                           [J-118-2016] [MO: Donohue, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 45 MAP 2016
                                               :
                     Appellee                  :   Appeal from the Order of the Superior
                                               :   Court dated September 4, 2015,
                                               :   reconsideration denied November 10,
              v.                               :   2015, at No. 1764 EDA 2014 Affirming
                                               :   the Judgment of Sentence of the
                                               :   Northampton County Court of Common
QU'EED BATTS,                                  :   Pleas, Criminal Division, dated May 2,
                                               :   2014 at No. CP-48-CR-0001215-2006.
                     Appellant                 :
                                               :   ARGUED: December 7, 2016


                      CONCURRING AND DISSENTING OPINION


JUSTICE BAER                                             DECIDED: June 26, 2017
       I join the Majority Opinion in substantial part and write separately to distance

myself in regard to one issue.

       In Section VI, the Majority rejects Appellant Batts’ legality of sentence claim in

which he seeks resentencing for third-degree murder based upon his assertion that

Pennsylvania’s first-degree murder sentencing scheme for juveniles is unconstitutional.

While I have no objection to the Majority’s merits analysis of the issue, which tracks and

expands this Court’s analysis of a similar issue in Commonwealth v. Batts, 66 A.3d 286

(Pa. 2013) (Batts I), I do not believe the issue is properly before the Court.

       Preliminarily, the issue of the constitutionality of the sentencing scheme for first-

degree murder for juveniles was decided by this Court in Batts I. Additionally, Appellant

failed to raise the issue in his current petition for allowance of appeal, resulting in waiver

under Pa.R.A.P. 1115(a)(3) (“Only the questions set forth in the petition, or fairly
comprised therein, will ordinarily be considered by the court in the event that an appeal

is allowed”). Moreover, after acknowledging his failure to raise the issue in his petition

for allowance of appeal and asserting that the issue constitutes a non-waivable legality

of sentence issue, Appellant fails to develop the issue in his initial brief to this Court;

indeed, in contravention of Pa.R.A.P. 2119(a) (requiring discussion and citation of

pertinent authorities), he did not even identify the statutory provision, which he now

claims is violated. Instead, he attempts to incorporate the argument developed in the

brief filed by the amicus curiae, the Pennsylvania Association of Criminal Defense

Lawyers (PACDL), in violation of this Court’s longstanding declarations that “[a]micus

cannot raise issues . . . which have not been preserved or raised by the parties,”

Commonwealth v. Allshouse, 36 A.3d 163, 179 n.18 (Pa. 2012), and that “incorporation

by reference is an unacceptable manner of appellate advocacy.” Commonwealth v.

Briggs, 12 A.3d 291, 342 (Pa. 2011) (internal quotations and citations omitted). 1

       Although I acknowledge that challenges to the legality of sentence are non-

waivable and in fact can be raised by a court sua sponte, I also recognize that a court is

not required to address every unpreserved legality of sentence issue. In this case, I

would have recommended denying review of this issue had Appellant raised it in his

petition for allowance of appeal given that we addressed a very similar issue in regard

to this defendant in 2013. Likewise, I would have declined to address the merits of the

issue in this Court’s opinion.

1
  Appellant devotes only one page of his over sixty page brief to this issue. While most
of Appellant’s discussion on this page addresses why this Court should decide this
issue, Appellant fails to explain what the issue is or provide any relevant analysis
beyond baldly asserting that we should reconsider our holding in Batts I rejecting his
claim that he should be sentenced to third-degree murder. Appellant then attempts to
“adopt” the argument of the PACDL contending that his sentence is illegal for failure to
abide by the statutory requirement that a minimum term of imprisonment may not
exceed one-half of the maximum term under 42 Pa.C.S. § 9756(b)(1). Brief at 62.



                            [J-118-2016] [MO: Donohue, J.] - 2
      Although I differ on this limited issue, I join the majority in large part, including the

procedure adopted in this case. I further observe that, under this procedure, nearly all

juvenile offenders will be deemed to have the potential for rehabilitation, given the high

bar which the Commonwealth must meet. Indeed, I believe it will be a rare case where

the Commonwealth will be able to overcome the presumption and meet the burden of

proving the impossibility of rehabilitation beyond a reasonable doubt, a high standard

which I wholeheartedly agree is required under Miller v. Alabama, 567 U.S. 460 (2012),

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Maj. Op. at 75-76.




                           [J-118-2016] [MO: Donohue, J.] - 3
