J-A07032-21
2021 PA Super 106
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADIEL SANCHEZ-FROMETA :
:
Appellant : No. 744 MDA 2020
Appeal from the Judgment of Sentence Entered December 13, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0002072-2016
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: MAY 25, 2021
Appellant Adiel Sanchez-Frometa1 appeals from the judgment of
sentence entered by the Court of Common Pleas of Franklin County after a
jury convicted Appellant of second-degree murder and related offenses for
crimes he committed as a juvenile.2 Appellant argues that the trial court did
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* Former Justice specially assigned to the Superior Court.
1 Appellant’s name is reported inconsistently in the certified record, which
identifies Appellant in the docket sheets, pleadings, and court documents as
either Sanchez-Frometa or Frometa-Sanchez. Appellant did not attempt to
amend the trial court docket sheet which lists his name as Sanchez-Frometa.
2 We note that Appellant purported to appeal from the trial court’s order
denying his post-sentence motion. It is well-established that “[i]n a criminal
action, appeal properly lies from the judgment of sentence made final by the
denial of post-sentence motions.” Commonwealth v. Shamberger, 788
A.2d 408, 410 (Pa.Super. 2001) (en banc) (citing Commonwealth v.
Chamberlain,
658 A.2d 395, 397 (Pa.Super. 1995) (correcting caption to
reflect an appeal from the judgment of sentence when the appellant purported
to appeal the denial of his post-sentence motion). The caption in this case
has been corrected accordingly.
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not have the authority to sentence him to life imprisonment without parole
under 18 Pa.C.S.A. § 1102.1(c).
As discussed in more detail infra, as the plain language of Section
1102.1 is clear and unambiguous, we decline to uphold the trial court’s
interpretation of the statute which essentially adds language where the
Legislature did not choose to do so. After careful review, we vacate
Appellant’s sentence and remand for resentencing.
In November 2016, Appellant was charged with first-degree murder,
second-degree murder, aggravated assault, robbery of a motor vehicle, and
theft by unlawful taking in connection with the stabbing death of the victim,
Anthony Hernandez, in Chambersburg, Pennsylvania. Appellant was
seventeen years old at the time of the commission of the crimes.
On July 5, 2018, the Commonwealth entered notice of its intent to seek
a sentence of life imprisonment without parole if Appellant were convicted of
first-degree murder. On January 22, 2019, Appellant entered a guilty plea to
first-degree murder. However, on May 9, 2019, Appellant withdrew his guilty
plea and proceeded to a jury trial.
On October 10, 2019, a jury acquitted Appellant of first-degree murder
but convicted him of second-degree murder and the remaining offenses. On
December 13, 2019, the trial court held a sentencing hearing at which both
parties presented expert testimony and oral argument on the issue of whether
a sentence of life imprisonment without parole was authorized and warranted.
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At the conclusion of the hearing, the trial court imposed a sentence of life
imprisonment without the possibility of parole.
On December 23, 2019, Appellant filed timely post-sentence motions,
which the trial court subsequently denied on April 20, 2020. Appellant filed a
timely notice of appeal on May 15, 2020. Thereafter, on May 15, 2020, the
trial court ordered Appellant to file a Concise Statement of Errors Complained
of on Appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days of its
order. The order specified that “any issue not properly included in [his]
statement of errors complained of on appeal that is timely filed and served …
shall be waived.” Order, 5/20/20, at 1. Twenty-nine days later, on June 18,
2020, Appellant filed his concise statement.
As an initial matter, we must resolve a preliminary procedural matter as
the trial court notes that Appellant failed to file a timely Rule 1925(b)
statement. This Court has held that both the “complete failure to file the
1925(b) statement … [and the] untimely filing [of a 1925(b) statement] is per
se ineffectiveness because it is without reasonable basis designed to
effectuate the client’s interest and waives all issues on appeal.”
Commonwealth v. Andrews, 213 A.3d 1004, 1010 (Pa.Super. 2019)
(quoting Commonwealth v. Burton,
973 A.2d 428, 432-33 (Pa.Super.
2009)).
While these circumstances often require a remand, “where the trial court
addresses the issues raised in an untimely Rule 1925(b) statement, we need
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not remand but may address the issues on their merits.” Commonwealth v.
Brown, 145 A.3d 184, 186 (Pa.Super. 2016) (citation omitted).
In this case, we find that Appellant’s counsel was per se ineffective in
failing to file a timely concise statement on Appellant’s behalf. However, as
the trial court addressed the merits of Appellant’s arguments, we need not
remand this case for the preparation of a trial court opinion.
Appellant raises two issues for review on appeal:
a. Did the trial court commit reversible error when it sentenced
[Appellant], over age fifteen (15) but under the age of eighteen
(18) at the time of the commission of the offense, to life
without the possibility of parole after a conviction for second-degree murder in direct contravention of 18 Pa.C.S.A. §
1102.1(c)(1)?
b. Did the trial court abuse its discretion holding the
Commonwealth to a lesser burden than the required finding of
irreparable corruption “beyond a reasonable doubt” entering a
sentence of life without parole for Appellant, where there was
not competent evidence of record to support the sentence and
contradicted the failure to find “irreparable corruption” by both
the Commonwealth and defense experts?
Appellant’s Brief, at 4 (suggested answers omitted).
Appellant first claims that the trial court was not authorized by the
language set forth in Section 1102.1(c)(1) of the Crimes Code to sentence
him to life imprisonment without the possibility of parole for his conviction for
second-degree murder for an offense he committed at the age of seventeen.
The specific statutory language in question provides that “[a] person who at
the time of the commission of the offense was 15 years of age or older shall
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be sentenced to a term of imprisonment the minimum of which shall be at
least 30 years to life.” 18 Pa.C.S.A. § 1102.1(c)(1).
Appellant argues that Section 1102.1(c) only permits a trial court to
sentence a juvenile offender convicted of second-degree murder to a term of
years with a maximum sentence of life in prison with the possibility of parole.
Appellant argues that a sentence of life imprisonment without parole is not an
available sentence under Section 1102.1(c) as it was not explicitly specified.
In response, the Commonwealth argues that the language in Section
1102.1(c) does not explicitly foreclose a trial court from imposing a sentence
of life imprisonment without parole for a juvenile offender convicted of second-
degree murder. Instead, the Commonwealth asserts that the statutory
language only provides the court with a mandatory minimum and does not
specifically mandate that such a defendant is entitled to the possibility of
parole. Commonwealth’s Brief, at 12.
In reviewing issues of statutory construction, our standard of review is
de novo and our scope of review plenary. Thomas Jefferson Univ. Hosps.,
Inc. v. Pennsylvania Dep't of Lab. & Indus., 162 A.3d 384, 389 (Pa. 2017)
(citation omitted). We are guided by the following principles:
When presented with matters of statutory interpretation, we are
guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501-
1991. “The object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General
Assembly.” 1 Pa.C.S. § 1921(a). When the words of a statute are
clear and unambiguous, “the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). We
construe words and phrases according to their common and
approved usage, 1 Pa.C.S. § 1903(a), and every statute shall be
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construed, if possible, to give effect to all of its provisions so that
no provision is mere surplusage. 1 Pa.C.S. § 1921(a). In addition,
in determining whether language is clear and unambiguous, the
court should assess it in the context of the overall statutory
scheme, construing all sections with reference to each other, not
simply examining language in isolation. Commonwealth v.
Office of Open Records, 628 Pa. 163,
103 A.3d 1276, 1285
(2014).
When the words of a statute are not explicit, the General
Assembly's intent is to be ascertained by consulting a
comprehensive list of specific factors set forth in 1 Pa.C.S. §
1921(c); see also Pa. Associated Builders & Contrs., Inc. v.
Commonwealth Dep't of Gen. Servs., 593 Pa. 580,
932 A.2d
1271, 1278 (2007) (recognizing that when “the words of the
statute are not explicit, the General Assembly's intent is to be
ascertained by considering matters other than statutory language,
like the occasion and necessity for the statute; the circumstances
of its enactment; the object it seeks to attain; the mischief to be
remedied; former laws; consequences of a particular
interpretation; contemporaneous legislative history; and
legislative and administrative interpretations”). Finally, “as a
general matter, we employ the interpretative principles of the
[Statutory Construction Act] [].” S & H Transp., Inc. v. City of
York, 210 A.3d 1028, 1038 (Pa. 2019).
Linkosky v. Dep't of Transportation, Bureau of Driver Licensing,
247
A.3d 1019, 1026 (Pa. 2021).
In the instant case, Appellant was sentenced to life imprisonment
without the possibility of parole under Section 1102.1 after he was convicted
of second-degree murder. The relevant language of the statute states:
§ 1102.1. Sentence of persons under the age of 18 for
murder, murder of an unborn child and murder of a law
enforcement officer.
(a) First degree murder.--A person who has been convicted after
June 24, 2012, of a murder of the first degree, first degree murder
of an unborn child or murder of a law enforcement officer of the
first degree and who was under the age of 18 at the time of the
commission of the offense shall be sentenced as follows:
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(1) A person who at the time of the commission of the
offense was 15 years of age or older shall be sentenced to
a term of life imprisonment without parole, or a term of
imprisonment, the minimum of which shall be at least 35
years to life.
(2) A person who at the time of the commission of the
offense was under 15 years of age shall be sentenced to a
term of life imprisonment without parole, or a term of
imprisonment, the minimum of which shall be at least 25
years to life.
(b) Notice.--Reasonable notice to the defendant of the
Commonwealth's intention to seek a sentence of life imprisonment
without parole under subsection (a) shall be provided after
conviction and before sentencing.
(c) Second degree murder.--A person who has been
convicted after June 24, 2012, of a murder of the second
degree, second degree murder of an unborn child or murder of a
law enforcement officer of the second degree and who was under
the age of 18 at the time of the commission of the offense shall
be sentenced as follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older shall be
sentenced to a term of imprisonment the minimum of
which shall be at least 30 years to life.
(2) A person who at the time of the commission of the
offense was under 15 years of age shall be sentenced to a
term of imprisonment the minimum of which shall be at
least 20 years to life.
(d) Findings.--In determining whether to impose a sentence of life
without parole under subsection (a), the court shall consider and
make findings on the record regarding the following:
(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 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.
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(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.
(e) Minimum sentence.--Nothing under this section shall prevent
the sentencing court from imposing a minimum sentence greater
than that provided in this section. Sentencing guidelines
promulgated by the Pennsylvania Commission on Sentencing may
not supersede the mandatory minimum sentences provided under
this section.
18 Pa.C.S.A. § 1102.1 (emphasis added).
It is undisputed that, as Appellant was convicted of second-degree
murder in October 2019 for a crime he committed at the age of seventeen, he
was subject to the sentencing provision in Section 1101.2(c)(1). We
acknowledge that Section 1102.1(c)(1) does not explicitly state that a trial
court can sentence a juvenile convicted of second-degree murder to life
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imprisonment without the possibility of parole, but instead states that such an
offender shall be given a minimum sentence which is “at least 30 years to
life.” 18 Pa.C.S.A. § 1102.1(c)(1). As such, we must evaluate whether the
phrase “at least 30 years to life” authorizes a trial court to impose a sentence
of life imprisonment without the possibility of parole.
As noted above, we must first look to the plain language of the statute,
which generally provides the best indication of legislative intent; “[i]t is only
when statutory text is determined to be ambiguous that we may go beyond
the text and look to other considerations to discern legislative intent.” A.S.
v. Pennsylvania State Police, 143 A.3d 896, 903 (Pa. 2016). Further,
A statute is ambiguous when there are at least two
reasonable interpretations of the text. In construing and giving
effect to the text, “‘we should not interpret statutory words in
isolation, but must read them with reference to the context in
which they appear.’” Roethlein v. Portnoff Law Assoc., 623 Pa.
1,
81 A.3d 816, 822 (2013), citing Mishoe v. Erie Ins. Co.,
573
Pa. 267,
824 A.2d 1153, 1155 (2003). Accord Commonwealth
v. Office of Open Records, 628 Pa. 163,
103 A.3d 1276, 1285
(2014) (party's argument that statutory language is ambiguous
“depends upon improperly viewing it in isolation;” when language
is properly read together and in conjunction with rest of statute,
legislative intent is plain). The United States Supreme Court also
takes a contextual approach in assessing statutes and in
determining predicate ambiguity. See generally King v.
Burwell, [576] U.S. [473], 135 S.Ct. 2480, 2489,
192 L.Ed.2d
483 (2015) (“If the statutory language is plain, we must enforce
it according to its terms. But oftentimes the meaning—or
ambiguity—of certain words or phrases may only become evident
when placed in context. So when deciding whether the language
is plain, we must read the words in their context and with a view
to their place in the overall statutory scheme.” (internal quotation
marks and citations omitted)); Yates v. United States, [574]
U.S. [528], 135 S.Ct. 1074, 1081–82,
191 L.Ed.2d 64 (2015)
(“Whether a statutory term is unambiguous, however, does not
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turn solely on dictionary definitions of its component words.
Rather, ‘[t]he plainness or ambiguity of statutory language is
determined [not only] by reference to the language itself, [but as
well by] the specific context in which that language is used, and
the broader context of the statute as a whole.’ Ordinarily, a word's
usage accords with its dictionary definition. In law as in life,
however, the same words, placed in different contexts, sometimes
mean different things.” (internal citations omitted)).
A.S., 143 A.3d at 905–906 (some citations omitted).
Thus, in reviewing the statutory language in Section 1102.1(c), we do
not look at this provision in isolation, but read this section in the context which
it appears in the statute. Section 1102.1 encompasses sentencing law for
individuals, who were convicted after June 24, 2012 of murder, murder of an
unborn child, and murder of a law enforcement officer, and were under
eighteen years of age at the time of the commission of the offense. 18
Pa.C.S.A. § 1102.1.
The statute distinguishes between first-degree murder and second
degree murder and provides that different penalties are applicable. Pursuant
to 1102.1(a)(1), a juvenile offender convicted of first-degree murder, murder
of an unborn child, or murder of a law enforcement officer for an offense
committed when the individual was 15 years or older, “shall be sentenced to
life imprisonment without parole, or a term of imprisonment, the
minimum of which shall be at least 35 years to life.” 18 Pa.C.S.A. §
1102.1(a)(1) (emphasis added).
Pursuant to Section 1102.1(a)(2), a juvenile offender convicted of first-
degree murder, murder of an unborn child, or murder of a law enforcement
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officer for an offense committed when the individual was under 15 years of
age, “shall be sentenced to life imprisonment without parole, or a term of
imprisonment, the minimum of which shall be at least 25 years to life.” 18
Pa.C.S.A. § 1102.1(a)(2) (emphasis added).
In comparison to the language in Sections 1102.1(a)(1)-(2) which
explicitly authorizes trial courts to impose a sentence of life imprisonment
without parole for juvenile offenders convicted of first-degree murder, Section
1102.1(c), which pertains to second-degree murder convictions, does not
contain the phrase “life imprisonment without parole.” Instead, Section
1102.1(c)(1) simply states that an juvenile offender convicted of second-
degree murder for a crime committed when he was 15 years or older “shall
be sentenced to a term of imprisonment, the minimum of which shall be at
least 30 years to life.” 18 Pa.C.S.A. § 1102.1(c)(1).
Similarly, Section 1102.1(c)(2), which applies to juvenile offenders who
were convicted of second-degree murder for crimes they committed while
under 15 years of age, does not specify a punishment of life imprisonment
without parole, but rather, “a term of imprisonment the minimum of which
shall be at least 20 years to life.” 18 Pa.C.S.A. § 1102.1(c)(2).
In addition, when viewing the statutory scheme as a whole, we note
that Section 1102.1 also explicitly states that additional statutory protections
apply when imposing a sentence of life imprisonment without parole for those
defendants convicted of first-degree murder under Section 1102.1(a). In
particular, Section 1102.1(b) requires the Commonwealth to give the
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defendant reasonable notice if it intends to pursue a sentence of life
imprisonment without parole “under subsection (a).” 18 Pa.C.S.A. §
1102.1(b) (emphasis added). Likewise, Section 1102.1(d) requires the trial
court to make certain findings “in determining whether to impose a sentence
of life without parole under subsection (a).” 18 Pa.C.S.A. § 1102.1(d)
(emphasis added).
We decline to adopt the trial court’s statutory interpretation which would
essentially add the phrase “life imprisonment without parole” to the provision
in Section 1102.1(c)(1). It is impermissible to interpret a statute by adding
words and phrases in a manner that affects its scope and operation. Crown
Castle NG E. LLC v. Pennsylvania Pub. Util. Comm'n, 234 A.3d 665, 682
(Pa. 2020) (citing 1 Pa.C.S.A. § 1923) (other citation omitted). “[W]here the
language of a statute is clear and unambiguous, a court may not add matters
the legislature saw fit not to include under the guise of construction.”
Mohamed v. Com., Dep't of Transp., Bureau of Motor Vehicles,
40 A.3d
1186, 1194–95 (Pa. 2012) (quoting Commonwealth v. Tarbert,
535 A.2d
1035, 1044 (Pa. 1987)). Our Supreme Court has emphasized that our courts
“must not overlabor to detect or manufacture ambiguity where there is none.”
Sivick v. State Ethics Comm'n,
238 A.3d 1250, 1264 (Pa. 2020).
It is well-established that “[w]here the legislature includes specific
language in one section of the statute and excludes it from another, the
language should not be implied where excluded.” Commonwealth v.
Johnson, 125 A.3d 822, 831 (Pa.Super. 2015) (citations omitted).
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Under the doctrine expressio unius est exclusio alterius, the
inclusion of a specific matter in a statute implies the exclusion of
other matters. Similarly, this Court has long recognized that as a
matter of statutory interpretation, although one is admonished to
listen attentively to what a statute says[,] one must also listen
attentively to what it does not say.
Sivick, 238 A.3d at 1264 (citation and footnote omitted). “[W]here a section
of a statute contains a given provision, the omission of such a provision from
a similar section is significant to show a different legislative intent.” Gregg
v. Ameriprise Fin., Inc., 245 A.3d 637, 650–51 (Pa. 2021) (quoting
Fletcher v. Pa. Prop. & Cas. Ins. Guar. Ass'n,
985 A.2d 678, 684 (Pa.
2009)).
As the Legislature explicitly authorized trial courts to sentence juvenile
offenders to “life imprisonment without parole” for first-degree murder
convictions under Section 1102.1(a) and excluded this specific language from
Section 1102.1(c) which relates to second-degree murder convictions, we
decline to add language which the Legislature did not see fit to include. Had
the Legislature intended to authorize trial courts to sentence juvenile
offenders convicted of second-degree murder to life imprisonment without the
possibility of parole, it would have expressly done so.
Moreover, we reject the trial court’s interpretation as it would render
explicit references in the statute to “life imprisonment without parole” as mere
surplusage. “[I]n construing a statute, the courts must attempt to give
meaning to every word in a statute, as we cannot assume that the legislature
intended any words to be mere surplusage.” Schock v. City of Lebanon,
210 A.3d 945, 964–65 (Pa. 2019).
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If we were to interpret Section 1102.1(c)(1) to encompass a punishment
of life imprisonment without parole where the language therein only included
the term “life,” the other statutory provisions that specifically delineated
authorization for the imposition of life imprisonment without parole (Section
1102.1(a)) and provided statutory protection in those circumstances (Section
1102.1(b) and (d)) would contain superfluous language in referring explicitly
to “life imprisonment without parole under subsection (a).”
When Section 1102.1(c)(1) is properly read in conjunction with rest of
statute, we find that the plain language of Section 1102.1 authorizes trial
courts to impose a sentence of life imprisonment without parole only for
juvenile offenders that committed first-degree murder, murder of an unborn
child, and murder of a law enforcement officer when the trial court has ensured
that the defendant has been afforded the additional statutory protections set
forth in Section 1102.1(b) and (d).3
____________________________________________
3 We acknowledge that a panel of this Court found in Commonwealth v.
Seskey, 170 A.3d 1105 (Pa.Super. 2017) that the language in Section
1102.1(c)(1) requires a maximum term of life imprisonment and authorizes a
minimum term of “anywhere from 30 years to life, i.e., LWOP [life
imprisonment without opportunity for parole].”
Id. at 1108. Another panel
included the same analysis in Commonwealth v. Foust,
180 A.3d 416, 428
(Pa.Super. 2018).
However, we note that the defendants in Seskey and Foust were not
subject to the provisions of Section 1102.1, which is only applicable to juvenile
offenders convicted of murder after June 24, 2012. Instead, the defendants
in Seskey and Foust, whose murder convictions were entered before this
date, were subject to the statutory framework set forth in 18 Pa.C.S.A. §
1102. As a result, the interpretation of Section 1102.1(c) in Seskey and
Foust is dicta and not binding on this Court.
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Accordingly, we conclude that the trial court had no authority under the
plain language of Section 1102.1(c)(1) to sentence Appellant to life
imprisonment without parole for his second-degree murder conviction. Given
this conclusion, we need not evaluate Appellant’s second issue on appeal. For
the foregoing reasons, we vacate the judgment of sentence and remand for
resentencing consistent with this decision.
Judgment of sentence vacated. Remand for resentencing proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/25/2021
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