J-S49010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    MALIK A. BEY,

                             Appellant                  No. 465 EDA 2019


       Appeal from the Judgment of Sentence Entered September 27, 2018
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1206614-1993


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

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 03, 2019

        Appellant, Malik A. Bey, appeals from the judgment of sentence of 27

years’ to life imprisonment, imposed after his original sentence of life

incarceration, without the possibility of parole (“LWOP”), was vacated as

unconstitutional pursuant to the United States Supreme Court’s decisions in

Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana,

136 S.Ct. 718 (2015). Appellant contends that the court’s imposition of a

mandatory-maximum sentence of life imprisonment is unconstitutional under

Miller and Montgomery. After careful review, we affirm.

        The trial court briefly summarized the facts of this case, as follows:
              [O]n September 3, 1992, [Appellant, who was 16 years old
        at the time,] and three others were driving around the East
        Germantown section of Philadelphia. While doing so, they saw
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S49010-19


      fifty-three-year-old Reather Beaufort sitting on her front porch
      and agreed to rob her. They all surrounded the victim and stole
      some personal items from her. They then returned to the car, at
      which time [A]ppellant retrieved two containers of gasoline. He
      then returned to the victim, splashed the gasoline on her, lit a
      match, and set her on fire. The victim died twenty-six days later.
      After being apprehended, [A]ppellant confessed to the crime. He
      indicated that he and his co-actors laughed about what they had
      done.

Trial Court Opinion, 3/6/19, at 1-2.

      On May 29, 1996, Appellant pled guilty to first-degree murder, criminal

conspiracy, arson, and robbery.        That same day, he was sentenced to a

mandatory term of LWOP. He did not appeal from his judgment of sentence.

      However, Appellant subsequently filed a petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, challenging the

legality of his LWOP sentence under Miller and Montgomery. In Miller, the

Supreme Court held that the imposition of a mandatory LWOP sentence upon

a juvenile violates the Eighth Amendment’s prohibition against cruel and

unusual punishment.     In Montgomery, the Court “declared Miller to be

retroactive, requiring states to extend parole eligibility to juvenile offenders

who committed their crimes pre-Miller.”       Commonwealth v. Ligon, 206

A.3d 1196, 1199 (Pa. Super. 2019), appeal denied, 207 EAL 2019 (Pa. 2019).

      In accordance with these decisions, the PCRA court granted Appellant’s

petition and vacated his LWOP sentence. On September 27, 2018, Appellant

was resentenced to a minimum term of 27 years’ incarceration, and a

mandatory-maximum term of life imprisonment.          He filed a timely post-

sentence motion that was denied by operation of law on February 4, 2019.


                                       -2-
J-S49010-19



He then filed a timely notice of appeal and complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. The court issued its Rule 1925(a) opinion on March 6, 2019. Herein,

Appellant states one issue for our review: “Is it unconstitutional to impose a

mandatory lifetime parole tail on all juvenile lifers being resentenced?”

Appellant’s Brief at 3.

      We begin by recognizing that, “[w]hen reviewing challenges to the

legality of a sentence, our standard of review is de novo and our scope of

review is plenary.” Ligon, 206 A.3d at 1198 (citation omitted).

      Appellant challenges the legality of his mandatory-maximum sentence

of life imprisonment, contending that it violates Miller and Montgomery,

which mandate that sentences for juvenile offenders be individualized.

Appellant further contends that the mandatory-maximum life sentence

“invariably provides the Parole Board with the ability to effectively impose a

life[-]without[-]parole sentence by the denial of parole.” Appellant’s Brief at

11. Relying on Songster v. Beard, 201 F.Supp.3d 639 (E.D.Pa. 2016), he

contends that “imposing a mandatory life maximum sentence ‘reflects an

abdication of judicial responsibility’ by ‘[p]assing off the ultimate decision to

the Parole Board in every case.’”      Id. at 11-12 (quoting Songster, 201

F.Supp.3d at 642). Notably, the Commonwealth agrees with Appellant that

his mandatory-maximum sentence of life imprisonment is unconstitutional

under Miller and Montgomery, and that we should follow the rationale of

Songster. See Commonwealth’s Brief at 4. However, the Commonwealth

                                      -3-
J-S49010-19



recognizes that this panel is bound by prior precedent to affirm Appellant’s

sentence. See id. at 5.

      We agree. In Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013)

(Batts I), our Supreme Court addressed the resentencing scheme for

juveniles who were convicted of first-degree murder prior to June 25, 2012

(the filing date of Miller). The Batts I Court held that,
      once a sentencing court evaluates the criteria identified in Miller
      and determines a LWOP sentence is inappropriate, it must impose
      a “mandatory[-]maximum sentence of life imprisonment as
      required by [s]ection 1102(a), accompanied by a minimum
      sentence determined by the common pleas court upon
      resentencing.” Our Supreme Court explained that § 1102 was still
      valid, since the unconstitutional part of Pennsylvania’s sentencing
      scheme, the lack of parole eligibility pursuant to [section]
      6137(a)(1), was severable.

Ligon, 206 A.3d at 1199.

      After Batts I, the United States Supreme Court decided Montgomery

and, thus, our Supreme Court revisited the resentencing framework in

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”). There,

“the Court reaffirmed its Batts I holding, and again stated that the trial court

must resentence defendants to either LWOP or a maximum term of life

imprisonment as required by [section] 1102(a).” Ligon, 206 A.3d at 1199

(emphasis added).

      As stated supra, the Commonwealth recognizes that, since Batts II,

“this Court has repeatedly upheld the sentencing of a juvenile defendant

convicted of first[-] or second-degree murder to a maximum term of life

imprisonment.” Commonwealth’s Brief at 5 (citing, inter alia, Ligon, supra,

                                     -4-
J-S49010-19



and Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super. 2017) (relying

on Batts II to uphold Seskey’s mandatory maximum sentence of life

imprisonment pursuant to section 1102(a)).

      While Appellant argues that Seskey did not address the arguments he

asserts herein, Ligon clearly found his same claims meritless. See Ligon,

206 A.3d at 1198-1201. Thus, we are bound by Ligon to affirm his judgment

of sentence. See Commonwealth v. Karash, 175 A.3d 306, 307 (Pa. Super.

2017) (“[A] panel of this Court cannot overrule the decision by another

panel.”).

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




                                  -5-
