Com. v. Lee, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AVIS LEE,
Appellant No. 1891 WDA 2016
Appeal from the PCRA Order Entered November 17, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005128-1980
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 29, 2017
Appellant, Avis Lee, appeals from the order dismissing, as untimely,
her petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Appellant received a mandatory life sentence
without the possibility of parole (MLWOP) for a crime she committed when
she was only eighteen years old. In this appeal, Appellant contends that she
is entitled to relief pursuant to the United States Supreme Court’s decision in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which held that the high
Court’s prior ruling in Miller v. Alabama, 567 U.S. 460 (2012) (banning the
imposition of MLWOP sentences for crimes committed by persons under the
age of eighteen), applies retroactively. Appellant argues that she is similarly
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* Retired Senior Judge assigned to the Superior Court.
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situated to the beneficiaries of the Miller and Montgomery decisions in all
relevant respects, but for the arbitrariness of the legal age of maturity.
After careful review, we are constrained to affirm.
During Appellant’s direct appeal, we summarized the pertinent facts
adduced at the trial that led to her conviction for second-degree murder, as
follows:
The facts of this case, viewed in the light most favorable to
the Commonwealth, are as follows. At approximately midnight
on the night in question, Robert Walker was found lying
unconscious in a parking lot nearby to the Pittsburgh Athletic
Association (P.A.A.) in Oakland. He died ten hours later of a
gunshot wound to the head. Sometime later Arthur Jeffries
approached the police with information linking [Appellant] and
co-defendant Madden to the crime. Both [Appellant] and
Madden were arrested. Jeffries was also charged with complicity
after the police noted several inconsistencies in the information
he supplied to them.
The evidence offered at trial against [Appellant] was in the
form of her confession to the police, which was redacted by the
[c]ourt to eliminate any mention by name of her accomplices.
The confession set forth that on the evening of November 1,
1979, [Appellant] suggested to her brother, co-defendant
Madden, that they attempt to obtain some money. Madden
chose the P.A.A. in Oakland as a desirable site for a robbery
attempt. Co-defendant Jeffries agreed to accompany them and
was to share in the fruits of the venture. [Appellant] saw that
Madden was carrying a loaded gun. They arranged to be driven
to Oakland by a third party. [Appellant] was designated to serve
as the look-out. Defendants waited on the porch of the Syria
Mosque until the victim approached. Madden followed him,
pointing the gun at his back. When the victim swung around
and attempted a karate blow at Madden and reached for his
pocket, Madden shot him.
[Appellant]'s statement was corroborated in all material
details by the redacted statements of her co-defendants which
were also introduced into evidence accompanied by the [c]ourt's
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cautionary instructions to each individual juror and to the jury as
a group that each statement could be used as evidence only
against the maker of the statement.
Commonwealth v. Lee, 838 Pittsburgh 1981, unpublished memorandum at
1-2 (Pa. Super. filed July 16, 1982). Appellant, tried jointly with co-
defendants Madden and Jeffries in Allegheny County in January of 1981, was
found guilty on January 20, 1981, and sentenced to MLWOP on July 13,
1981. This Court affirmed her sentence on July 16, 1982. Commonwealth
v. Lee, 448 A.2d 1159 (Pa. Super. 1982) (unpublished memorandum).
Appellant filed her first petition for post-conviction relief on August 20,
1984, which the lower court denied on May 9, 1986. This Court affirmed
that decision on April 9, 1987. Commonwealth v. Lee, 531 A.2d 527 (Pa.
Super. 1987) (unpublished memorandum). Appellant filed a second petition
for post-conviction relief on May 17, 1989, which was denied on May 25,
1989. This Court affirmed the denial of Appellant’s second post-conviction
petition July 26, 1990. Commonwealth v. Lee, 580 A.2d 1165 (Pa. Super.
1990) (unpublished memorandum). Our Supreme Court denied her petition
for allowance of appeal from that decision on April 29, 1991.
Commonwealth v. Lee, 592 A.2d 44 (Pa. 1991). Appellant filed her third
and fourth petitions for post-conviction relief on June 1, 2000 and August
29, 2000, which were denied by the PCRA court, respectively, on October
12, 2000 and June 20, 2000. Appellant filed a PCRA petition on July 11,
2012, her fifth petition for post-conviction relief, in response to the Miller
decision. Because Miller was not recognized at that time as applying
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retroactively, Appellant’s PCRA petition was dismissed on February 26,
2013.1
Appellant filed the instant PCRA petition, her sixth petition for post-
conviction relief in the Pennsylvania court system, on March 24, 2016,
exactly 59 days after the Montgomery decision was issued. The PCRA
court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition on April 25, 2016. Appellant filed a timely response thereto on May
12, 2016, and an additional memorandum in support of granting PCRA relief
on September 15, 2016. The PCRA court ultimately dismissed the petition
on November 17, 2016. Appellant filed a timely notice of appeal on
December 12, 2016, and a timely, court-ordered Pa.R.A.P. 1925(b)
statement on February 7, 2017. The PCRA court issued its Rule 1925(a)
opinion on May 23, 2017.
Appellant now presents the following questions for our review:
I. Did the PCRA court err in rejecting Appellant's claim that
Miller[']s constitutional requirement of consideration of
age-related factors prior to imposing [MLWOP] applies to
[Appellant] who possessed those characteristics of youth
identified as constitutionally significant for sentencing
purposes by the U.S. Supreme Court?
II. Did the PCRA court err in rejecting Appellant's claim that
the rule of law announced in Miller requires retroactive
invalidation of a MLWOP sentence imposed on an offender
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1Appellant also unsuccessfully sought habeas relief in the federal courts on
multiple occasions over the course of this timeline.
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with categorically diminished culpability because the
offender did not kill or intend to kill?
III. Did the PCRA court err in rejecting Appellant's claim that
the combined effect of [her] youth, her experience of
extreme childhood and adolescent abuse and trauma, and
her lack of intent to kill render her less culpable under
Miller and therefore require reversal of her sentence?
IV. Did the PCRA court err in rejecting Appellant's claim that
Pennsylvania law permitting [MLWOP] sentences for crimes
committed by 18-year-olds lacks a rational basis in light of
Miller's prohibition against such sentences for offenders
aged 17 and younger and therefore violates the equal
protection clauses of the United States and Pennsylvania
constitutions?
V. Did the PCRA court abuse its discretion in failing to hold an
evidentiary hearing where [Appellant] had raised issues of
material fact that entitle her to relief?
Appellant’s Brief at 4-5.
This Court’s standard of review regarding an order denying a PCRA
petition is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan,
923 A.2d 1169, 1170 (Pa. 2007). However, we must begin by addressing
the timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
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(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
The trial court imposed Appellant’s judgment of sentence in 1981. The
instant PCRA petition, Appellant’s sixth collateral attack on her judgment of
sentence, was not filed until March 24, 2016. Appellant’s PCRA petition is,
therefore, patently untimely. See 42 Pa.C.S. § 9545(b)(1). Accordingly, we
cannot address the merits of Appellant’s PCRA petition unless she meets one
of the enumerated statutory exceptions to the PCRA’s time bar set forth in
Sections 9545(b)(1)(i)-(iii).
Appellant expressly avails herself of the retroactive-constitutional-right
exception set forth in Section 9545(b)(1)(iii), in reliance on Miller and
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Montgomery. Because the Montgomery decision established that Miller
applies retroactively, and because Appellant filed her PCRA petition within 60
days of the Montgomery ruling, she has ostensibly satisfied the
requirements of Section 9545(b)(2). Therefore, the only jurisdictional
question before this panel is whether the right announced in Miller,
although expressly applicable only to minors who were under the age of 18
when they committed their crimes, should also apply to individuals who
sufficiently avail themselves of the rationale of the Miller decision, despite
the express age limitation set forth in that opinion. Miller, 567 U.S. at 465(“We … hold that mandatory [LWOP] for those under the age of 18 at the
time of their crimes violates the Eighth Amendment’s prohibition on cruel
and unusual punishments.) (quotation marks omitted, emphasis added).
Briefly stated, that rationale concerns whether the commission of a crime
“reflects unfortunate yet transient immaturity” of a young offender rather
than “irreparable corruption[.]” Miller, 567 U.S. at 479-80 (quoting Roper
v. Simmons, 543 U.S. 551, 573 (2005)).
Appellant acknowledges that this Court has issued two precedential
decisions resolving Appellant’s claims in Commonwealth v. Cintora, 69
A.3d 759 (Pa. Super. 2013), and Commonwealth v. Furgess, 149 A.3d 90(Pa. Super. 2016). This Court issued Cintora after Miller, but before
Montgomery. In that case, the petitioners, who were both over the age of
18 at the time they committed their crimes (19 and 22), sought relief in an
untimely PCRA petition under the rationale of Miller, availing themselves,
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inter alia, of the PCRA timeliness exception set forth in Section
9545(b)(1)(iii). Consistent with a current scientific consensus that a human
brain does not fully mature until a person reaches their mid-twenties, the
petitioners in Cintora argued that they should be entitled to relief under
Miller because they were similarly situated to minors who benefited from
the Miller decision. We rejected their virtual-minor theory as a basis to
invoke Section 9545(b)(1)(iii), citing Miller’s express age restriction.
Cintora, 69 A.3d at 764. Instantly, although Appellant presents a far more
sophisticated argument, we see no significant conceptual difference in the
claimed basis for relief from that asserted by the petitioners in Cintora.
In Furgess, an appellant raised a similar argument to that presented
in Cintora, but did so after Montgomery’s ruling rendered retroactive the
right established in Miller.2 Reconsidering Cintora post-Montgomery, the
Furgess Court determined that:
[N]othing in Montgomery undermines Cintora's holding that
petitioners who were older than 18 at the time they committed
murder are not within the ambit of the Miller decision and
therefore may not rely on that decision to bring themselves
within the time-bar exception in Section 9545(b)(1)(iii).
Accordingly, Cintora remains controlling on this issue, and
Appellant's assertion of the time-bar exception at Section
9545(B)(1)(iii) must be rejected.
Furgess, 149 A.3d at 94.
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2 The Cintora Court had alternatively rejected the petitioners’ claim on the
basis that the Miller decision did not apply retroactively. Cintora, 69 A.3d
at 764 n.4.
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Appellant contends that this Court’s decisions in Cintora and Furgess
should be overruled. Appellant’s Brief at 16. She argues that, in following
the Miller precedent under the principle of stare decisis, this Court is
obligated to adhere to the rationale of the United States Supreme Court’s
decisions, rather than to merely obey their specific holdings. Appellant’s
Brief at 16-17 (citing Seminole Tribe v. Florida, 517 U.S. 44 (1996)).
Appellant continues:
The right established in Miller and held to apply retroactively in
Montgomery…, must be construed to include not only the
narrow holding identified by this Court in Cintora and Furgess,
but must include the underlying reasoning, scientific principles,
and "well-established rationale" upon which the Court in Miller
and Montgomery relied in reaching the results in those cases.
The right, therefore, must include the Court's analysis under its
Eighth Amendment sentencing jurisprudence; the Court's
conclusions that the "characteristics of youth, and the way they
weaken rationales for punishment, can render a life-without-
parole sentence disproportionate," Miller, 567 U.S. at 473, and
that a [MLWOP] sentencing scheme "poses too great a risk of
disproportionate punishment" by precluding a sentencer from
considering an offender's age and characteristics of youth prior
to imposing the harshest punishments, Id. at 479; and the
Court's adoption of science and social science relating to
adolescent development.
Appellant’s Brief at 17-18.
Appellant presents a compelling argument to reconsider this Court’s
decisions in Cintora and Furgess. It is hard to come away from an honest
reading of Miller with the impression that the arbitrary legal age of maturity
is essential to Miller’s rationale, despite its centrality to the specific holding
in that case, and that the matter was neither mentioned nor discussed in
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those cases. Nevertheless, given Appellant’s concession that he is not
entitled to relief under the precedent set by Cintora and Furgess, we are
compelled to deny relief in this matter, as this “panel is not empowered to
overrule another panel of the Superior Court.” Commonwealth v. Beck,
78 A.3d 656, 659 (Pa. Super. 2013).
Appellant argues, alternatively, that she is entitled to relief under the
principles of equal protection, rather than merely as an extension of Miller’s
reliance on Eighth Amendment jurisprudence. Again, without reaching the
merits of such an argument, we are compelled to reject it given the
constraints imposed by the PCRA statute. The timeliness exception set forth
in Section 9545(b)(1)(iii) requires, by its express terms, an existing decision
holding that a specific right applies retroactively. While the Montgomery
decision is such a ruling with respect to an Eighth-Amendment-based-Miller
right, Appellant has not pointed to any decision of the United States or
Pennsylvania Supreme Courts that has recognized the retroactivity of a
similar right, but grounded in equal protection. For whatever reason, the
Pennsylvania Legislature has precluded the litigation, in the first instance, of
novel constitutional rights claims in the context of untimely PCRA petitions.
Accordingly, for all the aforementioned reasons, we are compelled to
affirm the PCRA court’s denial of Appellant’s untimely PCRA petition.
Order affirmed.
Judge Dubow joins this memorandum.
Judge Platt concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
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