J-A15041-20

* Retired Senior Judge assigned to the Superior Court.

2021 PA Super 11

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

BRANDON K. SUMMERS,

 Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

No. 1966 EDA 2019

Appeal from the Judgment of Sentence Entered May 17, 2019

in the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0005890-2004

BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.: Filed: January 21, 2021

Brandon K. Summers (Appellant) appeals from the May 17, 2019 

judgment of sentence for second-degree murder, imposed following a 

resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012).1 

We affirm.

We provide the following background. On May 3, 2003, when he was 

17 years and 3 months old, Appellant was involved in the shooting death of 

John Lacey, a Widener University student, which occurred during the 

commission of a robbery outside of a tavern adjacent to the University. On 

December 8, 2005, a jury found Appellant guilty of second-degree murder 

 

1

In Miller, the United States Supreme Court held that a mandatory 

sentence of life imprisonment without the possibility of parole (LWOP) for 

those under the age of 18 at the time of their crimes violates the Eighth 

Amendment’s prohibition of cruel and unusual punishments. 567 U.S. at 

465.
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and robbery. On January 23, 2006, Appellant was sentenced to a 

mandatory term of LWOP for his second-degree murder conviction.2

Appellant filed a post-sentence motion, which the trial court denied. 

On June 21, 2006, Appellant filed a direct appeal.3 This Court affirmed 

Appellant’s judgment of sentence, and on February 27, 2009, our Supreme 

Court denied Appellant’s petition for allowance of appeal. Commonwealth 

v. Summers, 959 A.2d 974 (Pa. Super. 2008) (unpublished memorandum), 

appeal denied, 966 A.2d 571 (Pa. 2009).

On April 24, 2009, Appellant timely filed pro se a PCRA petition. 

Counsel was appointed and ultimately filed a Turner/Finley4 no-merit 

letter. The PCRA court dismissed Appellant’s petition on March 30, 2010. 

Appellant did not appeal that dismissal. Instead, on June 14, 2010, 

 

2 For sentencing purposes, the trial court merged Appellant’s convictions for

robbery and second-degree murder.

3 On February 21, 2007, Appellant pro se filed a petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On April 9, 2007, 

the PCRA court dismissed that petition, concluding it was prematurely filed 

because Appellant’s direct appeal was still pending. See Commonwealth 

v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (“A PCRA petition may only 

be filed after an appellant has waived or exhausted his direct appeal 

rights.”); see also 42 Pa.C.S.A. § 9545(b) (stating that a PCRA petition 

“shall be filed within one year of the date the judgment becomes final” and 

“a judgment of sentence becomes final at the conclusion of direct 

review[.]”).

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant pro se filed another PCRA petition, which was dismissed as 

untimely filed on November 19, 2010.

On July 23, 2012, Appellant pro se filed a fourth PCRA petition, 

claiming that his sentence was unconstitutional under Miller.

5

 The PCRA 

court appointed counsel and issued an order on August 23, 2013, holding 

the petition in abeyance pending the outcome of Commonwealth v. 

Cunningham, 81 A.3d 1 (Pa. 2013), as the Cunningham Court was to 

determine whether Miller was retroactively applicable to post-conviction 

collateral review petitioners. On October 30, 2013, the Cunningham Court 

determined Miller was not retroactively applicable. As a result, the PCRA 

court vacated its order holding the petition in abeyance, and ordered counsel 

to file an amended petition or a Turner/Finley no-merit letter. 

Accordingly, relying on Cunningham, PCRA counsel filed a no-merit letter, 

and the PCRA court permitted counsel to withdraw from the case. On April 

14, 2015, the PCRA court dismissed Appellant’s 2012 petition as untimely 

filed.

Appellant timely appealed to this Court, claiming that Miller applied 

retroactively to his case. While his appeal was pending, the United States 

Supreme Court held that Miller applied retroactively to cases on collateral 

review, essentially overruling Cunningham. Montgomery v. Louisiana, 

 

5 Appellant’s petition was filed within 60 days of the issuance of Miller.
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___ U.S. ___, 136 S.Ct. 718 (2016). Following that decision, this Court 

reversed the PCRA court’s order, vacated Appellant’s LWOP sentence, and 

remanded the matter for further proceedings. Commonwealth v. 

Summers, 144 A.3d 194 (Pa. Super. 2016) (unpublished memorandum). 

The resentencing court held a hearing on February 13, 2019. On May 

17, 2019, the resentencing court sentenced Appellant to 40 years to life 

imprisonment. Appellant timely filed a post-sentence motion for 

reconsideration of sentence, wherein he raised several claims, including a 

claim challenging the discretionary aspects of his sentence and a claim that 

the resentencing court imposed an impermissible de facto life sentence. The 

court denied his post-sentence motion on June 5, 2019.

Appellant timely filed a notice of appeal.6 Appellant’s appeal 

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

Brief at 5.

We begin by reviewing Appellant’s challenges to the discretionary 

aspects of his sentence.

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the 

following four factors:

 

6 Both Appellant and the resentencing court complied with Pa.R.A.P. 1925.
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(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. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019), 

quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 

2014).

Appellant has satisfied the first three requirements: he timely filed a 

notice of appeal, preserved the issue in a post-sentence motion, and 

included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at 

23-24. Thus, we now consider whether Appellant has raised a substantial 

question for our review.

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. 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.

DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant asserted four instances 

in which the resentencing court abused its discretion: (1) the sentence was 

unduly harsh and excessive because Appellant was a juvenile at the time of 

this crime and had mitigating circumstances; (2) the court ignored, 
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misapprehended, and misapplied the law; (3) the sentence was not justified 

by sufficient reasons; and (4) the sentence was the product of the court’s 

bias, prejudice, and ill will. Appellant’s Brief at 23-24 (reordered for ease of 

disposition).

Appellant has raised a substantial question with each of these claims.7 

See Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018)

 

7 Within Appellant’s claim that the resentencing court ignored, 

misapprehended, and misapplied the law, he presents a sub-issue that the 

resentencing court violated United States Supreme Court precedent when it 

considered victim impact statements regarding the appropriate sentence for 

Appellant at his resentencing hearing. Appellant’s Brief at 32. This claim is 

not within Appellant’s 2119(f) statement, and therefore, it is waived. 

Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) 

(citations omitted) (“[W]e cannot look beyond the statement of questions 

presented and the prefatory [Rule] 2119(f) statement to determine whether 

a substantial question exists.”).

Appellant also argues that the resentencing court conflated first- and 

second-degree murder, and “punished [him] as if the jury convicted him of 

[first-degree murder].” Appellant’s Brief at 30. Appellant did not raise this 

argument in his 2119(f) statement. Thus, it is also waived.

Even if he properly preserved this issue, Appellant’s claim lacks merit.

By way of background, at the evidentiary hearing, the resentencing court 

overruled the objection of Appellant’s counsel to the use of the term murder 

by the prosecutor, stating, “Second[-]degree murder is murder.” N.T., 

2/13/2019, at 86-87. When the resentencing court sentenced Appellant, it 

stated “The [c]ourt recognizes that the jury found [Appellant] guilty of 

second[-]degree murder and not guilty of the weapons charge. That said, 

[Appellant] still bears direct culpability.” N.T., 5/17/2019, at 16. Although 

Appellant points to these comments as an indicator that the resentencing 

court punished him as if he committed first-degree murder, we are not 

convinced. Instead, in context, we understand the resentencing court’s 

comment to indicate that Appellant played a direct role in a robbery that 

resulted in a death, whether or not he was the shooter. Thus, the 

(Footnote Continued Next Page)
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(finding that a substantial question was raised where a juvenile, previously 

sentenced to LWOP, raised an excessive sentencing claim along with an 

assertion that the sentencing court failed to consider mitigating factors); 

Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016) (noting 

that an appellant raises “a substantial question for our review by asserting 

that the trial court failed to state adequate reasons on the record for [an 

a]ppellant’s sentence.”); Commonwealth v. Lucky, 229 A.3d 657, 664 

(Pa. Super. 2020), citing Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. 

Super. 2011) (“An allegation of bias in sentencing [] raises a substantial 

question.”). Thus, we may consider the merits of these claims, mindful of 

the following.

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

* * *

When imposing [a] sentence, a court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. In considering these factors, the court should refer 

to the defendant’s prior criminal record, age, personal 

characteristics and potential for rehabilitation. 

(Footnote Continued) _______________________

resentencing court did not improperly misapply the law and impose an 

excessive sentence as if it was sentencing Appellant for first-degree murder.
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DiClaudio, 210 A.3d at 1074-75, quoting Commonwealth v. Antidormi, 

84 A.3d 736, 760-61 (Pa. Super. 2014).

Appellant presents many issues and sub-issues, but the root of his 

discretionary-aspects-of-sentencing challenges is that the resentencing court 

had disdain for Miller and did not consider the factors Miller requires. 

Precisely, Appellant contends the resentencing judge “did not apply the 

Miller factors to [Appellant’s] specific childhood circumstances and 

recognize their mitigating impact.” Appellant’s Brief at 34. It is Appellant’s 

position that the resentencing court had an “inordinate fixation on the 

underlying offense” and “erred by focusing on the tragedy that occurred to 

the exclusion of any meaningful consideration regarding youth’s attendant 

characteristics.” Id. at 34, 40 (footnote omitted). Furthermore, Appellant 

contends that the resentencing court showed bias in the treatment of 

Appellant in the form of racism and classism. Id. at 46.

Preliminarily, we note that 18 Pa.C.S. § 1102.1 was enacted in the 

wake of Miller and sets forth the sentences to be imposed upon juvenile 

offenders who are convicted of first- or second-degree murder on or after 

June 25, 2012, the date Miller was issued. Although not applicable to 

Appellant because he was convicted pre-Miller, our Supreme Court has held 

that resentencing courts should look to this section for guidance in 

resentencing pre-Miller defendants. Commonwealth v. Batts (Batts II), 

163 A.3d 410, 482 n. 25, 484 (Pa. 2017).
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Under this statute, a juvenile offender convicted of second-degree 

murder who was less than 18 years old but at least 15 years old at the time 

of the offense would be subject to a sentence of a minimum of 30 years of 

imprisonment. 18 Pa.C.S. § 1102.1(c)(1). Section 1102.1 does not prohibit 

a sentencing court from imposing a minimum sentence that is greater than 

prescribed in the statute. 18 Pa.C.S. § 1102.1(e). The statute also sets 

forth factors that a court must consider when determining whether to 

sentence a juvenile offender to LWOP, including age-related characteristics 

such as the defendant’s mental capacity, maturity, and the degree of 

criminal sophistication exhibited. 18 Pa.C.S. § 1102.1(d). In cases where 

the Commonwealth does not seek a LWOP sentence, the sentencing court 

should apply the traditional sentencing considerations under 42 Pa.C.S. 

§ 9721(b) of the Sentencing Code when fashioning its sentence. See 

Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019), citing

Batts II, 163 A.3d at 484. The sentencing court is not required to consider 

the Miller factors in such cases. See Commonwealth v. Derrickson, ___ 

A.3d ___, 2020 WL 6373356, at *8 (Pa. Super. 2020), citing Lekka, 210 

A.3d at 355.

At the resentencing hearing on February 13, 2019, Appellant 

presented evidence regarding his deficient intellectual and emotional 

development, and offers of support by his family upon his potential release 

from incarceration. A neuropsychologist, Dr. Carol Armstrong, who 
J-A15041-20

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examined Appellant, stated that he had a myriad of neuropsychological 

deficits, some areas of which were extremely impaired. According to Dr. 

Armstrong, Appellant’s IQ indicates he is borderline intellectually disabled. 

Moreover, Dr. Armstrong stated Appellant experienced a “severe amount of 

chronic stress in childhood,” which hinders the memory structure of the 

brain, the development of the hippocampus, and causes post-traumatic 

stress disorder. N.T., 2/13/2019, at 34. Dr. Armstrong proceeded to 

discuss the events that contributed to her diagnosis that Appellant suffered 

severe chronic stress, including repeated physical beatings as a child. In 

addition, Dr. Armstrong stated Appellant suffered multiple right-sided head 

injuries from unknown events or sources as a child, which impaired 

Appellant’s memory and visual and spatial perception. Dr. Armstrong also 

testified to Appellant’s growth while in prison; Appellant has improved his 

reading level and earned a general equivalency degree.

On cross-examination, the Commonwealth questioned Dr. Armstrong 

concerning the reports from evaluations of Appellant conducted in 2000 and 

2001. The reports described Appellant as having a temper, quick to become 

angry, having a propensity to act out aggressively, being manipulative of 

others, and appearing to have little regard for the feelings or welfare of 

others. Appellant self-reported he engaged in physical altercations once a 

week. The Commonwealth also reviewed with Dr. Armstrong Appellant’s 

juvenile delinquency and adult criminal history, including an adjudication for 
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burglary and a conviction for robbery that Appellant committed after the 

death of Lacey, but before he was imprisoned. The Commonwealth also 

cross-examined her about several Pennsylvania Department of Corrections 

incident reports concerning Appellant. When asked about two unsuccessful 

placements in treatment units Appellant had as a juvenile, Dr. Armstrong 

opined the unsuccessful placements demonstrated that Appellant needs 

positive environmental support for a long period in order to thrive.

Appellant also presented the testimony of his sister, Zanea Summers, 

who recounted fond memories with Appellant, and stated that she supports 

Appellant and that he may reside with her if released from incarceration. 

Appellant’s father, James Miller, testified that he met Appellant for the first 

time when they were both incarcerated in the same institution,8 and that he 

would support Appellant in the same manner as Zanea.

The Commonwealth presented the testimony of Patrick Sullivan, 

director of campus security for Widener University, and the resentencing 

court heard victim impact testimony from three of Lacey’s family members. 

Sullivan testified to the negative influence the murder had on the students of 

Widener University and safety measures the University implemented 

because of the murder. He attributed to the murder 40 to 50 students’ 

decisions not to return to the University the following year. Although the 

 

8 Miller’s parole expired in 2010.
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Commonwealth was not seeking a sentence of LWOP, Lacey’s brother asked 

the resentencing court to impose its original sentence. The court responded, 

“Unfortunately, I cannot stand firm on the original sentence” and 

acknowledged it must follow United States Supreme Court precedent. N.T., 

2/13/2019, at 196-97.

The court then heard Argument by Appellant’s counsel, along with 

Appellant’s allocution expressing remorse to Lacey’s family.

The resentencing court deferred resentencing to May 17, 2019, to 

“give very serious contemplation as to all the factors listed in Miller and 

Section 1102.1.” N.T., 5/17/2019, at 16. When announcing the sentence, 

the resentencing court acknowledged that it had read the entire trial 

transcript, the motions that were filed, the exhibits that were submitted, and 

considered a pre-sentence investigation (PSI) report. Id. at 15. The 

resentencing court analyzed the case pursuant to the three factors set out in 

subsection 9721(b) and considered the factors set forth in Miller.

Considering subsection 9721(b) sentencing factors, the resentencing 

court thoroughly discussed the impact on Widener University and Lacey’s 

family. Regarding rehabilitative needs, the court referenced Dr. Armstrong’s 

testimony that Appellant required positive environmental support for a long 

period of time to thrive. The court stated that while Appellant had 

expressed sorrow to the Lacey family, the “expression lacked true remorse. 

Rather, it was meek and self-serving. There was no heartfelt contriteness.” 
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N.T., 5/17/2019, at 17. Regarding the consideration of Miller factors, the 

resentencing court noted Appellant was 17 years and 3 months old at the 

time of the crime, and discussed Dr. Armstrong’s findings regarding 

Appellant’s mental capacity and maturity, as well as his improvements while 

in prison. It also noted Appellant’s criminal history as a juvenile, and 

continued criminal history after Appellant committed the instant offense. 

On appeal, Appellant essentially argues the resentencing court 

prioritized the severity of the offense over mitigating factors. Appellant’s 

argument is nothing more than a request for this Court to re-weigh the 

sentencing factors differently than the resentencing court. This we cannot 

do. See Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) 

(citation omitted) (“We cannot re-weigh the sentencing factors and impose 

our judgment in the place of the sentencing court.”).

Moreover, the resentencing court had the benefit of a PSI report, 

sentencing guidelines, and statements from Appellant, Appellant’s sister, 

father, and counsel. “[W]here the sentencing judge had the benefit of a 

[PSI] report, it will be presumed that he or she was aware of the relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (citation omitted). 

Furthermore, the resentencing court used Section 1102.1 as guidance, 

noting that it required an offender convicted post-Miller to be resentenced 
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to a minimum sentence of at least 30 years of imprisonment, and the 

section does not prohibit the court from imposing a minimum sentence that 

is greater than prescribed. See 18 Pa.C.S. § 1102.1(c)(1), (e). The 

resentencing court engaged in a reasoned analysis of the sentencing factors 

with reference to the evidence presented at the sentencing hearing. The 

court considered Appellant’s role in the crime, the severity of the crime, his 

escalating criminality, need for structure, and protection of the public. 

Further, it considered mitigating evidence presented by Dr. Armstrong, but 

determined the mitigating evidence did not warrant a lesser sentence than 

40 years to life imprisonment. Finally, the resentencing court considered 

Appellant’s allocution, which it determined “lacked true remorse.” N.T., 

5/17/2019, at 17. Lack of remorse is an appropriate sentencing 

consideration. See, e.g., Commonwealth v. Begley, 780 A.2d 605, 644 

(Pa. 2001) (noting lack of remorse, as a sign of the defendant’s character, is 

an appropriate consideration for sentencing outside of the guidelines). We 

must “give great weight to the sentencing court’s discretion, as he or she is 

in the best position to measure factors such as the nature of the crime, the 

defendant’s character, and the defendant’s display of remorse, defiance, or 

indifference.” Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 

2014) (citation omitted).

Appellant’s position that the resentencing court improperly had an 

“inordinate fixation” on the underlying offense is meritless, as it was within 
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the resentencing court’s discretion to place emphasis on the serious nature 

of this crime. Second-degree murder is a serious crime; serious enough that 

our legislature deemed it warranted a mandatory minimum of 30 years’ 

incarceration even for juveniles convicted after Miller. Moreover, Miller and 

its jurisprudence do not require that a resentencing court prioritize 

mitigating factors to the exclusion of all others or sentence those who 

committed crimes as a juvenile to the minimum sentence. Instead, the 

resentencing court must not “treat juveniles as ‘miniature adults,’” and bear 

in mind “as a matter of law ‘[] children are constitutionally different from 

adults for purposes of sentencing,’ in that they ‘have diminished culpability 

and greater prospects for reform,’ making them ‘less deserving of the most 

severe punishments.’” Batts II, 163 A.3d at 448, quoting Miller, 567 U.S. 

at 471. Nevertheless, the court is permitted to hold juveniles accountable 

and impose a sentence “commensurate” with a juvenile’s actions. Id. at 

450. Our review confirms that the resentencing court considered and 

weighed the evidence according to the appropriate sentencing factors 

pursuant to subsection 9721(b), including the mitigating factors regarding 

Appellant’s youth and challenging upbringing.9 Although it considered the 

 

9 Appellant also contends that the resentencing court unconstitutionally 

applied a burden upon Appellant at resentencing. Appellant’s Brief at 28.

Appellant relies on Batts II for the contention that the defense bears no 

burden at a resentencing hearing. 163 A.3d at 471-72. Appellant’s reliance 

on Batts II is misplaced, as Batts II addressed the burden of proof at a 

(Footnote Continued Next Page)
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Miller factors, the court had no obligation to do so in this case. See

Derrickson, supra at *8, citing Lekka, 210 A.3d at 355. Therefore, it 

could not have abused its discretion for failing to apply the Miller factors in 

the manner desired by Appellant.

Insofar as Appellant claims the resentencing court’s statement that it 

“unfortunately” could not stand firm on Appellant’s original sentence proves 

the resentencing court had contempt for the holding in Miller, the use of the 

word “unfortunately” is an acknowledgement of the sentiments of Lacey’s 

brother and “shows only that the judge had a grasp of human nature, not 

that he was biased” against Appellant. See Commonwealth v. Flor, 998 

A.2d 606, 642 (Pa. Super. 2010) (regarding a victim impact statement, our

Supreme Court held that the judge’s statement that he would have 

understood a call for vengeance by a murdered officer’s brother does not 

suggest or imply that the court was in any sense motivated by vengeance or 

bias). The resentencing court’s statement does not establish that it 

(Footnote Continued) _______________________

resentencing hearing where the Commonwealth is seeking LWOP. Here, the 

Commonwealth did not seek, and the resentencing court did not consider, a 

LWOP sentence. While the resentencing court stated at the beginning of the 

evidentiary hearing, “The way the hearing goes is, [defense counsel], you 

bear the burden of proof,” Appellant’s Brief at 28, citing N.T., 2/13/2019, at 

3, nothing in the resentencing court’s opinion or statements at the hearings

indicate that the resentencing court actually placed a burden of proof on the 

defense. Despite the improper phrasing, it appears the resentencing court 

meant to the extent that defense wanted to show mitigating evidence to 

argue for a lesser sentence, the defense had the opportunity and burden to 

do so.
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misapprehended, misapplied, or ignored Miller. Thus, there is no merit to 

Appellant’s claim in this regard.

We next turn to Appellant’s contention that the resentencing court 

abused its discretion when it fashioned his sentence because of the judge’s 

partiality and bias, or ill will toward Appellant. Specifically, Appellant claims 

that the resentencing court “portrayed [Appellant] as older than he was at 

the time of the offense.” Appellant’s Brief at 46. Appellant also raises other 

concerns of bias. In his brief, Appellant argued the following.

One can only speculate about the source of the judge’s 

animosity against the defense. See [Trial Court Opinion, 

8/22/2019, at 18] (insisting Appellant cannot prove bias). It 

might stem from conscious or implicit racial and class-based 

prejudice. Sentencing disparities are well-documented in cases 

like [Appellant’s] involving a white victim and black defendant. 

Intended or not, it is impossible to overlook the judge’s dog 

whistling. The court:

 vilified [Appellant] as “extremely street wise”

 []

 maligned the entire [c]ity of Chester

 groundlessly belittled [Appellant’s] substantial family 

support, and

 doubted [Appellant’s] history of medical and 

emotional trauma

Appellant’s Brief at 46 (footnotes and some commas omitted).

We acknowledge that the types of bias Appellant describes can occur 

in society and sentencing. Nevertheless, we have reviewed the comments 

and the record, and do not discern bias by the resentencing court that 

resulted in the excessive sentencing of Appellant. In the instant case, the 

resentencing court accurately stated the age of Appellant as 17 years and 3 
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months old at the time of the murder. N.T., 5/17/2019, at 16, Trial Court 

Opinion, 8/22/2019, at 13. Nonetheless, the resentencing court stated in its 

Rule 1925(a) opinion that “Appellant fails to recognize that he was not a 

‘child’ at the time of the offense.” Trial Court Opinion, 8/22/2019, at 13. 

While the resentencing court’s statement that Appellant was not a child is 

technically incorrect because Appellant was indeed a child at the time of his 

crime, the resentencing court appears to have used the term as shorthand 

to express that Appellant was close to 18 years old and to emphasize that 

Appellant’s age did not completely absolve him of guilt.

As to the other statements recounted above, those statements were 

made by the resentencing court in the context of imposing Appellant’s 

sentence. Our Supreme Court has stated “it is not improper for a judge to 

address a defendant after sentencing for the purpose of reiterating to the 

defendant that the punishment just imposed was well-deserved.” Flor, 998 

A.2d at 642. Thus, we discern no abuse of discretion and conclude that the 

resentencing court exercised its judgment without partiality, prejudice, bias, 

or ill will.

In his remaining two issues, Appellant raises challenges to the legality 

of his sentence. “When reviewing the legality of a sentence, our standard of 

review is de novo and our scope of review is plenary.” Lekka, 210 A.3d at 

355.
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First, Appellant claims that the resentencing court imposed a de facto

LWOP sentence because his minimum sentence of 40 years does not offer 

Appellant a meaningful opportunity for parole. Appellant’s Brief at 50. We 

consider this claim mindful of the following. 

“[A] trial court may not impose a term-of-years sentence, which 

constitutes a de facto LWOP sentence, on a juvenile offender convicted of 

homicide unless it finds, beyond a reasonable doubt, that he or she is 

incapable of rehabilitation.” Commonwealth v. Foust, 180 A.3d 416, 431 

(Pa. Super. 2018). “There are certain term-of-years sentences [that] clearly 

constitute de facto LWOP sentences. For example, a 150-year sentence is a 

de facto LWOP sentence. Similarly, there are clearly sentences [that] do not 

constitute de facto LWOP sentences. A sentence of 30 years to life falls into 

this category.” Id. at 438.

Appellant’s minimum sentence of 40 years of imprisonment falls 

between these two categories. The Foust Court “decline[d] to draw a bright 

line [] delineating what constitutes a de facto LWOP sentence and what 

constitutes a constitutional term-of-years sentence.” Id. However, in light 

of Foust, this Court outlined the method for determining where such “in 

between” minimum sentences fall on the spectrum.

The key factor in considering the upper limit of what constitutes 

a constitutional sentence, in this narrow context, appears to be 

whether there is “some meaningful opportunity to obtain release 

based on demonstrated maturity and rehabilitation.” Graham v. 

Florida, 560 U.S. 48, 75 (2010). Implicit in this standard is the 

notion it would not be meaningful to provide an opportunity for 
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release based solely on the most tenuous possibility of a 

defendant’s surviving the minimum sentence imposed. To be 

meaningful or, at least, potentially meaningful, it must at least 

be plausible that one could survive until the minimum release 

date with some consequential likelihood that a nontrivial amount 

of time at liberty awaits. Thus, though it expressly declined to 

do so, the Foust Court seemed to suggest some sort of 

meaningful-opportunity-for-release standard by declaring that a 

150–years–to–life sentence constitutes a de facto LWOP 

sentence.

Commonwealth v. Bebout, 186 A.3d 462, 467 (Pa. Super. 2018) (footnote 

omitted; citations altered; emphasis in original). Applying this test, we 

concluded in Bebout that a minimum sentence of 45 years, which made 

Bebout eligible for parole at 60 years old, did not constitute a de facto LWOP 

sentence.

[Bebout’s] opportunity for release [was] meaningful, especially 

in light of the gravity of his crime, because he has the potential 

to live for several decades outside of prison if paroled at his 

minimum.

Thus, based on the record and arguments before us, we 

conclude that [Bebout] has simply failed to meet his burden of 

demonstrating that the lower court sentenced him to a de facto

LWOP sentence. There simply is no comparison between the 

opportunity to be paroled at 60 years of age and 100+ years of 

age. The difference is, quite literally, a lifetime. As such, we are 

not convinced that [Bebout’s] sentence is the functional 

equivalent of LWOP. 

Id. at 469 (emphasis in original); see also Lekka, 210 A.3d at 357-58 

(concluding that because the appellant’s term of 45-years-to-life 

imprisonment rendered him eligible for parole at the age of 62, it was not a 

de facto LWOP sentence).
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Here, the resentencing court sentenced Appellant to a minimum term 

of 40 years’ imprisonment. Appellant has been incarcerated for seconddegree murder since he was 17 years old. Accordingly, Appellant will be 

eligible for parole when he is 57 years old. Because Appellant will have a 

meaningful opportunity to obtain release and potential to live several 

decades outside of prison if paroled at that time, we conclude that 

Appellant’s minimum sentence does not constitute a de facto LWOP 

sentence, and his claim is without merit.

Lastly, Appellant claims that his maximum sentence of life 

imprisonment is illegal.10 Specifically, he argues that the resentencing 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 58. In support, Appellant contends that pursuant to Miller and 

Graham v. Florida, 560 U.S. 68 (2010), the imposition of a mandatory 

maximum term of life imprisonment is unconstitutional and violates the 

mandates of proportionality and individualized sentencing. Appellant’s Brief 

at 58-65. According to Appellant, “[a] child who commits second[-]degree 

 

10 Although Appellant did not include this issue in his Pa.R.A.P. 1925(b) 

statement, it is not waived. See Commonwealth v. Foster, 17 A.3d 332,

336 (Pa. Super. 2011) (noting that a challenge to the legality of a sentence 

presents a nonwaivable jurisdictional issue).
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murder” is akin to a child “who commits a non-homicide offense,” and 

therefore must not “suffer the same maximum sentence as if the jury 

convicted him of first-degree murder.” Id. at 62.

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. Batts II, 163 A.3d at 484 (Pa. 2017). 

Neither our Supreme Court nor the Pennsylvania General Assembly has 

addressed the resentencing procedure for juveniles, like Appellant, who were 

convicted of second-degree murder pre-Miller. Although Batts II

involved a juvenile convicted of first-degree murder, this Court has found no 

difference that would place a juvenile convicted of second-degree murder 

outside the Batts II analysis.11 See Olds, 192 A.3d at 1194; see also

 

11 Batts II established guidelines and procedures for sentencing and 

resentencing juveniles convicted of first-degree murder. 163 A.3d at 483-

84. The Court announced that 

there is a presumption against the imposition of a sentence of 

life without parole for a defendant convicted of first-degree 

murder committed as a juvenile. The Commonwealth must give 

reasonable notice of its intention to seek a sentence of [LWOP]. 

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. 

(Footnote Continued Next Page)
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Commonwealth v. Melvin, 172 A.3d 14, 21 n.3 (Pa. Super. 2017). 

Accordingly, our Court in Olds rejected the claim that the imposition of a 

mandatory maximum sentence of life imprisonment for a juvenile convicted 

of second-degree murder is illegal and 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 (emphasis 

added).

“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, 465 (Pa. Super. 

2006) (citations omitted). That has not occurred here. Thus, our Court’s 

(Footnote Continued) _______________________

Consistent with the mandate of Miller and Montgomery, for a 

[LWOP] sentence to be constitutionally valid, the sentencing 

court must find that the juvenile offender is permanently 

incorrigible and that rehabilitation would be impossible. The 

Commonwealth's evidence and the sentencing court's decision 

must take into account the factors announced in Miller and 

[subsection 1102.1(d)]. Even if the Commonwealth satisfies its 

burden of proof, the sentencing court is not required to impose a 

[LWOP] sentence upon a juvenile offender.

In sentencing a juvenile offender to life with the possibility 

of parole, traditional sentencing considerations apply. See 42 

Pa.C.S. § 9721(b). The sentencing court should fashion the 

minimum term of incarceration using, as guidance, [subsection 

1102.1(a)].

Id.
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prior decision in Olds is binding.12 See Pepe, 897 A.2d at 465. Therefore, 

Appellant’s claim is without merit.

Judgment of sentence affirmed.

Judge Lazarus joins the opinion.

Judge King concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/21

 

12 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, this 

author 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 Commonwealth ex rel. Smith v. Myers, 261 A.2d 550, 553-55 

(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).