[J-118-2016] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 45 MAP 2016
:
Appellee : Appeal from the Order of the Superior
: Court dated September 4, 2015,
: reconsideration denied November 10,
v. : 2015, at No. 1764 EDA 2014 Affirming
: the Judgment of Sentence of the
: Northampton County Court of Common
QU'EED BATTS, : Pleas, Criminal Division, dated May 2,
: 2014 at No. CP-48-CR-0001215-2006.
Appellant :
: ARGUED: December 7, 2016
CONCURRING AND DISSENTING OPINION
JUSTICE BAER DECIDED: June 26, 2017
I join the Majority Opinion in substantial part and write separately to distance
myself in regard to one issue.
In Section VI, the Majority rejects Appellant Batts’ legality of sentence claim in
which he seeks resentencing for third-degree murder based upon his assertion that
Pennsylvania’s first-degree murder sentencing scheme for juveniles is unconstitutional.
While I have no objection to the Majority’s merits analysis of the issue, which tracks and
expands this Court’s analysis of a similar issue in Commonwealth v. Batts, 66 A.3d 286
(Pa. 2013) (Batts I), I do not believe the issue is properly before the Court.
Preliminarily, the issue of the constitutionality of the sentencing scheme for first-
degree murder for juveniles was decided by this Court in Batts I. Additionally, Appellant
failed to raise the issue in his current petition for allowance of appeal, resulting in waiver
under Pa.R.A.P. 1115(a)(3) (“Only the questions set forth in the petition, or fairly
comprised therein, will ordinarily be considered by the court in the event that an appeal
is allowed”). Moreover, after acknowledging his failure to raise the issue in his petition
for allowance of appeal and asserting that the issue constitutes a non-waivable legality
of sentence issue, Appellant fails to develop the issue in his initial brief to this Court;
indeed, in contravention of Pa.R.A.P. 2119(a) (requiring discussion and citation of
pertinent authorities), he did not even identify the statutory provision, which he now
claims is violated. Instead, he attempts to incorporate the argument developed in the
brief filed by the amicus curiae, the Pennsylvania Association of Criminal Defense
Lawyers (PACDL), in violation of this Court’s longstanding declarations that “[a]micus
cannot raise issues . . . which have not been preserved or raised by the parties,”
Commonwealth v. Allshouse, 36 A.3d 163, 179 n.18 (Pa. 2012), and that “incorporation
by reference is an unacceptable manner of appellate advocacy.” Commonwealth v.
Briggs, 12 A.3d 291, 342 (Pa. 2011) (internal quotations and citations omitted). 1
Although I acknowledge that challenges to the legality of sentence are non-
waivable and in fact can be raised by a court sua sponte, I also recognize that a court is
not required to address every unpreserved legality of sentence issue. In this case, I
would have recommended denying review of this issue had Appellant raised it in his
petition for allowance of appeal given that we addressed a very similar issue in regard
to this defendant in 2013. Likewise, I would have declined to address the merits of the
issue in this Court’s opinion.
1
Appellant devotes only one page of his over sixty page brief to this issue. While most
of Appellant’s discussion on this page addresses why this Court should decide this
issue, Appellant fails to explain what the issue is or provide any relevant analysis
beyond baldly asserting that we should reconsider our holding in Batts I rejecting his
claim that he should be sentenced to third-degree murder. Appellant then attempts to
“adopt” the argument of the PACDL contending that his sentence is illegal for failure to
abide by the statutory requirement that a minimum term of imprisonment may not
exceed one-half of the maximum term under 42 Pa.C.S. § 9756(b)(1). Brief at 62.
[J-118-2016] [MO: Donohue, J.] - 2
Although I differ on this limited issue, I join the majority in large part, including the
procedure adopted in this case. I further observe that, under this procedure, nearly all
juvenile offenders will be deemed to have the potential for rehabilitation, given the high
bar which the Commonwealth must meet. Indeed, I believe it will be a rare case where
the Commonwealth will be able to overcome the presumption and meet the burden of
proving the impossibility of rehabilitation beyond a reasonable doubt, a high standard
which I wholeheartedly agree is required under Miller v. Alabama, 567 U.S. 460 (2012),
and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Maj. Op. at 75-76.
[J-118-2016] [MO: Donohue, J.] - 3