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* Retired Senior Judge assigned to the Superior Court. 2021 PA Super 11 COMMONWEALTH OF PENNSYLVANIA ,

Appellee

v. BRANDON K. SUMMERS ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1966 EDA 201 9 Appeal from the Judgment of Senten ce 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.: F iled: January 21, 2021 Brandon K. Summers (Appellant) appeals from the M ay 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 ol d, Appellant was involved in the shooting death of John Lacey, a Widener University student, which occurred during the commission of a robbery outsi de of a tavern adjacent to the U niversity. On December 8, 2005, a jury found Appellant guilty of second

- deg ree murder

1 In Miller , the United States Supreme Court held that a mandatory sentence of life imprisonment without the poss ibility 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.J

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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 ap peal. 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 Super. 2008) (unpublished memorandum), appeal denied , 966 A.2d 571 (Pa. 2009).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/Finley 4 no - merit letter . The PCRA court dismissed Appellant’s petition on March 30, 2010. Appellant did not a ppeal 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 premature ly 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 Commo nwealth 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 unco nstitutional 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 abe yance, 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 PC RA 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 retroac tively 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 lif e 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 imp ermissible 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 be gin 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 aspec ts of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdiction by consider ing the following four factors:

6 Both Appellant and the resentencing court complied with Pa.R.A.P. 1925.J

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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 se ntence 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 a ctions 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. 21 19(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 c ourt ignored,J

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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 dispositio n). 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 resentenci ng 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 convi cted him of [first

- degree murder].” A ppellant’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, a t 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 App ellant, 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)J

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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 th at 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 sen tencing [] 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 j udgment 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 defen dant. 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.J

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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, Appella nt 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 “inordin ate 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 t hat 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).J

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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
pr escribed 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 capacit y, 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.3 d ___, 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, whoJ

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examined Appellant, stated that he had a myriad of neuropsychological deficits, some areas of which were extremely impaired. According t o 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 c hild. 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 grow th while in prison; Appellant has improved his reading level and earn ed 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 repo rts 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 forJ

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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 memo ries 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 i nstitution, 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 t hree 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’ decisio ns not to return to the University the following year. Although the

8 Miller’s parole expired in 2010.J

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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 ha d 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 subs ection 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 re ferenced 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.”J

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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. Arm strong’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 resente ncing 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 cou rt 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 relevan t 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 Secti on 1102.1 as guidance, noting that it required an offender convicted post

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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 ye ars 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 withinJ

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the resentencing court’s discretion to place emphasis on the serious nature of this crime. Second

- degree murder is a s erious 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
miti gating 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 he aring. 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)J

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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 t hat 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.J

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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 Ap pellant. 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 follo wing.

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. S entencing 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”

 []

 ma ligned 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).
W e acknowledge that the typ es 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 3J

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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 t hat “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 co mpletely absolve him of guilt. As to the o ther 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 re maining 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.J

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First, Appellant claims that the re sentencing 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 n ot 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, 4 31 (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 LW OP 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 const itutes 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 i n 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 forJ

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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 leas t, 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 Co urt 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 al tered; 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 ] mean ingful, 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 lifeti me. 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 rendere d him eligible for parole at the age of 62, it was not a de facto LWOP sentence).J

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Here, the resentencing court sentenced Appellant to a minimum term of 40 years’ imprisonment. Appellant has been incarcerated for second

degree 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 App ellant’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 relyi ng 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 erroneou sly. 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 proportionali ty 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).J

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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 t he 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 hi m “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 S upreme 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 int ention 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)J

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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 Co urt 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 sentencin g court's decision must take into account the factors announced in Miller and [subs ection 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 se ntencing 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, [ subs ection 1102.1(a)]. Id.J

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prior decision in Olds is binding. 12 See Pepe , 897 A.2d at 465. The refore, 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 ter m - of

- years sentence in lieu of a mandatory life tail. See Com monwealth 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 doubt ful deterrent, and “a hold

- over from the days of our barbarian Anglo

- Saxon ance stors 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

. ”) (footn ote and internal quotation marks omitted).