J-S82010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    DERRYS SANDERS, JR.,

                             Appellant                  No. 1 WDA 2017


        Appeal from the Judgment of Sentence Entered October 14, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002290-2015


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 14, 2018

        Appellant, Derrys Sanders, Jr., appeals from the judgment of sentence

of 35 years’ to life imprisonment, imposed after he pled guilty to first-degree

murder, committed when he was 14 years old. Appellant solely challenges

the discretionary aspects of his sentence on appeal. After careful review, we

affirm.

        Appellant summarizes the facts underlying his conviction as follows:

              Appellant’s [conviction] stems from events that occurred on
        July 11, 2015[,] that resulted in the death of eighteen (18) year
        old[] Jacob Pushinsky [hereinafter, “Jacob”].        Pursuant to
        testimony from [] Appellant’s preliminary hearing, Zachary
        Pushinsky [hereinafter, “Zachary”], [the] younger brother of



____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
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      Jacob, testified that he, Jacob and two other boys were riding
      bikes on the date of the incident.

            [Zachary] … testified that he lagged behind the three other
      boys riding bikes and eventually caught up to them in the area of
      Eighth (8th) and German Streets in Erie, Pennsylvania. When
      [Zachary] … approached the intersection, he … saw [] [A]ppellant
      pushing Jacob … up against a car. [Zachary] testified that he saw
      [] Appellant trying to get the bike away from Jacob … and was
      saying[,] “[g]ive me the bike.” [Zachary] ... further stated that
      after Jacob … did not respond to [] Appellant’s request for the
      bike, [] Appellant took out a gun from his pants and shot Jacob….
      [Zachary] was able to identify the person who shot Jacob … as []
      Appellant because he and [] Appellant had been in the same class
      together in 7th grade. [] Appellant was fourteen (14) years old on
      the date of the incident. Pursuant to the police report taken on
      the date of the incident, Jacob … passed away due to the gunshot
      wound on the same date.

Appellant’s Brief at 4-5 (citations to the record omitted).

      Appellant was arrested and charged as an adult.         He subsequently

moved to have his case transferred to the Juvenile Division of the Court of

Common Pleas of Erie County but, following a decertification hearing, the court

denied that motion. On August 12, 2016, Appellant pled guilty to first-degree

murder, and on October 14, 2016, he was sentenced to serve 35 years’ to life

incarceration.   Appellant filed a timely motion for reconsideration of his

sentence.   On December 6, 2016, the court issued an order and opinion

denying that motion.

      Thereafter, Appellant filed a timely notice of appeal. The court did not

direct him to file a Pa.R.A.P. 1925(b) statement, and on January 20, 2017,

the court issued a Rule 1925(a) opinion stating that it was relying on the




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rationale set forth in its December 6, 2016 opinion denying Appellant’s post-

sentence motion. Herein, Appellant raises one issue for our review:

        Whether the sentence of the trial court is contrary to 18 Pa.C.S.[]
        § 1102.1 and the holding in Commonwealth v. Batts[, 163 A.3d
        410 (Pa. 2017),] (Batts II)?

Appellant’s Brief at 3.

        We begin by noting that Appellant is challenging the trial court’s decision

to impose a minimum term of 35 years’ incarceration, which exceeds the 25-

year, mandatory minimum sentence set forth in 18 Pa.C.S. § 1102.1(a)(2).1

It is well-settled that,

        [c]hallenges to the discretionary aspects of sentencing do not
        entitle an appellant to review as of right. Commonwealth v.
        Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
        challenging the discretionary aspects of his sentence must invoke
        this Court’s jurisdiction by satisfying a four-part test:


____________________________________________



1   That provision states:

        (a) First degree murder.--A person who has been convicted
        after June 24, 2012, of a murder of the first degree, first degree
        murder of an unborn child or murder of a law enforcement officer
        of the first degree and who was under the age of 18 at the time
        of the commission of the offense shall be sentenced as follows:

                                           ***

           (2) A person who at the time of the commission of the
           offense was under 15 years of age shall be sentenced to a
           term of life imprisonment without parole, or a term of
           imprisonment, the minimum of which shall be at least 25
           years to life.

18 Pa.C.S § 1102.1(a)(2).


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        We conduct a four-part analysis to determine: (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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
     appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
     the discretionary aspects of a sentence are generally waived if
     they are not raised at the sentencing hearing or in a motion to
     modify the sentence imposed. Commonwealth v. Mann, 820
     A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
     A.2d 599 (2003).

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. Commonwealth v. Paul,
     925 A.2d 825, 828 (Pa. Super. 2007). 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.”
     Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

     Here, Appellant filed a timely notice of appeal, and he raised the within

claim in his post-sentence motion for reconsideration of his sentence.

Appellant also has set forth a Rule 2119(f) statement in his appellate brief,

thus satisfying the first three requirements for obtaining review of his

sentencing claim. However, we conclude that Appellant has not met the fourth

requirement of demonstrating that a substantial question exists. In his Rule

2119(f) statement, Appellant contends that his minimum sentence of 35



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years’ imprisonment is improper, because our Supreme Court in Batts II

stated that “[t]he sentencing court should fashion the minimum term of

incarceration using, as guidance, section 1102.1(a) of the Crimes Code.”

Batts II, 163 A.3d at 460. Appellant offers absolutely no discussion of how

the court’s sentencing decision was inconsistent with the Sentencing Code, or

contrary to the norms underlying the sentencing process. Thus, he has failed

to meet his burden of demonstrating that he is raising a substantial question

for our review.

      Nonetheless, even if Appellant had met this burden, we would conclude

that he is not entitled to sentencing relief. In regard to Appellant’s suggestion

that the trial court lacked the discretion to sentence him above the 25-year

mandatory minimum set forth in section 1102.1(a)(2), the plain language of

section 1102.1(e) defeats this claim. That provision states that, “[n]othing in

this section shall prevent the sentencing court from imposing a minimum

sentence greater than that provided in this section.” 18 Pa.C.S. § 1102.1(e).

      Additionally, the holding of Batts II did not limit the court’s discretion

in this regard.         There, our Supreme Court established a rebuttable

presumption against sentencing juveniles to life without parole. Batts II,

163 A.3d at 459. To rebut the presumption, the Commonwealth must prove

that the juvenile is “permanently incorrigible and thus is unable to be

rehabilitated.”   Id.     Here, Appellant did not receive a life-without-parole

sentence and, therefore, the holding of Batts II is inapplicable. Moreover,

the Batts II Court declared that sentencing courts should be guided by the

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minimum sentences contained in section 1102.1(a), supporting that courts

may deviate upwards from those baseline minimums. Id. at 460. Therefore,

the trial court’s imposition of a 35-year minimum sentence in Appellant’s case

does not violate the holding or rationale of Batts II.

      Finally, we also reject Appellant’s argument that, in imposing a lengthier

minimum sentence, the trial court “failed to consider the mitigating

circumstances and the rehabilitative possibilities of [] Appellant.” Appellant’s

Brief at 9. More specifically, Appellant argues that the court did not take into

account the fact that he accepted responsibility by pleading guilty, spared the

victim’s family from going through trial, showed remorse for his actions, and

had a mental health diagnosis of attention-deficit/hyperactivity disorder and

oppositional defiant disorder. Id.

      Preliminarily, this claim was not set forth in Appellant’s Rule 2119(f)

statement and, thus, Appellant has not demonstrated that it presents a

substantial question for our review. In any event, the record demonstrates

that the trial court did consider these mitigating circumstances, see Trial Court

Opinion, 12/6/16, at 3, but it found that other, aggravating factors weighed

more heavily and warranted a lengthier minimum sentence. Specifically, the

court explained:

      In the case at bar, the victim was, by all evidence, a fine young
      man who was killed at age 18 as he was about to graduate from
      high school. Most of his life was ahead of him and his future
      appeared bright. Needless to say, his close[-]knit family was
      devastated, especially his younger brother who was with him
      when he died and witnessed the shooting. The community was
      shocked and outraged that this crime occurred; an 18 year old

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        shot by a 14 year old in broad daylight on a city street, and over
        a bicycle. The nature of the offense was particularly appalling;
        the victim was chased down, refused to give up his bicycle, [and
        was] shot at point blank range while his brother stood helplessly
        by as [Appellant] then fled. And[,] as the Commonwealth has
        pointed out, [there was] no accomplice, [and] no peer pressure,
        just [Appellant] chasing, demanding, shooting and fleeing.
        Certainly [Appellant’s] culpability was clearly indicative of a cold
        and calculated disregard for anyone and anything but his own
        selfish desire to possess the victim’s bike and his willingness to
        use any means necessary (including the gun he was carrying) to
        obtain his objective, even at the expense of another young man’s
        life. No one else had any hand in the preparation, planning,
        commission or decision to carry[] out and commit this crime.
        [Appellant] alone was culpable for everything that transpired.

Id. at 1-2.

        Additionally, the court noted that it considered a pre-sentence report,

and Appellant’s “age-related characteristics, including the voluminous

information set forth at the decertification hearing….” Id. at 2. The court also

took into account Appellant’s “prior delinquent/criminal history[,]” which

“involve[d] a deadly weapon (knife), numerous problems at home and school,

and on prior supervision, as well as unsuccessful rehabilitation attempts.” Id.

at 3.

        After weighing both the mitigating and aggravating circumstances in this

case, the court determined that a 35-year, minimum sentence was warranted,

rather    than   the   25-year   mandatory    minimum     set   forth   in   section

1102.1(a)(2).     Given the record before us, we would discern no abuse of

discretion in the court’s decision, even had Appellant demonstrated that his

claims amounted to substantial questions for our review.

        Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2018




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