J-A21019-15


                                  2015 PA Super 187

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

QU’EED BATTS

                            Appellant                   No. 1764 EDA 2014


              Appeal from the Judgment of Sentence May 2, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001215-2006

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.:                            FILED SEPTEMBER 04, 2015

        Appellant, Qu’eed Batts, appeals from the May 2, 2014 aggregate

judgment of sentence of life imprisonment without the possibility of parole,

which was reimposed after our Supreme Court vacated the decision of a

prior panel of this Court and remanded to the trial court for resentencing.

After careful review, we affirm.

        We summarize the relevant facts and procedural history as follows. A

jury found Appellant guilty of first-degree murder, attempted murder, and

aggravated assault.1        These convictions arose from a February 7, 2006

gang-related shooting. On that day, Appellant, then 14 years old, shot two

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2501, 901, 2702(a), respectively.
J-A21019-15


other teenage boys, Corey Hilario and Clarence Edwards, on the front porch

of Edwards’ residence. Appellant first shot 18-year-old Hilario in the back as

he attempted to escape, causing serious bodily injuries from which Hilario

ultimately recovered. Appellant then fatally shot 16-year-old Edwards, who

had fallen, twice in the head.

      After an investigation, police apprehended Appellant, who, during an

interview, eventually confessed to shooting Edwards and Hilario. Appellant

admitted he shot Edwards and Hilario, but claimed he only did so because he

believed an older gang member, Vernon Bradley, would kill him if he did not

follow Bradley’s orders to shoot the two other young men.

      Appellant explained that he had recently been inducted into a gang,

the Bloods. On the night of the shooting, he was a passenger with Bradley

and other members of the Bloods in a vehicle driven by Rasheeda McClain.

The gang members drove to Edwards’ residence, where McClain identified

Edwards and Hilario as two boys who had previously robbed her. Appellant

did not know either of the victims. Bradley then asked which gang member

would “put work in,” and gave Appellant a gun and a mask.

      Appellant exited the car in front of Edwards’ house and put on the

mask and a glove. McClain drove the car down the block and parked at the

corner to wait for Appellant. Appellant then walked up the front steps of the

house and onto the porch, where Hilario, Edwards, and Edwards’ father were

present.   Appellant ordered the three men to get down.      Edwards’ father


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escaped into the house.         As Hilario attempted to follow Edwards’ father,

Appellant shot him in the back, but Hilario still managed to make it inside

the house. Appellant then turned to Edwards, who had fallen and was lying

on the porch. Appellant stood over Edwards and shot him twice in the head.

Appellant then ran back to the car, and the group drove away. Edwards died

at the hospital.     Because of the shootings, Appellant was promoted to the

higher rank of “universal sergeant” within the gang.

        The Commonwealth charged Appellant with the above-listed offenses

and two counts of criminal conspiracy.2 Because Appellant was charged with

murder, the case was automatically placed in the jurisdiction of the criminal

court. See 42 Pa.C.S.A. § 6302 (excluding murder from the definition of a

“delinquent act”); id. § 6322 (providing that a case charging a child with

murder may be transferred to the juvenile court if the child shows that the

transfer serves the public interest based on the factors in 42 Pa.C.S.A. §

6355(a)(4)(iii). After an extensive evidentiary hearing on Appellant’s motion

to transfer the case to the juvenile justice system under Section 6322 of the

Juvenile Act,3 the trial court denied Appellant’s motion.     Hence, Appellant

was tried as an adult.



____________________________________________


2
    18 Pa.C.S.A. § 903(a)(1).
3
    42 Pa.C.S.A. § 6301-6375.



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       At trial, Appellant testified consistently with the statement he gave to

the police and contended that he committed the shootings under duress

because he felt he would be killed if he disobeyed Bradley’s order to shoot

Edwards and Hilario. Despite his duress defense, on July 31, 2007, the jury

convicted him of first-degree murder, attempted murder, and aggravated

assault. The jury acquitted Appellant of the two conspiracy charges.

       On October 22, 2007, the trial court sentenced Appellant to a

mandatory term of life imprisonment, which automatically made him

ineligible for parole.    See 18 Pa.C.S.A. § 1102(a)(1) (providing “a person

who has been convicted of a murder of the first degree… shall be sentenced

to death or a term of life imprisonment…[]”), superseded, relative to juvenile

offenders, by 18 Pa.C.S.A. § 1102.1; 61 Pa.C.S.A. § 6137(a)(1) (stating that

the Board of Probation and Parole cannot release on parole any inmate

serving life imprisonment). For the conviction of attempted murder, the trial

court imposed a concurrent sentence of six to twenty years’ imprisonment.4

       Appellant filed a timely post-sentence motion, which the trial court

denied. Appellant appealed to this Court, arguing, among other things, that

the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S.

551 (2005), made the sentence of mandatory life imprisonment without the

possibility of parole for a juvenile unconstitutional.    Commonwealth v.
____________________________________________


4
  Aggravated assault merged with attempted murder for purposes of
sentencing.



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Batts, 974 A.2d 1175 (Pa. Super. 2009) (unpublished memorandum at 12)

(Batts I), vacated, 66 A.3d 286 (Pa. 2013) (Batts II).           In Batts I, this

Court noted that Roper did not apply to this case because Roper held that

the   imposition   of   the   death   penalty    on   juvenile   offenders   was

unconstitutional under the Eighth and Fourteenth Amendments, but did not

prohibit sentencing juveniles to life imprisonment, and Appellant in this case

had received a mandatory life sentence.         Id., citing Commonwealth v.

Wilson, 911 A.2d 942, 946 (Pa. Super. 2006).           Notably, this Court also

rejected Appellant’s claim that due process required the sentencing court to

consider evidence of mitigating factors before imposing a sentence of life

without parole on a juvenile. Id. at 15-16, citing Summer v. Shuman, 483

U.S. 66, 76 (1987) (requiring the sentencing court to consider mitigating

evidence before imposing the death penalty), and Harmelin v. Michigan,

501 U.S. 957, 994-995 (1991) (holding the sentencing court does not have

to consider mitigating evidence before sentencing an adult to a mandatory

term of life imprisonment without parole). Accordingly, this Court affirmed

Appellant’s judgment of sentence of mandatory life imprisonment without

the possibility of parole.

      Our Supreme Court granted allowance of appeal to consider both

whether Roper rendered Appellant’s sentence unconstitutional and whether

the mandatory nature of the life without parole sentence offended the Eighth

and Fourteenth Amendments. Batts II, supra at 290. The Court held the


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case pending the United States Supreme Court’s decision in Graham v.

Florida, 560 U.S. 48 (2009). Id. After the Supreme Court issued Graham,

holding that sentencing juvenile non-homicide offenders to life imprisonment

without the possibility of parole violates the Eighth Amendment, our

Supreme Court heard argument in this case.         Id.   Following argument,

however, the Court again reserved consideration pending the disposition of

Miller v. Alabama and Jackson v. Hobbs, --- U.S. ---, 132 S. Ct. 2455

(2012), which were argued together before the United States Supreme

Court. On June 25, 2012, the United States Supreme Court announced its

decision in Miller, holding “that the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without the possibility of parole for

juvenile offenders.”   Miller, supra at 2469, citing Graham, supra at 74.

While the Court declined to categorically ban the sentence of life without

parole for juveniles, the Court explained that it believed that such a

sentence would be “uncommon.” Id. Nonetheless, the Court confirmed that

its holding “d[id] not foreclose a sentencer’s ability to make that judgment in

homicide cases, [but] we require it to take into account how children are

different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison.” Id. (footnote omitted).

      The decision in Miller unequivocally rendered Appellant’s mandatory

life without parole sentence unconstitutional. Therefore, our Supreme Court

instructed the parties in this case to submit supplemental briefs, addressing


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J-A21019-15


the appropriate remedy for a Miller violation on direct appeal generally and

the relief due to Appellant, as a 14-year-old convicted of first-degree murder

specifically. Batts II, supra at 293.

      On October 25, 2012, while Batts II was awaiting decision, a new

statutory sentencing scheme for juveniles convicted of murder, Section

1102.1, took effect.   See 18 Pa.C.S.A. § 1102.1.      Section 1102.1 is our

legislature’s response to Miller, but applies only to juveniles who were

convicted of murder on or after June 25, 2012, the date Miller was issued.

Id. § 1102.1(a).   The sentencing scheme in Section 1102.1(a) separates

juveniles who have been convicted of first-degree murder into two

categories based on their age. Id. Those who were younger than 15 at the

time of the first-degree murder are subject to either life imprisonment

without parole, or a term of imprisonment that is at a minimum 25 years to

life. Id. § 1102.1(a)(2). On the other hand, those who were 15 to 18 years

old must be sentenced to either life imprisonment without parole or a term

of at least 35 years to life. Id. § 1102(a)(1). The new statute provides that

the sentencing court must make findings on the record regarding a number

of factors related to the nature of the offense and the offender’s

characteristics, including specific age-related characteristics, when deciding

whether to impose life without parole on a juvenile. Id. § 1102.1(d).

      However, the new Section 1102.1 did not apply to Appellant because

Appellant was convicted of murder in 2007, before the effective date of


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J-A21019-15


Section 1102.1.   Instead, Appellant was subject to the version of Section

1102 that was in effect at the time of his sentencing. Accordingly, in Batts

II, our Supreme Court examined “the appropriate remedy for the Eighth

Amendment violation that, under Miller, occurred when Appellant was

mandatorily sentenced to life imprisonment without the possibility of parole

upon his conviction for first-degree murder[]” in context of the then-existing

statutory scheme in Section 1102. Batts II, supra.

      In Batts II, our Supreme Court explained that Miller’s holding is

narrow, i.e., mandatory sentences       of life imprisonment without the

possibility of parole are not constitutional when imposed on juveniles

convicted of murder.     It accordingly rejected Appellant’s argument that

Miller rendered Section 1102 unconstitutional in its entirety as applied to

juveniles, reasoning as follows.

            Section 1102, which mandates the imposition of a
            life sentence upon conviction for first-degree murder,
            see 18 Pa.C.S. § 1102(a), does not itself contradict
            Miller; it is only when that mandate becomes a
            sentence of life-without-parole as applied to a
            juvenile offender—which occurs as a result of the
            interaction between Section 1102, the Parole Code,
            see 61 Pa.C.S. § 6137(a)(1), and the Juvenile Act,
            see 42 Pa.C.S. § 6302—that Miller’s proscription
            squarely is triggered.        Miller neither barred
            imposition of a life-without-parole sentence on a
            juvenile categorically nor indicated that a life
            sentence with the possibility of parole could never be
            mandatorily imposed on a juvenile. Rather, Miller
            requires only that there be judicial consideration of
            the appropriate age-related factors set forth in that
            decision prior to the imposition of a sentence of life


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J-A21019-15


            imprisonment without the possibility of parole on a
            juvenile.

Batts II, supra at 295-296 (some citations omitted). The Court also noted

that it would not expand the holding of Miller absent a common law history

or a legislative directive.   Id. at 296 (citation omitted).   Accordingly, our

Supreme Court remanded to the trial court with instructions to consider the

following age-related factors in resentencing Appellant.

                  [A]t a minimum [the trial court] should
                  consider a juvenile’s age at the time of the
                  offense, his diminished culpability and capacity
                  for change, the circumstances of the crime, the
                  extent of his participation in the crime, his
                  family, home and neighborhood environment,
                  his emotional maturity and development, the
                  extent that familial and/or peer pressure may
                  have affected him, his past exposure to
                  violence, his drug and alcohol history, his
                  ability to deal with the police, his capacity to
                  assist his attorney, his mental health history,
                  and his potential for rehabilitation.

            [Commonwealth v.] Knox, 50 A.3d [732,] 745
            [(Pa. Super. 2012)] (citing Miller, []132 S. Ct. at
            2455) [(remanding for resentencing a juvenile who
            had previously received a mandatory life without
            parole sentence in violation of Miller, and instructing
            trial court to resentence juvenile to either life with
            parole or life without parole), appeal denied, 69 A.3d
            601 (Pa. 2013)]. We agree with the Commonwealth
            that the imposition of a minimum sentence taking
            such factors into account is the most appropriate
            remedy for the federal constitutional violation that
            occurred when a life-without-parole sentence was
            mandatorily applied to Appellant.

Batts II, supra at 297 (first brackets in original).




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J-A21019-15


      Justice Baer authored a concurring opinion, joining in the majority’s

decision to “remand[] the case to the trial court for it to resentence

Appellant based upon his individual circumstances to a sentence of life

imprisonment either with the possibility of parole or without the possibility of

parole for his conviction of first[-]degree murder committed when he was a

fourteen year old juvenile.” Id. at 299-300 (Baer, J., concurring). Justice

Baer further opined that, to achieve uniformity in sentencing, trial courts

should be guided by Section 1102.1 in resentencing juveniles whose life

without parole sentences violated Miller, but would not otherwise be

resentenced under Section 1102.1 because they were convicted before

Miller was decided. Id. at 300 (Baer, J., concurring).

      On May 2, 2014, after a two-day sentencing hearing, the trial court

reimposed a sentence on Appellant of life imprisonment without the

possibility of parole. In doing so, the trial court explained that it considered

appropriate age-related factors in accordance with Miller as instructed by

the Batts II majority, and it also took guidance from Section 1102.1 as

suggested by Justice Baer’s concurring opinion.          Trial Court Opinion,

8/27/14, at 14, quoting N.T., 5/2/14, at 3-8. The trial court noted that in

preparation for the resentencing hearing, it had reviewed the record; trial




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J-A21019-15


transcripts;5 the parties’ sentencing memoranda; an October 11, 2013

presentence investigation report; a July 26, 2013 report by forensic

psychologist Dr. Kraus; two reports by forensic psychiatrist Dr. Michals of

January 16, 2007 and March 12, 2014; a January 12, 2007 report by

forensic psychologist Dr. Samuel; a November 21, 2013 report by forensic

psychologist Dr. Dattilio, a defense expert; a December 31, 2013 sentencing

memorandum by Dana Cook, a defense expert; and an October 29, 2013

letter from Delores Howell, murder victim Edwards’ grandmother.

        Moreover, at the resentencing hearing, the trial court received the

following evidence.        The Commonwealth presented Lieutenant Thomas

Serbin, Howell, and Dr. Michals.          Lieutenant Serbin interviewed Appellant

when he was transferred to State Correctional Institution (SCI) Retreat in

2009.     Serbin testified that Appellant admitted that he was a Blood and

frequently associated with other Bloods in prison.         Id. at 19-20.   Howell

spoke of the impact of the murder of her grandson on her and her family.

Id. at 25.

        Dr. Michals, a forensic psychiatrist, testified that Appellant committed

the murder consciously, to gain the acceptance of the Bloods.          Id. at 26.

Dr. Michals opined that it is possible for a juvenile to change while maturing,

____________________________________________


5
  At the time of remand, the Honorable William F. Moran, who presided over
Appellant’s 2007 trial, had retired. The president judge reassigned the case
for resentencing to the Honorable Michael J. Koury, Jr.



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J-A21019-15


but that altering basic personality traits is very difficult. Id. Specifically, he

testified that Appellant’s basic traits, including anger, instability, impulsivity,

poor judgment, and his need to see himself as strong, have persisted over

time and are resistant to change.            Id.      Accordingly, Dr. Michals concluded

that Appellant is not amenable to treatment or rehabilitation. Id.

      On the other hand, Appellant presented Dr. Dattilio, the defense’s

forensic psychologist. Dr. Dattilio testified that Appellant was susceptible to

gang influence because he did not have any strong familial bonds during

childhood.   Id. at 20.        Dr. Dattilio further explained that Appellant knew

killing was wrong, but his youth and inexperience inhibited his judgment.

Id.   Dr. Dattilio related generally that the consensus of research on brain

development was that brains of 14-year-olds are not fully formed, which

contributes to an inability to make sound judgments. Id. at 21. Dr. Dattilio

ultimately   opined     that    Batts    would        be   amenable   to   treatment   and

rehabilitation   even     though        he    showed       some   hardened     personality

characteristics, including narcissism and antisocial behavior. Id. at 22.

      Similarly, the trial court read a letter written by Gregory Troxell,

principal of Appellant’s middle school and high school, in which Troxell stated

that Appellant had taken responsibility for his crimes and worked to

rehabilitate himself.     Id. at 23-24.          Likewise, Appellant’s mother read a

letter in which she admitted Appellant lacked appropriate parenting.                   She




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J-A21019-15


further asserted that Appellant has matured during his time in prison and

now deserves a second chance. Id. at 24.

      Appellant, testifying on his behalf, apologized to the victim’s family for

killing Edwards and stated that he felt he had grown into “a very mature

young man.”    Id. at 24-25, quoting N.T., 5/1/14, at 170-171.         Appellant

also denied being an active gang member. Id. at 25.

      The trial court analyzed this evidence according to the sentencing

factors listed in Section 1102.1, Section 9721(b) of the Sentencing Code,

and the age-specific factors listed in Knox, as well as additional factors the

trial court found relevant. Id. at 28-57; see also 18 Pa.C.S.A. 1102.1(d)

(listing considerations when determining to impose a sentence of life without

parole on a juvenile); 42 Pa.C.S.A. § 9721(b) (stating general sentencing

principles); Knox, supra (providing 13 age-related factors for deciding

whether to sentence a juvenile to life without parole).      In total, the trial

court explained its analysis of 23 factors. Trial Court Opinion, 8/27/14, at

44-57. The trial court then weighed the 23 factors, noting that some were

not in Appellant’s favor and others were in his favor. Id. at 57-61.

      Specifically, the trial court found the following factors were not in

Appellant’s favor: the premeditated, brutal, and senseless nature of the

shootings; that Appellant acted alone; Appellant acted without justification

as his duress defense was not credible; the particular vulnerability of the two

unarmed and unsuspecting teenage victims; Appellant’s lack of cooperation


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with the police; the impact of the crimes on the victims and community; the

need to avoid minimizing the seriousness of the crimes; the uncertainty of

Appellant’s amenability to treatment; and the need to protect the public.

Id.   On the other hand, the trial court explained that a number of factors

were in Appellant’s favor, such as his childhood experiences; his age of 14;

his lack of a criminal record and his regular school attendance; expert

opinions that his psychological condition could improve; and the lack of

evidence that he engaged in any violent gang-related activity in prison. Id.,

quoting, N.T., 5/2/14, at 56-65.         Further, the trial court considered “the

extent to which [Appellant’s] youth and immaturity, his troubled childhood,

his need for acceptance, and his desire to prove himself contributed to his

crime.    We have considered those factors, including the disruption and

emotional pain Mr. Batts suffered as a child.”            Id. at 60, quoting, N.T.,

5/2/14, at 56-65.

       After weighing all of the sentencing factors, the trial court “conclude[d]

that the factors not in [Appellant’s] favor significantly outweigh[ed] the

factors in his favor.” Id. at 61, quoting, N.T., 5/2/14, at 65. Accordingly,

on May 2, 2014, the trial court reimposed a sentence of life without parole

on    Appellant   and   a   concurrent    sentence   of    ten   to   twenty   years’

imprisonment on the attempted murder conviction.                 Id., quoting, N.T.,

5/2/14, at 65-68.




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       On May 12, 2014, Appellant filed post-sentence motions, which the

trial court denied the next day. On June 10, 2014, Appellant filed a timely

notice of appeal.6

       On appeal, Appellant presents three issues for our review.

              1.     Whether the evidence was insufficient to
                     establish beyond a reasonable doubt that
                     [Appellant] is one of the rare incorrigible
                     juveniles who deserve a life without parole
                     sentence?

              2.     Whether        [Appellant]’s       re-sentencing
                     proceeding was unconstitutional because it
                     provided him with fewer procedural safeguards
                     than an adult facing capital punishment?

              3.     Whether the [Appellant]’s sentence of life
                     without parole violated the Pennsylvania
                     Supreme Court’s directive that Defendant be
                     sentenced to “a mandatory maximum sentence
                     of life imprisonment as required by Section
                     1102(a), accompanied by a minimum sentence
                     determined by the common pleas court upon
                     resentencing?”

Appellant’s Brief at 4, quoting Batts II, supra at 297 (footnote omitted).

       Appellant’s first claim purportedly presents a challenge to the

sufficiency of the evidence to support the trial court’s imposition of a life

without the possibility of parole sentence.           Appellant’s Brief at 48.

Specifically, Appellant contends that this appeal is an opportunity for us to

create a different standard of review and burden of proof in cases of
____________________________________________


6
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A21019-15


juveniles receiving sentences of life without parole, because this Court has

not yet reviewed the pre-Miller discretionary imposition of a life without

parole sentence on a juvenile.          Id.    Appellant invites us to heighten our

standard of review from the “abuse of discretion” standard under which we

review all other criminal sentences and instead provide a de novo standard

of review for sentences of life without parole imposed on juveniles using a

“beyond a reasonable doubt” burden of proof, which is ordinarily reserved

for review of death sentences. Id. at 47, 49-50. Such standard of review,

Appellant reasons, enforces a presumption against imposing life without

parole on a juvenile and implements the suggestion in Miller that, “we think

appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon.”7           Id. at 49, quoting, Miller, supra at 2466.

Accordingly, Appellant contends in reviewing a sentence of life without

parole imposed on a juvenile, our standard of review should be de novo, our

scope of review should be plenary, and our standard of proof should be that

the Commonwealth must show beyond a reasonable doubt that Appellant is

one of the rare juveniles who is “incorrigible.” Id. at 52.

____________________________________________


7
  The Juvenile Law Center, the Defender Association of Philadelphia, and the
Pennsylvania Association of Criminal Defense Lawyers have collectively filed
an amici brief on behalf of Appellant. It reiterates Appellant’s contention
that Miller contained a presumption against a sentence of life without parole
for a juvenile, that we must implement, to guide the common pleas courts
tasked with determining whether to sentence a juvenile to life without
parole. Amici Brief at 16-22.



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       Presuming that we will conduct a de novo review of whether the

Commonwealth presented evidence sufficient to show beyond a reasonable

doubt that Appellant is incorrigible, Appellant proceeds to contest the weight

the trial court gave the evidence it reviewed in resentencing Appellant to life

without parole. Id. at 55-89. Specifically, Appellant contends that the trial

court gave too much weight to the Commonwealth’s expert, Dr. Michals,

who opined Appellant was not amenable to rehabilitation. Id. at 55-59. In

contrast, Appellant maintains that three other experts concluded that

Appellant’s    development        since    he   committed   the   murder   showed

rehabilitation was possible.          Id. at 59-64.     Appellant then points to

statements of the trial court that, taken in isolation, arguably do not lead to

a conclusion that Appellant is incorrigible. Id. at 64-65. Further, Appellant

argues that the trial court improperly rejected several mitigating factors,

including duress, gang affiliation, peer pressure, youth, immaturity, and

youthful incompetence in dealing with law enforcement. Id. at 65-85. In

addition, Appellant contends the trial court erred in finding that his prison

record was an aggravating factor.8 Id. at 85-86.

       In response, the Commonwealth asserts that Appellant’s first issue is

actually a challenge to the discretionary aspects of his sentence, and, as
____________________________________________


8
  Similarly, the amici brief contends that the trial court improperly gave too
much weight to the circumstances of the homicide and other aggravating
factors and not enough weight to the mitigating factors, including Appellant’s
youth and immaturity. Amici Brief at 26-50.



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such, Appellant did not preserve the issue on appeal. Commonwealth’s Brief

at 7.    Specifically, the Commonwealth argues that this Court has treated

challenges to the imposition of a sentence of life without parole on a juvenile

as going to the discretionary aspects of a sentence.        Id. at 19, citing,

Commonwealth v. Seagraves, 103 A.3d 839 (Pa. Super. 2014), appeal

denied, 116 A.3d 604 (Pa. 2015).        As a challenge to the discretionary

aspects of Appellant’s sentence, the Commonwealth asserts Appellant did

not preserve the issue because his brief does not include a concise

statement of reasons relied on under Pennsylvania Rule of Appellate

Procedure 2119(f). Id. at 21.

        We agree with the Commonwealth. In Batts II, our Supreme Court

instructed the trial court to resentence Appellant after considering age-

related factors. Batts II, supra. Specifically, our Supreme Court explained

that “Miller requires only that there be judicial consideration of the

appropriate age-related factors set forth in that decision prior to the

imposition of a sentence of life imprisonment without the possibility of parole

on a juvenile.” Id. at 296, citing Miller, supra at 2467-2468. The Batts II

Court then noted that the appropriate age-related factors for the trial court

to consider were contained in Knox.          Id. at 297, citing Knox, supra.

Appellant contends we should go beyond the affirmative constitutional

holdings of Miller and Batts II to impose a heightened burden of proof, and

a corresponding more stringent appellate review, in juvenile life without


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parole cases, akin to death penalty cases. Absent a specific directive from

our Supreme Court or the General Assembly to do so, we decline to expand

the narrow holding in Miller. See PA. CONST. art. V, § 10(c) (providing our

Supreme Court has the exclusive “power to prescribe general rules

governing practice, procedure and the conduct of all courts”); Batts II,

supra at 296, 299 n.6 (stating the Court’s refusal to go beyond the “actual

constitutional command [of] Miller’s binding holding,” and noting the

legislature’s superior position to implement legal standards to address social

policy concerns); see also 18 Pa.C.S.A. § 1102.1 (providing that post-

Miller, before imposing a sentence of life without parole on a juvenile, the

court should consider age-related factors).

      Accordingly, we review Appellant’s challenge to the trial court’s

weighing of sentencing factors, including those age-related ones, as a

challenge to the discretionary aspects of his sentence.     See Seagraves,

supra at 842 (reviewing a juvenile appellant’s challenge to a life without

parole sentence reimposed on remand following Miller and Batts II for an

abuse of discretion); see also Commonwealth v. Zeigler, 112 A.3d 656,

662 (Pa. Super. 2015) (noting a discretionary aspects challenge based on a

claim of an excessive sentence along with an assertion that the trial court

did not consider a mitigating factor may present a substantial question);

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (treating a

claim challenging the weight the trial court gave to various sentencing


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factors as one going to the discretionary aspects of the sentence).       A

challenge to the discretionary aspects of a sentence is not appealable as of

right; instead, an appellant must petition for permission to appeal.

Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015).        We evaluate the following factors to

determine whether to grant permission to appeal a discretionary aspect of

sentencing.

              Before we reach the merits of this issue, we must
              engage in a four part analysis to determine: (1)
              whether the appeal is timely; (2) whether Appellant
              preserved his issue [at sentencing or in a motion to
              reconsider and modify sentence]; (3) whether
              Appellant’s brief includes a concise statement of the
              reasons relied upon for allowance of appeal with
              respect to the discretionary aspects of sentence [as
              required by Pennsylvania Rule of Appellate Procedure
              2119(f)]; and (4) whether the concise statement
              raises a substantial question that the sentence is
              appropriate under the sentencing code. The third
              and fourth of these requirements arise because
              Appellant’s attack on his sentence is not an appeal
              as of right. Rather, he must petition this Court, in
              his [Rule 2119(f)] concise statement of reasons, to
              grant consideration of his appeal on the grounds that
              there is a substantial question.      [I]f the appeal
              satisfies each of these four requirements, we will
              then proceed to decide the substantive merits of the
              case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013). Further, “[i]f a

defendant fails to include an issue in his Rule 2119(f) statement, and the

Commonwealth objects, then the issue is waived and this Court may not


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review the claim.”        Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.

Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).

       In this appeal, Appellant filed a timely notice of appeal and preserved

his claims in his timely post-sentence motion. However, Appellant’s brief did

not contain a Rule 2119(f) concise statement of the reasons relied upon for

allowance of appeal. The Commonwealth, in its brief, objected to Appellant’s

failure to include a Rule 2119(f) statement in his brief.    Commonwealth’s

Brief at 21-22. Hence, we are precluded from addressing the discretionary

aspects claim.9 See Edwards, supra; Karns, supra.

       In his second issue, Appellant asserts that he was entitled to the same

procedural due process afforded to an adult facing capital punishment under

the Eighth Amendment and Article I, Section 13 of the Pennsylvania

Constitution. Appellant’s Brief at 89. Our Supreme Court has explained our

standard of review for procedural due process claims as follows.
____________________________________________


9
  In his reply brief, Appellant asserts that “[t]he omission of a Rule 2119(f)
statement is not fatal if the presence or absence of a substantial question
can easily be determined from the appellant’s brief.” Appellant’s Reply Brief
at 3, citing Commonwealth v. Davis, 734 A.2d 879, 882 n.4 (Pa. Super.
1999). Appellant’s reliance on Davis is misplaced and actually supports our
conclusion that we may not review Appellant’s claim.           In Davis, the
Commonwealth did not object to the lack of a Rule 2119(f) statement. Id.
The Davis court noted, “if the Commonwealth had raised an objection to the
Appellant’s failure to include a Rule 2119(f) statement in his brief, we would
be precluded from addressing the merits of a challenge to the discretionary
aspects of sentencing.” Id., citing Commonwealth v. Minnich, 662 A.2d
21, 24 (Pa. Super. 1995). In this case, the Commonwealth objected to
Appellant’s failure to include a Rule 2119(f) statement; therefore, we are
precluded from addressing the claim. Id.



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                  A due process inquiry, in its most general
            form, entails an assessment as to whether the
            challenged proceeding or conduct offends some
            principle of justice so rooted in the traditions and
            conscience of our people as to be ranked as
            fundamental and that define[s] the community’s
            sense of fair play and decency. While not capable of
            an exact definition, basic elements of procedural due
            process are adequate notice, the opportunity to be
            heard, and the chance to defend oneself before a fair
            and impartial tribunal having jurisdiction over the
            case.

Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008) (brackets in

original; internal citations and quotation marks omitted).

      Specifically, Appellant contends a juvenile facing a sentence of life

imprisonment without parole is entitled to the same due process as an adult

facing the death penalty, namely the right to be sentenced by a jury, a

burden of proof weighted against the Commonwealth, the requirement of a

unanimous verdict, and automatic review by our Supreme Court. Appellant’s

Brief at 93. Appellant bases his argument on the procedure for sentencing

adults to the death penalty given in Section 9711 of the Sentencing Code as

well as the United States Supreme Court’s opinion in Graham v. Florida,

560 U.S. 48, 69-70 (2010), which compared life without parole to the death

penalty. Id.

      We conclude Appellant’s argument lacks merit. We cannot discern any

constitutional due process basis or statutory ground to provide juveniles

facing life imprisonment without parole with the same procedural due

process protections as adults facing the death penalty. Indeed, the Miller

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Court concluded that a mandatory sentence of life without parole for a

juvenile    was    unconstitutional   because    “Graham,     Roper,   and     our

individualized sentencing decisions make clear that a judge or jury must

have the opportunity to consider mitigating circumstances before imposing

the harshest possible penalty for juveniles.”          Miller, supra at 2475

(emphasis added). In Miller, however, the Court did not hold that a specific

procedure to consider age-related factors was constitutionally required.

      Further, in Batts II, our Supreme Court stated that it was determining

“the appropriate remedy for the Eighth Amendment violation that, under

Miller,    occurred   when   Appellant   was    mandatorily   sentenced   to   life

imprisonment without the possibility of parole upon his conviction for first-

degree murder.” Batts II, supra at 293. It remanded with instructions to

the common pleas court to resentence Appellant after considering the

factors listed in Knox. Id. at 297. It did not instruct the trial court as to a

heightened burden of proof or different procedure for considering those age-

related factors.

      Moreover, while Appellant is not entitled to a sentence under the new

sentencing scheme in Section 1102.1 because he was convicted before its

effective date, we find our legislature’s response to Miller instructive.

Section 1102.1(d) instructs the court to make certain findings, including

age-related factors, on the record in determining whether to impose a

sentence of life without parole on a juvenile.       18 Pa.C.S.A. § 1102.1(d);


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accord Batts II, supra at 300 (Baer, J., concurring) (encouraging the trial

court to apply Section 1102.1 to resentence Appellant).

      Therefore, we find no constitutional due process ground or statutory

support for Appellant’s argument that the procedure in Section 9711 should

apply to his resentencing.   Cf. Seagraves, supra at 850 (concluding the

trial court did not abuse its discretion in reimposing a life without parole

sentence on juvenile); Knox, supra (instructing the trial court on remand to

consider listed age-related factors in deciding whether to sentence juvenile

to life with or without the possibility of parole).   Accordingly, Appellant’s

argument is without merit because the trial court followed the procedure

outlined by our Supreme Court to resentence Appellant after considering

age-related factors. Batts II, supra at 297.

      In his third issue, Appellant argues that his sentence was illegal

because the trial court did not adhere to the instructions of our Supreme

Court that it impose “a mandatory maximum sentence of life imprisonment

as required by Section 1102(a), accompanied by a minimum sentence

determined by the common pleas court upon resentencing.”              Appellant’s

Brief at 94, quoting Batts II, supra.

      Our standard of review for examining the legality of a sentence on

appeal is as follows.

            A challenge to the legality of a sentence   … may be
            entertained as long as the reviewing        court has
            jurisdiction. It is also well-established   that if no
            statutory authorization exists for a         particular

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J-A21019-15


              sentence, that sentence is illegal and subject to
              correction. An illegal sentence must be vacated.
              Issues relating to the legality of a sentence are
              questions of law[.] … Our standard of review over
              such questions is de novo and our scope of review is
              plenary.

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and quotation marks omitted).

        In this case, Appellant was subject to a sentence of life without parole

pursuant to Section 1102(a) following his conviction for first-degree murder.

Before Miller, life without parole was mandatory for a first-degree murder

conviction in Pennsylvania.     Miller held a sentence of life without parole

could not be mandatory for juveniles. Our Supreme Court specifically held

that Miller did not render Section 1102(a) unconstitutional.           Batts II,

supra at 295-296. Further, Miller did not prohibit either the imposition of a

sentence of life without parole or even a mandatory sentence of life with

parole for a juvenile.    Batts II, supra at 296.       Instead, “Miller requires

only that there be judicial consideration of the appropriate age-related

factors … prior to the imposition of a sentence of life imprisonment without

the possibility of parole on a juvenile.”      Id., citing Miller, supra at 2467-

2468.      Our Supreme Court noted that its holding in Batts II was

coextensive with the protections announced in Miller. Id. (citation omitted)

(refusing to expand the narrow holding of Miller).

        Despite this, Appellant contends that his sentence was illegal because

our Supreme Court, in Batts II, categorically precluded the imposition of a

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J-A21019-15


sentence of life without parole on juveniles convicted of first-degree murder

prior to the effective date of Section 1102.1. In arguing that the trial court

is required to impose a minimum sentence (i.e., a sentence of life with

parole), Appellant reads one sentence of our Supreme Court’s opinion in

Batts II in isolation and contends that it required the trial court to impose a

minimum sentence (i.e., a sentence of life with parole). We decline to read

Batts II as categorically prohibiting a sentence of life without parole for

juveniles sentenced before Miller, which would afford those juveniles a

greater protection than the United States Supreme Court held was

constitutionally necessary in Miller, a result that our Supreme Court

specifically condemned.   Id.   It would also subject the juveniles convicted

before Miller was decided and Section 1102.1 was effective to a lesser

sentence than those convicted after Miller and subject to Section 1102.1.

We decline to interpret Miller and Batts II as categorically prohibiting a

sentence of life without parole for juveniles, such as Appellant, convicted of

murder before Miller was issued. See Batts II, supra at 296; see also id.

at 300 (Baer, J., concurring) (stating that the Court’s decision was to

“remand[] the case to the trial court for it to resentence Appellant based

upon his individual circumstances to a sentence of life imprisonment either

with the possibility of parole or without the possibility of parole…[]”).

Therefore, we conclude that the trial court herein imposed a legal sentence,

consistent with Miller and Batts II, of life without parole after considering


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Appellant’s    individual   circumstances,       including   his      age-related

characteristics.

      Based on the foregoing, we conclude all of Appellant’s issues are

without merit or not preserved.     Accordingly, we affirm the May 2, 2014

judgment of sentence.

      Judgment of sentence affirmed.

      Judge Allen joins this opinion.

      Justice Fitzgerald files a concurring and dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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