[J-56-2019] [MO: Saylor, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

BERT HUDSON,

Appellant

v.

PENNSYLVANIA BOARD OF 

PROBATION & PAROLE,

Appellee

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No. 17 WAP 2018

Appeal from the Order of the 

Commonwealth Court entered May 

29, 2018 at No. 444 MD 2017.

SUBMITTED: MARCH 21, 2019

CONCURRING OPINION

JUSTICE WECHT DECIDED: MARCH 26, 2019

This appeal requires the Court to interpret various statutory provisions in order to 

ascertain whether, in the absence of a direct legislative statement, the General Assembly 

intended that a person convicted of, and sentenced for, second-degree murder1 would be 

eligible for parole. In part, the learned Majority resolves this question through a plain

language analysis of 61 Pa.C.S § 6137. See Maj. Op. at 10-11. I join that aspect of the 

Majority’s opinion, and I join in the Court’s ultimate disposition. I write separately because 

my interpretation of one of the other statutes implicated in this case differs slightly from 

that of the Majority. 

In matters of statutory interpretation, our objective is to ascertain and effectuate

the General Assembly’s intent. 1 Pa.C.S. § 1921(a). “In discerning that intent, the court 

first resorts to the language of the statute itself. If the language of the statute clearly and 

unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent 

 

1 18 Pa.C.S. § 2502(b).
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to the case at hand and not look beyond the statutory language to ascertain its meaning.” 

In re L.B.M., 161 A.3d 172, 179 (Pa. 2017) (quoting Mohamed v. Commonwealth, Dep’t 

of Transp., Bureau of Motor Vehicles, 40 A.3d 1186, 1193 (Pa. 2012)). “When the words 

of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded 

under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). 

In this case, the plain and unambiguous language that the General Assembly 

expressed in subsection 6137(a) is dispositive. Our Crimes Code mandates that any 

person convicted of second-degree murder be sentenced “to a term of life imprisonment.” 

18 Pa.C.S. § 1102(b). Subsection 6137(a) affords the parole board the discretion to 

release any inmate on parole “except an inmate condemned to death or serving life 

imprisonment.” 61 Pa.C.S. § 6137(a)(1). The General Assembly’s use of the term “life 

imprisonment” in both of these provisions indicates, plainly and unambiguously, that it 

intended to ensure that those convicted of second-degree murder are never to be 

released on parole. This unequivocal expression of legislative will is all that is necessary 

to resolve the issue before the Court today.

This is so regardless of what we can glean from a survey of other statutory 

provisions that might be relevant to this issue, particularly inasmuch as the meaning and 

effect of those other provisions are unclear. Allow me to explain. Put aside subsection 

6137(b)(1) for the moment; what remains are statutory provisions that create something

of a stalemate, with some provisions militating in favor of Hudson’s claim that parole 

eligibility for a second-degree murderer not only is possible, but is required, while other

provisions foreclose even the possibility of parole. There are instances in our Crimes 

Code in which the General Assembly has specified that a life sentence means “life without 

parole,” but others in which the General Assembly did not include the “without parole” 

language, a circumstance which supports the argument that, when the General Assembly 
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specifically intended for a life sentence to be one in which parole is not an option, it said 

so explicitly. One such example is Pennsylvania’s Three Strikes Law, in which the 

General Assembly has instructed that, if a person has committed three or more violent 

crimes, and twenty-five years in prison is insufficient to protect the safety of the public, a 

trial court may sentence the offender to “life imprisonment without parole.” 42 Pa.C.S. § 

9714(a)(2) (emphasis added). Another example lies in the sentencing provision for arson 

resulting in death, which is a form of second-degree murder. The General Assembly 

prescribed the punishment for second-degree murder predicated upon arson as “life 

imprisonment without right to parole.” 18 Pa.C.S. § 3301(b)(1) (emphasis added). As 

arson already is a predicate crime for second-degree murder, see 18 Pa.C.S. § 2502(d) 

(defining “perpetration of a felony” as including “robbery, rape, or deviate sexual 

intercourse by force or threat of force, arson, burglary or kidnapping”), and as all other 

predicates are subject only to “life imprisonment,” it is at least reasonable to infer that the 

General Assembly intended to differentiate between the predicate crimes for seconddegree murder. See Commonwealth v. Spotz, 716 A.2d 580, 590 (Pa. 1998) (explaining 

that the “fundamental maxim of statutory construction, ‘expresio unius est exclusio

alterius,’ stands for the principle that the mention of one thing in a statute implies the 

exclusion of others not expressed.”). 

The strongest evidence that the General Assembly intended that second-degree 

murderers be eligible for parole can be found in the version of 42 Pa.C.S. § 9756 that was 

in effect at the time Hudson was sentenced. As the Majority notes, in that provision, the 

General Assembly expressly omitted “only” four categories of offenders from parole 

eligibility: (1) those convicted of first-degree murder; (2) individuals sentenced for 

summary offenses; (3) persons incarcerated for nonpayment of fines or costs; and (4) 

offenders whose sentences do not exceed thirty days in jail. Id. § 9756(c) (1974). The 
[J-56-2019 [MO: Saylor, C.J.] - 4

Majority acknowledges that the language of this statute is “somewhat confounding, as it 

does seem to imply that,” a sentencing court must set a parole date in every instance 

except the four enumerated categorical exceptions. See Maj. Op. at 9. Disregarding this

clear legislative directive that “only” those four categories are exempted from the general 

“right to parole,” 42 Pa.C.S. § 9756(c) (1974),2the Majority maintains instead that the 

General Assembly “never intended specifically to create a personal right to be reviewed 

for parole.” Maj. Op. at 10. Rather, the Majority reasons, the provision was “meant to 

direct common pleas courts in discharging their sentencing obligations.” Id. For the 

Majority, this means that the trial court here “settled on the concept that, in view of the 

mandatory nature of the life sentence associated with [Hudson’s] offense,” the court had 

no choice but to impose a sentence of life without parole. Id. I disagree respectfully with

the Majority’s interpretive approach. As noted, our first obligation is to give effect to the 

words that the General Assembly actually used. In subsection 9756(c), the General 

Assembly unambiguously limited a sentencing court’s ability to sentence a person without

the “right to parole” to four distinct categories of offenders. Second-degree murderers do 

not fall within one of the four categories. Thus, at least at this juncture in the interpretive 

process, subsection 9756(c) weighs strongly in Hudson’s favor. 

However, other compelling considerations militate against parole eligibility for 

second-degree murderers. Subsection 9756(b)(1) governs how sentencing courts must 

calculate an offender’s minimum sentence. That provision mandates that a minimum 

sentence “shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. § 

 

2 The present version of subsection 9756(c) does not include first-degree murder as 

one of the categories of crimes automatically excluded from parole eligibility. The other 

three excluded categories remain. See 42 Pa.C.S. § 9756(c). Of course, removing firstdegree murder from subsection 9756(c) does not mean that the crime is one that carries 

with it the possibility of parole. Like second-degree murder, first-degree murder, for which 

a person is sentenced to life imprisonment upon conviction (or death), is governed by the 

prohibition on release in subsection 6137(a)(1). 
[J-56-2019 [MO: Saylor, C.J.] - 5

9756(b)(1). If, as subsection 9756(c) seemingly requires, a second-degree murderer is 

entitled to a parole eligibility date, subsection 9756(b)(1) renders a sentencing court’s 

obligation to set such a date “impossible of execution.” See 1 Pa.C.S. § 1922(1). As the 

Majority explains, because no court can know when a life term will end, no court can set 

an eligibility date that complies with the terms of subsection 9756(b)(1). See Maj. Op. at 

7. Hence, the result is a statutory stalemate, with one provision requiring a court to act 

while, at the same time, another provision in the same statute makes it impossible for the 

court to perform that very act. 

These conflicting provisions illustrate the difficulty in ascertaining the General 

Assembly’s intent with regard to the question at bar in this case, absent consideration of 

subsection 6137(a)(1). There is reason to believe that the General Assembly intended a 

right of parole for those convicted of second-degree murder, at least as to those whose 

convictions were not arson-related, while, at the same time, there is reason to believe 

that the General Assembly did not so intend. Ultimately, however, we need not determine 

definitively the relevance or impact of any section other than subsection 6137(a)(1). Only 

that provision matters for purposes of our disposition here. Its clear and unambiguous 

language expressly prohibits the parole board from releasing anyone serving a sentence 

of “life imprisonment.” Anyone sentenced to second-degree murder is serving such a 

sentence, and is not entitled to release at any time. For this reason, attempts to untangle

the knots created by the other statutory provisions are both futile and unnecessary, as no 

resolution of those conundrums would result in Hudson’s, or any other second-degree 

murderer’s, release. 

To the extent that today’s resolution is not in accord with the General Assembly’s 

actual intent, the onus falls upon our lawmakers to correct any misinterpretation through

the enactment of legislation. In the absence of such statutory clarification, our rules of 
[J-56-2019 [MO: Saylor, C.J.] - 6

statutory construction compel reliance upon the plain language of subsection 6137(a)(1) 

alone. 

Justice Donohue joins this concurring opinion.