Com. v. Summers, B. ( 2021 )

J-A15041-20
2021 PA Super 11COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRANDON K. SUMMERS, :
:
Appellant : No. 1966 EDA 2019
Appeal from the Judgment of Sentence Entered May 17, 2019
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005890-2004
BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: Filed: January 21, 2021
Brandon K. Summers (Appellant) appeals from the May 17, 2019
judgment of sentence for second-degree murder, imposed following a
resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012).1
We affirm.
We provide the following background. On May 3, 2003, when he was
17 years and 3 months old, Appellant was involved in the shooting death of
John Lacey, a Widener University student, which occurred during the
commission of a robbery outside of a tavern adjacent to the University. On
December 8, 2005, a jury found Appellant guilty of second-degree murder
1 In Miller, the United States Supreme Court held that a mandatory
sentence of life imprisonment without the possibility of parole (LWOP) for
those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition of cruel and unusual punishments. 567 U.S. at
465.
* Retired Senior Judge assigned to the Superior Court.
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and robbery. On January 23, 2006, Appellant was sentenced to a
mandatory term of LWOP for his second-degree murder conviction.2
Appellant filed a post-sentence motion, which the trial court denied.
On June 21, 2006, Appellant filed a direct appeal.3 This Court affirmed
Appellant’s judgment of sentence, and on February 27, 2009, our Supreme
Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Summers, 959 A.2d 974 (Pa. Super. 2008) (unpublished memorandum),
appeal denied, 966 A.2d 571 (Pa. 2009).
On April 24, 2009, Appellant timely filed pro se a PCRA petition.
Counsel was appointed and ultimately filed a Turner/Finley4 no-merit
letter. The PCRA court dismissed Appellant’s petition on March 30, 2010.
Appellant did not appeal that dismissal. Instead, on June 14, 2010,
2 For sentencing purposes, the trial court merged Appellant’s convictions for
robbery and second-degree murder.
3 On February 21, 2007, Appellant pro se filed a petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On April 9, 2007,
the PCRA court dismissed that petition, concluding it was prematurely filed
because Appellant’s direct appeal was still pending. See Commonwealth
v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (“A PCRA petition may only
be filed after an appellant has waived or exhausted his direct appeal
rights.”); see also 42 Pa.C.S.A. § 9545(b) (stating that a PCRA petition
“shall be filed within one year of the date the judgment becomes final” and
“a judgment of sentence becomes final at the conclusion of direct
review[.]”).
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant pro se filed another PCRA petition, which was dismissed as
untimely filed on November 19, 2010.
On July 23, 2012, Appellant pro se filed a fourth PCRA petition,
claiming that his sentence was unconstitutional under Miller.5 The PCRA
court appointed counsel and issued an order on August 23, 2013, holding
the petition in abeyance pending the outcome of Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), as the Cunningham Court was to
determine whether Miller was retroactively applicable to post-conviction
collateral review petitioners. On October 30, 2013, the Cunningham Court
determined Miller was not retroactively applicable. As a result, the PCRA
court vacated its order holding the petition in abeyance, and ordered counsel
to file an amended petition or a Turner/Finley no-merit letter.
Accordingly, relying on Cunningham, PCRA counsel filed a no-merit letter,
and the PCRA court permitted counsel to withdraw from the case. On April
14, 2015, the PCRA court dismissed Appellant’s 2012 petition as untimely
filed.
Appellant timely appealed to this Court, claiming that Miller applied
retroactively to his case. While his appeal was pending, the United States
Supreme Court held that Miller applied retroactively to cases on collateral
review, essentially overruling Cunningham. Montgomery v. Louisiana,
5 Appellant’s petition was filed within 60 days of the issuance of Miller.
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___ U.S. ___, 136 S.Ct. 718 (2016). Following that decision, this Court
reversed the PCRA court’s order, vacated Appellant’s LWOP sentence, and
remanded the matter for further proceedings. Commonwealth v.
Summers, 144 A.3d 194 (Pa. Super. 2016) (unpublished memorandum).
The resentencing court held a hearing on February 13, 2019. On May
17, 2019, the resentencing court sentenced Appellant to 40 years to life
imprisonment. Appellant timely filed a post-sentence motion for
reconsideration of sentence, wherein he raised several claims, including a
claim challenging the discretionary aspects of his sentence and a claim that
the resentencing court imposed an impermissible de facto life sentence. The
court denied his post-sentence motion on June 5, 2019.
Appellant timely filed a notice of appeal.6 Appellant’s appeal
challenges the legality and discretionary aspects of his sentence. Appellant’s
Brief at 5.
We begin by reviewing Appellant’s challenges to the discretionary
aspects of his sentence.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
6 Both Appellant and the resentencing court complied with Pa.R.A.P. 1925.
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(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019),
quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super.
2014).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, preserved the issue in a post-sentence motion, and
included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at
23-24. Thus, we now consider whether Appellant has raised a substantial
question for our review.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant asserted four instances
in which the resentencing court abused its discretion: (1) the sentence was
unduly harsh and excessive because Appellant was a juvenile at the time of
this crime and had mitigating circumstances; (2) the court ignored,
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misapprehended, and misapplied the law; (3) the sentence was not justified
by sufficient reasons; and (4) the sentence was the product of the court’s
bias, prejudice, and ill will. Appellant’s Brief at 23-24 (reordered for ease of
disposition).
Appellant has raised a substantial question with each of these claims.7
See Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018)
7 Within Appellant’s claim that the resentencing court ignored,
misapprehended, and misapplied the law, he presents a sub-issue that the
resentencing court violated United States Supreme Court precedent when it
considered victim impact statements regarding the appropriate sentence for
Appellant at his resentencing hearing. Appellant’s Brief at 32. This claim is
not within Appellant’s 2119(f) statement, and therefore, it is waived.
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018)
(citations omitted) (“[W]e cannot look beyond the statement of questions
presented and the prefatory [Rule] 2119(f) statement to determine whether
a substantial question exists.”).
Appellant also argues that the resentencing court conflated first- and
second-degree murder, and “punished [him] as if the jury convicted him of
[first-degree murder].” Appellant’s Brief at 30. Appellant did not raise this
argument in his 2119(f) statement. Thus, it is also waived.
Even if he properly preserved this issue, Appellant’s claim lacks merit.
By way of background, at the evidentiary hearing, the resentencing court
overruled the objection of Appellant’s counsel to the use of the term murder
by the prosecutor, stating, “Second[-]degree murder is murder.” N.T.,
2/13/2019, at 86-87. When the resentencing court sentenced Appellant, it
stated “The [c]ourt recognizes that the jury found [Appellant] guilty of
second[-]degree murder and not guilty of the weapons charge. That said,
[Appellant] still bears direct culpability.” N.T., 5/17/2019, at 16. Although
Appellant points to these comments as an indicator that the resentencing
court punished him as if he committed first-degree murder, we are not
convinced. Instead, in context, we understand the resentencing court’s
comment to indicate that Appellant played a direct role in a robbery that
resulted in a death, whether or not he was the shooter. Thus, the
(Footnote Continued Next Page)
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(finding that a substantial question was raised where a juvenile, previously
sentenced to LWOP, raised an excessive sentencing claim along with an
assertion that the sentencing court failed to consider mitigating factors);
Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016) (noting
that an appellant raises “a substantial question for our review by asserting
that the trial court failed to state adequate reasons on the record for [an
a]ppellant’s sentence.”); Commonwealth v. Lucky, 229 A.3d 657, 664
(Pa. Super. 2020), citing Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.
Super. 2011) (“An allegation of bias in sentencing [] raises a substantial
question.”). Thus, we may consider the merits of these claims, mindful of
the following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing [a] sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
(Footnote Continued) _______________________
resentencing court did not improperly misapply the law and impose an
excessive sentence as if it was sentencing Appellant for first-degree murder.
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DiClaudio, 210 A.3d at 1074-75, quoting Commonwealth v. Antidormi,
84 A.3d 736, 760-61 (Pa. Super. 2014).
Appellant presents many issues and sub-issues, but the root of his
discretionary-aspects-of-sentencing challenges is that the resentencing court
had disdain for Miller and did not consider the factors Miller requires.
Precisely, Appellant contends the resentencing judge “did not apply the
Miller factors to [Appellant’s] specific childhood circumstances and
recognize their mitigating impact.” Appellant’s Brief at 34. It is Appellant’s
position that the resentencing court had an “inordinate fixation on the
underlying offense” and “erred by focusing on the tragedy that occurred to
the exclusion of any meaningful consideration regarding youth’s attendant
characteristics.” Id. at 34, 40 (footnote omitted). Furthermore, Appellant
contends that the resentencing court showed bias in the treatment of
Appellant in the form of racism and classism. Id. at 46.
Preliminarily, we note that 18 Pa.C.S. § 1102.1 was enacted in the
wake of Miller and sets forth the sentences to be imposed upon juvenile
offenders who are convicted of first- or second-degree murder on or after
June 25, 2012, the date Miller was issued. Although not applicable to
Appellant because he was convicted pre-Miller, our Supreme Court has held
that resentencing courts should look to this section for guidance in
resentencing pre-Miller defendants. Commonwealth v. Batts (Batts II),
163 A.3d 410, 482 n. 25, 484 (Pa. 2017).
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Under this statute, a juvenile offender convicted of second-degree
murder who was less than 18 years old but at least 15 years old at the time
of the offense would be subject to a sentence of a minimum of 30 years of
imprisonment. 18 Pa.C.S. § 1102.1(c)(1). Section 1102.1 does not prohibit
a sentencing court from imposing a minimum sentence that is greater than
prescribed in the statute. 18 Pa.C.S. § 1102.1(e). The statute also sets
forth factors that a court must consider when determining whether to
sentence a juvenile offender to LWOP, including age-related characteristics
such as the defendant’s mental capacity, maturity, and the degree of
criminal sophistication exhibited. 18 Pa.C.S. § 1102.1(d). In cases where
the Commonwealth does not seek a LWOP sentence, the sentencing court
should apply the traditional sentencing considerations under 42 Pa.C.S.
§ 9721(b) of the Sentencing Code when fashioning its sentence. See
Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019), citing
Batts II, 163 A.3d at 484. The sentencing court is not required to consider
the Miller factors in such cases. See Commonwealth v. Derrickson, ___
A.3d ___, 2020 WL 6373356, at *8 (Pa. Super. 2020), citing Lekka, 210
A.3d at 355.
At the resentencing hearing on February 13, 2019, Appellant
presented evidence regarding his deficient intellectual and emotional
development, and offers of support by his family upon his potential release
from incarceration. A neuropsychologist, Dr. Carol Armstrong, who
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examined Appellant, stated that he had a myriad of neuropsychological
deficits, some areas of which were extremely impaired. According to Dr.
Armstrong, Appellant’s IQ indicates he is borderline intellectually disabled.
Moreover, Dr. Armstrong stated Appellant experienced a “severe amount of
chronic stress in childhood,” which hinders the memory structure of the
brain, the development of the hippocampus, and causes post-traumatic
stress disorder. N.T., 2/13/2019, at 34. Dr. Armstrong proceeded to
discuss the events that contributed to her diagnosis that Appellant suffered
severe chronic stress, including repeated physical beatings as a child. In
addition, Dr. Armstrong stated Appellant suffered multiple right-sided head
injuries from unknown events or sources as a child, which impaired
Appellant’s memory and visual and spatial perception. Dr. Armstrong also
testified to Appellant’s growth while in prison; Appellant has improved his
reading level and earned a general equivalency degree.
On cross-examination, the Commonwealth questioned Dr. Armstrong
concerning the reports from evaluations of Appellant conducted in 2000 and
2001. The reports described Appellant as having a temper, quick to become
angry, having a propensity to act out aggressively, being manipulative of
others, and appearing to have little regard for the feelings or welfare of
others. Appellant self-reported he engaged in physical altercations once a
week. The Commonwealth also reviewed with Dr. Armstrong Appellant’s
juvenile delinquency and adult criminal history, including an adjudication for
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burglary and a conviction for robbery that Appellant committed after the
death of Lacey, but before he was imprisoned. The Commonwealth also
cross-examined her about several Pennsylvania Department of Corrections
incident reports concerning Appellant. When asked about two unsuccessful
placements in treatment units Appellant had as a juvenile, Dr. Armstrong
opined the unsuccessful placements demonstrated that Appellant needs
positive environmental support for a long period in order to thrive.
Appellant also presented the testimony of his sister, Zanea Summers,
who recounted fond memories with Appellant, and stated that she supports
Appellant and that he may reside with her if released from incarceration.
Appellant’s father, James Miller, testified that he met Appellant for the first
time when they were both incarcerated in the same institution,8 and that he
would support Appellant in the same manner as Zanea.
The Commonwealth presented the testimony of Patrick Sullivan,
director of campus security for Widener University, and the resentencing
court heard victim impact testimony from three of Lacey’s family members.
Sullivan testified to the negative influence the murder had on the students of
Widener University and safety measures the University implemented
because of the murder. He attributed to the murder 40 to 50 students’
decisions not to return to the University the following year. Although the
8 Miller’s parole expired in 2010.
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Commonwealth was not seeking a sentence of LWOP, Lacey’s brother asked
the resentencing court to impose its original sentence. The court responded,
“Unfortunately, I cannot stand firm on the original sentence” and
acknowledged it must follow United States Supreme Court precedent. N.T.,
2/13/2019, at 196-97.
The court then heard Argument by Appellant’s counsel, along with
Appellant’s allocution expressing remorse to Lacey’s family.
The resentencing court deferred resentencing to May 17, 2019, to
“give very serious contemplation as to all the factors listed in Miller and
Section 1102.1.” N.T., 5/17/2019, at 16. When announcing the sentence,
the resentencing court acknowledged that it had read the entire trial
transcript, the motions that were filed, the exhibits that were submitted, and
considered a pre-sentence investigation (PSI) report. Id. at 15. The
resentencing court analyzed the case pursuant to the three factors set out in
subsection 9721(b) and considered the factors set forth in Miller.
Considering subsection 9721(b) sentencing factors, the resentencing
court thoroughly discussed the impact on Widener University and Lacey’s
family. Regarding rehabilitative needs, the court referenced Dr. Armstrong’s
testimony that Appellant required positive environmental support for a long
period of time to thrive. The court stated that while Appellant had
expressed sorrow to the Lacey family, the “expression lacked true remorse.
Rather, it was meek and self-serving. There was no heartfelt contriteness.”
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N.T., 5/17/2019, at 17. Regarding the consideration of Miller factors, the
resentencing court noted Appellant was 17 years and 3 months old at the
time of the crime, and discussed Dr. Armstrong’s findings regarding
Appellant’s mental capacity and maturity, as well as his improvements while
in prison. It also noted Appellant’s criminal history as a juvenile, and
continued criminal history after Appellant committed the instant offense.
On appeal, Appellant essentially argues the resentencing court
prioritized the severity of the offense over mitigating factors. Appellant’s
argument is nothing more than a request for this Court to re-weigh the
sentencing factors differently than the resentencing court. This we cannot
do. See Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009)
(citation omitted) (“We cannot re-weigh the sentencing factors and impose
our judgment in the place of the sentencing court.”).
Moreover, the resentencing court had the benefit of a PSI report,
sentencing guidelines, and statements from Appellant, Appellant’s sister,
father, and counsel. “[W]here the sentencing judge had the benefit of a
[PSI] report, it will be presumed that he or she was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (citation omitted).
Furthermore, the resentencing court used Section 1102.1 as guidance,
noting that it required an offender convicted post-Miller to be resentenced
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to a minimum sentence of at least 30 years of imprisonment, and the
section does not prohibit the court from imposing a minimum sentence that
is greater than prescribed. See 18 Pa.C.S. § 1102.1(c)(1), (e). The
resentencing court engaged in a reasoned analysis of the sentencing factors
with reference to the evidence presented at the sentencing hearing. The
court considered Appellant’s role in the crime, the severity of the crime, his
escalating criminality, need for structure, and protection of the public.
Further, it considered mitigating evidence presented by Dr. Armstrong, but
determined the mitigating evidence did not warrant a lesser sentence than
40 years to life imprisonment. Finally, the resentencing court considered
Appellant’s allocution, which it determined “lacked true remorse.” N.T.,
5/17/2019, at 17. Lack of remorse is an appropriate sentencing
consideration. See, e.g., Commonwealth v. Begley, 780 A.2d 605, 644
(Pa. 2001) (noting lack of remorse, as a sign of the defendant’s character, is
an appropriate consideration for sentencing outside of the guidelines). We
must “give great weight to the sentencing court’s discretion, as he or she is
in the best position to measure factors such as the nature of the crime, the
defendant’s character, and the defendant’s display of remorse, defiance, or
indifference.” Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super.
2014) (citation omitted).
Appellant’s position that the resentencing court improperly had an
“inordinate fixation” on the underlying offense is meritless, as it was within
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the resentencing court’s discretion to place emphasis on the serious nature
of this crime. Second-degree murder is a serious crime; serious enough that
our legislature deemed it warranted a mandatory minimum of 30 years’
incarceration even for juveniles convicted after Miller. Moreover, Miller and
its jurisprudence do not require that a resentencing court prioritize
mitigating factors to the exclusion of all others or sentence those who
committed crimes as a juvenile to the minimum sentence. Instead, the
resentencing court must not “treat juveniles as ‘miniature adults,’” and bear
in mind “as a matter of law ‘[] children are constitutionally different from
adults for purposes of sentencing,’ in that they ‘have diminished culpability
and greater prospects for reform,’ making them ‘less deserving of the most
severe punishments.’” Batts II, 163 A.3d at 448, quoting Miller, 567 U.S.
at 471. Nevertheless, the court is permitted to hold juveniles accountable
and impose a sentence “commensurate” with a juvenile’s actions. Id. at
450. Our review confirms that the resentencing court considered and
weighed the evidence according to the appropriate sentencing factors
pursuant to subsection 9721(b), including the mitigating factors regarding
Appellant’s youth and challenging upbringing.9 Although it considered the
9 Appellant also contends that the resentencing court unconstitutionally
applied a burden upon Appellant at resentencing. Appellant’s Brief at 28.
Appellant relies on Batts II for the contention that the defense bears no
burden at a resentencing hearing. 163 A.3d at 471-72. Appellant’s reliance
on Batts II is misplaced, as Batts II addressed the burden of proof at a
(Footnote Continued Next Page)
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Miller factors, the court had no obligation to do so in this case. See
Derrickson, supra at *8, citing Lekka, 210 A.3d at 355. Therefore, it
could not have abused its discretion for failing to apply the Miller factors in
the manner desired by Appellant.
Insofar as Appellant claims the resentencing court’s statement that it
“unfortunately” could not stand firm on Appellant’s original sentence proves
the resentencing court had contempt for the holding in Miller, the use of the
word “unfortunately” is an acknowledgement of the sentiments of Lacey’s
brother and “shows only that the judge had a grasp of human nature, not
that he was biased” against Appellant. See Commonwealth v. Flor, 998
A.2d 606, 642 (Pa. Super. 2010) (regarding a victim impact statement, our
Supreme Court held that the judge’s statement that he would have
understood a call for vengeance by a murdered officer’s brother does not
suggest or imply that the court was in any sense motivated by vengeance or
bias). The resentencing court’s statement does not establish that it
(Footnote Continued) _______________________
resentencing hearing where the Commonwealth is seeking LWOP. Here, the
Commonwealth did not seek, and the resentencing court did not consider, a
LWOP sentence. While the resentencing court stated at the beginning of the
evidentiary hearing, “The way the hearing goes is, [defense counsel], you
bear the burden of proof,” Appellant’s Brief at 28, citing N.T., 2/13/2019, at
3, nothing in the resentencing court’s opinion or statements at the hearings
indicate that the resentencing court actually placed a burden of proof on the
defense. Despite the improper phrasing, it appears the resentencing court
meant to the extent that defense wanted to show mitigating evidence to
argue for a lesser sentence, the defense had the opportunity and burden to
do so.
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misapprehended, misapplied, or ignored Miller. Thus, there is no merit to
Appellant’s claim in this regard.
We next turn to Appellant’s contention that the resentencing court
abused its discretion when it fashioned his sentence because of the judge’s
partiality and bias, or ill will toward Appellant. Specifically, Appellant claims
that the resentencing court “portrayed [Appellant] as older than he was at
the time of the offense.” Appellant’s Brief at 46. Appellant also raises other
concerns of bias. In his brief, Appellant argued the following.
One can only speculate about the source of the judge’s
animosity against the defense. See [Trial Court Opinion,
8/22/2019, at 18] (insisting Appellant cannot prove bias). It
might stem from conscious or implicit racial and class-based
prejudice. Sentencing disparities are well-documented in cases
like [Appellant’s] involving a white victim and black defendant.
Intended or not, it is impossible to overlook the judge’s dog
whistling. The court:
 vilified [Appellant] as “extremely street wise”
 []
 maligned the entire [c]ity of Chester
 groundlessly belittled [Appellant’s] substantial family
support, and
 doubted [Appellant’s] history of medical and
emotional trauma
Appellant’s Brief at 46 (footnotes and some commas omitted).
We acknowledge that the types of bias Appellant describes can occur
in society and sentencing. Nevertheless, we have reviewed the comments
and the record, and do not discern bias by the resentencing court that
resulted in the excessive sentencing of Appellant. In the instant case, the
resentencing court accurately stated the age of Appellant as 17 years and 3
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months old at the time of the murder. N.T., 5/17/2019, at 16, Trial Court
Opinion, 8/22/2019, at 13. Nonetheless, the resentencing court stated in its
Rule 1925(a) opinion that “Appellant fails to recognize that he was not a
‘child’ at the time of the offense.” Trial Court Opinion, 8/22/2019, at 13.
While the resentencing court’s statement that Appellant was not a child is
technically incorrect because Appellant was indeed a child at the time of his
crime, the resentencing court appears to have used the term as shorthand
to express that Appellant was close to 18 years old and to emphasize that
Appellant’s age did not completely absolve him of guilt.
As to the other statements recounted above, those statements were
made by the resentencing court in the context of imposing Appellant’s
sentence. Our Supreme Court has stated “it is not improper for a judge to
address a defendant after sentencing for the purpose of reiterating to the
defendant that the punishment just imposed was well-deserved.” Flor, 998
A.2d at 642. Thus, we discern no abuse of discretion and conclude that the
resentencing court exercised its judgment without partiality, prejudice, bias,
or ill will.
In his remaining two issues, Appellant raises challenges to the legality
of his sentence. “When reviewing the legality of a sentence, our standard of
review is de novo and our scope of review is plenary.” Lekka, 210 A.3d at
355.
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First, Appellant claims that the resentencing court imposed a de facto
LWOP sentence because his minimum sentence of 40 years does not offer
Appellant a meaningful opportunity for parole. Appellant’s Brief at 50. We
consider this claim mindful of the following.
“[A] trial court may not impose a term-of-years sentence, which
constitutes a de facto LWOP sentence, on a juvenile offender convicted of
homicide unless it finds, beyond a reasonable doubt, that he or she is
incapable of rehabilitation.” Commonwealth v. Foust, 180 A.3d 416, 431
(Pa. Super. 2018). “There are certain term-of-years sentences [that] clearly
constitute de facto LWOP sentences. For example, a 150-year sentence is a
de facto LWOP sentence. Similarly, there are clearly sentences [that] do not
constitute de facto LWOP sentences. A sentence of 30 years to life falls into
this category.” Id. at 438.
Appellant’s minimum sentence of 40 years of imprisonment falls
between these two categories. The Foust Court “decline[d] to draw a bright
line [] delineating what constitutes a de facto LWOP sentence and what
constitutes a constitutional term-of-years sentence.” Id. However, in light
of Foust, this Court outlined the method for determining where such “in
between” minimum sentences fall on the spectrum.
The key factor in considering the upper limit of what constitutes
a constitutional sentence, in this narrow context, appears to be
whether there is “some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” Graham v.
Florida, 560 U.S. 48, 75 (2010). Implicit in this standard is the
notion it would not be meaningful to provide an opportunity for
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release based solely on the most tenuous possibility of a
defendant’s surviving the minimum sentence imposed. To be
meaningful or, at least, potentially meaningful, it must at least
be plausible that one could survive until the minimum release
date with some consequential likelihood that a nontrivial amount
of time at liberty awaits. Thus, though it expressly declined to
do so, the Foust Court seemed to suggest some sort of
meaningful-opportunity-for-release standard by declaring that a
150–years–to–life sentence constitutes a de facto LWOP
sentence.
Commonwealth v. Bebout, 186 A.3d 462, 467 (Pa. Super. 2018) (footnote
omitted; citations altered; emphasis in original). Applying this test, we
concluded in Bebout that a minimum sentence of 45 years, which made
Bebout eligible for parole at 60 years old, did not constitute a de facto LWOP
sentence.
[Bebout’s] opportunity for release [was] meaningful, especially
in light of the gravity of his crime, because he has the potential
to live for several decades outside of prison if paroled at his
minimum.
Thus, based on the record and arguments before us, we
conclude that [Bebout] has simply failed to meet his burden of
demonstrating that the lower court sentenced him to a de facto
LWOP sentence. There simply is no comparison between the
opportunity to be paroled at 60 years of age and 100+ years of
age. The difference is, quite literally, a lifetime. As such, we are
not convinced that [Bebout’s] sentence is the functional
equivalent of LWOP.
Id. at 469 (emphasis in original); see also Lekka, 210 A.3d at 357-58
(concluding that because the appellant’s term of 45-years-to-life
imprisonment rendered him eligible for parole at the age of 62, it was not a
de facto LWOP sentence).
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Here, the resentencing court sentenced Appellant to a minimum term
of 40 years’ imprisonment. Appellant has been incarcerated for second-
degree murder since he was 17 years old. Accordingly, Appellant will be
eligible for parole when he is 57 years old. Because Appellant will have a
meaningful opportunity to obtain release and potential to live several
decades outside of prison if paroled at that time, we conclude that
Appellant’s minimum sentence does not constitute a de facto LWOP
sentence, and his claim is without merit.
Lastly, Appellant claims that his maximum sentence of life
imprisonment is illegal.10 Specifically, he argues that the resentencing court
erred in relying on, inter alia, Commonwealth v. Olds, 192 A.3d 1188 (Pa.
Super. 2018), which held that a maximum sentence of life imprisonment is
required for juveniles convicted of second-degree murder pre-Miller,
because he believes that the case was decided erroneously. Appellant’s
Brief at 58. In support, Appellant contends that pursuant to Miller and
Graham v. Florida, 560 U.S. 68 (2010), the imposition of a mandatory
maximum term of life imprisonment is unconstitutional and violates the
mandates of proportionality and individualized sentencing. Appellant’s Brief
at 58-65. According to Appellant, “[a] child who commits second[-]degree
10 Although Appellant did not include this issue in his Pa.R.A.P. 1925(b)
statement, it is not waived. See Commonwealth v. Foster, 17 A.3d 332,
336 (Pa. Super. 2011) (noting that a challenge to the legality of a sentence
presents a nonwaivable jurisdictional issue).
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murder” is akin to a child “who commits a non-homicide offense,” and
therefore must not “suffer the same maximum sentence as if the jury
convicted him of first-degree murder.” Id. at 62.
By way of background, our Supreme Court held that in re-sentencing a
juvenile defendant convicted of first-degree murder pre-Miller, a court
may sentence the defendant to LWOP only after finding him “permanently
incorrigible and that rehabilitation would be impossible[;]” otherwise, the
defendant shall be sentenced to life with the possibility of parole following a
minimum term-of-years sentence. Batts II, 163 A.3d at 484 (Pa. 2017).
Neither our Supreme Court nor the Pennsylvania General Assembly has
addressed the resentencing procedure for juveniles, like Appellant, who were
convicted of second-degree murder pre-Miller. Although Batts II
involved a juvenile convicted of first-degree murder, this Court has found no
difference that would place a juvenile convicted of second-degree murder
outside the Batts II analysis.11 See Olds, 192 A.3d at 1194; see also
11 Batts II established guidelines and procedures for sentencing and
resentencing juveniles convicted of first-degree murder. 163 A.3d at 483-
84. The Court announced that
there is a presumption against the imposition of a sentence of
life without parole for a defendant convicted of first-degree
murder committed as a juvenile. The Commonwealth must give
reasonable notice of its intention to seek a sentence of [LWOP].
To rebut the presumption, the Commonwealth has the burden to
prove, beyond a reasonable doubt, that the juvenile offender is
permanently incorrigible and thus is unable to be rehabilitated.
(Footnote Continued Next Page)
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Commonwealth v. Melvin, 172 A.3d 14, 21 n.3 (Pa. Super. 2017).
Accordingly, our Court in Olds rejected the claim that the imposition of a
mandatory maximum sentence of life imprisonment for a juvenile convicted
of second-degree murder is illegal and held that “trial courts must sentence
juveniles convicted of second-degree murder prior to June 25, 2012 to a
maximum term of life imprisonment[.]” 192 A.3d at 1198 (emphasis
added).
“It is beyond the power of a Superior Court panel to overrule a prior
decision of the Superior Court, except in circumstances where intervening
authority by our Supreme Court calls into question a previous decision of
this Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super.
2006) (citations omitted). That has not occurred here. Thus, our Court’s
(Footnote Continued) _______________________
Consistent with the mandate of Miller and Montgomery, for a
[LWOP] sentence to be constitutionally valid, the sentencing
court must find that the juvenile offender is permanently
incorrigible and that rehabilitation would be impossible. The
Commonwealth's evidence and the sentencing court's decision
must take into account the factors announced in Miller and
[subsection 1102.1(d)]. Even if the Commonwealth satisfies its
burden of proof, the sentencing court is not required to impose a
[LWOP] sentence upon a juvenile offender.
In sentencing a juvenile offender to life with the possibility
of parole, traditional sentencing considerations apply. See 42
Pa.C.S. § 9721(b). The sentencing court should fashion the
minimum term of incarceration using, as guidance, [subsection
1102.1(a)].
Id.
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prior decision in Olds is binding.12 See Pepe, 897 A.2d at 465. Therefore,
Appellant’s claim is without merit.
Judgment of sentence affirmed.
Judge Lazarus joins the opinion.
Judge King concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
12 Although we are bound by this Court’s holding in Olds, if we were writing
on a clean slate, because of the shakiness of the felony-murder rule, this
author would permit juveniles convicted of second-degree murder pre-Miller
to argue for a maximum term-of-years sentence in lieu of a mandatory life
tail. See Commonwealth ex rel. Smith v. Myers, 261 A.2d 550, 553-55
(Pa. 1970) (detailing the “harsh criticism, most of it thoroughly warranted”
of the felony-murder rule, finding it “non-essential,” a doubtful deterrent,
and “a hold-over from the days of our barbarian Anglo-Saxon ancestors of
pre-Norman days, [having] very little right to existence in modern
society[,]” so as to “make clear how shaky are the basic premises on which
[the rule] rests.”) (footnote and internal quotation marks omitted).
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