J-S57044-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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NATHANIEL BUNDAY,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 430 EDA 2018

Appeal from the Judgment of Sentence December 29, 2017

in the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-14990-1994

BEFORE: PANELLA, J., PLATT, J.* and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 04, 2018

Nathaniel Bunday (Appellant) appeals from the December 29, 2017 

judgment of sentence imposed following a resentencing hearing pursuant to 

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

1

 We affirm.

On August 27, 1994, just four [] months shy of his eighteenth [] 

birthday, Appellant brutally attacked Kyle Ramage, who was 

already lying helpless on a Norristown sidewalk, by kicking and 

stomping on his head and face multiple times. Medical 

personnel declared Mr. Ramage brain dead later that afternoon 

and removed him from life support the following morning. On 

January 26, 1995, a jury convicted Appellant of second-degree 

murder, aggravated assault, robbery, and criminal conspiracy. 

Trial Court Opinion, 5/25/2018, at 1-2 (footnotes omitted). Appellant was 

sentenced to a mandatory term of life imprisonment without the possibility 

 

1

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

[sentence of] 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.” 567 U.S. at 465 (internal quotation marks omitted).
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of parole (LWOP) for second-degree murder, and a concurrent term of five to 

ten years of incarceration for conspiracy. On direct appeal, this Court 

affirmed Appellant’s judgment of sentence. Commonwealth v. Bunday, 

678 A.2d 824 (Pa. Super. 1996) (unpublished memorandum). 

On December 5, 1996, Appellant filed his first petition pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Following a 

hearing, the PCRA court denied Appellant’s petition, and this Court affirmed 

the PCRA court’s order on August 10, 1998. Commonwealth v. Bunday, 

726 A.2d 408 (Pa. Super. 1998) (unpublished memorandum). 

On July 19, 2012, Appellant filed his second PCRA petition, claiming 

that his sentence was unconstitutional under Miller.

2

 The PCRA court 

stayed the proceedings pending the disposition of several cases as to 

whether Miller applied retroactively to cases on collateral review. Order, 

10/12/2012; Order, 1/10/2014; Order 8/13/2014. On January 25, 2016, 

the United States Supreme Court held that Miller applied retroactively to 

cases on collateral appeal. Montgomery v. Louisiana, ___ U.S. ___, 136 

S.Ct. 718 (2016). Thus, on November 21, 2016, the PCRA court granted 

Appellant’s PCRA petition and vacated his LWOP sentence. 

On December 29, 2017, after a hearing, the sentencing court

resentenced Appellant to 28 years to life imprisonment. No post-sentence 

 

2 Appellant’s petition was filed within sixty days of the issuance of Miller.
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motion was filed. Appellant timely filed a notice of appeal.3 On appeal, he

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

Brief at 6. 

Appellant first claims that his maximum sentence of life imprisonment 

is illegal. Specifically, he argues that the sentencing 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 11-16. 

“Issues relating to the legality of a sentence are questions of law[.] ... Our 

standard of review over such questions is de novo and our scope of review is 

plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 

2014) (citations and quotations omitted). 

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. Commonwealth v. Batts (Batts II), 

163 A.3d 410, 459-60 (Pa. 2017). Neither our Supreme Court nor the 

Pennsylvania General Assembly has addressed the resentencing procedure 

 

3 Both Appellant and the sentencing court complied with Pa.R.A.P. 1925.
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for juveniles, like Appellant, who were convicted of second-degree murder 

pre-Miller. Although Batts II involved a juvenile convicted of first-degree

murder, our Court has found no difference that would place a juvenile 

convicted of second-degree murder outside the Batts II analysis. See 

Olds, 192 A.3d at 1194; Commonwealth v. Melvin, 172 A.3d 14, 21 n.3

(Pa. Super. 2017). Accordingly, our Court in Olds 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.

On appeal, Appellant argues that because the holding in Batts II was 

limited to juveniles convicted of first-degree murder, our Court misapplied 

the required maximum term of life imprisonment to juveniles convicted of 

second-degree murder. Thus, Appellant argues that “[w]hile a trial court is 

not prohibited from imposing a life tail for second-degree murder, it is 

erroneous to impose this sentence based on a misinterpretation that a life 

tail is required under Batts....” Appellant’s Brief at 16.

This Court rejected a claim almost identical to Appellant’s in Olds, and 

specifically held that juveniles who committed second-degree murder preMiller must be sentenced to a maximum term of life imprisonment. 192 

A.3d at 1198. “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, 
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465 (Pa. Super. 2006) (citations omitted). Thus, our Court’s prior decision 

in Olds is binding.4 See Pepe, 897 A.2d at 465. Accordingly, Appellant’s 

claim is without merit. 

Appellant next claims that the trial court abused its discretion when it

considered Appellant’s failure to complete a violence prevention program in 

fashioning his sentence because Appellant in fact had completed the 

program. Appellant’s Brief at 16-18. Because this claim implicates the 

discretionary aspects of Appellant’s sentence, we must first determine 

whether Appellant has invoked this Court’s jurisdiction to review the merits 

of this claim.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (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 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, we 

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 Com. ex rel. Smith v. Myers, 261 A.2d 550, 554-55 (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 preNorman 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). 
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(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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some 

citations omitted). 

Here, Appellant did not object at sentencing and did not file a postsentence motion. Id. (“Objections to the discretionary aspects of a sentence 

are generally waived if they are not raised at the sentencing hearing or in a 

motion to modify the sentence imposed.”). Thus, we find his discretionaryaspects-of-sentencing claim waived.5

 

Accordingly, after a thorough review of the record and briefs, we find 

Appellant has presented no issue on appeal that would convince us to 

disturb his judgment of sentence.

Judgment of sentence affirmed. 

Judge Panella joins the memorandum.

Judge Platt concurs in the result.

 

5 Additionally, Appellant failed to include a statement pursuant to Pa.R.A.P. 

2119(f) in his brief, and the Commonwealth has objected to this omission. 

Commonwealth’s Brief at 15. See Commonwealth v. Roser, 914 A.2d 

447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f) statement 

does not automatically waive an appellant’s [discretionary aspects of 

sentencing] argument; however, we are precluded from reaching the merits 

of the claim when the Commonwealth lodges an objection to the omission of 

the statement.”) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287 

(Pa. Super. 2006)). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/18