J-A18016-18
                              2018 PA Super 346


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                                           :
                                           :
                     v.                    :
                                           :
                                           :
TRISTAN STAHLEY                            :
                                           :
                Appellant                  :        No. 3109 EDA 2017

                Appeal from the PCRA Order August 28, 2017
   in the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0005026-2013

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

CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:                    FILED

DECEMBER 19, 2018

      I join the Majority opinion denying relief with respect to Appellant’s

ineffective-assistance-of-counsel claim. However, because Commonwealth

v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II) announced a substantive change

in the law, it therefore applies to Appellant retroactively. Accordingly, I would

vacate Appellant’s sentence and remand for a new sentencing hearing

applying Batts II.

      Here, the Majority concludes that our Supreme Court in Batts II

“devised a procedural scheme by which to implement” Miller v. Alabama,

567 U.S. 460 (2012); therefore, it is not required to be applied retroactively.

Majority at 21. Batts II, however, is more than merely procedural. Instead,



* Retired Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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it concludes specifically, that in order to apply Miller constitutionally, there

must be a

      presumption against the imposition of a sentence of life without
      parole for a defendant convicted of first-degree murder committed
      as a juvenile…. To rebut the presumption, the Commonwealth has
      the burden to prove, beyond a reasonable doubt, that the juvenile
      offender is permanently incorrigible and thus is unable to be
      rehabilitated. Consistent with the mandate of Miller and
      Montgomery, for a life-without-parole sentence to be
      constitutionally valid, the sentencing court must find that the
      juvenile offender is permanently incorrigible and that
      rehabilitation would be impossible.

Batts II, 163 A.3d at 459.

      “Concerning the substantive/procedural dichotomy, substantive rules

are those that decriminalize conduct or prohibit punishment against a class of

persons.” Commonwealth v. Washington, 142 A.3d 810, 813 (Pa. 2016).

Batts II prohibits punishment against a class of persons, i.e. those juveniles

whom the Commonwealth has not proven beyond a reasonable doubt to be

permanently incorrigible. 163 A.3d at 476.

      In fact, this is essentially the position taken by two Justices in Batts II.

See Batts II, 163 A.3d at 460-61 (Wecht J., concurring) (pointing out that

despite the diligent efforts of the trial court to consider every factor in

sentencing Batts to an LWOP sentence, it “still fell short of the new

constitutional standard”).

      Based on the foregoing, I would vacate Appellant’s sentence and remand

for a new, constitutional sentencing hearing applying the presumption and

burden of proof required by Batts II.


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