Appeal from the Judgment of Sentence entered on February 13, 2012 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0007463-2010
BEFORE: BOWES, GANTMAN and MUSMANNO, JJ.
Jujuan Parker ("Parker") appeals from the judgment of sentence imposed after a jury convicted him of two counts of third-degree murder. See 18 Pa.C.S.A. § 2502(c). We affirm.
On the evening of September 5, 2010, Tyrone Thompson ("Thompson") and Jeffrey Joyner, Jr., ("Joyner") were shot to death on the 2700 block of Kane Street in the City of Chester. Eyewitnesses testified that shortly prior to the shooting, they saw a black van, driven by Brian Selby ("Selby"), come to a stop on the 2700 block of Kane Street. Parker was in the passenger's seat of the van. The eyewitnesses saw Selby exit the van and attempt to put a mask on his face. When Selby noticed the group of eyewitnesses watching him, he reentered the van and drove off. Shortly thereafter, the same black van reappeared on the 2700 block of Kane Street, driven by Parker. Parker stopped the vehicle, whereupon Selby exited and approached the victims. Parker remained in the vehicle. Selby fired eleven shots at the victims, striking each victim five times. Selby then reentered the van, whereupon Parker drove off and fled the scene. Emergency responders transported the victims to a hospital, where they were pronounced dead.
One of the eyewitnesses to the crime, Shanecia Word ("Word"), initially gave a police statement implicating Parker and Selby in the shooting. Subsequently, however, Word recanted her statement. Notable to this appeal, Word did not testify at Parker's jury trial, but she did testify at Selby's separate, subsequent jury trial and stated that the police had coerced her into making a false eyewitness statement. At Parker's trial, a detective involved in the investigation of the shooting testified that his efforts to locate Word for Parker's trial were unsuccessful, despite repeated attempts.
Following the shooting, the police arrested Parker and Selby and charged them each with two counts of criminal homicide and various other offenses. Thereafter, the Commonwealth filed a Petition to sever Selby's case from the Parker case, which the trial court granted. At the close of Parker's trial, the jury found him guilty of two counts of third-degree murder. Approximately two months after Parker's conviction, the jury in Selby's case acquitted Selby of all charges.
Prior to sentencing in Parker's case, the Commonwealth gave notice of its intent to seek imposition of a mandatory sentence of life in prison under 42 Pa.C.S.A. § 9715 (stating that any person convicted of murder of the third degree and who had been previously convicted at any time of murder or voluntary manslaughter must be sentenced to life in prison). On February 13, 2012, the trial court sentenced Parker to a prison term of 18 to 40 years for his murder conviction regarding the death of Joyner ("the Joyner conviction"). The court then imposed a sentence of life in prison as to Parker's murder conviction regarding the death of Thompson, using the Joyner conviction to apply the mandatory sentencing provision under section 9715.
Parker timely filed a post-sentence Motion alleging that the Commonwealth's failure to present Word as a witness during his trial entitled him to a new trial. According to Parker, Word's recantation of her initial police statement at Selby's trial called into question the truthfulness of the inculpatory testimony of the other eyewitnesses who testified at Parker's trial. After conducting a hearing, the trial court denied Parker's Motion. Parker then filed a timely Notice of appeal.
On appeal, Parker raises the following issues for our review:
1. [Whether the Trial] Court erred when it imposed a mandatory sentence of life imprisonment pursuant to 42 Pa.C.S. [§] 9715[? Parker], pursuant to the Commonwealth's evidence presented at trial, acted as an accomplice to the actual killer of the victims, the homicides occurred within seconds of one another[, ] and the imposition of a mandatory [sentence of] life [in prison] was not applicable under the facts of this conviction.
2. The Commonwealth did not call an alleged eyewitness,  Word, in its case in chief against [Parker]. Subsequent to [Parker's] trial,  Word recanted her adverse statement during her testimony in the severed trial of [Parker's] co-defendant,  Selby. The Commonwealth failed to take sufficient steps to locate  Word for  Parker['s] trial and knew or should have known that her testimony would be adverse to the Commonwealth and favorable to [Parker]. The content of  Word's testimony was so significant that [Parker] must be given an opportunity to present her testimony to a finder of fact. [The Trial] Court conducted an evidentiary hearing on this issue and erred when it chose to deny [Parker's M]otion for a new trial.
Brief for Appellant at 4.
In his first issue, Parker argues that the trial court imposed an illegal sentence when it sentenced him to life in prison pursuant to 42 Pa.C.S.A. § 9715, since the mandatory sentencing statute was inapplicable to the facts presented in this case. See Brief for Appellant at 7-8.
The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.
Commonwealth v. Morris, 958 A.2d 569, 578 (Pa. Super. 2008) (en banc) (citation omitted).
Section 9715 states the following, in relevant part:
§ 9715. Life imprisonment for homicide
(a) Mandatory life imprisonment. --Notwithstanding the provisions of section 9712 (relating to sentences for offenses committed with firearms), 9713 (relating to sentences for offenses committed on public transportation) or 9714 (relating to sentences for second and subsequent offenses), any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing. --Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing ….
42 Pa.C.S.A. § 9715(a), (b).
Here, Parker points out that the trial court relied upon this Court's en banc decision in Morris, supra, in holding that section 9715 applied to his case. According to Parker, however, Morris is inapposite as it is factually distinguishable from the instant case. Brief for Appellant at 8.
In Morris, this Court considered whether the defendant could legally be sentenced to a mandatory term of life in prison pursuant to section 9715 where the trial court convicted the defendant of two separate murders at the same trial and sentenced him on the same date for both counts. At the close of the defendant's trial, the jury found him guilty of two counts of third-degree murder for killing two of his children at different times. Morris, 958 A.2d at 575. On the same date, the trial court sentenced the defendant to twenty to forty years in prison on one of the murder convictions. Id. The court then imposed a sentence of life in prison as to the second murder conviction, using the first murder conviction to apply the mandatory sentencing provision under section 9715. Id.
In construing the statutory language of section 9715 on appeal, this Court noted at the outset that "section 9715 is explicitly and unambiguously written[.]" Id. at 579 (citing, inter alia, Commonwealth v. Lark, 504 A.2d 1291, 1296 (Pa. Super. 1986) (stating that the statutory language of section 9715 is explicit and should be construed as written)). The Morris Court then pointed out that, in order to apply section 9715, the trial court must, at sentencing, determine whether the defendant "has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in ...