J-A01005-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREE SANDERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3927 EDA 2017

Appeal from the Judgment of Sentence October 10, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0331711-1994

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 15, 2019

Tyree Sanders appeals from the judgment of sentence imposed October 

10, 2017, in the Philadelphia County Court of Common Pleas. The trial court 

resentenced Sanders to a term of 30 years to life imprisonment, following his 

jury conviction of second-degree murder, robbery, conspiracy and possessing 

an instrument of crime (“PIC”),1for the 1994 robbery and murder of George 

Patterson. On appeal, Sanders challenges the legality and discretionary 

aspects of his sentence. For the reasons below, we affirm.

The facts underlying Sanders’ arrest and conviction are well-known to 

the parties and need not be reiterated in detail herein. In summary, on the 

afternoon of February 27, 1994, 16-year-old Sanders, with several other 

young men including co-defendant Carl Wilkins, planned to rob the victim, 

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1 See 18 Pa.C.S. §§ 2502(b), 3701, 903, and 907, respectively.
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Patterson. During the course of the robbery, Sanders shot and killed 

Patterson. Sanders confessed to the police, and maintained that the gun, 

provided to him by Wilkins, accidentally discharged when he retrieved it from 

his pocket to scare Patterson. See Trial Court Opinion, 1/23/2018, at 2-3 

(citation omitted). 

Sanders was arrested and charged with the aforementioned offenses. 

He proceeded to a jury trial with co-defendant Wilkins. The ensuing factual 

and procedural history of this case was summarized by the trial court as 

follows:

On February 23, 1996, the jury convicted [Sanders] of seconddegree murder, robbery, conspiracy to commit murder, and [PIC]. 

On July 30, 1996, [the trial court] sentenced [Sanders] to the 

then-mandatory term of life imprisonment without parole for 

second-degree murder, and concurrent sentences of ten to twenty 

years of imprisonment for robbery, five to ten years of 

imprisonment for conspiracy, and two and one-half to five years 

of imprisonment for PIC, for a total sentence of life imprisonment 

without parole.

[Sanders] appealed and on December 12, 1997, the 

Superior Court affirmed his judgment of sentence. On December 

26, 1997, [Sanders] filed a petition for allowance of appeal with 

the Supreme Court of Pennsylvania, which was denied on 

December 23, 1998. [See Commonwealth v. Sanders, 706 

A.2d 1258 (Pa. Super 1997) (unpublished memorandum), appeal 

denied, 734 A.2d 394 (Pa. 1998).] 

In 2016, a three-judge en banc panel for the Philadelphia 

County Court of Common Pleas was established to decide all 

questions of law concerning the resentencing of juveniles 

previously sentenced to life without parole.2 On October 28, 2016, 

the en banc panel was presented with fifteen questions of law. On 

April 13, 2017, the en banc panel issued its opinion addressing 

each question of law.

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2

In 2016, the First Judicial District of Pennsylvania, Court 

of Common Pleas, adopted “General Court Regulation No. 1 

of 2016.” The Regulation established procedures for 

juvenile lifers previously sentenced to life without parole to 

have an opportunity to show that their crimes did not reflect 

irreparable corruption and that they should be considered 

for release on parole. For further discussion on what 

necessitated the regulation, see Miller v. Alabama, 132 

S.Ct. 2455 (2012) and Montgomery v. Louisiana, 136 

S.Ct. 718 (2016).

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On October 10, 2017, this Court vacated [Sanders’] 

sentences and resentenced him to thirty years to life 

imprisonment for second-degree murder, and imposed no further 

penalty on the conspiracy and PIC charges. [The court found 

Sanders’ robbery conviction merged with second-degree murder 

for sentencing purposes.] On October 20, 2017, [Sanders] filed a 

motion for reconsideration of sentence, which this Court denied 

on October 31, 2017.

On November 29, 2017, [Sanders] filed a notice of appeal 

to the Superior Court. On December 21, 2017, in response to this 

Court’s order, [Sanders] filed a timely 1925(b) Statement.

Trial Court Opinion, 1/23/2018, at 1-2 (some capitalization and footnotes 

omitted).

By way of background, in Miller v. Alabama, 567 U.S. 460 (2012), the 

United States Supreme Court held that “mandatory life without parole for 

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

Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 465. 

Under Miller, a trial court is not foreclosed from imposing a sentence of life 

imprisonment without parole on a juvenile; however, before doing so the court 

is required to “take into account how children are different, and how those 

differences counsel against irrevocably sentencing them to a lifetime in 
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prison.” Id. at 480. Thereafter, in October of 2012, the Pennsylvania 

legislature enacted 18 Pa.C.S. § 1102.1, to address the Supreme Court’s 

holding in Miller. The statute provides mandatory minimum sentences for 

juvenile offenders who are convicted of first- or second-degree murder.2 See

18 Pa.C.S. § 1102.1(a), (c). However, by its very terms, the statute applies 

only to those “convicted after June 24, 2012.” 18 Pa.C.S. §§ (a)(1) and (c)(1).

In January of 2016, the United States Supreme Court issued its decision 

in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), holding

the Miller decision constituted a new substantive rule that must be applied 

retroactively to cases on collateral review. See id. at 732-737. Following 

Miller and Montgomery, our Supreme Court decided Commonwealth v. 

Batts, 163 A.3d 410 (Pa. 2017) (Batts II), which addressed the procedural 

requirements for sentencing a juvenile homicide defendant in this 

Commonwealth. See id. at 459-460 (holding there is a presumption against 

imposition of life without parole sentence for juvenile murder defendants; 

Commonwealth must provide notice of its intent to seek such a sentence; 

Commonwealth must rebut the presumption with proof beyond a reasonable 

doubt that “juvenile offender is permanently incorrigible and thus is unable to 

be rehabilitated[;]” and the court must consider the factors announced 

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2 For a juvenile, like Sanders, who was convicted of second-degree murder for 

an act he committed when he was under the age of 18 but older than 15, the 

statute calls for a minimum term of imprisonment of “at least 30 years to life.” 

18 Pa.C.S. § 1102.1(c)(1).
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in Miller and [18 Pa.C.S. §] 1102.1(d)” before imposing a sentence of life 

without parole).

Sanders’ first issue presents a challenge 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.” Commonwealth v. Melvin, 172 

A.3d 14, 19 (Pa. Super.2017) (citation omitted), appeal denied, 187 A.3d 207 

(Pa. 2018).

Sanders maintains the 30 years to life sentence imposed by the trial 

court upon resentencing is “unconstitutionally long on both ends[.]” Sanders’ 

Brief at 12. He argues “the U.S. Constitution does not permit a minimum 

sentence longer than time-served, and it does not permit an automatic tail 

sentence of life” imprisonment. Id. 

With regard to the minimum term, Sanders insists the Pennsylvania 

Supreme Court’s decision in Batts II acknowledged, “there is no minimum 

sentence in place in Pennsylvania for murder in pre-Miller cases where the 

juvenile offender is to be parole-eligible.” Sanders’ Brief at 13. Relying upon 

the federal district court’s decision in Songster v. Beard, 201 F.Supp.3d 639 

(E.D. Pa. 2016), Sanders argues, “a time served minimum sentence is the 

only legal, constitutionally-valid minimum sentence under his circumstances.” 

Sanders’ Brief at 14.

He also contends the imposition of a mandatory maximum term of life 

imprisonment is unconstitutional and violates the mandates of proportionality

and individualized sentencing. See id. Sanders maintains that by requiring 
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a mandatory term of life for the tail of the sentence, a juvenile defendant’s 

eligibility for release will lie solely with the Parole Board, which “would be an 

abdication of the judicial responsibility of sentencing.” Id. at 15.

The trial court found Sanders’ challenge to the legality of his sentence 

was “thoroughly resolved” by the Pennsylvania Supreme Court in Batts II. 

Trial Court Opinion, 1/23/2018, at 4. We agree. With regard to a permissible 

minimum sentence, the Batts II Court opined:

In determining the minimum sentence for a juvenile convicted of 

first-degree murder prior to Miller, a sentencing court is to 

exercise its discretion to find the appropriate, individualized 

sentence in each case, just as it would when fashioning the 

minimum sentence for any other defendant before it.

Batts II, supra, 163 A.2d at 443. Indeed, the focus of the Miller decision 

was the unconstitutionality of imposing a mandatory life sentence without 

the possibility for parole on a juvenile officer “who may be capable of 

rehabilitation.” Id. at 452. 

This Court’s recent decision in Commonwealth v. Lehman, ___ A.3d 

___ [2019 PA Super 2] (Pa. Super. Jan. 4, 2019), is instructive. In that case,

the defendant, like Sanders, was convicted of a murder he committed when 

he was a juvenile, and sentenced in 1990 to life imprisonment without parole. 

In April of 2017, after obtaining relief pursuant to Miller and Montgomery, 

the defendant was resentenced to a term of 30-years to life for his conviction 

of first-degree murder. See id. at *1-*2. On appeal, he argued, inter alia, 

“there was no statutory authority by which the trial court could sentence [him]

for first-degree murder because 18 Pa.C.S.A. § 1102[, which mandates a term 
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of life imprisonment for first- and second-degree murder,] when combined 

with 61 Pa.C.S.A. § 6137(a)(3), [which precludes the parole board from 

granting parole any time before the minimum term of imprisonment,] was 

deemed unconstitutional in Miller.” Id. at *2. Therefore, the defendant 

claimed, upon resentencing, the trial court’s only options were to sentence 

him for third-degree murder or discharge him. See id. Relying upon Batts 

II and several decisions of this Court, the panel rejected this argument, 

opining:

The sentencing options available to the trial court offered no 

mandatory minimum and a mandatory maximum term of life 

imprisonment. The trial court imposed such a sentence. Hence, 

[the defendant’s] sentence of 30 years to life imprisonment was 

legal.

Id. at *3 (emphasis supplied). Sanders’ contention in the present case is 

similarly meritless. 

Sanders also insists the imposition of a “mandatory maximum tail of life 

is unconstitutional.” Sanders’ Brief at 14. He contends a mandatory 

maximum life sentence violates the “constitutional mandate of 

proportionality” and denies a juvenile offender a “meaningful opportunity for 

release” because it places the authority to grant release within the sole 

discretion of the parole board. Id. at 14-15. The Commonwealth agrees with 

this position, and advocates: 

[W]here defendants have demonstrated that they have been 

rehabilitated or that they have the capability of being 

rehabilitated, the mandatory imposition of continued, lifetime 

punishment is disproportionate, and violates the requirement of 

individualized sentencing set forth in Miller.
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Commonwealth’s Brief at 11 (footnote omitted).3 

However, as the Commonwealth recognizes in its brief, this Court has 

“repeatedly” rejected the claim that the imposition of a mandatory maximum 

sentence of life imprisonment for a juvenile convicted of first or second-degree 

murder is illegal. See Commonwealth v. Olds, 192 A.3d 1188, 1197-1198

(Pa. Super. 2018) (holding imposition of mandatory maximum term of life 

imprisonment for juvenile defendant convicted of second-degree murder prior 

to Miller was constitutional), appeal denied, ___ A.3d ___ [297 WAL 2018] 

(Pa. Dec. 11, 2018); Commonwealth v. Sesky, 170 A.3d 1105, 1109 (Pa. 

Super. 2017) (holding trial court imposed an illegal sentence when it 

resentenced juvenile defendant convicted of first-degree murder prior to 

Miller to term of 13 to 26 years’ imprisonment; court was required to impose 

mandatory maximum sentence of life imprisonment); Commonwealth v. 

Battles, 169 A.3d 1086, 1089-1090 (Pa. Super. 2017) (holding trial court’s 

imposition of mandatory maximum term of life imprisonment upon 

resentencing of juvenile defendant convicted of first-degree murder prior to 

Miller was legal). The Olds Court summarized the state of the law as follows:

[W]e affirm that trial courts must sentence juveniles convicted 

of second-degree murder prior to June 25, 2013 to a maximum 

term of life imprisonment under section 1102(b). 

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3 Both Sanders and the Commonwealth rely upon the decision of the federal 

district court in Songster, supra. However, we emphasize that decision is 

not “binding authority” in Pennsylvania courts. Commonwealth v. Olds, 192 

A.3d 1188, 1197 n.18 (Pa. Super. 2018), appeal denied, ___ A.3d ___ [297 

WAL 2018] (Pa. Dec. 11, 2018);
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Olds, supra, 192 A.3d at 1198 (emphasis supplied). Accordingly, Sanders’ 

claim has been rejected by several other panels of this Court, and we are “not 

empowered to overrule another panel of the Superior Court.” 

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013). See also 

Commonwealth v. Davis, 188 A.3d 454, 458 n.2 (Pa. Super. 2018) (“Under 

the doctrine of stare decisis, a panel must adhere to the precedents that this 

Court’s prior panels have handed down.”). Accordingly, Sanders is entitled to 

no relief on his challenge to the legality of his sentence.

In his final two arguments, Sanders challenges the discretionary aspects 

of his sentence. Specifically, he asserts the trial court considered 

impermissible facts in imposing his sentence, as well as criminal conduct for 

which he was not convicted. See Sanders’ Brief at 15-17. Sanders also insists 

the court failed to properly weigh the sentencing evidence, particularly the 

negative impact of his drug-dealing biological father, and his improved 

maturity while in prison. See id. at 17-19.

A defendant does not have an absolute right to challenge the 

discretionary aspects of his sentence on appeal. Commonwealth v. Tobin, 

89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). Rather, when a 

defendant raises a discretionary sentencing claim in his brief, “this Court 

considers such an argument to be a petition for permission to appeal.” 

Commonwealth v. Dawson, 132 A.3d 996, 1005 (Pa. Super. 2015) (citation 

omitted). “[A]n ‘[a]ppeal is permitted only after this Court determines that 

there is a substantial question that the sentence was not appropriate under 
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the sentencing code.’” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 

(Pa. Super. 2013) (en banc) (citation omitted).

Prior to reaching the merits of a discretionary aspects of 

sentencing issue, this Court is required to conduct a four-part 

analysis to determine whether a petition for permission to appeal 

should be granted. Commonwealth v. Trinidad, 96 A.3d 1031, 

1039 (Pa. Super. 2014) (citation omitted), appeal denied, 627 Pa. 

758, 99 A.3d 925 (2014). Specifically, we must determine the 

following.

(1) [W]hether appellant has filed a timely notice of appeal, 

Pa.R.A.P. 902, 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, 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.A.] § 9781(b).

Id.

Dawson, supra, 132 A.3d at 1005.

Here, Sanders filed a timely notice of appeal, and preserved his claims 

in a timely-filed post-sentence motion. See Motion to Modify Sentence 

Pursuant to Pa.R.Crim.P. 720, 10/20/2017, at 5-9. However, Sanders did not 

include in his brief the requisite statement of the reasons relied upon for 

allowance of appeal pursuant to Pa.R.A.P. 2119(f). The law is clear: 

[W]hen the appellant has not included a Rule 2119(f) statement 

and the [Commonwealth] has not objected, this Court may ignore 

the omission and determine if there is a substantial question that 

the sentence imposed was not appropriate, or enforce the 

requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., deny 

allowance of appeal. However, this option is lost if the 

[Commonwealth] objects to a 2119(f) omission. In such 

circumstances, this Court is precluded from reviewing the merits 

of the claim and the appeal must be denied.
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Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (internal 

citations omitted). See also Dawson, supra, 132 A.3d at 1005 (denying 

appellant’s petition for permission to appeal discretionary aspects of 

sentencing when appellant failed to include Rule 2119(f) statement and 

Commonwealth objected). 

As noted above, Sanders failed to include the requisite Rule 2119(f) 

statement in his brief.4 Moreover, the Commonwealth has objected to this 

briefing defect. See Commonwealth’s Brief at 13. Accordingly, we are 

precluded from considering his remaining sentencing claims on appeal.5 

Kiesel, supra.

Judgment of sentence affirmed.

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4 Nor did Sanders even attempt to explain how his claims raised a substantial 

question in the argument portion of his brief. See Sanders’ Brief at 15-19 

5

In his reply brief, Sanders urges this Court to decide this issue on the merits 

because “[t]he Commonwealth has made no argument that it suffered any 

actual prejudice, or that any alleged procedural violations affect this appeal in 

any way.” Sanders’ Reply Brief at 2. However, he cites no case law supporting 

his claim that the Commonwealth must demonstrate prejudice, or that we 

may overlook this particular procedural defect. Indeed, the law is clear that 

Sanders’ omission, followed by the Commonwealth’s objection, precludes our 

review. See Kiesel, supra; Dawson, supra.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/15/19