [F]acto [C]lauses of the United 

States and Pennsylvania Constitutions? 

Appellant’s Brief at 3-4.

We begin with Appellant’s first issue regarding the sufficiency of the 

Commonwealth’s evidence. Our standard of review regarding challenges to 

the sufficiency of the Commonwealth’s case is well settled. “In reviewing 

the sufficiency of the evidence, we consider whether the evidence presented 

at trial, and all reasonable inferences drawn therefrom, viewed in a light 
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most favorable to the Commonwealth as the verdict winner, support the 

jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson, 

91 A.3d 55, 66 (Pa. 2014) (citation omitted). “The Commonwealth can meet 

its burden by wholly circumstantial evidence and any doubt about the 

defendant’s guilt is to be resolved by the fact finder unless the evidence is so 

weak and inconclusive that, as a matter of law, no probability of fact can be 

drawn from the combined circumstances.” Commonwealth v. Watley, 81 

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and 

citation omitted), appeal denied, --- A.3d ---, 1033 MAL 2013 (Pa. 2014). 

As an appellate court, we must review “the entire record ... and all evidence 

actually received[.]” Id. “[T]he trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced is free to 

believe all, part or none of the evidence.” Commonwealth v. Kearney, 92 

A.3d 51, 64 (Pa. Super. 2014) (citation omitted). “Because evidentiary 

sufficiency is a question of law, our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 

126 (Pa. 2013) (citation omitted). 

Appellant challenges the sufficiency of the Commonwealth’s evidence 

regarding his conviction for murder in the first degree. Specifically, 

Appellant argues the Commonwealth did not present sufficient evidence of a 

specific intent to kill for murder in the first degree. Id. at 11. The relevant 

statute provides as follows. 
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§ 2502. Murder

(a) Murder of the first degree.--A criminal 

homicide constitutes murder of the first degree when 

it is committed by an intentional killing. 

...

(d) Definitions.--As used in this section the 

following words and phrases shall have the meanings 

given to them in this subsection: 

...

“Intentional killing.” Killing by means of poison, or 

by lying in wait, or by any other kind of willful, 

deliberate and premeditated killing. 

...

“Principal.” A person who is the actor or 

perpetrator of the crime. 

18 Pa.C.S.A. § 2502. Furthermore, our Supreme Court has consistently 

stated when proving the sufficiency of the evidence for first degree murder, 

the Commonwealth’s burden is as follows. 

 In order to sustain a conviction for first-degree 

murder, the Commonwealth must prove that: (1) a 

human being was unlawfully killed; (2) the 

defendant was responsible for the killing; and (3) the

defendant acted with malice and a specific intent to 

kill. Specific intent and malice may be established 

through circumstantial evidence, such as the use of a 

deadly weapon on a vital part of the victim’s body.

Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal 

citation omitted). 
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 In the case sub judice, the Commonwealth presented the testimony of 

Gray. Gray testified that she could not recall the events that transpired on 

the night of the shooting. N.T., 7/10/12, at 112-113. As a result, the 

Commonwealth admitted Gray’s original witness statement to the police 

during Gray’s testimony as substantive evidence. At the time of said 

statement, Gray told the police that she was only a few feet away from 

Jacobs when he was killed, and that she knew who killed him. Id. at 122. 

Recalling the events of July 18, 2008, Gray told the police that prior to the 

incident she had just bought a “dime bag” from Jacobs. Id. at 123.5

 Gray 

told the police that shortly after that, a man named Worm “just pointed a 

gun at [Jacobs] and shot him [in the head], like, two or three times.” Id. at 

123, 124-125. She further testified that after Jacobs fell to the ground, two 

other men named Butter and Doughnut each shot Jacobs in the head and in 

the chest while he was on the ground. Id. at 123-125. Gray was shown a 

photo array and picked out photographs of Appellant and his co-defendants 

as those who shot Jacobs. Id. at 148. In addition to Gray’s statement, 

Eleanore Sampson, who was an acquaintance of all three defendants, 

identified Appellant as “Doughnut.” N.T., 7/11/12, at 214.

Based on the above evidence, we reject Appellant’s sufficiency 

argument. The Commonwealth presented substantive evidence that 

____________________________________________ 

5 A “dime bag” is a term for $10.00 worth of crack cocaine. N.T., 7/10/12 at 

123.
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identified Appellant as one of the three men who shot Jacobs in the head 

and in the chest, through the account of an eyewitness who was only a few 

feet away at the time of the shooting. Pennsylvania courts have consistently 

held that such evidence is sufficient for a first-degree murder conviction. 

See Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) 

(concluding sufficient evidence existed where, “eye witness testimony 

demonstrate[d] that after [the defendant] ... fatally shot the victim in the 

head at close range while the victim was lying defenseless on the 

ground[]”); Commonwealth v. Chine, 40 A.3d 1239, 1242 (Pa. Super. 

2012) (concluding the defendant “surely intended the shooting to have fatal 

results as he fired three shots at the victim’s head, a vital part of the 

body[]”), appeal denied, 63 A.3d 773 (Pa. 2013). As a result, Appellant is 

not entitled to relief on this issue. See Diamond, supra. 

 In his second issue, Appellant avers the trial court erred when it 

denied his request for a mistrial when the Commonwealth insinuated that 

Appellant was a drug dealer and that a dispute over drug turf was his 

alleged motive for the killing. Appellant’s Brief at 14. 

We begin by stating our standard of review. 

It is well-settled that the review of a trial court’s 

denial of a motion for a mistrial is limited to 

determining whether the trial court abused its 

discretion. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the 

law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will ... discretion is 
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abused. A trial court may grant a mistrial only 

where the incident upon which the motion is based is 

of such a nature that its unavoidable effect is to 

deprive the defendant of a fair trial by preventing the 

jury from weighing and rendering a true verdict. A 

mistrial is not necessary where cautionary 

instructions are adequate to overcome prejudice. 

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (citation 

omitted); see also Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. 

Super. 2012) (stating, “we review the trial court’s determination that a new 

trial was warranted due to prosecutorial misconduct for abuse of 

discretion[]”) (citation omitted).

Appellant’s argument as to this issue is limited to the following 

incident, which occurred during the Commonwealth’s redirect examination of 

Detective Thomas Gaul. 

[Commonwealth]: Based on the information you 

received -- and [defense counsel] has asked about 

[Jacobs], and the information that he was actively 

dealing in that same area; correct? 

[Detective Gaul]: Yes, ma’am.

[Commonwealth]: Based on the information 

that you received from the witnesses -- were these 

three defendants also actively dealing in that area? 

...

[Defense Counsel]: Objection. 

...

[Trial Court]: Sustained. The jury will absolutely 

disregard that last question. 
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And [Commonwealth], you’re done with your 

direct. 

...

 Members of the jury, you will totally disregard 

the last question. It insinuated things that are not

relevant to this case. That should not be considered 

by you. That should have no part in any 

consideration or discussions that you have during 

your deliberations. 

...

[Ellison’s counsel]: Just for the record, 

notwithstanding the admonition, for the record, I 

make a motion for a mistrial based on counsel’s last 

question. 

[Trial Court]: Denied. 

[Appellant’s counsel]: We join in that, Your Honor. 

N.T., 7/12/12, at 131-132, 134. 

 Assuming arguendo that the Commonwealth’s remark was improper, it 

does not follow that a new trial is warranted if the error is harmless. “[A]n 

error may be considered harmless only when the Commonwealth proves 

beyond a reasonable doubt that the error could not have contributed to the 

verdict.” Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa. Super. 

2013) (en banc) (citation omitted), appeal denied, 83 A.3d 414 (Pa. 2013). 

The Commonwealth bears the burden of establishing 

the harmlessness of the error. This burden is 

satisfied when the Commonwealth is able to show 

that: (1) the error did not prejudice the defendant or 

the prejudice was de minimis; or (2) the erroneously 

admitted evidence was merely cumulative of other 

untainted evidence which was substantially similar to 
J-A20018-14

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the erroneously admitted evidence; or (3) the 

properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial 

[e]ffect of the error so insignificant by comparison 

that the error could not have contributed to the 

verdict. 

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation 

omitted), appeal denied, 87 A.3d 318 (Pa. 2014). 

 In this case, the Commonwealth presented independent evidence that 

Appellant sold drugs. The following exchange occurred during Sampson’s 

direct examination with the Commonwealth. 

[Commonwealth]: Do you see Butter in the 

courtroom today? 

[Sampson]: I’m not sure. I’m not sure which 

one it is. Wait a minute. I think it’s [sic] the middle 

one is Butter I think. 

[Commonwealth]: Okay. Your Honor, for the 

record identifying Alonzo Ellison by point of finger 

and also by location in relation to the other 

defendants. ... How did you know Butter?

[Sampson]: Through drug activity. 

[Commonwealth]: What do you mean? 

[Sampson]: I would get drugs from him. 

...

[Commonwealth]: Do you know someone by the 

name of AI or Doughnut? 

[Sampson]: Yes. 

[Commonwealth]: Do you see that person in the 

courtroom today? 
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[Sampson]: I think this one on the end in the 

blue shirt. 

[Commonwealth]: Your Honor, for the record, 

identifying [Appellant], Mikechel Brooker. ... How did

you know Doughnut or AI? 

[Sampson]: For the same thing, for the same 

reasons, drugs. 

[Commonwealth]: Would you get drugs from 

Doughnut? 

[Sampson]: Yes. 

Id. at 213-214. 

Based on this testimony, at a minimum, we conclude that any error 

was harmless in this instance. At no point did Appellant lodge an objection 

to Sampson’s testimony that indicated Appellant sold drugs. Thus, the 

reference in question by the Commonwealth during Detective Gaul’s redirect 

regarding Appellant selling drugs was harmless as it was de minimis and 

“was merely cumulative of other untainted evidence[.]” Green, supra. 

Therefore, Appellant is not entitled to relief on this issue. 

Appellant’s remaining issues on appeal pertain to the constitutionality 

of 18 Pa.C.S.A. § 1102.1, the statute under which he was sentenced. 

Appellant raises four separate constitutional challenges under the Federal 

and Pennsylvania Constitutions. Section 1102.1 provides, in relevant part, 

as follows. 
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§ 1102.1. Sentence of persons under the age of 

18 for murder, murder of an unborn child and 

murder of a law enforcement officer

(a) First degree murder.--A person who has been 

convicted after June 24, 2012, of a murder of the 

first degree, first degree murder of an unborn child 

or murder of a law enforcement officer of the first 

degree and who was under the age of 18 at the time 

of the commission of the offense shall be sentenced 

as follows: 

(1) A person who at the time of the 

commission of the offense was 15 years of age 

or older shall be sentenced to a term of life 

imprisonment without parole, or a term of 

imprisonment, the minimum of which shall be 

at least 35 years to life. 

(2) A person who at the time of the 

commission of the offense was under 15 years 

of age shall be sentenced to a term of life 

imprisonment without parole, or a term of 

imprisonment, the minimum of which shall be 

at least 25 years to life. 

...

18 Pa.C.S.A. § 1102.1(a). This statute was enacted in response to the 

United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 

2455 (2012). As we explain in more detail below, in Miller, the Supreme 

Court held the Cruel and Unusual Punishment Clause of the Federal 

Constitution forbids the imposition of a mandatory sentence of life 

imprisonment without the possibility of parole upon a minor, even for a 

homicide. 
J-A20018-14

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“We note that duly enacted legislation carries with it a strong 

presumption of constitutionality.” Commonwealth v. Turner, 80 A.3d 754, 

759 (Pa. 2013) (citation omitted). “A presumption exists ‘[t]hat the General 

Assembly does not intend to violate the Constitution of the United States or 

of this Commonwealth’ when promulgating legislation.” Commonwealth v. 

Baker, 78 A.3d 1044, 1050 (Pa. 2013) (citation omitted), accord 1 

Pa.C.S.A. § 1922(3). 

 In conducting our review, we are guided by the 

principle that acts passed by the General Assembly 

are strongly presumed to be constitutional, including 

the manner in which they were passed. Thus, a 

statute will not be found unconstitutional unless it 

clearly, palpably, and plainly violates the 

Constitution. If there is any doubt as to whether a 

challenger has met this high burden, then we will 

resolve that doubt in favor of the statute’s 

constitutionality. 

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal 

quotation marks and citations omitted). As the constitutionality of a statute 

presents a pure question of law, our standard of review is de novo and our 

scope of review is plenary. Turner, supra. Appellant’s first claim is that 

Section 1102.1 violates the Original Purpose Clause of the Pennsylvania 

Constitution. Appellant’s Brief at 17.

Article III, Section 1 of the Pennsylvania Constitution states that, “[n]o 

law shall be passed except by bill, and no bill shall be so altered or 

amended, on its passage through either House, as to change its original 
J-A20018-14

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purpose.” Pa. Const. art. III, § 1. Our Supreme Court has directed that 

courts follow a two-part inquiry to determine whether legislation violates the 

Original Purpose Clause. 

First, the court will consider the original purpose of 

the legislation and compare it to the final purpose 

and determine whether there has been an alteration 

or amendment so as to change the original purpose. 

Second, a court will consider, whether in its final 

form, the title and contents of the bill are deceptive. 

Pennsylvanians Against Gambling Expansion Fund, Inc. v. 

Commonwealth, 877 A.2d 383, 408-409 (Pa. 2005) (hereinafter PAGE).6

 

The judicial department “is loathe to substitute our judgment for that of the 

legislative branch under the pretense of determining whether an 

unconstitutional change in purpose of a piece of legislation has occurred 

during the course of its enactment.” Id. at 409. It is for this reason that 

our Supreme Court has instructed courts to look at a bill’s original and final 

purpose “in reasonably broad terms.” Id.

 In the case sub judice, the parties appear to agree on what the 

original and final versions of the bills accomplished. The original bill, S.B. 

____________________________________________ 

6

 Our Supreme Court has also noted that the statute in question must satisfy 

both inquiries in order to survive Original Purpose Clause scrutiny. See 

PAGE, supra at 409 (stating, “[i]f the legislation passes both the purpose 

comparison and deception inquiries, it will pass constitutional muster[]”). In 

this case, Appellant rests his entire argument on the first prong and does not 

make any argument regarding deceptiveness. See generally Appellant’s 

Brief at 17-22. As this issue is waiveable, we confine our discussion to the 

PAGE’s first prong. See generally Watley, supra at 117 (stating, “[t]he 

constitutionality of a statute can be waived[]”).
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850 was to create new offenses regarding cyberbullying and sexting by 

minors, modify expungement for, exclude the public from, and create 

referrals to alternative adjudication programs following hearings regarding 

summary offenses by minors, and create a presumption of indigency in 

juvenile division proceedings. Appellant’s Brief at 17-18; Commonwealth’s 

Brief at 24. Whereas the final version of the bill modified expungement 

requirements for underage drinking and summary offenses by minors, 

created the new Section 1102.1 and enacted a new chapter in the Crimes 

Code to create an “Office of the Victim Advocate” to advocate for juvenile 

crime victims. Appellant’s Brief at 20-21; Commonwealth’s Brief at 25. The 

final bill also excluded the public from juvenile summary offense hearings, 

created referrals to alternative adjudication programs for juvenile summary 

offenses, eliminated juvenile summary offenses as a basis for dependency, 

and established five-year intervals for parole applications for juvenile 

sentences under Section 1102.1. Id. The only disagreement between 

Appellant and the Commonwealth over the purpose of the legislation is the 

characterization of the original draft and final version of the bill and how 

broadly this Court should interpret their respective purposes for the Original 

Purpose Clause. 

After careful consideration, we reject Appellant’s argument. As stated 

above, we must read the purpose of legislation broadly when analyzing it 

under the Original Purpose Clause. PAGE, supra. The Commonwealth 
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argues, both the original and final versions of the bill amended various parts 

of the Juvenile Act as described above. The only significant change during 

the legislative process appears to be the removal of the new cyberbullying 

offense and, in its stead, the creation of Section 1102.1 and its 

corresponding parole statute. This is understandable because, as Appellant 

points out, Miller occurred during the legislative process. 

 The Pennsylvania Constitution also expressly contemplates legislative 

amendments. See generally Pa. Const. art. III, § 4 (stating, “[a]ll 

amendments made thereto shall be printed for the use of the members 

before the final vote is taken on the bill and before the final vote is 

taken[]”). The occurrence of a constitutional decision of the United States 

Supreme Court does not give the General Assembly carte blanche to make 

amendments to a pending bill. However, it does not follow that adding 

remedial provisions that regulate other aspects of juvenile proceedings alters 

the bill’s purpose in this instance. A comparison between the original and 

final purposes of the bill reveals that all parts of the legislation continued to 

pertain to regulating delinquency of juveniles, including sentencing for 

offenders under the age of 18. In our view, this commonality is sufficient for 

the Original Purpose Clause. See, e.g., Washington v. Dep’t of Pub. 

Welfare, 71 A.3d 1070, 1079-1080 (Pa. Cmwlth. 2013) (rejecting Original 

Purpose challenge where “its original purpose was to clarify eligibility 

requirements for certain public assistance benefits ... [but its amendments 
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still made its purpose] the regulation and funding of human services 

programs regulated by the Department of Public Welfare[]”), affirmed, 76 

A.3d 536 (Pa. 2013); Christ the King Manor v. Dep’t of Pub. Welfare, 

911 A.2d 624, 637 (Pa. Cmwlth. 2006) (rejecting Original Purpose challenge 

to the original bill, authorizing annual inspections on nursing homes although 

the final bill amended 24 other parts of the Public Welfare Code, where 

“[b]oth the original and final versions of HB 1168 share the central purpose 

of ensuring proper care for Pennsylvanians who need medical assistance[]”), 

affirmed, 951 A.2d 255 (Pa. 2008).7

 Based on these considerations, we 

conclude that Appellant is not entitled to relief under the Original Purpose 

Clause. 

Appellant’s second Pennsylvania state constitutional challenge 

concerns the Single Subject Clause. Appellant argues that Act 204 of 2012 

“made extraordinary changes to Pennsylvania’s sentencing statutes in a 

single omnibus bill that had no connection to the bill’s original, narrow 

focused purpose.” Appellant’s Brief at 22. The Commonwealth counters 

that Act 204 has only one subject, “juvenile justice.” Commonwealth’s Brief 

at 29. 

____________________________________________ 

7

 We note that decisions of the Commonwealth Court are not binding on this 

Court; however, they may be cited as persuasive authority. Joseph v. 

Glunt, --- A.3d ---, 2014 WL 2155396, *5 (Pa. Super. 2014) (citation 

omitted). 
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 Article III, Section 3 of the Pennsylvania Constitution states that “[n]o 

bill shall be passed containing more than one subject, which shall be clearly 

expressed in its title, except a general appropriation bill or a bill codifying or 

compiling the law or a part thereof.” Pa. Const. art. III, § 3. The Single 

Subject Clause “was first included by the framers of our Commonwealth’s 

organic charter in 1864, and then readopted as part of the 1874 

Constitution, in order to effectuate the electorate’s overall goal of curtailing 

legislative practices that it viewed with suspicion.” Commonwealth v. 

Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal quotations marks and 

citation omitted). The Single Subject Clause historically reflects the People’s 

disdain for two legislative practices. 

The first involved the insertion into a single bill of a 

number of distinct and independent subjects of 

legislation in order to deliberately hide the real 

purpose of the bill. The second was the practice of 

“logrolling” which involves embracing in one bill 

several distinct matters, none of which could singly 

obtain the assent of the legislature, and procuring its 

passage by combining the minorities who favored the 

individual matters to form a majority that would 

adopt them all.”

Id. (some internal quotation marks and citations omitted). The Clause’s 

historical purpose was also to engender more efficient policymaking. Id. at 

611-612. 

The requirement that each piece of legislation 

pertain to only one subject creates a greater 

likelihood that it will receive a more considered and

thorough review by legislators than if it is 

aggregated with other pieces of legislation pertaining
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to different topics into a singular “omnibus bill,” 

thereby creating a jumbling together of incongruous 

subjects. Additionally, and significantly, the single 

subject requirement proscribe[s] the inclusion of 

provisions into legislation without allowing for fair 

notice to the public and to legislators of the 

existence of the same. It, thus, provides a vital 

assurance to residents of this Commonwealth that 

they will be able to make their views and wishes 

regarding a particular piece of legislation known to 

their duly elected representatives before its final 

passage, and it concomitantly ensures that those 

representatives will be adequately apprised of the 

full scope and impact of a legislative measure before 

being required to cast a vote on it. 

Id. at 612 (some internal quotation marks and citations omitted; emphasis 

in original). From these textual and historical guideposts, our Supreme 

Court has mandated a two-part test for the Single Subject Clause. “First, 

the title of the bill must clearly express the substance of the proposed law .... 

Second, the differing topics within the bill must be ‘germane’ to each other.” 

Id. (citation omitted). 

 Similar to the Original Purpose Clause, in reviewing challenges to the 

Single Subject Clause, our Supreme Court “has acknowledged that some 

degree of deference to the General Assembly’s prerogative to amend 

legislation is required, due to the normal fluidity inherent in the legislative 

process, and, thus, [it has] deemed it is appropriate for a reviewing court to 

hypothesize a ‘reasonably broad topic’ which would unify the various 

provisions of a final bill as enacted.” Id. (citation omitted). Recognizing 

that some topics could be so broad as to render the Clause a dead letter, our 
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Supreme Court has instructed our inquiry to focus on “the various subjects 

contained within a legislative enactment and determine whether they have a 

nexus to a common purpose.” Id. (citation omitted). 

 Appellant argues that the various subjects contained within Act 204 do 

not have such “a nexus to a common purpose.” Id.; see also Appellant’s 

Brief at 28. Rather, in Appellant’s view, “the legislation [sought] to amend 

multiple and vastly different aspects of the criminal and juvenile justice 

systems.” Appellant’s Brief at 28. The Commonwealth sees Act 204 quite 

differently. The Commonwealth examines the Act’s provisions and concludes 

that “all of the provisions of Act 204 are directed at the juvenile justice 

system.” Commonwealth’s Brief at 32. The Commonwealth further argues 

that the Single Subject Clause is not intended to hamper the legislative 

process by proscribing the “changing [and] creating [of] many individual 

laws when [the General Assembly] wishes to address a broad subject.” Id.

at 32-33.

 As noted above, the final version of Act 204 created Section 1102.1, 

modified expungement requirements for certain offenses, created an “Office 

of the Victim Advocate” for victims of juvenile crime, excluded the public 

from juvenile summary offense hearings, created referrals to alternative 

programs for juvenile offenders, eliminated juvenile summary offenses as a 

basis for dependency, and established five-year intervals for parole 

applications for sentences imposed under Section 1102.1. Appellant’s Brief 
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at 20-21; Commonwealth’s Brief at 25. All of these provisions pertain to the

consequences of criminal offenses committed by those under the age of 18. 

 Although Section 1102.1 and the parole section each pertain to minors 

sentenced as adults, we do not agree with Appellant’s implicit argument that 

the Single Subject Clause inherently requires the General Assembly to 

change the juvenile division and criminal division in different legislation 

when each pertains to minors. The General Assembly addressed many 

changes it believed were required in order to remedy specific problems with 

minors charged with criminal offenses. 

 As noted above, Miller occurred during the legislative process. The 

legislature is permitted to make changes to pending legislation in order to 

respond to a constitutional decision of the United States Supreme Court, as 

long as the remedial changes are on the same subject. Here, the General 

Assembly was responding to the Supreme Court’s judgment that minors 

could not be mandatorily sentenced to life imprisonment without the 

possibility of parole. The creation of new mandatory minimum sentences for 

juvenile offenders convicted of first-degree murder squarely fits within the 

subject of the consequences of criminal offenses committed by those 

offenders. Additionally, in our view, the nexus among Act 204’s provisions is 

not “virtually boundless” as our Supreme Court has similarly found in 

previous Single Subject Clause cases. Cf. Neiman, supra at 613 (rejecting 

“refining civil remedies or relief ... [and] judicial remedies and sanctions” as 
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too sweeping and broad for the Single Subject Clause[]”); Pa. State Ass’n 

of Jury Comm’rs v. Commonwealth, 64 A.3d 611, 619 (rejecting “powers 

of county commissioners” as too broad a subject); City of Phila. v. 

Commonwealth, 838 A.2d 566, 580 (Pa. 2005) (rejecting “municipalities” 

as too broad a topic for the purposes of the Single Subject Clause). Instead, 

Act 204’s provisions address offenders under the age of 18, and the 

consequences of their criminal conduct. Based on these considerations, we 

conclude that Act 204 does not violate the Single Subject Clause. 

We now turn to Appellant’s federal constitutional challenges. Appellant 

avers that Section 1102.1 violates the Cruel and Unusual Punishment Clause 

of the Eighth Amendment since it “runs afoul with ... [the] requirement of 

individualized sentencing and [the] requirement that children have a 

meaningful opportunity for release.” Appellant’s Brief at 32.

 The Eighth Amendment to the Federal Constitution states that 

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor 

cruel and unusual punishments inflicted.”8

 U.S. Const. amend. viii. The 

Eighth Amendment is unique in constitutional jurisprudence because it “must 

draw its meaning from the evolving standards of decency that mark the 

progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1956) 

____________________________________________ 

8

 The Eighth Amendment is applicable to the States via incorporation under 

the Due Process Clause of the Fourteenth Amendment. Hall v. Florida, 134 

S. Ct. 1986, 1992 (2014) (citation omitted). 
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(plurality). “[T]he Eighth Amendment’s protection against excessive or cruel 

and unusual punishments flows from the basic ‘precept of justice that 

punishment for [a] crime should be graduated and proportioned to [the] 

offense.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), quoting 

Weems v. United States, 217 U.S. 349, 367 (1910). “By protecting even 

those convicted of heinous crimes, the Eighth Amendment reaffirms the duty 

of the government to respect the dignity of all persons.” Hall v. Florida, 

134 S. Ct. 1986, 1992 (2014) (citation omitted). 

 In this case, Appellant argues that Section 1102.1 violates the Cruel 

and Unusual Punishment Clause because the statute imposes a mandatory 

minimum sentence of 35 years to life, and 35 years is essentially a life 

sentence. Appellant’s Brief at 33. Appellant also argues that Section 1102.1 

does not “compl[y] with the requirements of Miller that sentences be 

tailored to a child’s individual level of culpability.” Id. In addition, Appellant 

claims that a 35-year mandatory minimum sentence is not a “meaningful” 

opportunity to obtain release. Id. at 34. 

 Recently, this Court considered a similar Eighth Amendment challenge 

to Section 1102.1. In Commonwealth v. Lawrence, --- A.3d ---, 2014 WL 

4212715 (Pa. Super. 2014), Lawrence argued “the statute impose[d] a 

mandatory minimum sentence of 35 years to life without giving any 

consideration to [Lawrence]’s age and attendant circumstances of youth.” 

Id. at *2 (internal quotation marks, brackets, and citation omitted). 
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Lawrence also argued that Section 1102.1 “precluded the trial judge from 

taking into account [his] age at the time of the crime, his role in the crime, 

whether he posed a danger to society, and the familial and peer pressures 

that may have affected him.” Id. at *4 (citation omitted). We rejected 

Lawrence’s arguments as follows.

The only preclusive effect of Section 1102.1 is that it 

divests the judge of discretion, in Appellant’s case, to 

sentence him to a term of less than 35 years’ 

imprisonment. We decline to extend Miller beyond 

the mandatory schemes that it considered. Miller is 

limited to legislative schemes which “require[ed] that 

all children convicted of homicide receive lifetime 

incarceration without possibility of parole, regardless 

of their age and age-related characteristics and the 

nature of their crimes[.]” [Id. at 2475]. Section 

1102.1 does not contain such a sentencing scheme. 

In fact, Section 1102.1(d) does require the trial 

court to consider various age-related factors before 

the trial court may impose a sentence of life without 

parole. See 18 Pa.C.S.A. § 1102.1(d). 

 We do not read Miller to mean that the Eighth 

Amendment categorically prohibits a state from 

imposing a mandatory minimum imprisonment 

sentence upon a juvenile convicted of a crime as 

serious as first-degree murder. Appellant’s 

argument against a mandatory minimum of 35 years 

presents the same concerns as would a mandatory 

minimum of 35 days’ imprisonment. Stated another 

way, Appellant’s position implicitly requires us to 

conclude that open-ended minimum sentencing is 

constitutionally required by the Cruel and Unusual 

Punishment Clause. We decline to announce such a 

rule. 

If we were to agree with Appellant’s argument, 

our decision would be contrary to the cases that the 

Supreme Court has already decided. See [Graham 

v. Florida, 560 U.S. 48, 75 (2010)] (stating, “[a] 
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State is not required to guarantee eventual freedom 

to a juvenile offender[]”). Graham held that the 

Eighth Amendment required juveniles convicted of 

[a] non-homicide offense to have “some meaningful 

opportunity to obtain release based on demonstrated 

maturity and rehabilitation.” Id. Miller does not 

contain this requirement for juveniles convicted of 

first-degree murder, such as Appellant. Even under 

Miller, a state still may impose life without parole 

for homicide offenses, preventing a juvenile like 

Appellant, from ever obtaining any hope of release 

from confinement. Based on these considerations, 

we conclude that Section 1102.1 does not offend the 

Cruel and Unusual Punishment Clause of the Eighth 

Amendment. 

Id. (footnotes omitted; emphasis in original). 

 We conclude Lawrence controls this case. Appellant’s argument in 

this case, like the argument advanced in Lawrence, requires us to conclude 

that the Eighth Amendment inherently forbids mandatory minimum 

sentences. We disagree and reject that conclusion. In addition, we decline 

Appellant’s implicit invitation in this case to extend Graham beyond the 

context in which it was decided. Although 35 years is a lengthy sentence, in 

our view, it still provides a “meaningful” opportunity for release. The Eighth 

Amendment does not dictate a specific minimum sentence, nor does it divest 

state legislatures of their authority to decide on such a minimum sentence.9

 

____________________________________________ 

9

 Appellant does not argue that a national consensus against 35-year 

minimum sentences exists so as to render it constitutionally prohibited under 

the Eighth Amendment. See generally Hall, supra at 1996, 1999; Miller, 

supra at 2470; Graham, supra at 61; Kennedy, supra at 426; Roper v. 

Simmons, 543 U.S. 551, 563 (2005); Atkins v. Virginia, 536 U.S. 304, 

(Footnote Continued Next Page) 
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Additionally, our cases have concluded that even the chance of parole when 

a defendant is in his or her eighties is not the equivalent of a life sentence. 

See, e.g., Commonwealth v. Dodge, 77 A.3d 1263, 1275 (Pa. Super. 

2013) (concluding that a “sentence [that] would allow [a defendant] to be 

paroled in his early eighties ... though lengthy, is not the equivalent of a life 

sentence[]”). As Appellant acknowledges in his brief, Appellant will be 

eligible for parole in his fifties, which does not render the instant sentence 

equivalent to a life sentence. See id. Based on these considerations, we 

conclude that Appellant is not entitled to relief on Eighth Amendment 

grounds. 

Appellant’s final issue is that Section 1102.1’s application to him 

violates the Ex Post Facto Clause. Specifically, Appellant argues that Section 

1102.1’s application to his case violates the Ex Post Facto Clause because it 

“inflict[s a] greater punishment[] than the punishment available for the 

crime at the time it was committed.” Appellant’s Brief at 34. The 

(Footnote Continued) _______________________ 

316 (2002). In his reply brief, Appellant cites to one case from the Supreme 

Court of Iowa, invalidating a 35-year minimum sentence for a juvenile, 

however, this does not rise to the level of a national consensus. Appellant’s 

Reply Brief at 17, citing State v. Pearson, 836 N.W.2d 88 (Iowa 2013). We 

also note that the Supreme Court of Iowa decided to independently apply 

the protections of Article I, Section 17 of the Iowa Constitution, meaning 

that Pearson is not an Eighth Amendment case. See Pearson at 96 

(stating, “we need only decide that [A]rticle I, [S]ection 17 requires an 

individualized sentencing hearing where, as here, a juvenile offender 

receives a minimum of thirty-five years imprisonment without the possibility 

of parole for these offenses and is effectively deprived of any chance of an 

earlier release and the possibility of leading a more normal adult life[]”).
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Commonwealth counters that Section 1102.1 is not an ex post facto law 

because it decreased his punishment, and did not lengthen Appellant’s 

maximum sentence. Commonwealth’s Brief at 37, 38. For the reasons that 

follow, we reject Appellant’s Ex Post Facto Clause argument, but on slightly 

different grounds than those urged by the Commonwealth.10

 Article I, Section 10 of the Federal Constitution prohibits the several 

States from enacting any “ex post facto Law[.]” U.S. Const. art. I, § 10.11 

The Supreme Court has historically analyzed challenges under the Ex Post 

Facto Clause pursuant to four distinct categories, as identified by Justice 

Samuel Chase in Calder v. Bull, 3 U.S. (Dall.) 386 (1798). 

1st. Every law that makes an action done before the 

passing of the law, and which was innocent when 

done, criminal; and punishes such action. 2d. Every 

law that aggravates a crime, or makes it greater 

than it was, when committed. 3d. Every law that 

____________________________________________ 

10 We may affirm the trial court on any legal basis supported by the record. 

Commonwealth v. Charleston, 16 A.3d 505, 529 n.6 (Pa. Super. 2011) 

(citation omitted). 

11 Likewise, Article I, Section 17 of the Pennsylvania Constitution states that 

“[n]o ex post facto law, nor any law impairing the obligation of contracts, or 

making irrevocable any grant of special privileges or immunities, shall be 

passed.” Pa. Const. art. I, § 17. This Court has recently explained that “the 

standards applied to determine an ex post facto violation under the 

Pennsylvania Constitution and the United States Constitution are 

comparable.” Commonwealth v. Rose, 81 A.3d 123, 127 (Pa. Super. 

2013) (en banc), appeal granted, --- A.3d ---, 2014 WL 3107989 (Pa. 2014). 

As Appellant does not argue that the Pennsylvania Constitution provides 

greater protection than the Federal Ex Post Facto Clause, we confine our 

discussion to Article I, Section 10 of the Federal Constitution. 
J-A20018-14

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changes the punishment, and inflicts a greater 

punishment, than the law annexed to the crime, 

when committed. 4th. Every law that alters the 

legal rules of evidence, and receives less, or 

different, testimony, than the law required at the 

time of the commission of the offence, in order to 

convict the offender. 

Id. at 390 (Opinion of Chase, J.).12

 Appellant argues that this case deals 

with Calder’s third category, a law “that changes the punishment, and 

inflicts a greater punishment, than the law annexed to the crime, when 

committed[.]” Id. “The touchstone of this Court’s inquiry is whether a 

given change in law presents a ‘sufficient risk of increasing the measure of 

punishment attached to the covered crimes.’” Peugh v. United States, 

133 S. Ct. 2072, 2082 (2013) (citation omitted). 

As the Supreme Court recently pointed out, “[t]he phrase ‘ex post 

facto law’ was a term of art with an established meaning at the time of the 

framing.” Id. at 2081. Many of the early justices of the Supreme Court 

“viewed all ex post facto laws as ‘manifestly unjust and oppressive.’” 

Carmell v. Texas, 529 U.S. 513, 532 (2000) (emphasis in original), quoting 

Calder, supra at 391 (Opinion of Chase, J.). Indeed, Alexander Hamilton 

believed the Clause was designed to protect against “the favorite and most 

formidable instruments of tyranny[.]” Id., quoting The Federalist, No. 84, at 

512 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Therefore, the 

____________________________________________ 

12 In the early days of the Court’s history there often was no single opinion 

for the Court and the justices delivered their opinions seriatim. 
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framers sought to vindicate several important interests of the People 

through the Ex Post Facto Clause. For example, “the Framers sought to 

assure that legislative Acts give fair warning of their effect and permit 

individuals to rely on their meaning until explicitly changed.” Weaver v. 

Graham, 450 U.S. 24, 28-29 (1981). The Clause also “restricts 

governmental power by restraining arbitrary and potentially vindictive 

legislation.” Id. As the Supreme Court’s Ex Post Facto Clause jurisprudence 

has developed, a general proposition has emerged that any prohibition 

against a law to be applied retroactively must serve some of the interests of 

the Clause. 

 In Dobbert v. Florida, 432 U.S. 282 (1977), the defendant was 

convicted of two counts of first-degree murder of his children, committed 

between December 31, 1971 and April 8, 1972. Id. at 284. At the time of 

his crimes, Florida’s death penalty statute required “punish[ment] by death 

unless the verdict included a recommendation of mercy by a majority of the 

jury.” Id. at 288 (citations omitted). On June 22, 1972, the Supreme Court 

struck down a Georgia death penalty statute as violating the Cruel and 

Unusual Punishment Clause of the Eighth Amendment, which resulted in a 

sea of change across the country regarding death penalty legislation. See 

generally Furman v. Georgia, 408 U.S. 238 (1972). Shortly thereafter, 

the Supreme Court of Florida struck down the Florida death penalty statute 

as inconsistent with Furman and the Florida legislature enacted a new 
J-A20018-14

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statute at the end of 1972. See generally Donaldson v. Sack, 265 So. 2d 

499 (Fla. 1972). The new statute mandated a separate sentencing hearing, 

required that certain aggravating or mitigating evidence be admitted, and 

that the jury render an advisory decision by a majority vote that is not 

binding on the trial court.13

 Dobbert, supra at 289 (citations omitted). In 

Dobbert, the new statute was applied and the jury voted 10-2 against the 

death penalty, but the trial court overrode the jury’s recommendation and 

sentenced Dobbert to death. Id. at 287. 

 Similar to what Appellant argues in this case, Dobbert argued that he 

was subject to an ex post facto law because the judicial determination that 

the existing death penalty statute was unconstitutional and the retroactive 

application14 of Furman, “at the time he murdered his children there was no 

death penalty ‘in effect’ in Florida.” Id. at 297. Therefore, Dobbert argued 

____________________________________________ 

13 This statute was upheld as constitutional by the Supreme Court in 1976. 

See generally Proffitt v. Florida, 428 U.S. 242 (1976). 

14 At the time of Dobbert, the controlling rule was that new federal 

constitutional rules must be “applied to cases still pending on direct review 

at the time it was rendered.” Linkletter v. Walker, 381 U.S. 618, 622 

(1965). In 1989, the Supreme Court displaced Linkletter in Teague v. 

Lane, 489 U.S. 288 (1989). However, even under Teague, “new rules of 

criminal procedure must be applied in future trials and in cases pending on 

direct review ... [t]his is the substance of the ‘Teague rule[.]’” Danforth v. 

Minnesota, 552 U.S. 264, 266 (2008). Teague is now considered the 

leading case for the scope of retroactive effect to be given to new 

constitutional Supreme Court rules to future trials, cases on direct appeal, 

and on collateral review. Nevertheless, there was no doubt that Furman

applied to Dobbert’s case.
J-A20018-14

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the application of the new death penalty statute to his case was ex post 

facto. Id. at 298. 

The Supreme Court squarely rejected Dobbert’s argument as 

inconsistent with the guiding interests of the Ex Post Facto Clause. 

[Dobbert’s] sophistic argument mocks the 

substance of the Ex Post Facto Clause. Whether or 

not the old statute would in the future, withstand 

constitutional attack, it clearly indicated Florida’s 

view of the severity of murder and of the degree of 

punishment which the legislature wished to impose 

upon murderers. The statute was intended to 

provide maximum deterrence, and its existence on 

the statute books provided fair warning as to the 

degree of culpability which the State ascribed to the 

act of murder. 

[Dobbert]’s highly technical argument is at 

odds with the statement of this Court in Chicot 

County Drainage District v. Baxter State Bank, 

308 U.S. 371, 374 (1940): 

 The courts below have proceeded on the 

theory that the Act of Congress, having been 

found to be unconstitutional, was not a law; 

that it was inoperative, conferring no rights 

and imposing no duties, and hence affording 

no basis for the challenged decree. It is quite 

clear, however, that such broad statements as 

to the effect of a determination of 

unconstitutionality must be taken with 

qualifications. The actual existence of a 

statute, prior to such a determination, is 

an operative fact and may have 

consequences which cannot justly be 

ignored.

Here the existence of the [old] statute served 

as an “operative fact” to warn the petitioner of 

the penalty which Florida would seek to impose 

on him if he were convicted of first-degree 
J-A20018-14

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murder. This was sufficient compliance with the ex 

post facto provision of the United States 

Constitution. 

Id. at 297-298 (parallel and some internal citations omitted; emphases 

added). 

 In this case, Appellant argues that because of Miller and its 

retroactive application to his case, “no constitutional statutory sentence 

existed for him[]” at the time he committed the offense. Appellant’s Brief at 

35. Therefore, in Appellant’s view, “the only constitutional sentence 

available to Appellant[] at the time of [his] crimes and convictions was the 

sentence for the most serious lesser included offense, which in this case was 

third-degree murder.” Id. Therefore, Appellant concludes because he 

“faced a maximum constitutional sentence of 40 years imprisonment ... 

[Section 1102.1]’s imposition of a minimum of 35 years to life or life without 

parole constitutes an unconstitutional ex post facto law.” Id.

 However, like in Dobbert, the very existence of the old statute 

requiring life without parole, put Appellant on notice that the Commonwealth 

would seek to impose a sentence of life imprisonment without the possibility 

of parole for the crime of murder in the first degree.

15

 See 18 Pa.C.S.A. § 

1102(a)(1). This was sufficient to serve as Appellant’s “fair warning” as to 

____________________________________________ 

15 As Appellant was a minor at the time of the offenses, the Eighth 

Amendment precluded him from being eligible for the death penalty. 

Roper, supra at 578. 
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what Pennsylvania’s considered judgment of a proper sentence would be in 

such a case. See Weaver, supra; Dobbert, supra. The fact that the old 

statute, Section 1102, would later be declared constitutionally void as 

applied to him on Eighth Amendment grounds is of no moment.16

 See 

Dobbert, supra. Rather, as we have explained in great detail, the

underpinnings of the Ex Post Facto Clause protect fairness, fair warning and 

notice. See Carmell, supra; Weaver, supra. Because Section 1102 

provided Appellant with fair notice and warning that he would receive life 

without the possibility of parole, he cannot complain of a retroactive 

imposition of a 35-year mandatory minimum, even though he may not have 

received such a high minimum sentence under Batts. 

 These considerations lead us to conclude that the underlying interests 

of the Ex Post Facto Clause were fulfilled in this case. See Dobbert, supra. 

Section 1102.1’s retroactive application to Appellant’s case is not the kind of 

“manifestly unjust and oppressive” law the Framers sought to prohibit. See 

Calder, supra. As a result, we conclude Section 1102.1’s retroactive 

application to Appellant is consistent with the text, history of, and the cases 

____________________________________________ 

16 Section 1102 stated that “a person who has been convicted of a murder of 

the first degree or of murder of a law enforcement officer of the first degree 

shall be sentenced to death or to a term of life imprisonment in accordance 

with 42 Pa.C.S. § 9711.” 18 Pa.C.S.A. § 1102(a). While not constitutionally 

void on its face, Section 1102 no longer has any constitutional application to 

minors in light of Roper and Miller. 
J-A20018-14

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interpreting the Ex Post Facto Clause. Therefore, Appellant’s argument to 

the contrary must fail. 

Based on the foregoing, we conclude all of Appellant’s arguments are 

devoid of merit. Accordingly, the trial court’s December 17, 2012 judgment 

of sentence is affirmed. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014