Com. v. Summers, B.

J-A15041-20

2021 PA Super 11

COMMONWEALTH 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 Super. 2008) (unpublished memorandum),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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