F. Boyd v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Boyd, :

Petitioner :

:

v. : No. 515 M.D. 2020

: SUBMITTED: July 22, 2022

Pennsylvania Board of Probation and :

Parole, Pennsylvania General Assembly, :

Pro Tem Joe B. Scarnati III/or Current :

Pro Tem Speaker of the House of :

Representatives Mike Turzai or Current :

Speaker, :

Respondents :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: November 4, 2022

Before this Court are the preliminary objections of Respondents, the

Pennsylvania General Assembly, President Pro Tempore Jake Corman, Speaker of

the House of Representatives Bryan Cutler (collectively, General Assembly) and the

Pennsylvania Parole Board to Francis Boyd’s Amended Petition for Review.1 After

review, this Court sustains the General Assembly’s preliminary objections thereby

dismissing the General Assembly from the above-captioned action. As for the

Board, we sustain its first and third preliminary objections based on the fact that

1

The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole

Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective

February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as

amended, 61 Pa. C.S. §§ 6101, 6111(a).

Boyd is essentially challenging his sentence and confinement, thereby raising a

claim sounding in habeas corpus, over which this Court lacks jurisdiction.

Consequently, we transfer this matter, which sounds in habeas corpus, to the Court

of Common Pleas of Philadelphia County, the sentencing court, as the court of

proper jurisdiction pursuant to Section 5103(a) of the Judicial Code.2

Boyd was convicted of second-degree homicide in December 1976, and

sentenced to life imprisonment. In August 2020, Boyd filed a parole application

with the Board requesting a parole hearing because the sentencing judge did not state

that his sentence was without parole. On August 30, 2020, Boyd received the

Board’s denial of his request based upon Section 6137(a) of the Prisons and Parole

Code (Parole Code), 61 Pa.C.S. § 6137(a), which provides that the Board may parole

any offender, except an offender serving life imprisonment.

On September 4, 2020, Boyd filed a Petition for Review in this Court’s

original jurisdiction against the Board and the General Assembly seeking that this

Court: (1) declare Section 6137 of the Parole Code unconstitutional under the

Pennsylvania and United States Constitutions as applied to Boyd and other

individuals serving life sentences for felony-murder convictions pre- and post-1974;

(2) sever Section 2502(b) of the Crimes Code, 18 Pa.C.S. § 2502(b) (relating to

second-degree murder), from Section 6137 of the Parole Code and order a

resentencing hearing sentencing Boyd to either a minimum sentence of 30 years and

a maximum sentence of life, or a sentence of life with the possibility of parole; and

(3) order the Board to develop plans to review Boyd’s case, and all other felony-

murder convictions, for parole consideration.

2

42 Pa.C.S. § 5103(a). Section 5103(a) provides that, if a matter is brought in a court of this

Commonwealth which does not have jurisdiction, the court shall not quash the matter, but shall

transfer the record thereof to the proper tribunal of this Commonwealth.

2

On October 27, 2020, the Board filed preliminary objections to Boyd’s

Petition. On November 23, 2020, Boyd filed a Motion for Leave to File an Amended

Complaint. On February 12, 2021, the General Assembly filed a response to the

motion titled “Response to Motion for Leave to File an Amended Complaint of

Respondent the Pennsylvania General Assembly, In the Nature of Preliminary

Objections.” By February 25, 2021 Order, this Court granted the motion and

accepted for filing the attached Amended Petition for Review. The Amended

Petition added Respondents Corman and Cutler, seeking the same relief as the

original Petition.

On March 19, 2021, the General Assembly filed preliminary objections

to the Amended Petition seeking that the Court dismiss it with prejudice or,

alternatively, dismiss the General Assembly Respondents from the action. The

General Assembly objects to the Amended Petition, alleging: (1) lack of jurisdiction

based on the legal insufficiency of a pleading pursuant to Pennsylvania Rule of Civil

Procedure (Rule) 1028(a)(4) - demurrer; (2) lack of jurisdiction or improper venue

pursuant to Rule 1028(a)(1); (3) failure to state a claim upon which relief can be

granted pursuant to Rule 1028(a)(4) - demurrer (no specific allegation against the

General Assembly Respondents); (4) failure to state a claim upon which relief can

be granted pursuant to Rule 1028(a)(4) - demurrer (claims against the

constitutionality of the statute creating the penalty for second-degree murder are too

stale to be cognizable); and (5) lack of jurisdiction based on speech and debate

immunity pursuant to Rule 1028(a)(1), (4).

On March 25, 2021, the Board filed preliminary objections seeking

dismissal of the Amended Petition, with prejudice. The Board objects to the

Amended Petition, alleging: (1) lack of jurisdiction/improper venue pursuant to Rule

3

1028(a)(1); (2) failure to state a claim upon which relief can be granted pursuant to

Rule 1028(a)(4) - demurrer (asserting the staleness of Boyd’s challenge); (3)

improper party pursuant to Rule 1028(a)(5); and (4) demurrer pursuant to Rule

1028(a)(4) (binding precedent precludes Boyd’s assertion that a life sentence

without parole for felony murder committed by an adult is cruel and unusual

punishment under the United States and Pennsylvania Constitutions).

Initially,

[i]n ruling on preliminary objections, we must accept as

true all well-pleaded material allegations in the petition for

review, as well as all inferences reasonably deduced

therefrom. The Court need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

the law will not permit recovery, and any doubt should be

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the complaint and all inferences

reasonably deducible therefrom. It tests the legal

sufficiency of the challenged pleadings and will be

sustained only in cases where the pleader has clearly failed

to state a claim for which relief can be granted. When

ruling on a demurrer, a court must confine its analysis to

the complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).

Respondents argue that Boyd’s Amended Petition should be dismissed

for failure to state a legally sufficient claim.3 Specifically, Respondents contend that

Boyd’s assertion that the statutory scheme related to second-degree murder is

inapplicable is meritless based on Hudson v. Pennsylvania Board of Probation &

3

This is the General Assembly’s first Preliminary Objection, and the Board’s fourth

Preliminary Objection.

4

Parole, 204 A.3d 392 (Pa. 2019). Respondents further contend that the United States

Supreme Court and Pennsylvania state courts have consistently rejected the

argument that a mandatory life sentence without parole for second-degree murder is

violative of any constitutional prohibition against cruel and unusual punishment.

Boyd rejoins that Section 9756(c) of the Sentencing Code (relating to

sentences without parole) omits second-degree murder from the statute. Boyd

asserts that the statute was amended by the General Assembly eight times since it

was enacted in 1974 but that the General Assembly has not added second-degree

murder to this provision. Boyd maintains that this shows legislative intent to exclude

second-degree murder from the statute. However, Section 1102(b) of the Crimes

Code provides:

Except as provided under [S]ection 1102.1 of the Crimes

Code[, 18 Pa.C.S. § 1102.1] (relating to sentence of

persons under the age of 18 for murder),] a person who

has been convicted of murder of the second degree, of

second[-]degree murder of an unborn child or of second[-

]degree murder of a law enforcement officer shall be

sentenced to a term of life imprisonment.

18 Pa.C.S. § 1102(b) (emphasis added).

Additionally, Section 6137(a)(1) of the Parole Code declares:

The [B]oard may parole subject to consideration of

guidelines established under [Section 2154.5 of the

Sentencing Code,] 42 Pa.C.S. § 2154.5 (relating to

adoption of guidelines for parole) or subject to [S]ection

6137.1 [of the Parole Code, 61 Pa.C.S. § 6137.1] (relating

to short sentence parole)[,] and such information

developed by or furnished to the [B]oard under [S]ection

6174 [of the Parole Code] (relating to right of access to

offenders), or both, and may release on parole any

offender to whom the power to parole is granted to the

[B]oard by this chapter, except an offender condemned

to death or serving life imprisonment…

5

61 Pa.C.S. § 6137(a)(1) (emphasis added).

In Hudson, the Pennsylvania Supreme Court rejected the argument that,

because Section 9756(c) of the Sentencing Code omits second-degree murder from

sentences without parole, an inmate convicted of second-degree murder should be

eligible for parole. The Hudson Court explained:

Section 9765 [of the Sentencing Code] was never intended

specifically to create a personal right to be reviewed for

parole. Rather, it was meant to direct common pleas

courts in discharging their sentencing obligations. . . .

Since [an a]ppellant lacks any legal right to parole

eligibility, there is no warrant for a reviewing court to alter

his sentence.

Relatedly, it is important to recognize that the Board is an

administrative agency of the Commonwealth. Thus, it

“can only exercise those powers which have been

conferred upon it by the [l]egislature in clear and

unmistakable language.” Aetna Cas. & Sur. Co. v. Ins.

Dep’t, . . . 638 A.2d 194, 200 ([Pa.] 1994) (quoting Hum[.]

Rel[s.] Comm’n v. Transit Cas. Ins. Co., . . . 387 A.2d 58,

62 ([Pa.] 1978)). There is no statutory authorization for

the Board to grant parole to an individual sentenced to a

mandatory life term. Indeed, to the contrary, the Board

may “release on parole any inmate to whom the power to

parole is granted to the [B]oard by this chapter, except an

inmate condemned to death or serving life imprisonment.”

61 Pa.C.S. § 6137(a)(1) (emphasis added).

We therefore conclude that the Board lacks the power to

release on parole an inmate servicing [sic] a mandatory

life sentence for second-degree murder.

Hudson, 204 A.3d at 399 (bold emphasis added; citations omitted). Accordingly,

Boyd’s argument that he should be eligible for parole because Section 9765(c) of

the Sentencing Code omits second-degree murder is meritless.

6

Further, with respect to Boyd’s contention that a life sentence without

parole violates the Pennsylvania and United States Constitutions because it is cruel

and unusual punishment, the United States Supreme Court has long held:

[T]his claim has no support in the text and history of the

Eighth Amendment [to the United States Constitution,

U.S. Const. amend. VIII]. Severe, mandatory penalties

may be cruel, but they are not unusual in the

constitutional sense, having been employed in various

forms throughout our [n]ation’s history. . . . [M]andatory

death sentences abounded in our first Penal Code. They

were also common in the several [s]tates-both at the time

of the founding and throughout the 19th century. See

Woodson v. N[.] Carolina, 428 U.S. [280,] 289-[]90

[1976]. . . . There can be no serious contention, then, that

a sentence which is not otherwise cruel and unusual

becomes so simply because it is “mandatory.” See

Chapman v. U[.]S[.], 500 U.S. 453, 467 . . . (1991).

Hamelin v. Michigan, 501 U.S. 957, 994-95 (1991) (italics added).

Moreover, as the Pennsylvania Superior Court has noted:

Pennsylvania courts have repeatedly and unanimously

held that “[t]he Pennsylvania prohibition against cruel and

unusual punishment is coextensive with the Eighth and

Fourteenth Amendments [to] the United States

Constitution,” and that “the Pennsylvania Constitution

affords no broader protection against excessive sentences

than that provided by the Eighth Amendment to the United

States Constitution.” [Commonwealth v.] Barnett, 50

A.3d [176,] 197 [(Pa. Super. 2012)] (quoting

Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa.

Super. 2008)).

Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013). Consequently, a life

sentence without parole does not violate either the United States or the Pennsylvania

Constitution.

7

Accordingly, the General Assembly’s preliminary objections are

sustained, and those parties are dismissed from the above-captioned action. Further,

notwithstanding our determination that Boyd has failed to state a claim in our

original jurisdiction, we believe that he is essentially challenging the legality of his

sentence and confinement such that he has asserted a habeas corpus claim.

Consequently, we sustain the Board’s first and third preliminary objections.

Consistent with our holdings in Ellis v. Wolf (Pa. Cmwlth., No. 596 M.D. 2019, filed

April 13, 2021), and Cook v. Wolf (Pa. Cmwlth., No. 472 M.D. 2019, filed May 13,

2020), therefore, we transfer this matter to the Court of Common Pleas of

Philadelphia County, the sentencing court.4

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

Judge Covey, Judge Fizzano Cannon and Judge Wallace did not participate on the

decision for this case.

4

After this case was decided, our Supreme Court decided Scott v. Pennsylvania Board of

Probation and Parole, ___ A.3d ___ (Pa., No. 16 WAP 2021, filed October 19, 2022), which

further confirms the result here.

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Boyd, :

Petitioner :

:

v. : No. 515 M.D. 2020

:

Pennsylvania Board of Probation and :

Parole, Pennsylvania General Assembly, :

Pro Tem Joe B. Scarnati III/or Current :

Pro Tem Speaker of the House of :

Representatives Mike Turzai or Current :

Speaker, :

Respondents :

ORDER

AND NOW, this 4th day of November, 2022, the preliminary objections

of the Pennsylvania General Assembly Respondents to Francis Boyd’s (Boyd)

Amended Petition for Review are SUSTAINED, and the General Assembly

Respondents are hereby DISMSSED from the action.

In addition, the first and third preliminary objections of the

Pennsylvania Board of Probation and Parole are SUSTAINED, and this matter is

transferred to the Court of Common Pleas of Philadelphia County. The

Commonwealth Court Prothonotary shall transfer the record, together with a

certified copy of the docket entries, to the prothonotary of the Court of Common

Pleas of Philadelphia County.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Boyd, :

Petitioner :

:

v. : No. 515 M.D. 2020

:

Pennsylvania Board of Probation and :

Parole, Pennsylvania General Assembly, : Submitted: July 22, 2022

Pro Tem Joe B. Scarnati III/or :

Current Pro Tem Speaker of the :

House of Representatives Mike :

Turzai or Current Speaker, :

Respondents :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: November 4, 2022

I concur with the Majority to the extent that it disposes of Francis

Boyd’s second issue, namely, whether the General Assembly intended felony-

murder convictions to be parole-eligible under 61 Pa. C.S. § 6137(a). However,

because I also believe that the Majority unnecessarily delves into an issue that we

cannot consider in this posture, namely, whether a mandatory life sentence is an

unconstitutional cruel and unusual punishment, I respectfully dissent from that

portion of the Majority’s analysis.

The Majority correctly concludes that the recent Pennsylvania Supreme

Court decision in Hudson v. Pennsylvania Board of Probation and Parole, 204 A.3d

392 (Pa. 2019), held that the General Assembly did not intend defendants convicted

of second-degree murder to be eligible for parole. See Id. at 399. To the extent that

Boyd challenges his parole denial on that ground, our disposition must be guided by

Supreme Court precedent.

However, after correctly concluding that we do not have jurisdiction to

address Boyd’s overarching challenge to his conviction and sentence, the Majority

nevertheless goes on to conclude that life sentences without parole do not violate

either the United States or the Pennsylvania Constitutions. We have no jurisdiction

over that issue, and it is immaterial to our disposition of the parole eligibility

question.1 Accordingly, as this Court is without jurisdiction to address this issue

here, I would limit our holding to the question of parole eligibility and transfer the

remaining claims to the Court of Common Pleas. To the extent that the Majority

goes any further, I respectfully dissent.2

.

________________________________

PATRICIA A. McCULLOUGH, Judge

1

Both the General Assembly Respondents and the Pennsylvania Parole Board argue in

their preliminary objections that this Court has no jurisdiction to entertain a challenge to Boyd’s

conviction and sentence. See General Assembly Preliminary Objection II; Board Preliminary

Objection I. Moreover, the Board’s argument that life sentences are not cruel and unusual

punishment is contained in its fourth preliminary objection, upon which the Majority does not rule.

See Board Preliminary Objection IV; Majority Opinion at 6, Order.

2

The Majority’s constitutional analysis therefore is, at best, dicta. See Rendell v.

Pennsylvania State Ethics Commission, 983 A.2d 708, 714 (Pa. 2009) (any statement in a court’s

opinion that is “ancillary and, ultimately unnecessary to the resolution of the controversy” is not

decisional and is merely non-binding dicta) (citations omitted).

PAM - 2