J. S 51 0 41 /1 8

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

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : MATTHEW BALDWIN , : No. 2613 E DA 20 17
: Appellant :

Appeal from the PCRA Order, July 13, 2017, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0010832

- 2013

BEFORE: DUBOW , J., NICHOLS , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 26 , 2018
Matthew Baldwin appeals pro se the order of October 30, 2017, issued
by the Court of Common Pleas of Philadelphia County that denied his petition
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546.
After careful review, we affirm.
The factual history of this mat ter, as initially recounted by the trial
court during appellant’s direct appeal, is as follows:

On September 10, 2012 at approximately 5:45 p .m., Kharee Tillmon was with some friends at the Cecil B. Moore Recreation Center located at 22 nd Street and Huntin gdon Street. [Appellant] [ 1 ] entered the playground and began talking with Tillmon and his friends. Eventually, [appellant] began arguing with Tillmon about $10 that Tillmon owed [appellant]. [Appellant] stated, “Man, you’ve been owing me my bread for th e longest. Give me my bread.” When

1 Appellant was 17 years old at the time.J. S 51 0 41 /1 8

- 2

- Tillmon stated he did not have [appellant’s] money, [appellant] drew a .22 caliber revolver, pointed it at Tillmon, and shot him once in the chest. [Appellant] then kicked Tillmon once in the head, after Tillmon had fa llen to the ground , and left the scene.
Tillmon suffered a single gunshot wound to the chest, which penetrated his heart and both of his lungs. Doctors pronounced Tillmon dead at approximately 6:11 p.m.
Trial court opinion, 10/30/17 at 3, citing trial c ourt opinion, 7/2/15 at 2
(footnote omitted)

. The trial court recounted the following procedural background:
On November 20, 2014, following a jury trial before this Court, [appellant] was convicted of one count each of first

- degree murder (18 Pa.C.S.[A]. § 2502(a)), carrying a firearm without a license (18 Pa.C.S.[A.] § 6106), carrying a firearm on a public street in Philadelphia (18 Pa.C.S.[A.] § 6108), and possessing an instrument of crime (18 Pa.C.S.[A.] § 907). On January 23, 2015, the Court imposed an aggregate sentence of 50 years to life in state prison (18 Pa.C.S.[A.] § 1102.1(a)(1)). [Appellant] did not file post

- sentence motions. [Appellant] was represented at trial and at sentencing by Brian J. McMonagle, Esquire. [Appellant] was represented on direct appeal by James Ephraim Lee, Esquire.
On January 21, 2016, while his direct appeal was pending, [appellant] prematurely filed a pro se petition under the [PCRA]. This Court deemed the [p]etition to have been timely re

- filed after the Superior Court affirmed [appellant’s] judgment of sentence on May 9, 2016, and [appellant] did not seek review of that decision in the Supreme Court of Pennsylvania. James Lammendola, Esquire was appointed to represent [appellant] on October 27, 2016.J. S 51 0 41 /1 8

- 3

- On March 3, 2017, pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988), Mr. Lammendola filed a letter stating there was no merit to [appellant’s] claims for collateral relief. On M arch 28, 2017, [appellant] filed a response to PCRA counsel’s Finley lett er. On March 31, 2017, the Court issued notice pursuant to Pa.R.Crim

. P. 907 (“907 Notice”) of its intention to dismiss [appellant’s] PCRA Petition without an evidentiary hearing. [Appellant] responded to the Court’s 907 Notice on May 11, 2017 (“907 Respo nse”) , repeating the same arguments made in his response to the Finley Letter. On July 13, 2017, the Court formally dismissed [appellant’s] PCRA Petition and granted Mr. Lammendola’s motion to withdraw his appearance. Trial court opinion, 10/30/17 at 1

- 2 ( c itations omitted)

. On August 7, 2017, appellant filed a notice of appeal. On August 10,
2017, the trial court ordered appellant to prepare a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On
September 18, 2017, ap pellant complied with the order. On October 31,
2017, the trial court filed an opinion, pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for this court’s review:

1. Is it unconstitutional to sentence a juvenile to 50 to Life a de facto sentence of Life Imprisonment [without] the possibility of parole, [without] a factual basis to determine if the juvenile was permanently incorrigible, irreparably corrupt, or irretrievably depraved?

2. Absent a judicial finding, a juvenile is perma nently incorrigible, irreparably corrupt, or irretrievably depraved, is it unconstitutional to sentence a juvenile to 50 to Life, a de facto sentence of Life imprisonment [without] the possibility of parole[?]J. S 51 0 41 /1 8

- 4

- 3. Under the circumstances of this case [,] was it unconstitutional to sentence [appellant] to 50 to Life, a de facto sentence of Life Imprisonment [without] the possibility of parole?

4. As the United States Supreme Court in Miller v. Alabama , [567 U.S. 460 (2012) , ] struck down the Pennsylvania First and Second Degree Murder statutes for juveniles, was the only Constitutional Sentence here one for Voluntary or Involuntary Manslaughter, due to Third Degree Murder in Pennsylvania being Unconstitutionally Vague?

5. Did the Trial Court impose an Illegal Sentence upon [appellant] when it imposed the 50 years to Life Sentence in state prison, pursuant to 18 Pa.C.S.[A.] § 1102.1(a)(1), which is unconstitutional in its entirety?
Appellant’s brief at 3. 2
In PCRA appeals, our scope of review “is limited to th e findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”

Commonwealth v. Sam , 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeal s involve questions of fact and law, we
employ a mixed standard of review. Commonwealth v. Pitts , 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.

2 Appellant’s brief is not numbered. However, for ease in locating items in appellant’s brief, we count the first page after the table of contents and table of citations as “1” and proceed forward from that point in counting the pages.J. S 51 0 41 /1 8

- 5

-

Henkel , 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ). In contrast, we
review the PCRA court’s legal conclusions de novo

. Id.
Appellant’s first three issues are essentially the same: that he

received an unconstitutional de facto life sentence without possibility of
parole of 50 years’ to life when he was a juvenile and was not found to be
permanently incorrigible, irreparably cor rupt, or irretrievably depraved.
( Appellant’s brief at 3. )
Appellant raises a claim pertaining to the legality of his sentence. “The

d etermination as to whether a trial court imposed an illegal sentence is a
question of law; an appellate court’s standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Crosley , 180 A.3d 761,
771 (Pa.Super. 2018), quoting Com monwealth v. Rotola , 173 A.3d 831,

834

- 835 (Pa.Super. 2017). An appeal pertaining to the legality of a

sentence is nonwaivable. Commonwealth v. Foster , 17 A.3d 332, 345
(Pa. 2011). 3
On June 25, 2012, the Supreme Court of the United States announced

its decision in Miller v. Alabama , 567 U.S. 460 (2012). In Miller , the
High Court held that mandatory sentences of life imprisonment without the
possibility of parole for juvenile offender s violated the Eighth Amendment’s

3 The Commonwealth contends that appellant waived all issues because he did not raise these issues in his PCRA petition. Because the claims address the legality of the sentence imposed upon appellant, we will address them.J. S 51 0 41 /1 8

- 6

-

prohibition against cruel and unusual punishment unless there was a

determination that the offender was permanently incorrigible, irreparably
corrupt, or irretrievably depraved

. Id. at 471

- 473, 479

- 480

.
In Montgomery v. Louisiana , 136 S.Ct. 718 (2016), the Supreme

Court of the United States held that Miller applied retroactively.
In response to Miller , our General Assembly passe d 18 Pa.C.S.A.
§ 1102.1 which provides that a person between 15 and 17 years of age

convicted of first degree murder after June 24, 2012 , must be sentenced to
a maximum term of life imprisonment and a minimum sentence can be set
anywhere from 35 years’ to life. Appellant was not resentenced to life
without parole, so Miller , on its face, does not apply.

With respect to a de facto life sentence without possibility of parole,

in Commonwealth v. Foust , 180 A.3d 416 (Pa.Super. 2018), this court
held that a trial court may not impose a term

- of

- years sentence on a
juvenile convicted of homicide if that sentence is equivalent to a de facto
life without possibility of parole sentence, unless the trial court finds, beyond
a reasonable doubt, that the juvenile is incapable of rehabilitation. Id.

at 433. This court also held that de facto life sentences are cruel and
unusual punishment when imposed on juveniles convicted of non

- homicide
offenses or juvenile h omicide offenders capable of rehabilitation.
Furthermore, when determining whether a sentence is a de facto life
sentence, this court held that the individual sentences must be examinedJ. S 51 0 41 /1 8

- 7

-

rather than the aggregate sentence. Id. at 434. I n so doing, the co urt
determined that each individual sentence did not represent a de facto life
sentence. With respect to appellant’s argument, he will be in his sixties
when eligible for parole, hardly a de facto life sentence.
Appellant next contends that the Supreme C ourt of the United States

in Miller struck down the first and second

- degree murder statutes fo r juveniles and the third degree murder statute was vague so that the only
crime for which he could be convicted for voluntary or involuntary
manslaughter. ( Appe llant’s brief at 16. )
The trial court termed this argument frivolous and opined:

Miller did not render our murder statutes incapable of being applied to juveniles. Rather, Miller “ held that a sentencing scheme that mandates the imposition of a life

- without

- parole sentence for a juvenile violates the Eighth Amendment to the United States Constitution. ” Commonwealth v. Batts , 163 A

. 3d 410, 432 (Pa. 2017). After Miller , our legislature enacted a sentencing statute to ensure that all of the mandat es of Miller were consistent with Pennsylvania law. 18 Pa.C.S.A. § 1102. 1

. The constitutionality of section 1102.1 has been upheld by our Superior Court, which held that section 1102.1 is fully compliant with the mandate of Miller and the requirements of the Eighth Amendment. See Commonwealth v. Brooker , 103 A

. 3d 325, 339 (Pa.Super

. 2014).
[Appellant] was sentenced for first degree murder under section 1102

. 1, with the sentencing court making all of the findings mandated by that statute. Accordingly, t here is nothing in Miller , nor in any other authority, that would render his conviction and sentencing for first degree murder unlawful. No relief is due

.J. S 51 0 41 /1 8

- 8

-

Trial court opinion, 10/30/17 at 7 ( citation to record omitted )

. The trial court has succinctly and accurately analyzed this issue.
Appellant fails to persuade this court that the trial court erred when it failed
to find that appellant, at most, could be sentenced to manslaughter.
Finally, appellant contends that the trial court imposed an illegal

sen tence upon him because 18 Pa.C.S.A. § 1102.1(a)(1) is unconstitutional

in its en tirety because he believes that statutes governing sentencing for
crimes must be contained in the Sentencing Code at 42 Pa.C.S.A. §§ 9701

-
9799.75. ( Appellant’s brief at 20. ) This court does not agree. Chapter 11
of the Crimes Code, 18 Pa.C.S.A. §§ 1101

- 1110 , is entitled Authorized
Disposition of Offenders and contains sections dealing with the amount of a
fine that can be imposed based on the offense (Section 1101), 18 Pa.C.S.A.
§ 1101 , and sentences for murder, felonies, misdemeanors, and summary

offenses (Sections 1102

- 1105), 18 Pa.C.S.A. §§ 1102

- 1105 . Most of these

sections have been effective since 1973. Appellant does not cite any case
law that supports his conten tion that the enactment of Section 1102.1 is

invalid and an unconstitutional ex post facto law. This issue has no merit.
Appellant has failed to prove that the PCRA court’s decision contained
legal error or that any findings were unsupported by the evide nce of record.

Order affirmed.J. S 51 0 41 /1 8

- 9

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/26/18