Com. v. Rivers, T. ( 2018 )

J-S65029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREEM RIVERS :
:
Appellant : No. 1758 EDA 2016
Appeal from the PCRA Order May 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0703221-1996
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 16, 2018
Tyreem Rivers appeals, pro se, from the order dismissing, as untimely
filed, his third petition for collateral relief filed pursuant to the Post Conviction
Relief Act (“PCRA”).1 Rivers seeks relief from the judgment of sentence of a
term of life imprisonment imposed on September 16, 1997, following his non-
jury conviction of second-degree murder, robbery, theft and receiving stolen
property.2 On appeal, Rivers contends the PCRA court erred in dismissing his
petition as untimely when he established two exceptions to the time-for-filing
requirements. For the reasons below, we affirm.
The pertinent facts and procedural history underlying this appeal are
well-known to the parties, and aptly summarized in the PCRA court’s opinion.
____________________________________________
1 See 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. §§ 2502, 2701, 3921, and 3925, respectively.
J-S65029-17
See PCRA Court Opinion, 10/5/2016, at 1-7. Accordingly, we need not
reiterate them herein. We note only that the present petition, filed on January
14, 2013, and supplemented on January 16, 2015, is Rivers’ third request for
collateral relief. After providing proper notice of its intent to dismiss the
petition without first conducting an evidentiary hearing, the PCRA court
entered an order on May 4, 2016, dismissing the petition as untimely filed.
Thereafter, on May 26, 2016, Rivers filed this appeal, accompanied by a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal punctuation and citation omitted). Further, a PCRA court may
dismiss a petition “without an evidentiary hearing if there are no genuine
issues of material fact and the petitioner is not entitled to relief.” Id. at 1284(citations omitted).
The PCRA court concluded Rivers’ petition was untimely filed, and Rivers
failed to establish the applicability of one of the time-for-filing exceptions.
See PCRA Court Opinion, 10/5/2016, at 7-12.
A PCRA petition must be filed within one year of the date the underlying
judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
-2-
J-S65029-17
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
untimeliness and reach the merits of the petition. Id.Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
134 S.Ct. 2695 (U.S. 2014).
Here, Rivers’ judgment of sentence was final on April 3, 2000, 90 days
after the Pennsylvania Supreme Court denied his petition for allowance of
appeal from his direct appeal, and he failed to petition for a writ of certiorari
in the United States Supreme Court. See id. at § 9545(b)(3); United States
Supreme Court Rule 13. Therefore, he had until April 3, 2001, to file a timely
petition, and the one before us, filed nearly 12 years later, is patently
untimely.
Nevertheless, an untimely PCRA petition may still be considered if one
of the three time-for-filing exceptions applies. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions under
Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could
have first been brought. 42 Pa.C.S. § 9545(b)(2).
Rivers contends his claims meet two of the time-for-filing exceptions.
First, he argues the United States Supreme Court’s decision in Miller v.
Alabama, 567 U.S. 460 (2012), made retroactive by the Court’s subsequent
decision in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016),
constitutes a newly recognized constitutional right pursuant to Section
9545(b)(iii). In Miller, the Supreme Court held that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the
-3-
J-S65029-17
Eighth Amendment's prohibition on ‘cruel and unusual punishments.’” Miller,
supra, 567 U.S. at 465 (emphasis supplied). Although Rivers acknowledges
that he was 18 years old at the time of the crime, 3 he insists “it is ‘equally
unconstitutional’ to sentence an 18 year old teenage child/minor to the same
cruel and unsual (sic) punishment of [life without parole] as banned by the 8th
Amendment of the U.S. Constitution.” Rivers’ Brief at 6.
Second, Rivers asserts he met the “newly discovered facts” exception
codified at Section 9545(b)(ii). Specifically, he claims he learned from a
November 2014 newspaper article that his first PCRA attorney, James Bruno,
was suspended from the practice of law after being “diagnosed with multiple
mental health problems … which ultimately caused counsel to be extremely
neglectful improperly handling homicide appeals.” Rivers’ Brief at 11. Within
60 days of reading the newspaper article, Rivers filed a supplement to his
January 2013 petition. He maintains that, before he read the article, it would
have been “impossible” for him to discover Bruno suffered from mental illness
that caused him to negligently handle Rivers’ first petition. Id. at 13.
Accordingly, Rivers contends the PCRA court erred in dismissing his petition
as untimely filed.
____________________________________________
3 Rivers was born on November 27, 1977, and the crime occurred on May 3,
1996. Accordingly, Rivers was approximately 18 and one-half years old at the
time he committed the offense.
-4-
J-S65029-17
Upon our independent review of the record, the parties’ briefs, and the
relevant statutory and case law, we conclude the PCRA court thoroughly
discussed and properly disposed of Rivers’ claims in its opinion. See PCRA
Court Opinion, 10/5/2016, at 7-12 (finding (1) Rivers’ petition was facially
untimely; (2) Rivers did not establish the newly discovered fact exception
because (a) his claim is essentially an allegation of the ineffective assistance
of prior PCRA counsel, (b) prior counsel was suspended for actions unrelated
to Rivers’ case,4 and (c) prior counsel’s disciplinary history was “publicly
available for years,” including when Rivers was represented by different
counsel;5 and (3) Rivers did not establish the newly recognized constitutional
right exception because he was 18-years-old at the time of the offense, and
the “Miller holding is specifically limited to juveniles under eighteen years of
____________________________________________
4 Prior counsel represented Rivers from June of 2000 until June of 2004, during
which time counsel filed an amended PCRA petition on Rivers’ behalf. See
PCRA Court Opinion, 10/5/2006, at 3-4. The news article, from which Rivers
learned of counsel’s temporary suspension, stated that counsel was
suspended for two years, retroactive to February of 2013. Supplemental PCRA
petition, 1/16/2015, Exhibit A. Furthermore, the article did not provide any
basis for Rivers to conclude counsel’s recently diagnosed psychological
disorders affected his representation of Rivers many years earlier. See id.
(“Before a psychologist identified the disorders in a 2011 diagnosis, they
caused Bruno to forget to file pleadings, petitions, and appeal notices, as well
as provide his clients with updates. None of the clients’ proceedings suffered
irreparable harm from Bruno’s mistakes the ruling states.”).
5 PCRA Court Opinion, 10/5/2016, at 11.
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J-S65029-17
age at the time they committed murder.”).6 Accordingly, we rest upon the
PCRA Court’s well-reasoned opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2018
____________________________________________
6 Id. at 12.
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0031_Opinion
Circulated 12/22/2017 01:20 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLV,ANIA : . · -:_._ -.CP-51-CR-0703221-1996
_,, . '•
v. . 1758 EDA 2016
TYREEM RIVERS
OPINION.
FILED
OCT 0.5 2016
Rose Marie DeFino-N astasi, J.
Criminal Appears Unit
PROCEDURAL HJSTORY First Judicial District of PA
On September 16, 1997, following a bench trial before the Honorable David N. Savitt,
Petitioner was convicted of Second Degree Murder, 18 Pa.C.S. § 2502(b ), as a felony of the first
degree; Robbery, 18 Pa.C.S. § 3701, as a felony of the first degree; Theft by Unlawful Taking,
18 Pa.C.S. § 3921, as a misdemeanor of the first degree; and Theft by Receiving Stolen Property,
18 Pa.C.S. § 3925, as a misdemeanor of the first degree. Petitioner was sentenced that same day
to a mandatory sentence of life without parole.
On July 30, 1999, the Superior Court affirmed the judgment of sentence.
On January 4, 2000, the Pennsylvania Supreme Court denied allocatur.
On June 13, 2000, Petitioner filed a prose petition under the Post Conviction Relief Act
(PCR.A), claiming:
1. Violation of due process and equal protection rights.
2. Ineffective assistance of counsel.
3. Abandonment of counsel. CP-51 CR-0703221-1996 Comm. v Rivers. Tyreem
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4. "Failure to file timely appeal as requested for post-sentence motion and Supreme
Court."
5. Failure to call witnesses and/or character witnesses as requested.
6. Improper identification.
7. Trial court erred in allowing tainted identification.
8. Failure of trial judge to furnish presentence report.
9. Trail judge erred in denying suppression motion.
10. Suppression of all physical evidence, statements, and tangible things.
11. Lack of probable cause to arrest.
12. Search warrant/affidavit defective/lacking probable cause.
13. Failure to give proper Miranda rights.
14. Prosecutorial misconduct through prejudicial remarks.
15. Failure to disclose evidence (prosecution witness).
16. Trial court erred in allowing illegal testimony of Commonwealth witness.
17. "Counsel abandoned not guilty plea to guilty plea without clients consent or
knowledge during closing arguments."
18. Denial of procedural due process.
19. Deliberate indifference.
20. Gross negligence.
2 J . Lack of due diligence.
22. Defective/inadequate P.S.I. report.
23. Defective execution of search wan-ant.
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On June 20, 2000, James Bruno, Esq. was appointed PCRA counsel. He filed an amended
PCRA petition and memorandum of law on April 10, 2003, wherein he argued lhat trial counsel
was ineffective for failing to call two fact witnesses, Barbara Thompson and Margie Rivers.
On August 21, 2003, Petitioner filed a prose supplemental petition, claiming, inter alia:
J. All previous counsel was ineffective throughout Petitioner's judicial proceedings.
2. "In matters of appellate review, counsel abandoned claim of Petitioner being
subjected to an unduly and suggestive in-court identification" despite having
preserved the matter in the trial court.
3. "Petitioner was unreasonably denied appellate review before the Superior Court when
attorney Gerald Stein failed to have adequately presented issues of no probable cause
to arrest and that Petitioner's arrest was illegal whereas any subsequent confessions or
statements following such an arrest were constitutionally impermissible before the
trial court at [the l suppression hearing."
4. Trial counsel was ineffective for failing to call and/or interview witnesses Barbara
Thompson, Lateck Harrison:, and Margerie Rivers.
5. Trial counsel "directly and/or indirectly assisted the Commonwealth's attorney in
persuading the trial court that Petitioner took part in the accused crime."
6. Trial counsel instructed Petitioner lo waive his right to a jury trial because counsel
had a close relationship with the Judge and told Petitioner "they would work
something out in [his l best interest."
7. Counsel failed to sequester Commonwealth witness. Thomas Antonelli, from the
preliminary hearing.
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8. Assistant District Attorney, Emory Cole, failed to disclose to counsel that an
eyewitness to the crime was present at the preliminary hearing.
9. "Through ill instruction of detectives, a lack of preparation on Counsels behalf, and
the failure of the prosecutor to disclose its (eye witnesses presence therein) Petitioner
was denied his right to seek a line up."
10. The trial court erred when it denied Petitioner's motion to suppress because no
probable cause existed and no exigent circumstances existed for the warrantless arrest
of Petitioner in his home.
11. The trial court erred when it failed to suppress the unduly and suggestive in-court
identification of Petitioner during preliminary proceedings.
On October 9, 2003, the Commonwealth filed a Motion to Dismiss.
On December 10, 2003, the court issued a 907 notice.
On January 21, 2004, the court formally dismissed the PCRA petition.
On February 19, 2004, Petitioner filed a prose notice of appeal to the Superior Court.
On March 18, 2004, Petitioner filed a motion to proceed prose. In that motion, Petitioner
argued that Attorney Bruno only raised one issue in the amended PCRA petition even though
Petitioner raised multiple issues in his pro se filings.
On April 19, 2004, the Superior Court remanded the case to the PCRA court to conduct a
hearing pursuant to Com. v. Grazier, 713 A.2d 81 (Pa. 1998).
On June 10, 2004, Attorney Bruno was permitted to withdraw. Edward Meehan, Esq. was
appointed PCRA counsel.
On July 1, 2004, Petitioner sent Judge Savitt correspondence wherein he stated that he
was "pursuing my right to self-representation in a pro se fashion on appeal and waiving Mr.
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Meehan's representation pursuant to Pa.Crim.P. 121 and the mandates set forth in Com. v.
Grazier in relation to making a knowing and intelligent waiver."
On November 4, 2005, the Superior Court remanded the case to the PCRA court to
conduct a second Grazier hearing.
On February 21, 2006, Attorney Meehan was relieved as PCRA counsel.
James Lammendola, Esq. was appointed and filed a brief on Petitioner's behalf in the
Superior Court on May 25, 2006, wherein he argued that:
1. Trial counsel was ineffective for failing to present two witnesses, Barbara Thompson
and Margie Rivers who were available for trial.
2. Trial and appellate counsel were ineffective for failing to properly preserve the claim
that the Appellant's an-est was not based on probable cause.
3. Trial and Appellant counsel were ineffective for failing to property preserve the claim
that the identification at the preliminary hearing should have been inadmissible since
his attorney was not present at the line-up.
4. Trial and Appellate counsel were ineffective for failing to properly preserve the claim
that the in-court identification was unduly suggestive
On August 30, 2006, the Superior Court affirmed. In its Opinion, the Court held that
although claims (2), (3), and (4) were waived because they were not raised before the PCRA
court, all of Petitioner's claims were without merit even if they had been properly preserved.
Com. v. Rivers, 633 EDA 2014.
The Supreme Court denied allocatur on January 23, 2007.
On May 3, 2007, Petitioner filed a Writ ofHabeas Corpus raising the same exact four
claims raised by Attorney Lammendola in the appellate brief stated supra. He also claimed that
5
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trial counsel was ineffective "by improperly instructing Petitioner to make an unintelligent
waiver of his constitutional right to be tried by a fair and impartial jury," and that trial counsel
was ineffective "based on his [ ongoing] willingness to concede guilt upon Petitioner during
closing arguments[,] altering his client's not guilty plea[] to a plea of guilty without any
professional reason or client consent." Petitioner's writ was denied by the United States District
Court for the Eastern District of Pennsylvania on June 25, 2008.
On May 6, 2009, Petitioner filed an untimely, second PCRA petition, which was
dismissed without a hearing on February 11, 2011. On June 13, 2012, the Superior Court
affirmed. On November 20, 2012, the Supreme Court denied allocatur.
On January 14, 2013, Petitioner filed the instant PCRA petition, his third, claiming that:
1. Pursuant to Miller v. Alabama and Jackson v. Hobbs, mandatory life without parole
terms for adults in non-homicide and homicide cases violate state and federal equal
protection clauses, as well as art. 7 of the Universal Declaration of Human Rights.
2. Mandatory life without parole terms for individuals over age 17 but below age 25
violate the Eight Amendment, art. 5 of the Universal Declaration of Human Rights,
and Art I, § 13 of the Pennsylvania Constitution.
3. A new trial with a «life qualified" jury must be awarded because Petitioner's age
changes the possible punishment for second degree murder.
On January 16, 2015, Petitioner filed a supplemental PCRA petition, claiming after-
discovered evidence in the form of a November 16, 2014 Philadelphia Daily News Article
detailing Attorney Bruno's November 13, 2014, suspension from the practice of law for a period
of two years retroactive to February 26, 2013.
On January 19, 2016, the Commonwealth filed a Motion to Dismiss.
6
On February 29, 2016, Petitioner filed a response to the Commonwealth's motion.
On April 1, 2016, the PCRA court issued a 907 notice.
On April 22, 2016, Petitioner filed an untimely response to the 907 notice, reiterating the
claims set forth in his PCRA petition.
On May 4, 2016, the court formally dismissed the PCRA petition.
On May 26, 2016, Petitioner filed the instant appeal to the Superior Court and
contemporaneously filed a Rule l 925(b) Statement of Matters Complained of on Appeal,
claiming that:
1. PCRA counsel, James Bruno, Esq., was ineffective on collateral appeal. (Petitioner
classifies this claim as after-discovered evidence); and
2. The PCRA court erred in denying relief because Petitioner's sentence is illegal under
Miller v. Alabama and Montgomery v. Louisiana. (Petitioner classifies this claim as
one involving a constitutional right recognized by the Pennsylvania Supreme Court
and held to apply retroactively).
ANALYSIS
Petitioner's judgment of sentence became final on April 3, 2000, when the ninety-day
period for filing a petition for writ of certiorari with the United States Supreme Court expired,
making the instant PCRA petition filed January 14, 2013, patently untimely. See 42 Pa.C.S. §
9545(b)(3).
The timeliness of a PCRA petition is a jurisdictional requirement. Com. v. Brown, 111
A.3d 171, 175 (Pa. Super. 2015) (citing Com. v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011)).
A petition for relief under the PCRA, including a second or subsequent petition, must be filed
within one year of the date the judgment of sentence is final unless the petition alleges, and the
7
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petitioner proves, that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42 Pa.C.S. § 9545(b)(l)-(2).
If a petition is filed after that one year date, the general rule is that the PCRA court lacks
jurisdiction to hear the petition. However,§ 9545(b) provides for three limited exceptions to the
general rule in which such a petition may be filed beyond that one-year period:
(b) Time for filing petition.-
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government
officials with the presentation of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could
not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court
of the United States or the Supreme Court of Pennsylvania after the time period provided
in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (I) shall be filed within 60 days of
the date the claim could have been presented.
42 Pa.C.S. § 9545(b)(l)(i)-(iii), (2).
I
i
I
.I Issue I
Petitioner argues that counsel for his first PCRA petition, James Bruno, Esq., was
ineffective for failing to raise all of the ineffective assistance of trial counsel claims that
·'
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Petitioner raised in his prose PCRA petition in an amended petition. It is welt-settled that a
claim for ineffective assistance of counsel does not save an otherwise untimely petition for
review on the merits. Com. v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). Since his petition
is untimely, Petitioner attempts to circumvent the PCRA jurisdictional time-bar by raising this
ineffectiveness claim as an after-discovered evidence claim. The after-discovered evidence on
which he bases this claim is a November 16, 2014 Philadelphia Daily News article discussing
Attorney Bruno's November 14, 2014 suspension from the practice of law for two years,
retroactive to his previous, temporary suspension in February 2013. See Jan. 16, 2015
Supplemental Petition.
A facially untimely PCRA petition attempting to raise a substantive after-discovered
evidence claim must first establish jurisdiction by pleading and proving an exception to the
PCRA time-bar. 42 Pa.C.S. § 9545(b)(l ). Pennsylvania courts have repeatedly referred to§
9545(b)(l)(ii) as the "after-discovered evidence" exception to the one-year jurisdictional time
limitation. Com v. Bennet, 930 A.2d 1264, 1270 (Pa. 2007) (citing Com. v. Peterkin, 722 A.2d
638, 643 (Pa. 1998)). This shorthand reference was a misnomer, since the plain language of
subsection (b)( 1 )(ii) does not require the petitioner to allege and prove a claim of "after-
discovered evidence."' Rather, the "new facts" exception in § 9545(b)(l)(ii) requires the
petitioner to establish that: (1) the facts upon which the claim was predicated were unknown;
and (2) could not have been ascertained by the exercise of due diligence. Thus, the new facts
exception at§ 9545(b)(l)(ii) does not require any merits analysis of an underlying after-
discovered evidence claim; the merits analysis is governed by Section 9543(a)(2)(vi).
1In fact, when the Legislature intended a claim of"after-discovered evidence" to be recognized under the PCRA, it
has done so by language closely tracking the after-discovered evidence requirements. See 42 Pa.C.S. § 9543(b)(vi)
(requiring that the evidence be "exculpatory" and "would have changed the outcome of the trial ... ").
9
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Petitioner's "attempt to interweave concepts of ineffective assistance of counsel and
after-discovered evidence as a means of establishing jurisdiction is unconvincing." Gamboa-
Taylor, 753 A.2d at 785.2 Petitioner has failed to plead and prove the applicability of Section§
9545(b)(l)(ii) to his "newly-discovered evidence" of Attorney Bruno's suspension, and
therefore, this court is without jurisdiction to grant relief. A conclusion that previous counsel was
ineffective for failing to raise certain claims in an amended PCRA petition, based solely on
evidence that counsel was suspended for actions unrelated to Petitioner's case3, is not the type of
evidence encompassed by the exception. Id. at 785 (emphasis added); Bennet, 930 A.2d at 1272
(reiterating that Pennsylvania courts "firmly rejected any such attempts 'to circumvent the one-
year time limitation' via claims of PCRA counsel ineffectiveness"); Com. v. Lark, 746 A.2d 585,
589-90 (Pa. 2000) (holding that couching argument in terms of ineffectiveness cannot save a
petition that does not fall into the exceptions to the jurisdictional time-bar).
Furthermore, the Pennsylvania Supreme Court has held that "for purposes of the PCRA
time-bar, the mere discovery of trial counsel's disciplinary proceedings which were publicly
disseminated years earlier will not be considered 'facts unknowable"' to a PCRA petitioner.
2 The inapplicability of the after-discovered evidence exception to the type of evidence Petitioner proffers further
demonstrates that Petitioner's claim is, in fact, an ineffective assistance of PCRA counsel claim. "A PCRJ\
petitioner cannot avoid the one-year time bar by tailoring the factual predicate of the claim pied in his PCRA
petition in a way that unmistakably misrepresents the actual nature of the claim raised." Com. v. Watts, 23 A.3d 980,
985-986 (Pa. 2011) (quoting Com. v, Hackett, 956 A.2d 978, 984 (Pa. 2008)).To obtain relief on a substantive after-
discovered evidence claim under the PCRA, a petitioner must demonstrate that: (1) the evidence has been
discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a
different verdict. Com. v, Washington, 927 A.2d 586, 595-96 (Pa. 2007). "The test is conjunctive; the defendant
must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be
warranted." Com. v, Padillas, 997 A.2d 356, 363 (Pa. Super. 20 I 0).
3 Attorney Bruno was
diagnosed with attention deficit-hyperactivity disorder (ADI ID) and depression. The basis for
his suspension included failures to file responses to pleadings, comply with court orders, timely file Petitions for
Allowance of Appeal and Notices of Appeal to the Superior Court, keep clients informed of the status of matters
being handled, and respond to clients' letters and telephone calls. Office of Disciplinary Counsel v. Bruno, No. 1910
Disciplinary Docket No. 3, •4-9 (Nov. 14, 2014). The Report states that "[njone of the clients suffered irreparable
harm, because all were ultimately permitted to pursue their appellate and PCRA claims despite [Bruno's] failure to
file them on time." Id. at p. 9.
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Com. v. Feliciano, 69 A.3d 1270, 1278 (Pa. Super. 2013) (citing Com. v. Lopez, 51 A.3d 195,
198 (Pa. 2012)) (Castille, J., concurring). The court is cognizant that the Pennsylvania Superior
Court in Burton held that presumption of access to information available in the public domain
does not apply to pro se petitioners for post-conviction relief. Com. v. Burton, 121 A.3d 1063(Pa. Super. 2015). In Burton, the appellant discovered a confession made by his co-defendant in
a motion to expunge years after the trial, when Burton was not represented by counsel. A petition
for allowance of appeal was granted on April 6, 2016 to determine whether this decision
"contravene]d] established precedent." Com. v. Burton, 134 A.3d 446 (Pa. 2016). Burton is
inapposite to the instant case since Petitioner did not proceed prose until January 2007.
The Report and Recommendations of the Disciplinary Board of the Supreme Court of
Pennsylvania reflect that Attorney Bruno's disciplinary history dated back to 1988. This
information was publicly available for years, including during the time that Attorney Bruno
represented Petitioner from June 2000 to June 2004, and at the time that Petitioner was
represented by James Lammendola, Esq. in 2006. Since Petitioner was represented by counsel
and these facts were easily discoverable and in the public record for longer than 60 days before
this petition was filed, the petition is time-barred. Lopez, 51 A.3d at 196.
Furthermore, Attorney Bruno filed a timely amended petition in the instant case.
Although Petitioner claims that Bruno did not raise all the issues Petitioner wanted raised,
Attorney Lammendola filed the appellate brief following the denial of the PCRA petition and
reviewed the entire case subsequent to Bruno's withdrawal. Moreover, Petitioner does not state
with any specificity how Attorney Bruno's ADHD and/or depression affected his particular case.
Therefore, the PCRA court is without jurisdiction to address the merits of this claim.
11
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Issue II
Petitioner next argues that the PCRA court erred in denying relief because his sentence is
i11egal under Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and Montgomery v.
Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). The United States Supreme Court's
decision in Miller held that it is unconstitutional to sentence individuals who were under eighteen
years of age at the time of their offense to a mandatory minimum sentence of life imprisonment
without the possibility of parole. The Court in Montgomery held that Miller applies retroactively.
It is undisputed that Petitioner was eighteen years-old at the time he committed the
murder. The Miller holding is specifically limited to juveniles under eighteen years of age at the
time they committed murder. See Miller, 132 S.Ct. at 2460; Com. v. Cintora, 69 A.3d 759, 764
(Pa. Super. 2013) (refusing to extend Miller to individuals eighteen years of age or older at time
murder committed). Therefore, the holding in Miller is inapplicable to Petitioner's case, and
Petitioner has failed to plead and prove a timeliness exception with respect to this claim.
CONCLUSION
Based on the foregoing, the court's denial of the PCRA petition should be affirmed,
By the Court:
12
---· . - ·--··--·· ---··· ----oi.i,;,..�·�u_•. --·-·---- -----···,-----·-··"··----· .
Commonwealth v. Tyreem Rivers
CP-51-CR-0703221-1996
Opinion
Proof of Service
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:
Petitioner: Tyreem Rivers, DK 2865
SCI Dallas
Follies Road, Drawer K
Dallas, PA 18612
Type of Service: () Personal (x) First Class Mail () Other, Please Specify:
District Attorney: Philadelphia District Attorney's Office
PCRA Unit
Widener Bldg.
3 South Penn Square
Philadelphia, PA 19107
·", i
Type of Service: ( ) Personal ( ) First Class Mail (x) Inter-Office
: :
: I
.'
: !
Date: 10/05/2016
Law Clerk to the Honorable Rose Marie Defino-Nastasi