Scott, M. v. PBPP Apl of: Scott, M.

[J-30-2022] [MO: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

MARIE SCOTT, NORMITA JACKSON, : No. 16 WAP 2021

MARSHA SCAGGS, REID EVANS, WYATT :

EVANS, TYREEM RIVERS : Appeal from the Order of the

: Commonwealth Court entered May

: 28, 2021 at No. 397 MD 2020.

v. :

: ARGUED: April 13, 2022

:

PENNSYLVANIA BOARD OF PROBATION :

AND PAROLE :

:

:

APPEAL OF: MARIE SCOTT, NORMITA :

JACKSON, MARSHA SCAGGS, TYREEM :

RIVERS :

CONCURRING OPINION

JUSTICE MUNDY DECIDED: OCTOBER 19, 2022

I agree with the result reached by the majority, but I am not aligned with all of its

reasoning. For example, I have difficulty with the majority’s description of this Court’s

decision in Hudson v. Pennsylvania Board of Probation & Parole, 204 A.3d 392 (Pa.

2019), as accepting as a general matter that “claims challenging parole [in]eligibility are

properly within the Commonwealth Court’s original and exclusive jurisdiction.” Majority

Op. at 15. The majority suggests Hudson therefore “facially supports the Appellants.” Id.

at 16. It then characterizes Hudson’s failure to discuss jurisdiction as an “omission” that

must be “rectified,” id. at 17, and it goes to some length in distinguishing the nature of the

claim in Hudson from that of the present claim.

While I agree the claim here is different in character from that in Hudson, I believe

the majority overcomplicates matters. Hudson, very simply, was about statutory

construction. The question was what Pennsylvania statutory law means when it states a

person convicted of second-degree murder “shall be sentenced to a term of life

imprisonment.” 18 Pa.C.S. §1102(b); see Hudson, 204 A.3d at 395 (summarizing the

prisoner’s statutory-construction arguments); see also id. at 394 (explaining that the

prisoner had argued to the Commonwealth Court that his sentence should be construed

to have an implied minimum of one day). There was no impediment to jurisdiction

because the prisoner did not contend his sentence was illegal or otherwise invalid, only

that the Parole Board misunderstood it as not embodying a minimum sentence of one

day. As he therefore did not seek habeas relief, the exception to the Commonwealth

Court’s jurisdiction for such matters was not implicated, see 42 Pa.C.S. § 761(a)(1)(i),

and so neither party thought to raise the jurisdictional issue. Here, by contrast, Appellants

are asserting that an integral part of their sentences, the lack of parole eligibility, is

unconstitutional. That is quite clearly a challenge to the legality of their sentences, see

Majority Op. at 9 (“Eligibility for parole consideration is entirely a function of the

sentence.”) (internal quotation marks and citation omitted), which falls under the PCRA.

See 42 Pa.C.S. § 9545(a); Commonwealth v. Moore, 247 A.3d 990, 997 (Pa. 2021).

A final observation relates to the way the issue has been briefed. Appellants

include extraneous detail about their age, health, time in prison, and achievements. This

may have multiple objectives, but one seems to be to show that, as applied to them,

precluding parole serves no penological purpose. See Brief for Appellants at 11, 13. A

subsidiary contention is that denying jurisdiction will place them in a Catch-22 because

they had to wait many years to forward such case-specific arguments, but that in turn

precludes them from complying with the PCRA’s one-year time bar. See 42 Pa.C.S.

§ 9545(b)(1). Appellants also maintain, however, that anyone who commits second-

[J-30-2022] [MO: Donohue, J.] - 2

degree murder without killing or intending to kill is categorically less culpable under the

Eight Amendment. See Brief for Appellants at 8, 11.

I believe the correct way to view the merits of the substantive issue is on a

categorical basis, and not premised on a particular defendant’s age, health, time served,

accomplishments, or the like. In this regard, the Parole Board plausibly offers that the

proper judicial avenue for individuals sentenced to life without parole on a second-degree

murder conviction is to challenge the lack of parole eligibility on direct appeal or in a timely

PCRA petition. If they prevail, and the new constitutional right is held to apply

retroactively, relief may then be available to Appellants under the PCRA, see 42 Pa.C.S.

§ 9545(b)(1)(iii), just as juvenile offenders who were sentenced to life without parole were

able to use the holding in Miller v. Alabama, 567 U.S. 460 (2012), to obtain relief through

the PCRA. See Brief for Appellee at 11-12.

Accordingly, I respectfully concur in the result.

[J-30-2022] [MO: Donohue, J.] - 3