J. A15033/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
WARNER E. BATTY,                          :         No. 1000 MDA 2017
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, June 6, 2017,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-MD-0001505-1975


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 14, 2018

        Appellant, Warner E. Batty, appeals from the June 6, 2017 judgment of

sentence entered by the Court of Common Pleas of York County relating to his

conviction of first-degree murder. After careful review, we affirm.

        The York City Police Department arrested appellant on February 6, 1975,

in connection with the death of Betty Bradford on February 1, 1975. Appellant

was 15 years old at the time of his arrest.      The Commonwealth charged

appellant with first, second, and third degree murder and voluntary

manslaughter.1     On November 25, 1975, appellant pled guilty to criminal

homicide. A three-judge panel of the trial court held a degree of guilt hearing

on April 14, 1976, and found appellant guilty of first and second-degree




1   18 Pa.C.S.A. §§ 2502 (a)-(c), 2503(a), respectively.
J. A15033/18

murder on April 21, 1976. The trial court sentenced appellant to a mandatory

minimum sentence of life imprisonment without possibility of parole.        Our

supreme court affirmed appellant’s judgment of sentence on direct appeal.

See Commonwealth v. Batty, 393 A.2d 435 (Pa. 1978).

        On June 25, 2012, the Supreme Court of the United States announced

its decision in Miller v. Alabama, 567 U.S. 460 (2012).         In Miller, the

High Court held that mandatory sentences of life imprisonment without the

possibility of parole for juvenile offenders violated the Eighth Amendment’s

prohibition against cruel and unusual punishment. Id. at 479. In light of

Miller, appellant filed a petition pursuant to the Post Conviction Relief Act 2

(“PCRA”). The trial court denied appellant’s petition, and we affirmed the trial

court’s denial on December 3, 2013.         See Commonwealth v. Batty,

No. 1789 MDA 2012, unpublished memorandum (Pa.Super. filed Dec. 3,

2013).

        The Supreme Court of the United States announced its decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), on January 25, 2016.

Therein, the Supreme Court applied its holding in Miller retroactively. Id. at

736. Appellant filed a PCRA petition pursuant to Montgomery on March 4,

2016, and a hearing was held on May 4, 2016, during which the trial court

granted appellant’s petition and ordered that he be resentenced pursuant to

Miller and Montgomery.        Simultaneously, appellant had filed a writ of


2   42 Pa.C.S.A. §§ 9541-9546.


                                     -2-
J. A15033/18

habeas corpus with the United States District Court for the Middle District of

Pennsylvania (“the Middle District”). On June 17, 2016, the Middle District

granted appellant’s writ of habeas corpus, in the form of an order directing

the trial court to resentence him pursuant to Miller and Montgomery.

      On June 6, 2017, the trial court sentenced appellant to 50 years to life

imprisonment, with credit for time served. On June 20, 2017, appellant filed

a notice of appeal to this court. The trial court ordered appellant to file a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b), and appellant complied on August 22, 2017. The trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a) on September 20, 2017.

      On May 22, 2018, appellant filed an application for relief in which he

requested that oral argument be cancelled and the case be remanded to the

trial court for an evidentiary hearing on the legality of his sentence.

Disposition of appellant’s application was deferred to the time of oral

argument.   On June 20, 2018, appellant’s application was denied and oral

argument was held.

      Appellant raises the following issues for our review:

            I.    Is a sentence of 50 years to life imprisonment
                  an illegal sentence, in violation of the United
                  States     Constitution,   the     Pennsylvania
                  Constitution, and      Pennsylvania’s   codified
                  statutory law?

            II.   Did the lower court illegally impose costs on the
                  appellant in light of the fact that all of the
                  litigation following the United State[s] Supreme
                  Court case of Miller v. Alabama resulted from


                                      -3-
J. A15033/18


                   an illegal sentence that was imposed on the
                   appellant [sic] in 1976 when he was a juvenile?

            III.   Did the lower court fail to resolve the question
                   of whether appellant’s case was properly in
                   court because of a petition for writ of habeas
                   corpus in the United States District Court or
                   because of a Post Conviction Relief Act motion?

Appellant’s brief at 3 (full capitalization omitted).

                                        I.

      In his first issue on appeal, appellant raises a claim pertaining to the

legality of his sentence.    “The determination as to whether a trial court

imposed an illegal sentence is a question of law; an appellate court’s standard

of review in cases dealing with questions of law is plenary.” Commonwealth

v. Crosley, 180 A.3d 761, 771 (Pa.Super. 2018), quoting Commonwealth

v. Rotola, 173 A.3d 831, 834-835 (Pa.Super. 2017). An appeal pertaining to

the legality of a sentence is nonwaivable. Commonwealth v. Foster, 17

A.3d 332, 345 (Pa. 2011).

      Appellant divides his first issue into four separate sub-issues. In his first

sub-issue, appellant avers that appellant’s original sentence of mandatory life

imprisonment without possibility of parole (“LWOP”) as a result of his July 9,

1976 judgment of sentence was illegal. In light of the Supreme Court of the

United States’ decisions in Miller and Montgomery, as detailed above, this

is beyond dispute.

      In his second and fourth sub-issues, which we shall combine for ease of

discussion, appellant contends that in light of the High Court’s decisions in


                                       -4-
J. A15033/18

Miller and Montgomery, Pennsylvania’s sentencing scheme for juveniles

convicted of first or second-degree murder pre-Miller is still illegal, and that

Pennsylvania lacks a statute authorizing the imposition of a sentence of

50 years to life imprisonment to a juvenile convicted of first-degree murder

pre-Miller. This issue has been addressed in great detail both by the Supreme

Court of Pennsylvania in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017),

and by this court in Commonwealth v. Foust, 180 A.3d 416 (Pa.Super.

2018). Specifically, our supreme court held as follows:

            For those defendants for whom the sentencing court
            determines a [LWOP] sentence is inappropriate, it is
            our determination here that they are subject 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[.]

Id. at 429, quoting Batts, 163 A.3d at 421. As noted by the Foust court, in

light of our supreme court’s decision in Batts, “there was valid statutory

authority to impose a maximum sentence of life imprisonment for [a]

first-degree murder conviction.” Id. at 430. Accordingly, appellant’s second

and fourth sub-issues are without merit.

      Finally, in his third sub-issue, appellant contends that the Batts court

“did not remedy the illegal mandatory sentencing scheme that remains in

place in Pennsylvania as it relates to juveniles convicted of murder of the first

degree or murder of the second degree before June 25, 2012.” (Appellant’s

brief at 16-20.) Based on our reading of appellant’s brief, it appears that



                                      -5-
J. A15033/18

appellant invites us to re-visit our supreme court’s determination in Batts.

We are constitutionally required to decline such an invitation.

      Indeed, this court has:

            no more authority than the trial court to overturn a
            prior decision of the Pennsylvania Supreme Court.
            See Walnut St. Assoc., Inc. v. Brokerage
            Concepts, Inc., [] 20 A.3d 468, 480 (Pa. 2011) (“it
            is beyond peradventure that the Superior Court must
            following [the Supreme] Court’s mandates . . .”).

Mut. Benefit Ins. Co. v. Politopoulos, 75 A.3d 528, 534 (Pa.Super. 2013),

affirmed on other grounds, 115 A.3d 844 (Pa. 2015). Further, the decision

announced by the Foust court is also binding, as we cannot overturn a

decision of a prior panel of this court. Commonwealth v. Pepe, 897 A.2d

463, 465 (Pa.Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008),

cert. denied, 555 U.S. 881 (2008), citing Commonwealth v. Hull, 705 A.2d

911, 912 (Pa.Super. 1998) appeal denied, 725 A.2d 179 (Pa. 1998).

      Therefore, we find that the trial court did not abuse its discretion when

it sentenced appellant to a term of 50 years to life imprisonment. Appellant’s

first issue is without merit.

                                       II.

      Appellant has explicitly waived and abandoned his second issue on

appeal. (Appellant’s brief at 24.)

                                      III.

      In his third and final issue on appeal, appellant avers that the trial court

erred when it did not indicate whether appellant was being resentenced


                                      -6-
J. A15033/18

pursuant to the relief granted by the trial court on his PCRA petition or the

relief granted by the Middle District pursuant to his writ of habeas corpus.

(Id.) Appellant requests that this case be remanded to the trial court so that

the trial court may make a determination as to whether appellant was

resentenced pursuant to the relief granted by the trial court on his PCRA

petition or the relief granted by the Middle District.    The Commonwealth

argues that this issue revolves around a “distinction without a difference.”

(Commonwealth’s brief at 19.) We agree.

      Our review of the record reveals that the trial court resentenced

appellant pursuant to his post-Montgomery PCRA petition. Indeed, as the

trial court noted in its Rule 1925(a) opinion,

            [O]n March 4, 2016, [a]ppellant through his counsel
            filed another PCRA petition, which was scheduled to
            be heard in front of [the Honorable Richard K.] Renn
            on May 4, 2016. At that hearing, sentencing was
            scheduled for October 27, 2016.

            During this interim, The Honorable Sylvia H. Rambo
            of the United States District Court for the Middle
            District of Pennsylvania ordered that “the petition for
            writ of habeas corpus is GRANTED and this case be
            remanded to the court of common pleas for
            resentencing in accordance with Miller and
            Montgomery.”[Footnote 47]

                  [Footnote 47] Order Remanding Case,
                  at 4, June 7, 2016, ECF No. 27, 1:14-cv-
                  01375-SHR.

            The October 27th hearing was rescheduled to
            February 28, 2017 based on a Motion for Additional
            Hearing Dates. Around January 2017, this case was
            transferred from Judge Renn to this Court. Upon


                                      -7-
J. A15033/18


            discussion with Judge Renn, Judge Renn clarified that
            the hearing and scheduling of the sentencing was a
            result of [appellant’s] PCRA Petition, which was first
            filed March 4, 2016. Though, Judge Rambo’s order
            dated June 7, 2016 orders that the case be
            resentenced.      It is unclear what other relief
            [a]ppellant implies she was ordering. Certainly, this
            order was not an instruction to release [appellant] or
            to only sentence on Murder of the Third Degree. The
            order was to resentence [a]ppellant consistent with
            the recent controlling case law. Regardless, through
            either procedural mechanism, [a]ppellant was
            resentenced pursuant to the controlling case and
            statutory law.

Trial court opinion, 9/20/17 at 22-23.

      Appellant’s requested relief is that we remand this case to the trial court

for a determination “on the question of whether [the trial court] granted

[appellant] relief under the Post Conviction Relief Act or pursuant to a Writ of

Habeas Corpus.” (Appellant’s brief at 27 (emphasis added).) For the above

reasons, appellant’s third issue is moot, as the record clearly reflects that he

was re-sentenced pursuant to his PCRA petition.

      Judgment of sentence affirmed. Application for relief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/18




                                      -8-
