J-S57044-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
NATHANIEL BUNDAY,                         :
                                          :
                 Appellant                :    No. 430 EDA 2018

          Appeal from the Judgment of Sentence December 29, 2017
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-14990-1994

BEFORE:     PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED DECEMBER 04, 2018

      Nathaniel Bunday (Appellant) appeals from the December 29, 2017

judgment of sentence imposed following a resentencing hearing pursuant to

Miller v. Alabama, 567 U.S. 460 (2012).1 We affirm.

      On August 27, 1994, just four [] months shy of his eighteenth []
      birthday, Appellant brutally attacked Kyle Ramage, who was
      already lying helpless on a Norristown sidewalk, by kicking and
      stomping on his head and face multiple times.            Medical
      personnel declared Mr. Ramage brain dead later that afternoon
      and removed him from life support the following morning. On
      January 26, 1995, a jury convicted Appellant of second-degree
      murder, aggravated assault, robbery, and criminal conspiracy.

Trial Court Opinion, 5/25/2018, at 1-2 (footnotes omitted). Appellant was

sentenced to a mandatory term of life imprisonment without the possibility

1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.” 567 U.S. at 465 (internal quotation marks omitted).


*Retired Senior Judge assigned to the Superior Court.
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of parole (LWOP) for second-degree murder, and a concurrent term of five to

ten years of incarceration for conspiracy.         On direct appeal, this Court

affirmed Appellant’s judgment of sentence.         Commonwealth v. Bunday,

678 A.2d 824 (Pa. Super. 1996) (unpublished memorandum).

        On December 5, 1996, Appellant filed his first petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Following a

hearing, the PCRA court denied Appellant’s petition, and this Court affirmed

the PCRA court’s order on August 10, 1998. Commonwealth v. Bunday,

726 A.2d 408 (Pa. Super. 1998) (unpublished memorandum).

        On July 19, 2012, Appellant filed his second PCRA petition, claiming

that his sentence was unconstitutional under Miller.2            The PCRA court

stayed the proceedings pending the disposition of several cases as to

whether Miller applied retroactively to cases on collateral review.         Order,

10/12/2012; Order, 1/10/2014; Order 8/13/2014.             On January 25, 2016,

the United States Supreme Court held that Miller applied retroactively to

cases on collateral appeal. Montgomery v. Louisiana, ___ U.S. ___, 136

S.Ct. 718 (2016).      Thus, on November 21, 2016, the PCRA court granted

Appellant’s PCRA petition and vacated his LWOP sentence.

        On December 29, 2017, after a hearing, the sentencing court

resentenced Appellant to 28 years to life imprisonment. No post-sentence


2   Appellant’s petition was filed within sixty days of the issuance of Miller.



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motion was filed. Appellant timely filed a notice of appeal.3 On appeal, he

challenges the legality and discretionary aspects of his sentence. Appellant’s

Brief at 6.

        Appellant first claims that his maximum sentence of life imprisonment

is illegal. Specifically, he argues that the sentencing court erred in relying

on, inter alia, Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018),

which held that a maximum sentence of life imprisonment is required for

juveniles convicted of second-degree murder pre-Miller, because he

believes that the case was decided erroneously. Appellant’s Brief at 11-16.

“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 quotations omitted).

        By way of background, our Supreme Court held that in re-sentencing a

juvenile defendant convicted of first-degree murder pre-Miller, a court may

sentence the defendant to LWOP only after finding him “permanently

incorrigible and that rehabilitation would be impossible[;]” otherwise, the

defendant shall be sentenced to life with the possibility of parole following a

minimum term-of-years sentence.       Commonwealth v. Batts (Batts II),

163 A.3d 410, 459-60 (Pa. 2017).        Neither our Supreme Court nor the

Pennsylvania General Assembly has addressed the resentencing procedure

3   Both Appellant and the sentencing court complied with Pa.R.A.P. 1925.


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for juveniles, like Appellant, who were convicted of second-degree murder

pre-Miller. Although Batts II involved a juvenile convicted of first-degree

murder, our Court has found no difference that would place a juvenile

convicted of second-degree murder outside the Batts II analysis.             See

Olds, 192 A.3d at 1194; Commonwealth v. Melvin, 172 A.3d 14, 21 n.3

(Pa. Super. 2017).    Accordingly, our Court in Olds held that “trial courts

must sentence juveniles convicted of second-degree murder prior to June

25, 2012 to a maximum term of life imprisonment[.]” 192 A.3d at 1198.

      On appeal, Appellant argues that because the holding in Batts II was

limited to juveniles convicted of first-degree murder, our Court misapplied

the required maximum term of life imprisonment to juveniles convicted of

second-degree murder. Thus, Appellant argues that “[w]hile a trial court is

not prohibited from imposing a life tail for second-degree murder, it is

erroneous to impose this sentence based on a misinterpretation that a life

tail is required under Batts….” Appellant’s Brief at 16.

      This Court rejected a claim almost identical to Appellant’s in Olds, and

specifically held that juveniles who committed second-degree murder pre-

Miller must be sentenced to a maximum term of life imprisonment.             192

A.3d at 1198. “It is beyond the power of a Superior Court panel to overrule

a prior decision of the Superior Court, except in circumstances where

intervening   authority   by   our   Supreme   Court   calls   into   question   a

previous decision of this Court.” Commonwealth v. Pepe, 897 A.2d 463,


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465 (Pa. Super. 2006) (citations omitted). Thus, our Court’s prior decision

in Olds is binding.4 See Pepe, 897 A.2d at 465. Accordingly, Appellant’s

claim is without merit.

      Appellant next claims that the trial court abused its discretion when it

considered Appellant’s failure to complete a violence prevention program in

fashioning his sentence because Appellant in fact had completed the

program.    Appellant’s Brief at 16-18.    Because this claim implicates the

discretionary aspects of Appellant’s sentence, we must first determine

whether Appellant has invoked this Court’s jurisdiction to review the merits

of this claim.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.            An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         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 Although we are bound by this Court’s holding in Olds, if we were writing
on a clean slate, because of the shakiness of the felony-murder rule, we
would permit juveniles convicted of second-degree murder pre-Miller to
argue for a maximum term-of-years sentence in lieu of a mandatory life tail.
See Com. ex rel. Smith v. Myers, 261 A.2d 550, 554-55 (Pa. 1970)
(detailing the “harsh criticism, most of it thoroughly warranted” of the
felony-murder rule, finding it “non-essential,” a doubtful deterrent, and “a
hold-over from the days of our barbarian Anglo-Saxon ancestors of pre-
Norman days, [having] very little right to existence in modern society[,]” so
as to “make clear how shaky are the basic premises on which [the rule]
rests”) (footnote and internal quotation marks omitted).


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         (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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant did not object at sentencing and did not file a post-

sentence motion. Id. (“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.”). Thus, we find his discretionary-

aspects-of-sentencing claim waived.5

      Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal that would convince us to

disturb his judgment of sentence.

      Judgment of sentence affirmed.

      Judge Panella joins the memorandum.

      Judge Platt concurs in the result.




5 Additionally, Appellant failed to include a statement pursuant to Pa.R.A.P.
2119(f) in his brief, and the Commonwealth has objected to this omission.
Commonwealth’s Brief at 15. See Commonwealth v. Roser, 914 A.2d
447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f) statement
does not automatically waive an appellant’s [discretionary aspects of
sentencing] argument; however, we are precluded from reaching the merits
of the claim when the Commonwealth lodges an objection to the omission of
the statement.”) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287
(Pa. Super. 2006)).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/4/18




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