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 AND DISSENTING OPINION

JUSTICE BROBSON DECIDED: MARCH 26, 2026

Appellant Derek Lee (Lee) and another man, armed with guns and a taser, entered

uninvited into the home of Leonard Butler (Victim) on October 14, 2014. Both men forced

Victim into the basement of the home, which Victim shared with his 9-year-old son and

his son’s mother, and demanded that Victim give them his money. While in the basement,

Lee pistol whipped Victim in the face and stole Victim’s watch. Lee then returned upstairs,

while the other man remained in the basement with Victim. Following a struggle between

the other man and Victim over the gun, the gun discharged, killing Victim. For this, a jury

convicted Lee of murder in the second degree—i.e., felony murder, defined in

Section 2502(b) of the Crimes Code as criminal homicide when “committed while

defendant was engaged as a principal or an accomplice in the perpetration of a felony.”

18 Pa. C.S. § 2502(b).

Section 1102(b) of the Crimes Code compelled the sentencing judge, in this case

the late-Honorable David Cashman of the Allegheny County Court of Common Pleas, to

sentence Lee to life imprisonment for the second-degree murder conviction. 18 Pa. C.S.

§ 1102(b). The Crimes Code does not include a minimum, alternative sentence for felony

murder. Accordingly, under Section 1102(b), life imprisonment is both the minimum and

maximum sentence for felony murder in the Commonwealth. See Castle v. Pa. Bd. of

Prob. and Parole, 554 A.2d 625, 628 (Pa. Cmwlth. 1989) (concluding that

Section 1102(b)’s omission of “words ‘not less than’ or ‘at least’ does not render [an

inmate’s] sentence something other than a mandatory minimum”).

As a result of his life sentence for the felony murder of Victim, Lee is not eligible

for parole consideration by the Pennsylvania Parole Board (Board) because of two

provisions in the Prisons and Parole Code (Parole Code),1 which limit the Board’s

authority. The first is Section 6137(a)(1), which provides the Board generally with the

authority to release offenders on parole, “except an offender . . . serving life

imprisonment.” 61 Pa. C.S. § 6137(a)(1). The second is Section 6137(a)(3), which

prohibits the Board from exercising its pardon power before the expiration of the

offender’s “minimum term.” Id. § 6137(a)(3). Section 1102(b) of the Crimes Code

operates in tandem with Section 6137(a)(1), (3) of the Parole Code to create an

overarching sentencing scheme amounting to a mandatory life without parole (LWOP)

sentence for every offender convicted of felony murder in the Commonwealth. See Scott

v. Pa. Bd. of Prob. and Parole, 284 A.3d 178, 192 (Pa. 2022) (“[T]he legislative intent to

forever bar parole eligibility for all individuals convicted of second-degree murder is best

described as part of the judgment of sentence.”).2

1 61 Pa. C.S. §§ 101-6309.

2 But see Scott, 284 A.3d at 199-207 (Wecht, J., dissenting) (disagreeing with majority’s

conclusion that Parole Code limits on parole eligibility for those serving sentences of life

imprisonment are part of sentence).

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

We accepted discretionary review of this matter to consider Lee’s facial

constitutional challenge to this mandatory LWOP sentencing scheme for felony murder.

In essence, Lee’s argument is that not all felony murder offenders are created equal and,

therefore, a sentencing scheme that imposes a mandatory LWOP sentence for felony

murder regardless of the culpability level of the offender violates, inter alia, the

Pennsylvania Constitution’s prohibition against “cruel punishments.”3 Pa. Const. art. I,

§ 13. In furtherance of this argument, Lee advances a departure claim under

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), urging this Court to interpret our

state charter’s prohibition against “cruel punishments” as providing greater protection to

offenders than that afforded under the Eighth Amendment to the United States

Constitution, which prohibits “cruel and unusual punishments.” U.S. Const. amend. VIII.

Generally, I agree with the Majority’s Edmunds analysis and its conclusion that

Article I, Section 13 of the Pennsylvania Constitution provides broader protection against

“cruel punishments” than that afforded under the Eighth Amendment to the United States

Constitution. I further agree, generally, with the Majority’s conclusion that a mandatory,

or per se, LWOP sentence for all offenders convicted of felony murder, regardless of

criminal intent or level of culpability, runs afoul of the protections afforded under our state

charter. I reach these conclusions, however, with some critical reservations.

3 Lee also argues that a sentencing scheme that imposes a mandatory LWOP sentence

for felony murder under circumstances where the offender did not kill or intend to kill—

i.e., the offender had a categorically diminished culpability—violates the Eighth

Amendment to the United States Constitution. The Majority concludes that “the United

States Supreme Court’s decisions employing a categorical approach, whether involving

the death penalty with diminished culpability, or regarding the sentencing of the distinct

class of juveniles to mandatory life without parole[,] are, under the Eighth Amendment,

distinguishable from an analysis of the mandatory sentencing of adults to life without

parole and, at least at this juncture, without additional guidance from the high Court,

provide[] no relief” to Lee. (Majority Op. at 28.) I agree with the Majority on this point.

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

First, the Majority does not conclude that Section 1102(b) of the Crimes Code,

which imposes a mandatory sentence of life imprisonment for felony murder, is

unconstitutional. To the contrary, the Majority concludes that a sentencing scheme that

mandates the imposition of LWOP for felony murder, without an assessment of culpability,

constitutes “cruel punishment” under Article I, Section 13 of the Pennsylvania

Constitution. Indeed, the Majority’s mandate preserves life imprisonment as the only

legislatively authorized sentence for felony murder. (Majority Op. at 71 (directing that, on

remand, sentencing court may sentence to LWOP or life imprisonment accompanied by

minimum sentence for purposes of determining parole eligibility).) Why is this important?

It is important because, regardless of what the sentencing court decides on remand in

this matter, Lee could still spend the rest of his life in prison. Either the sentencing court

sentences him again to LWOP, or the sentencing court sentences him to life imprisonment

with a minimum term of imprisonment that, once expired, will make him eligible to seek

parole from the Board.4 See Rogers v. Pa. Bd. of Prob. and Parole, 724 A.2d 319, 321

n.2 (Pa. 1999) (“Under Pennsylvania law, the minimum term imposed on a prison

sentence merely sets the date prior to which a prisoner may not be paroled.” (emphasis

in original)). There is, however, no right to favorable parole consideration by the Board.

Indeed, a Board decision to deny parole is not subject to judicial review. See Pittman v.

Pa. Bd. of Prob. and Parole, 159 A.3d 466, 470 n.7 (Pa. 2017); Rogers, 724 A.2d at 323

(rejecting claim of statutory and constitutional right to appeal decision denying parole).

4 I note that this is all Lee has requested.

He seeks only “a sentence that will allow him a

meaningful opportunity to obtain release from incarceration through the parole system.”

(Appellant’s Br. at 60 (emphasis added).) In other words, Lee does not challenge his

specific sentence of life imprisonment; rather, he challenges only the portion of the

sentencing scheme that creates a per se prohibition against anyone serving a sentence

of life imprisonment for felony murder from access to parole consideration by the Board.

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

Second, to the extent the Majority’s mandate is followed, the proceedings on

remand should not turn into a de facto parole hearing. See 61 Pa. C.S. § 6135(a) (setting

forth factors Board is to consider in parole decision). The sentencing court should, based

solely on a review of the record of the criminal proceedings, assess Lee’s criminal intent

and culpability with respect to his felony murder conviction and determine whether Lee

should, at some point, be eligible for parole. What remains unclear, however, is how to

elucidate a judicially manageable standard by which the sentencing court must assess

Lee’s criminal intent and culpability and translate that assessment into a lawful sentence.

A direction on remand to consider Lee’s “individual culpability,” (Majority Op. at 71),

without more, invites widely disparate outcomes between sentencing courts and, in my

respectful view, will not fully address the cruel punishment proportionality challenge that

the Court sustains in this case.

While the Majority’s remand for resentencing is consistent with the Court’s

mandate in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), the Court in Batts provided

more robust remand guidance to the sentencing court than the Majority does here. In

Batts, this Court ruled that Pennsylvania’s mandatory LWOP sentencing scheme for

juveniles convicted of first-degree murder was unconstitutional under the Eighth

Amendment to the United States Constitution in light of the United States Supreme

Court’s deeply divided decision in Miller v. Alabama, 567 U.S. 460 (2012). As this Court

noted in Batts, the Miller Court sustained an Eighth Amendment proportionality challenge

in that matter because the mandatory nature of the LWOP sentence

precluded the sentencing court from considering important factors, such as

chronological age, level of maturity, family and home environment, the

circumstances of the offense, the extent of the juvenile’s participation in the

unlawful conduct, the impact of familial and peer pressures, the juvenile’s

ability to negotiate with police or prosecutors, and the possibility of

rehabilitation.

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

Batts, 66 A.3d at 291. A juvenile LWOP sentencing scheme that does not afford the

opportunity to reflect on these concerns risks disproportionate punishment and, therefore,

violates the Eighth Amendment under Miller. Id.

With Miller decided and controlling, the Court in Batts readily concluded that

imposition of the Commonwealth’s mandatory LWOP sentence imposed on the juvenile

appellant in Batts violated the juvenile appellant’s Eighth Amendment to the United States

Constitution right against cruel and unusual punishment and turned its focus to the

narrower issue of how to remedy the violation. Id. at 293. Ultimately, the Court

determined that a remand for resentencing was appropriate with an instruction to the

sentencing court to consider “appropriate age-related factors,” including:

a juvenile’s age at the time of the offense, his diminished culpability and

capacity for change, the circumstances of the crime, the extent of his

participation in the crime, his family, home and neighborhood environment,

his emotional maturity and development, the extent that familial and/or peer

pressure may have affected him, his past exposure to violence, his drug

and alcohol history, his ability to deal with the police, his capacity to assist

his attorney, his mental health history, and his potential for rehabilitation.

Id. at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012)).

An instruction that the sentencing court on remand consider Lee’s “individual

culpability” at resentencing is as amorphous and inadequate as directing a resentencing

court in a juvenile matter to consider, post-Miller, an offender’s “age.” We gave far greater

remand guidance to the sentencing court in Batts. Moreover, as we noted in Batts,

Section 1102.1(d) of the Sentencing Code, added by the General Assembly in 2012 in

response to Miller, expressly requires a sentencing court to consider certain factors and

make findings on the record relative to those factors when determining whether to impose

an LWOP sentence on a juvenile:

(1) The impact of the offense on each victim, including oral and

written victim impact statements made or submitted by family members of

the victim detailing the physical, psychological and economic effects of the

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

crime on the victim and the victim’s family. A victim impact statement may

include comment on the sentence of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any individual posed by

the defendant.

(4) The nature and circumstances of the offense committed by the

defendant.

(5) The degree of the defendant’s culpability.

(6) Guidelines for sentencing and resentencing adopted by the

Pennsylvania Commission on Sentencing.

(7) Age-related characteristics of the defendant, including:

(i) Age.

(ii) Mental capacity.

(iii) Maturity.

(iv) The degree of criminal sophistication exhibited by the

defendant.

(v) The nature and extent of any prior delinquent or criminal

history, including the success or failure of any previous attempts by

the court to rehabilitate the defendant.

(vi) Probation or institutional reports.

(vii) Other relevant factors.

18 Pa. C.S. § 1102.1(d). Clearly, this post-Miller legislative response proves our

policymaking branch’s willingness, ability, and interest in establishing robust and clear

criteria for sentencing courts to apply when assessing whether to impose an LWOP

sentence.

We cannot here draw upon guidance from the United States Supreme Court, as

we did in Batts with respect to age-related factors, for a list of “individual culpability”

factors that a sentencing court should apply when deciding whether to impose an LWOP

sentence for felony murder or, if not, how to set a minimum sentence for purposes of

parole eligibility. The parties also do not offer any such guidance in their arguments to

the Court. Of course, we could make up our own list. Factors that come to mind in

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

assessing an offender’s individual culpability for the felony murder could include, for

example, whether the offender was armed at the time of the murder, whether the offender

committed any act of physical violence against the victim during the felony, whether the

offender had the opportunity to prevent the murder but chose not to act, whether the

offender threatened the victim or anyone else with physical harm, and whether the

offender was even present at the time of the murder. To me, any list of factors to guide a

sentencing court on remand is preferable to the Majority’s nonspecific instruction to

consider Lee’s “individual culpability.”

For all of these reasons, left to my own devices, I would not provide a remedy to

Lee for the constitutional violation at this juncture, nor would I telegraph to Lee, the

General Assembly, the Governor, or the public at-large how the Court intends to proceed

if the General Assembly fails to enact remedial legislation within the time set by the

Majority. Indeed, there appear to be multiple legislative options to address the

constitutional problem with mandatory LWOP sentences for felony murder as applied to

Lee and others serving the same sentence under the same problematic sentencing

scheme, and not all would require resentencing. Whether and, if so, how the General

Assembly chooses to address this matter will require debate and compromise, and this

Court’s telegraphing how it will rule in the absence of action within a court-imposed

deadline could impede that collaborative process. I would prefer, then, to stay this matter

without direction on how the Court plans to proceed thereafter.

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