Commonwealth v. Harper

273 A.3d 1089

COMMONWEALTH of Pennsylvania

v.Parris Lavon HARPER, Appellant

No. 166 EDA 2019

Superior Court of Pennsylvania.

Submitted September 20, 2021

Filed March 28, 2022

William P. Wismer, Media, for appellant.

Frederick J. Stollsteimer, Assistant District Attorney, Media, for Commonwealth, appellee.

Catherine B. Kiefer, Media, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY PANELLA, P.J.:

This case calls upon us to revisit the proper sentencing of a juvenile convicted of second-degree murder. Specifically, we are asked to determine whether a sentence of thirty-five years to life is legal, and if so, whether the trial court abused its discretion in fashioning the sentence. In performing this analysis, we discuss the impact of the recent decision in Commonwealth v. Felder , ––– Pa. ––––, 269 A.3d 1232 (2022). After a careful review, we affirm.

On December 11, 1997, Parris Lavon Harper pointed a gun at the neck of David Purvis. At the time of the incident, Harper was less than one month away from his eighteenth birthday. With the gun pointed at Purvis, Harper stated, "give me what you got," ostensibly referring to drugs that Purvis had in his possession. Purvis then ran and Harper fired his gun several times. Purvis suffered three gunshot wounds and died as a result.

On June 17, 1999, at the conclusion of a jury trial, Harper was found guilty of second-degree murder and robbery. The court sentenced Harper to life imprisonment without parole on August 3, 1999. On June 14, 2017, the trial court vacated the life sentence pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that mandatory sentences of life without parole for juvenile offenders violate the Eighth Amendment).

On September 20, 2018, after several hearings, the trial court resentenced Harper to serve a term of incarceration of thirty-five years to life. Harper filed a timely post-sentence motion. The trial court held a hearing and ultimately denied the motion on December 12, 2018. This timely appeal followed.¹

Harper presents three issues in his appeal. The first two issues attack the legality of his sentence. His final issue raises a challenge to the discretionary aspects of his sentence.

Harper first argues that his minimum sentence of 35 years is a de facto sentence of life without parole ("LWOP"). He contends United States and Pennsylvania precedent require that, unless the Commonwealth can establish beyond a reasonable doubt that a juvenile is incapable of rehabilitation, the juvenile must be accorded the opportunity to be released with the chance for a meaningful and fulfilling life. In essence, the question before us is at what point does a minimum term-of-years sentence become a de facto life sentence?

We have determined that a claim that the trial court imposed an impermissible de facto life sentence in violation of Miller constitutes a challenge to the legality of sentence. See Commonwealth v. Clary , 226 A.3d 571, 580 (Pa. Super. 2020). A challenge to the legality of sentence is an attack upon the power of a court to impose a given sentence. See Commonwealth v. Lipinski , 841 A.2d 537, 539 (Pa. Super. 2004). Legality of sentence issues occur generally either (1) when a trial court's traditional authority to use discretion in the act of sentencing is somehow affected; and/or (2) when the sentence imposed is patently inconsistent with the sentencing parameters set forth by the General Assembly. See Commonwealth v. Foster , 609 Pa. 502, 17 A.3d 332, 342 (2011). The question of whether a claim implicates the legality of a sentence presents a pure question of law. See id. at 340 n.13. Issues relating to the legality of a sentence are reviewed de novo, and our scope of review is plenary. See Commonwealth v. Infante , 63 A.3d 358, 363 (Pa. Super. 2013).

A trial court may not impose a term-of-years sentence on a juvenile convicted of homicide that equates to a de facto LWOP sentence unless it finds, beyond a reasonable doubt, that the juvenile is incapable of rehabilitation. See Clary , 226 A.3d at 581. We have distinguished between sentences that constitute de facto LWOP sentences and those that do not. See Commonwealth v. Foust , 180 A.3d 416, 438 (Pa. Super. 2018). Specifically, in Foust , we determined that while a 150–year sentence is the equivalent of a de facto LWOP sentence, a 30-years to life sentence does not constitute a de facto LWOP sentence. See id .

In guiding our determinations regarding particular minimum sentences, we have observed that a sentence is not a de facto LWOP sentence where there is "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Commonwealth v. Bebout , 186 A.3d 462, 467 (Pa. Super. 2018) (citation omitted). Therefore, "it must at least be plausible that one could survive until the minimum release date with some consequential likelihood that a non-trivial amount of time at liberty awaits." Id . at 468 (emphasis in original). Conversely, if no meaningful opportunity for parole exists, the sentence constitutes a de facto LWOP sentence. See id . Accordingly, we have considered the age the appellant would be eligible for parole to determine whether the sentence is the functional equivalent of LWOP. See id .

In Clary , we offered the following summary of several of our decisions that addressing concerns that the minimum sentence imposed amounted to a de facto sentence of LWOP:

In Commonwealth v. Anderson , 224 A.3d 40, 47-48 (Pa. Super. 2019), a post- Miller case, the appellant received a sentence of 50 years’ to life imprisonment upon resentencing. [See Anderson , 224 A.3d at 41-42 ]. Because Anderson was 17 years old at the time he began serving his sentence, he would, thus, be eligible for parole at age 67. Id . at [46-47]. We, therefore, concluded that his sentence was not the functional equivalent of LWOP. Id . at 47-48. See also Bebout , supra at 468 (concluding the appellant's 45 years to life sentence in which he would be eligible for parole at the age of 60 was not de facto LWOP); Commonwealth v. Lekka , 210 A.3d 343, 357-358 (Pa. Super. 2019) (concluding that because the appellant's term of 45 years’ to life imprisonment rendered him eligible for parole at the age of 62, it was not a de facto LWOP sentence); Foust , supra at 438, 441 (concluding that the appellant's two consecutive 30 year to life sentences were not a de facto LWOP sentence and noting that even considering [the a]ppellant's aggregate sentence, he had a chance of being released into society in his 70s).

Clary , 226 A.3d at 581. Further, in Clary , we determined that because the appellant was eligible for parole for his first-degree murder conviction at the age of 58, he had a "meaningful opportunity to obtain release," and his sentence could not be considered de facto LWOP. Id . at 582.

Applying these considerations here, we likewise conclude that Harper did not receive a de facto LWOP sentence. The record reflects Harper committed the murder in December 1997, which was just prior to his eighteenth birthday on January 9, 1998. Harper was convicted and sentenced in the summer of 1999, when he was 19 years old. Initially, he received a mandatory sentence of life imprisonment. On September 20, 2018, he was resentenced to a term of 35 years to life. Accordingly, Harper will be approximately 54 years old when his minimum sentence expires, and he becomes eligible for parole. Therefore, Harper has a meaningful opportunity to obtain release at the age of 54 and there is a likelihood that a non-trivial amount of time at liberty awaits. Accordingly, his claim that the minimum term amounts to a de facto LWOP sentence lacks merit.

In addition, we observe that while this appeal was pending, our Supreme Court issued the decision in Commonwealth v. Felder , ––– Pa. ––––, 269 A.3d 1232 (2022), which adds further support to our conclusion that this issue lacks merit. In Felder , the appellant was a juvenile convicted of first-degree murder and initially received a sentence of LWOP. See id . at ––––, 269 A.3d 1232. After the filing of Miller , the appellant was resentenced to serve a term of incarceration of fifty years to life. See id . at ––––, 269 A.3d 1232. Eventually, our Supreme Court granted allowance of appeal to address "whether a discretionary term-of-years sentence may be so long as to amount to a de facto life sentence, thereby triggering the substantive and procedural protections afforded by Miller and its progeny." Id . at ––––, 269 A.3d 1232.

In reaching its decision, the Felder Court reviewed the current state of the law since the United States Supreme Court's decision in Jones v. Mississippi , ––– U.S. ––––, 141 S.Ct. 1307, 209 L.Ed.2d 390 (2021), and concluded that "even if a 50-years-to-life sentence amounts to a de facto life sentence, there is no Miller problem here." Id . at ––––, 269 A.3d 1232 (citation and quotation marks omitted). The Court made the following summarization of the law:

[I]f a discretionary sentencing scheme is constitutionally sufficient to permit the imposition of a life-without-parole sentence on a juvenile homicide offender, so too can a court impose a sentence that is something less than life without parole. This includes a term-of-years sentence that may amount to a de facto life sentence. Stated differently, as long as the sentence was the product of a discretionary sentencing system that included consideration of the juvenile's youth, the Eighth Amendment is satisfied.

Id . at ––––, 269 A.3d 1232. Here, there is no question the minimum term-of-years sentence imposed upon Harper was the product of a discretionary sentencing system, which included consideration of his youth. For this reason, too, Harper's claim fails.

Harper next argues the imposition of a mandatory maximum sentence of life is illegal under the United States and...