J-A02017-18
                                2018 PA Super 197
    COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
    RICKY L. OLDS                        :
                                         :
                    Appellant            :   No. 1772 WDA 2016

          Appeal from the Judgment of Sentence November 21, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006857-1979,
                           CP-02-CR-0007090-1979


BEFORE: BOWES, OLSON and KUNSELMAN, JJ.

OPINION BY OLSON, J.:                                 FILED JULY 3, 2018

       In 1980, Appellant, Ricky L. Olds, was convicted of second-degree

murder and subsequently sentenced to a mandatory term of life imprisonment

without the possibility of parole (“LWOP”). During the incident in question,

Appellant’s co-conspirator shot and fatally wounded a patron while robbing a

tobacco store. At that time, Appellant was 14 years old. After the Supreme

Court of the United States’ decisions in Miller v. Alabama, 567 U.S. 460

(2012)1 and Montgomery v. Louisiana, 136 S.Ct. 718 (2016),2 Appellant




1 In Miller, the Supreme Court of the United States held that sentencing
juvenile homicide offenders capable of rehabilitation to LWOP violates the
Eighth Amendment.

2In Montgomery, the Supreme Court of the United States held that the rule
announced in Miller applied retroactively to cases on collateral review.
J-A02017-18


received a new sentencing hearing.     At the new sentencing hearing on

November 21, 2016, the trial court sentenced Appellant to 20 years to life

imprisonment. Appellant appeals from that judgment of sentence arguing that

the maximum term of life imprisonment imposed upon a juvenile convicted of

second-degree murder violates the Eighth Amendment of the United States

Constitution3 as interpreted by Miller and Montgomery.

     We hold that a mandatory life maximum for a juvenile convicted of

second-degree murder is not cruel and unusual punishment. In so doing, we

explain why this Court’s interpretation of 18 Pa.C.S.A. § 1102(b) in

Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super. 2017) was legally

correct and why it does not foreclose Appellant’s constitutional challenge.

Accordingly, we affirm.

     The factual background of this case is as follows. In the early morning

hours of October 9, 1979, Appellant (who was 14 years old), Claude Bonner

(“Bonner”) (who was 18 years old), and Tommy Allen (“Allen”) (who was 16

years old) were driving around Pittsburgh, Pennsylvania.    Allen suggested




3 “The Eighth Amendment [of the United States] Constitution[ is] applicable
to the States through the Due Process Clause of the Fourteenth
Amendment[.]” Baze v. Rees, 553 U.S. 35, 47 (Roberts, C.J., opinion
announcing the judgment of the court) (citation omitted). Although Appellant
does not raise a claim under Article I, Section 13 of the Pennsylvania
Constitution, we note that “[t]he Pennsylvania prohibition against cruel and
unusual punishment is coextensive with the Eighth and Fourteenth
Amendment of the United States Constitution.” Commonwealth v. Bonner,
135 A.3d 592, 597 n.18 (Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa.
2016) (citation omitted).


                                   -2-
J-A02017-18


robbing Fort Wayne Cigar Store and Appellant agreed with this plan. When

they entered the store, Allen and Appellant witnessed Thomas Bietler

(“Bietler”) make a purchase and noticed that he possessed a significant

amount of United States currency. Allen followed Bietler from the store and

shot him three times. Bietler died as a result of the attack. Bonner, Allen,

and Appellant then fled the scene.

        The procedural history of this case is as follows.   On April 2, 1980,

Appellant was convicted of second-degree murder,4 robbery,5 and criminal

conspiracy.6 On April 28, 1981, the trial court reluctantly sentenced Appellant

to the then-mandatory term of LWOP for the second-degree murder

conviction.7   On direct appeal, this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Olds, 469 A.2d 1072 (Pa. Super. 1983).

        On August 24, 1984, Appellant filed a pro se petition pursuant to the

Post-Conviction Hearing Act (“PCHA”), 42 Pa.C.S.A. § 9541 et seq. (West

1984).8 Counsel was appointed and filed an amended petition. On March 9,

1990, the PCHA court denied the petition. This Court vacated that decision




4   18 Pa.C.S.A. § 2502(b) (West 1980).

5   18 Pa.C.S.A. § 3701(a)(1)(i) (West 1980).

6   18 Pa.C.S.A. § 903 (West 1980).

7 The trial court believed a LWOP sentence was unjust; however, it was
required to impose that sentence.

8   The PCHA was the predecessor to the Post-Conviction Relief Act.


                                      -3-
J-A02017-18


and remanded for an evidentiary hearing.        Commonwealth v. Olds, 589

A.2d 1176 (Pa. Super. 1991) (unpublished memorandum).               Our Supreme

Court reversed, holding that Appellant was not entitled to an evidentiary

hearing and the dismissal of Appellant’s PCHA petition should be reinstated.

Commonwealth v. Olds, 606 A.2d 898 (Pa. 1992) (per curiam).

      On July 13, 2010, Appellant filed a pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On October 15,

2015, the PCRA court dismissed the petition. This Court affirmed and our

Supreme Court denied allowance of appeal.        Commonwealth v. Olds, 32

A.3d 845 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 34

A.3d 828 (Pa. 2011). On August 20, 2012, Appellant filed a second pro se

PCRA petition.    In it, Appellant alleged that his LWOP sentence was

unconstitutional in light of Miller. Counsel was appointed. However, after

our   Supreme    Court   held   that   Miller   did   not   apply   retroactively,

Commonwealth v. Cunningham, 81 A.3d 1, 9–11 (Pa. 2013), the PCRA

court dismissed the petition.     This Court affirmed the denial of relief.

Commonwealth v. Olds, 134 A.3d 108, 2015 WL 6509158 (Pa. Super. 2015)

(unpublished memorandum).        While Appellant’s petition for allowance of

appeal was pending, the Supreme Court of the United States issued

Montgomery. Therefore, our Supreme Court granted allowance of appeal

and vacated this Court’s order affirming the dismissal of Appellant’s petition.

Commonwealth v. Olds, 133 A.3d 3 (Pa. 2016) (per curiam). Subsequently,



                                       -4-
J-A02017-18


this Court reversed the PCRA court’s order dismissing Appellant’s petition and

remanded for resentencing. Commonwealth v. Olds, 145 A.3d 778, 2016

WL 1436935 (Pa. Super. 2016) (unpublished memorandum).

      On remand, the trial court resentenced Appellant to 20 years to life

imprisonment with credit for over 37 years of time served.9 Appellant did not

file a post-sentence motion. This timely appeal followed.10

      Appellant presents one issue for our review:

      Did the [trial] court err [in] holding that it was required to impose
      a life maximum on an individual who did not kill or intend to kill?

Appellant’s Brief at 2.

      Appellant’s lone appellate issue challenges the legality of his sentence.11

Challenges to the legality of a sentence present pure questions of law;

therefore, our standard of review is de novo and our scope of review is




9 This made Appellant immediately eligible for parole and he has since been
granted parole.

10 On December 16, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On January 4, 2017, Appellant filed his concise statement.
On April 19, 2017, the trial court issued its Rule 1925(a) opinion. Appellant’s
lone appellate issue was included in his submission.

11 Although Appellant included in his brief a statement of reasons for
permitting an appeal of the discretionary aspects of his sentence pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f), he did not challenge the
discretionary aspects of his sentence in a post-sentence motion or at the
sentencing hearing. Accordingly, any challenge to the discretionary aspects
of his sentence is waived. See Commonwealth v. Machicote, 172 A.3d
595, 602 (Pa. Super. 2017) (citation omitted).



                                      -5-
J-A02017-18


plenary. Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. Super.

2017) (citation omitted).

       Appellant cites two reasons to support his claim that the trial court was

not required to impose life imprisonment as a maximum sentence. First, he

contends that the governing statutes do not mandate a maximum sentence of

life imprisonment because, in light of Miller, no valid sentencing scheme

exists for juveniles convicted of second-degree murder prior to June 25, 2012.

Second, he contends that, to the extent the statutes require such a sentence,

they are unconstitutional when applied to juveniles who did not kill or intend

to kill.12   The Commonwealth argues that the disposition of both of these

claims is controlled by Seskey.

       We first address Appellant’s argument that the trial court was not

statutorily required to sentence him to a maximum term of life imprisonment.

We agree with the Commonwealth that our decision in Seskey controls this

question because it is almost on all fours with the present case. In Seskey,




12  Appellant’s conviction involved second-degree murder. In such cases,
intent to kill is inferred from the commission of a felony. Commonwealth v.
DeHart, 516 A.2d 656, 669 (Pa. 1986) (citation omitted). Appellant offers
no argument to alter the legal consequences, such as inferred intent to kill,
that flow from a second-degree murder conviction. Instead, Appellant
appears to argue, strictly for sentencing purposes, that intent to kill may not
be inferred for juveniles because they have diminished capacity to appreciate
outcomes. Appellant does not explain how or why when fixing a sentence trial
courts can set aside the legal consequences that flow from a second-degree
murder conviction. Thus, his assertion that he did not intend to kill seems
questionable, at best.



                                      -6-
J-A02017-18


the defendant was convicted of first-degree murder prior to June 25, 2012,

i.e., prior to the effective date of 18 Pa.C.S.A. § 1102.1 (which sets forth the

mandatory minimum and maximum sentences for juveniles convicted of first

and second-degree murder). After Montgomery, Seskey was resentenced to

13 to 26 years’ imprisonment. The Commonwealth appealed and this Court

vacated the judgment of sentence and remanded for imposition of a sentence

which included a maximum term of life imprisonment. In so doing, this Court

held “that our Supreme Court’s recent decision in Commonwealth v. Batts,

163 A.3d 410 (Pa. 2017) (‘Batts II’) requires that an individual convicted of

first or second-degree murder for a crime committed as a minor be sentenced

to a maximum term of life imprisonment.” Seskey, 170 A.3d at 1105-1106

(footnote omitted).

      In his brief, Appellant argues that this holding was too broad and that

the language regarding second-degree murder was dicta.         In Seskey, this

Court quoted Batts II as follows:

      For those defendants [convicted of first or second-degree murder
      prior to June 25, 2012] 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[.]

Seskey, 170 A.3d at 1108 (internal alterations in original), quoting Batts II,

163 A.3d at 421.




                                     -7-
J-A02017-18


        Appellant notes that Batts II was a case in which the defendant

received a maximum sentence of life imprisonment for first-degree murder.

Our Supreme Court, in Batts II, did not confront a situation in which a

juvenile had been convicted of second-degree murder. Thus, according to

Appellant, Batts II should not extend to juveniles convicted of second-degree

murder and Seskey’s statement incorrectly implies that it did.         Appellant

therefore contends that the above quoted passage was not an accurate

representation of our Supreme Court’s Batts II decision.

        We conclude that Seskey’s holding is a correct statement of the law

with respect to juveniles convicted of second-degree murder prior to June 25,

2012. To understand why, a brief review of sections 110213 and 1102.114 is



13Section 1102 mandates that any individual convicted of first-degree murder
prior to June 25, 2012 be sentenced to death or life imprisonment and any
individual convicted of second-degree murder prior to June 25, 2012 be
sentenced to life imprisonment. It further mandates that, after June 24, 2012,
any person 18 years of age or older convicted of first-degree murder be
sentenced to death or life imprisonment and any person 18 years of age or
older convicted of second-degree murder be sentenced to life imprisonment.
See 18 Pa. C.S.A. § 1102(a) and (b).

14   As this Court explained in Seskey:

        Section 1102.1 provides that an individual between the ages of 15
        and 17 years old convicted of first-degree murder after June 24,
        2012 must be sentenced to a maximum term of life imprisonment.
        The minimum term of imprisonment for such an offender can be
        set anywhere from 35 years to life, i.e., LWOP. Section 1102.1
        further provides that an individual under 15 years old convicted of
        first-degree murder after June 24, 2012 must be sentenced to a
        maximum term of life imprisonment. The minimum term of



                                       -8-
J-A02017-18


necessary. On June 24, 2012, the Supreme Court of the United States issued

Miller. Thereafter, our General Assembly enacted section 1102.1 and made

it retroactive for juveniles convicted of first or second-degree murder after

June 24, 2012. Moreover, our General Assembly amended section 1102 to

clarify that it does not apply to juveniles convicted of first or second-degree

murder after June 24, 2012.      Section 1102, therefore, applies to adults

convicted of first or second-degree murder and juveniles convicted of first or

second-degree murder prior to June 25, 2012.       Section 1102.1 applies to

juveniles convicted of first or second-degree murder after June 24, 2012.

Hence, sections 1102 and 1102.1 must be read in pari materia.             See

Commonwealth v. Anderson, 169 A.3d 1092, 1102 (Pa. Super. 2017),

citing 1 Pa.C.S.A. § 1932.

      Although Batts II was a case governed by section 1102(a) (which

mandates a defendant convicted of first-degree murder be sentenced to life




      imprisonment for such an offender can be set anywhere from 25
      years to life, i.e., LWOP.

      Section 1102.1 provides that an individual between the ages of 15
      and 17 years old convicted of second-degree murder after June
      24, 2012 must be sentenced to a maximum term of life
      imprisonment. The minimum term of imprisonment for such an
      offender [must be at least 30 years]. Section 1102.1 further
      provides that an individual under 15 years old convicted of
      second-degree murder after June 24, 2012 must be sentenced to
      a maximum term of life imprisonment. The minimum term of
      imprisonment for such an offender [must be at least 20 years].

Seskey, 170 A.3d at 1108 (internal citations omitted).


                                     -9-
J-A02017-18


imprisonment), the same statutory construction principles apply to section

1102(b) (which mandates a defendant convicted of second-degree murder be

sentenced to life imprisonment). First, the text of the two sections is almost

identical. Section 1102(a) provides that “a person who has been convicted of

a murder of the first degree or of murder of a law enforcement officer of the

first degree shall be sentenced to death or to a term of life imprisonment[.]”

18 Pa.C.S.A. § 1102(a)(1). Section 1102(b) similarly provides that “a person

who has been convicted of murder of the second degree . . . or of second

degree murder of a law enforcement officer shall be sentenced to a term of

life imprisonment.”   18 Pa.C.S.A. § 1102(b).    “Absent contrary indication,

words that have a clear meaning in one place are interpreted the same

throughout a statutory section.”      Frank Burns, Inc. v. Interdigital

Commc’ns Corp., 704 A.2d 678, 681 (Pa. Super. 1997), appeal denied, 724

A.2d 935 (Pa. 1998) (citation omitted). In Batts II, our Supreme Court held

that the words in section 1102(a) have a clear meaning, i.e., a person

convicted of first-degree murder must be sentenced to a mandatory minimum

of life imprisonment.   Because there is no indication that the words in

subsection (b) have a contrary meaning, section 1102(b) must be interpreted

to require a maximum sentence of life imprisonment for juveniles convicted

of second-degree murder.

      Other tools of statutory interpretation produce the same result.

Subsequent to Miller, our General Assembly enacted 18 Pa.C.S.A. § 1102.1



                                    - 10 -
J-A02017-18


which governs the sentencing of juveniles convicted of first or second-degree

murder after June 24, 2012.         In determining whether section 1102(a)

mandated a life maximum in Batts II, our Supreme Court found persuasive

the fact that section 1102.1(a) maintains a mandatory life maximum for

juveniles convicted of first-degree murder. See Batts II, 163 A.3d at 442-

443. Similarly, section 1102.1(c) maintains a mandatory life maximum for

juveniles convicted of second-degree murder.           18 Pa.C.S.A. § 1102.1(c).15

Section 1102.1(c) merely sets the mandatory minimum term of imprisonment

for juveniles convicted of second-degree murder lower than that for those

convicted of first-degree murder. Compare 18 Pa.C.S.A. § 1102.1(a) with 18

Pa.C.S.A. § 1102.1(c). Hence, the General Assembly’s enactment of section

1102.1(c) also indicates that juveniles convicted of second-degree murder

must be sentenced to a maximum term of life imprisonment.

     Throughout Batts II, our Supreme Court emphasized that section

1102(a) is constitutionally sound.       Our Supreme Court held that it is the

interaction of section 1102(a) with 61 Pa.C.S.A. § 6137(a)(3) (which bars

parole   for   individuals   sentenced    to   life   imprisonment)   that   causes

constitutional problems when applied to juvenile offenders. See Batts II,

163 A.3d at 439-441. Thus, our Supreme Court held that the appropriate

remedy is to exempt juveniles convicted of first-degree murder prior to June


15Section 1102.1(c) does not differentiate between those juveniles who killed
or intended to kill and those that were convicted under accomplice or co-
conspirator liability theories.


                                     - 11 -
J-A02017-18


25, 2012 from the mandates of section 6137(a)(3). See id. at 439. In other

words, the mandatory imposition of LWOP upon juveniles was deemed

unconstitutional. Batts II, however, kept in place the requirements of section

1102(a), i.e., that juveniles convicted of first-degree murder must be

sentenced to a maximum term of life imprisonment. See id. at 439-441.

      Seskey implicitly held that there was no reason to follow a different

approach when assessing the constitutionality of section 1102(b).        As our

Supreme Court did in Batts II with respect to section 1102(a), we hold that

it is not the term of life imprisonment that makes applying section 1102(b) to

juvenile offenders unconstitutional.     Instead, it is the mandatory nature of

that punishment when section 6137(a)(3) (which prohibits parole) is applied

that raises constitutional concerns.      Thus, section 6137(a)(3) cannot be

applied to juveniles convicted of second-degree murder prior to June 25,

2012. In other words, such juveniles must be sentenced to a maximum period

of life imprisonment; however, they are eligible for parole after a term-of-

years specified by the trial court.

      Having set forth the correct statutory construction of section 1102(b),

we turn to Appellant’s argument that, with this construction, section 1102(b)

is unconstitutional when applied to juvenile offenders who did not kill or intend

to kill. Seskey did not address this constitutional challenge and, therefore,

we are not bound by Seskey when determining if section 1102(b) violates the

Eighth Amendment as interpreted by Miller. Thus, we next analyze whether



                                       - 12 -
J-A02017-18


application of section 1102(b), by itself and without resort to section

6137(a)(3), to juveniles convicted of second-degree murder prior to June 25,

2012, and who did not kill or intend to kill, constitutes cruel and unusual

punishment.

        Appellant’s argument is primarily based on Justice Breyer’s concurring

opinion in Miller. The Supreme Court of the United States’ opinion in Miller

not only disposed of Miller’s appeal but also disposed of Kuntrell Jackson’s

(“Jackson’s”) challenge to a LWOP sentence following his conviction for capital

murder.     See Miller, 567 U.S. at 560.       Jackson was convicted of capital

murder under a co-conspirator theory of liability for a murder committed

during the course of an enumerated felony.             See id. at 567.      Like

Pennsylvania, Arkansas law provides that intent is inferred when a defendant

commits a homicide under such circumstances. See Ark. Code Ann. § 5-10-

101(a) (defining capital murder).

        Justice Breyer, writing for himself and Justice Sotomayor, opined that if

Arkansas

        continues to seek a sentence of life without the possibility of
        parole for [] Jackson, there will have to be a determination
        whether Jackson killed or intended to kill the robbery victim. In
        my view, without such a finding, the Eighth Amendment as
        interpreted in Graham [v. Florida, 560 U.S. 48 (2010)16] forbids
        sentencing Jackson to such a sentence, regardless of whether its
        application is mandatory or discretionary under state law.




16   Graham prohibits sentencing juveniles to LWOP for nonhomicide offenses.


                                      - 13 -
J-A02017-18


Miller, 567 U.S. at 489-490 (Breyer, J., concurring) (internal quotation

marks, alterations, and citation omitted; emphasis added).         According to

Appellant, this language indicates that a mandatory maximum sentence of life

imprisonment for juvenile homicide offenders who did not kill or intend to kill

violates the Eighth Amendment.

      This argument is without merit.          First, Justice Breyer authored a

concurring opinion, not the majority.         Thus, it is not binding authority.

Moreover, the plain language of Justice Breyer’s concurrence only references

LWOP sentences. There is nothing in Justice Breyer’s concurring opinion, or

any other opinion in Graham, Miller, or Montgomery, indicating that the

Eighth Amendment prohibits sentencing a juvenile convicted of homicide to a

maximum term of life imprisonment if he or she has a meaningful opportunity

for release based upon demonstrated maturity and rehabilitation.

      In essence, Justice Breyer suggested that juveniles convicted of second-

degree murder under an accomplice or co-conspirator theory of liability for

murders committed during the course of an enumerated felony are subject to

the rule set forth in Graham, and not the rule set forth in Miller, if they did

not join the conspiracy or agree to become an accomplice with the intent to

murder the victim.    Therefore, according to Justice Breyer, even if a state

labels a crime homicide (as Pennsylvania has done with second-degree

murder) that does not ipso facto permit the imposition of a discretionary LWOP

term. Instead, a juvenile must have killed or intended to kill to be eligible for



                                     - 14 -
J-A02017-18


a discretionary LWOP sentence under Miller. See Miller, 567 U.S. at 490

(Breyer, J., concurring) (“Given Graham’s reasoning, the kinds of homicide

that can subject a juvenile offender to [LWOP] must exclude instances where

the juvenile himself neither kills nor intends to kill the victim.”).

      Even assuming arguendo Justice Breyer’s concurring opinion is a correct

statement of the law,17 Appellant is not entitled to relief in this case. Graham

makes clear that “[a] State is not required to guarantee eventual freedom to

a juvenile offender convicted of a nonhomicide crime. What the State must

do, however, is give defendants . . . some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.” Graham, 560

U.S. at 75. In other words, consistent with the Eighth Amendment, a state

can set a mandatory maximum term of life imprisonment, even for

nonhomicide offenses, so long as it grants defendants the opportunity for

parole based upon demonstrated maturity and rehabilitation. That is exactly

what occurred in this case. Specifically, the trial court made Appellant eligible

for parole after 20 years’ imprisonment and credited him with over 37 years




17We note that the Supreme Court of Wyoming has held that Justice Breyer’s
Miller concurrence is not an accurate statement of the law. See Bear Cloud
v. State, 334 P.3d 132, 146 (Wyo. 2014); see also Hernandez v.
McDonald, 2015 WL 164707, *8 (C.D. Cal. Jan. 9, 2015) (holding that Justice
Breyer’s statements in his Miller concurrence are not clearly established
federal law).



                                      - 15 -
J-A02017-18


for time served. Thereafter, Appellant was granted parole based upon his

demonstrated maturity and rehabilitation.

      In reaching its conclusion that juveniles convicted of nonhomicide

offenses can be sentenced to life imprisonment, but not LWOP, the Supreme

Court of the United States explained that LWOP differs substantially from a

life sentence during which a defendant becomes eligible for parole. See id.

at 70, citing Solem v. Helm, 463 U.S. 277, 297 (1983). It concluded that

these significant differences meant that different rules should apply for

imposing LWOP sentences.       Despite its adoption of such principles, the

Supreme Court of the United States has never placed mandatory life

maximums beyond the authority of a sentencing court to impose, even in

nonhomicide cases.

      Nothing in Pennsylvania case law indicates that our Supreme Court (or

this Court) is prepared to expand Justice Breyer’s concurrence and prohibit

mandatory life maximums for juveniles who commit second-degree murder

but did not kill or intend to kill. The sole reference by our Supreme Court to

Justice Breyer’s concurrence in Miller was not an attempt to extend his

reasoning to life maximums. As noted above, in Commonwealth v. Batts,

66 A.3d 286 (Pa. 2013), our Supreme Court was presented with a first-degree

murder case that did not implicate the concerns expressed by Justice Breyer

in his Miller concurrence. Thus, our Supreme Court stated that

      despite the broad framing of the questions at hand, [Batts]
      confined his arguments to the context of first-degree murder;


                                    - 16 -
J-A02017-18


      hence,    the    issues   identified by   Justice   Breyer   in
      his Miller concurrence (discussing additional constitutional
      concerns connected with the imposition of [LWOP] sentences on
      juveniles convicted of murder as a result of participation in a
      felony who have neither killed nor intended to kill), are not
      implicated in the present matter.

Id. at 293-294 (internal citation omitted). Again, Justice Breyer’s concurrence

speaks only to LWOP sentences – not life maximums which allow for parole

eligibility based upon demonstrated maturity and rehabilitation.

      In the future, our nation’s standards of decency may evolve to the point

where sentencing a juvenile convicted of second-degree murder under an

accomplice or co-conspirator theory of liability is considered disproportionate

and, therefore, cruel and unusual punishment.         Cf. Commonwealth v.

Foust, 2018 WL 9889042018, *4-7 (Pa. Super. Feb. 21, 2018) (setting forth

the evolving standards of decency relating to the sentencing of juvenile

offenders).   Appellant does not cite a single appellate case,18 and we are

unaware of any, which have extended the Eighth Amendment this far.

Presently, mandatory life maximums for juveniles convicted of felony murder

represent conventional sentencing practices.     E.g., Ark. Code Ann. § 5-4-


18 Appellant’s only citation to a case which has extended Miller in this regard
is Songster v. Beard, 201 F.Supp.3d 639 (E.D. Pa. 2016). We find Songster
unavailing. Songster does not directly cite to Graham a single time. As we
have set forth above, Graham addresses whether parole boards may make
the ultimate determination that an individual has demonstrated the requisite
maturity and rehabilitation to deserve release. See Graham, 560 U.S. at 75.
Hence, we do not agree with Songster and hold that it is not binding authority
in Pennsylvania. See Century Indem. Co. v. OneBeacon Ins. Co., 173
A.3d 784, 792 n.14 (Pa. Super. 2017) (citation omitted) (“decisions of the . . .
federal district courts . . . are not binding on this Court”).


                                     - 17 -
J-A02017-18


104(b); Ga. Code Ann. § 16-5-1(e)(1); Md. Code, Crim. Law, § 2-201(b)(1).

Our society deems the taking of a life, either directly or as an accomplice or

co-conspirator, sufficiently grievous as to require that the defendant not be

entitled to release without first going through the parole process. Accordingly,

we hold that the Eighth Amendment permits imposition of section 1102(b)’s

mandatory maximum term of life imprisonment for juveniles convicted of

second-degree murder, who did not kill or intend to kill. In this case, Appellant

was made eligible and received a meaningful opportunity for release as he

was paroled after resentencing. Accordingly, his sentence does not constitute

cruel and unusual punishment.

        In sum, we reaffirm that trial courts must sentence juveniles convicted

of second-degree murder prior to June 25, 2012 to a maximum term of life

imprisonment under section 1102(b).           We hold that such mandatory

maximums do not violate the Eighth Amendment’s ban on cruel and unusual

punishment. As such, we affirm Appellant’s judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2018




                                     - 18 -
