Commonwealth v. Lee, D., Aplt.

[J-60-2024] [MO: Todd, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 3 WAP 2024

:

Appellee : Appeal from the Order of the

: Superior Court entered June 13,

: 2023, at No. 1008 WDA 2021,

v. : Affirming the Order of the Court of

: Common Pleas of Allegheny County

: entered December 19, 2016, at No.

DEREK LEE, : CP-02-CR-0016878-2014.

:

Appellant : ARGUED: October 8, 2024

CONCURRING OPINION

JUSTICE MUNDY DECIDED: MARCH 26, 2026

I agree with the majority that under the Supreme Court’s cases there is no basis

to conclude that life without parole as a penalty for an adult convicted of felony murder

violates the Eighth Amendment. I also agree that Article I, Section 13 of the Pennsylvania

Constitution prohibits a mandatory sentence of life without parole for felony murder in

relation, specifically, to defendants who did not kill, attempt to kill, or intend that anyone

be killed. As that is all this case decides, I believe some of the language used by the

majority in describing its holding may be imprecise, at least to the extent it can be

construed to encompass second-degree murderers who either killed or intended to kill.

See, e.g., Majority Op. at 70 (“Accordingly, we conclude Section 13’s prohibition on cruel

punishments proscribes a sentencing model which mandates the imposition of life

imprisonment without parole for felony murder.”). The limited scope of the present

decision is discussed below.

First, though, the seriousness of the offense of felony murder should not be

understated. Felonies are dangerous crimes, and the General Assembly has broad

latitude to set the penalty when a defendant willingly participates in a predicate felony and

someone is killed during its commission. See 18 Pa.C.S. § 2502(d) (listing the predicate

felonies as robbery, rape, or deviate sexual intercourse by force or threat of force, arson,

burglary, and kidnapping); cf. Commonwealth ex rel. Corbett v. Griffin, 946 A.2d 668, 675

(Pa. 2008) (“[T]he Legislature’s determination as to whether a particular offense is serious

enough at a given time to warrant the status of felony reflects the public will as expressed

through the ballot box.”). The result of dangerous conduct often determines its criminality,

and anyone who voluntarily embarks upon a predicate felony as principal or accomplice

is assumed to be aware the crime could lead to violence, up to and including death. See

Commonwealth v. Legg, 417 A.2d 1152, 1154 (Pa. 1980) (under a reasonable-person

standard, the actor knew or should have known death might result from the felony and

proceeded with it anyway). Thus, we have explained that, with felony murder, the

defendant acted with “malice incident to the perpetration of the initial felony,” which is

then extended by law to the homicide, making it murder. Commonwealth v. Yuknavich,

295 A.2d 290, 292 (Pa. 1972). Some predicate crimes are so inherently dangerous that

the legislature may impose the severest penalty short of execution when they end in

someone’s death. Courts should not lose sight that an unjustified killing is the ultimate

act of evil, one that completely erases another person’s entire existence and potential.

See Graham v. Florida, 560 U.S. 48, 69 (2010).

The instant case is illustrative. Appellant willingly participated in an armed home

invasion and robbery, and purposefully engaged in assaultive behavior in the form of

tasing and pistol-whipping the victim. Anyone who invades someone else’s home should

expect a high probability that violence will occur, which obviously could lead to death.

[J-60-2024] [MO: Todd, C.J.] - 2

The added factor that the invasion was armed and the perpetrators arguably kidnapped

the victims by forcing them into the basement only drives that point home.1 In such

instances, the theoretical foundations of the felony-murder doctrine stand on solid ground,

including transferred malice and strict liability.

In other instances, the felony-murder defendant may play a relatively minor role,

such as the getaway driver for an unarmed confederate. See Majority Op. at 63

(distinguishing the “lookout” from the triggerman). Through youth or naiveté, he may

expect the incident to involve the stealing of a few items from a convenience store and

little else. Cf. Concurring Op. at 3 (Wecht, J.) (describing that the driver may only intend

to “make off with some ill-gotten gains”). In such circumstances, the driver is still guilty of

a serious crime. He will have waited in a nearby vehicle to help the actual robber escape

with stolen goods. And the robbery itself must, to constitute a robbery, be undertaken

with at least the threat of immediate serious bodily injury, see 18 Pa.C.S. § 3701(a)(1) –

a threat even an unarmed person is capable of making through deception or physicality.

Even if the store clerk is not physically harmed in the course of the robbery, moreover,

the event may be terrorizing, and either he or someone else will have been unjustly

deprived of property for which they are presumed to have labored. But as for the getaway

driver who had no intention that physical harm would come to anyone, and who did not

attempt to harm anyone – as to that person, even if one might suggest a lengthy prison

sentence is appropriate, incarcerating him for life without parole based on such conduct

does appear to fit the description of “cruel” in the constitutional sense. See Concurring

Op. at 10-11 (Dougherty, J.).

1 See 18 Pa.C.S. § 2901(a) (defining kidnapping to include unlawfully removing another

person “a substantial distance under the circumstances from the place where he is found,”

or confining another person for a substantial period in a place of isolation with the intent

to commit any felony or terrorize the victim).

[J-60-2024] [MO: Todd, C.J.] - 3

Turning to the present case, this is, in effect, a facial challenge that involves only

a subset of defendants convicted of felony murder. Appellant framed the issue subject to

the assumption that he “did not kill or intend to kill,” and that is the constitutional issue we

accepted for review:

Is [Appellant’s] mandatory sentence of life imprisonment with no possibility

of parole unconstitutional under Article I, § 13 of the Constitution of

Pennsylvania where he was convicted of second-degree murder in which

he did not kill or intend to kill and therefore had categorically-diminished

culpability, and where Article I, § 13 should provide better protections in

those circumstances than the Eighth Amendment to the U.S. Constitution?

Commonwealth v. Lee, 313 A.3d 452 (Pa. 2024) (per curiam) (emphasis added).

Consistent with the issue as articulated, Appellant argues his challenge should be

sustained precisely because defendants who “did not kill or intend to kill” are less

culpable. Brief for Appellant at 54. He continues by reference to Graham and Enmund

v. Florida, 458 U.S. 782 (1982). Enmund affirmed that in a felony-murder prosecution the

reviewing court’s proportionality analysis should focus on the defendant’s culpability and

not that of the person who killed the victim, see Enmund, 548 at 798, and it barred the

death penalty for a robbery accomplice who did not kill, attempt to kill, or intend or

contemplate that a life would be taken during the robbery. See id. at 801. For its part,

Graham explained that a juvenile offender who did not kill or intend to kill has diminished

moral liability both because of his youth and because of the absence of homicidal conduct

or intent. See Graham, 569 U.S. at 69 (expressing that the offender’s blameworthiness

is “twice diminished”). Based on these decisions, Appellant argues:

Defendants who do not kill, attempt to kill, or intend to kill are therefore less

morally culpable than those who do, and are therefore less deserving of the

most severe punishments. . . . Under the [United States Supreme] Court’s

long-standing proportionality framework, a punishment is categorically

disproportionate to the offense if there are “mismatches between the

culpability of a class of offenders and the severity of the penalty.”

[J-60-2024] [MO: Todd, C.J.] - 4

Brief for Appellant at 55-56 (quoting Miller v. Alabama, 567 U.S. 460, 470 (2012)).

All of this demonstrates we are not presently asked to decide whether a mandatory

sentence of life without parole violates Section 13 for a second-degree murderer who

killed, attempted to kill, or intended to kill. We are “limited to the issue as it was framed

in the petition for allowance of appeal,” Briggs v. Sw. Energy Prod. Co., 224 A.3d 334,

350 (Pa. 2020), and our mandate is to “decide the discrete legal issue presented to us.”

Rendell v. Pa. State Ethics Comm’n, 983 A.2d 708, 718 (Pa. 2009). It is worth noting that

someone who did not kill the homicide victim might have intended to do so. See, e.g.,

Sellers v. People, 560 P.3d 954 (Colo. 2024) (upholding mandatory life without parole for

a defendant convicted of felony murder, who fired a weapon at the victim but missed).2

Alternatively, a person might kill another individual during the course of a felony, albeit

without the specific intent required for first-degree murder. See, e.g., Commonwealth v.

Wellman, 344 A.3d 13 (Pa. Super. 2025). See generally Commonwealth v. Mickell, 729

A.2d 566, 569 (Pa. 1999) (explaining the difference between the requisite malice for first-

and second-degree murder). But we must presume for purposes of today’s decision that

Appellant neither killed nor intended or contemplated that a life would be lost during the

robbery in which he participated.

The inevitable consequence is that our present ruling does not encompass a

determination that mandatory life without parole violates Section 13 vis-à-vis a different

class of second-degree murderers: those who killed, attempted to kill, or intended to kill.

Such defendants lie outside the scope of the issue presented to this Court and resolved

by it. To the extent this case may be viewed as presenting a facial challenge based on a

2 A similar circumstance would arise if the defendant shot at a store clerk, intending to kill

him, and the clerk returned fire, killing the defendant’s coconspirator or a bystander (or

the confederate killed the bystander). But cf. Commonwealth v. Redline, 137 A.2d 472

(Pa. 1958) (where police used justifiable force to kill the defendant’s confederate in a

shootout, the defendant was not guilty of murder at common law).

[J-60-2024] [MO: Todd, C.J.] - 5

categorical prohibition, see Majority Op. at 8 (“Appellant raises a facial challenge.”), that

category is limited by the framing of the issue. The Commonwealth points out, correctly,

that the General Assembly is authorized to “define grades of murder and assign

sentences to each.” Brief for Appellee at 16. That body’s enactments enjoy a strong

presumption of validity and will only be invalidated if they violate the Constitution “clearly,

palpably, and plainly.” Ferguson v. PennDOT, 340 A.3d 278, 285 (Pa. 2025). Deference

to the legislative judgment applies with special force where contemporary standards for

criminal punishment are concerned, as those standards are “peculiarly questions of

legislative policy.” Commonwealth v. Hairston, 249 A.3d 1046, 1056 (Pa. 2021) (quoting

Gregg v. Georgia, 428 U.S. 153, 176 (1976)). These observations, in turn, counsel

against interpreting our present ruling as broadly invalidating Pennsylvania’s felony-

murder sentencing scheme. The General Assembly has determined, inter alia, that all

second-degree murderers who did kill, attempt to kill, or intend to kill, are to be sentenced

to life without parole. That legislative determination is not before us, and nothing in this

decision indicates it is inconsistent with the Pennsylvania Constitution.

Although Appellant framed his issue in terms of his “categorically-diminished

culpability,” his utilization of the word categorical should not be interpreted in the technical

sense in which the United States Supreme Court uses that term in its Eighth Amendment

jurisprudence. The Supreme Court has drawn a distinction under the Eighth Amendment

between case-by-case review for gross disproportionality, and a broader consideration of

societal standards that identify a national consensus and independent judgments about

the penalty. See Graham, 560 U.S. at 60-61. This categorical approach has been applied

mainly to defendants convicted of non-homicide offenses, juvenile offenders, and

offenders with certain intellectual disabilities. See id. at 61 (citing Kennedy v. Louisiana,

554 U.S. 407 (2008), Roper v. Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536

[J-60-2024] [MO: Todd, C.J.] - 6

U.S. 304 (2002)). Appellant does not fall into any of those categories, and there is nothing

in today’s decision suggesting it is grounded on a national consensus. Rather than try to

shoehorn the Supreme Court’s “categorical” language into Pennsylvania constitutional

law, I believe it appropriate to describe the instant case as raising a limited facial

challenge. Cf. United State v. Blount, 764 F. Supp. 3d 281, 296-97 (W.D. Pa. 2025)

(addressing a limited facial challenge to a federal statute). As mentioned above,

Appellant is not seeking to invalidate life-without-parole sentences for all felony

murderers, only for a clearly-defined subset of them (those who did not kill or intend to

kill). In that sense the challenge is limited. But as to that subset of felony murderers, the

challenge is facial. This is because of the way the issue is presented and argued.

Appellant does not rely on any facet of his specific conduct that would differentiate him

from any other defendant convicted of second-degree murder who did not kill, attempt to

kill, or intend to kill. Nor does the majority. Consequently, by deeming Appellant’s

challenge meritorious, the majority necessarily invalidates the statute as to a class of

parties who are not before the court, namely, all second-degree murderers who did not

kill, attempt to kill, or intend to kill. See Citizens United v. FEC, 558 U.S. 310, 331 (2010)

(discounting any “as-applied” label where the claims forwarded by the corporate party

would, if meritorious, invalidate the challenged statute as to all corporations).

I am also hesitant to the extent my colleagues may be interpreted to suggest a

sentence of life without parole for Appellant is unconstitutional. See, e.g., Concurring Op.

at 6-7 (Dougherty, J.). That is not the issue before us. The issue is whether Pennsylvania

statutory law may, in Appellant’s circumstances, make that sentence mandatory rather

than discretionary – i.e., imposed without the sentencing court’s ability to consider the

defendant’s character and record, or the circumstances of his offense. The issue is thus

similar to the one raised in Miller v. Alabama, 567 U.S. 460 (2012), where the Supreme

[J-60-2024] [MO: Todd, C.J.] - 7

Court invalidated mandatory life without parole for juvenile offenders because it precluded

the sentencing court from accounting for the juvenile’s age, the attendant characteristics

of youth, and the circumstances of the offense. See id. at 477-78; see also Woodson v.

North Carolina, 428 U.S. 280, 303-04 (1976) (striking down a statute mandating the death

penalty for first-degree murder, which gave “no significance to relevant facets of the

character and record of the individual offender or the circumstances of the particular

offense”). In Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022), we explained that

“Miller’s bar on mandatory life-without-parole sentencing regimes ‘is a prophylactic that

entitles a juvenile homicide offender to a certain sentencing process, but not a particular

sentencing outcome.’” Id. at 1245 (quoting United States v. Grant, 9 F.4th 186, 193 (3d

Cir. 2021)). The same is true here. It will be for the sentencing court on remand to

determine Appellant’s sentence, and nothing in this Court’s present decision precludes

life without parole imposed as a discretionary exercise of that court.

Separately, in reaching its holding the majority asks whether mandatory life

imprisonment without parole advances the traditional penological goal of deterrence. It

is self-evident that the harsher the penalty, the greater its deterrent effect. In any event,

a greater penalty will not have a lesser deterrent effect. Cf. Gregg v. Georgia, 428 U.S.

153, 186 (1976) (stating that, while some people will not be deterred from committing a

capital offense by the death penalty, for many others the penalty is a “significant

deterrent”). The majority expresses, however, that in the present context, a harsher

penalty has reduced deterrence. See Majority Op. at 67. The majority reasons from the

premise that deterrence requires “escalating consequences for escalating [criminal]

severity,” id. at 67, but I view that as a faulty premise. Deterring people from committing

second-degree murder does not require that its prescribed punishment be less severe

than the penalty attached to first-degree murder. All that matters is the punishment for

[J-60-2024] [MO: Todd, C.J.] - 8

second-degree murder. The harsher it is, the more people will be deterred from

committing it. While the majority notes the actual killer’s conduct in killing the victim “may

be outside the control of the defendant,” it overlooks that the defendant’s decision to

embark upon a predicate felony lies within the defendant’s power. It seems

straightforward that, if a person knows he will be sentenced to life without parole if the

felony he elects to participate in leads to someone’s death, he will be less likely to

participate in the felony.

In closing, we are not moral philosophers; we decide issues of law. I am

circumspect about some of the wording used in our prior cases that can be read to

suggest we are more advanced, morally speaking, than our forebears. In a case involving

the murder of a police officer during an armed robbery, we stated that retribution as a

penological justification is “incongruous in an era of enlightenment.” Commonwealth v.

Elliot, 89 A.2d 782, 784 (Pa. 1952); cf. Majority Op. at 50 (positing that the concept of

penological necessity has been “understood to evolve over time with the development of

moral and scientific advancements”). Later, the Supreme Court held that the Eighth

Amendment’s text “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 (1958) – a

phrase we adopted as a litmus for Article I, Section 13.3 This type of portrayal marshals

to its aid an unsubstantiated assumption that our own modern society is more

“enlightened,” more “evolved,” more “decent,” more “mature” than past civilizations and

societies. To my mind, the accuracy of this allusion to inevitable moral progress and

suggestion of inherent superiority is neither empirically established nor sufficiently evident

to constitute a premise that can validly support legal doctrine. It strikes me, rather, as an

3 See Commonwealth v. Zettlemoyer, 454 A.2d 937, 968 (Pa. 1982); Commonwealth v.

Hairston, 249 A.3d 1046, 1056 (Pa. 2021).

[J-60-2024] [MO: Todd, C.J.] - 9

example of the fallacy of chronological snobbery.4 As a matter of constitutional reasoning,

I find it more persuasive to analyze whether a challenged penalty is “cruel” for Section 13

purposes on its own terms, without an unearned assist from the presumption of inevitable

moral progress and human improvement through evolution.5

4 See generally A. J. Hoover, DON’T YOU BELIEVE IT, Ch. 10 (Moody Press 1982).

5 I am not saying the majority does this.My remarks are directed at some of the language

used in our prior cases that are referenced by the majority.

[J-60-2024] [MO: Todd, C.J.] - 10