Com. v. Rosenthal, S. ( 2020 )

J-S69033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STAN ROSENTHAL :
:
Appellant : No. 1481 EDA 2019
Appeal from the PCRA Order Entered May 3, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0607691-1986
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 06, 2020
Appellant, Stan Rosenthal, pro se, appeals from the order entered
May 3, 2019, that dismissed his second petition filed under the Post Conviction
Relief Act (“PCRA”)1 without a hearing. We affirm.
The facts and procedural history underlying this appeal are as follows:
Police charged Appellant[, born March 6, 1958,] with first degree
murder in the 1986 fatal beating and stabbing of his girlfriend,
Dawn Teper. . . . Appellant admitted to police that he assaulted
Dawn but insisted his attack resulted from heat of passion and his
altered perception of reality due to drug abuse. Appellant filed a
motion to suppress his statements to police, but the trial court
denied the motion. Appellant waived his right to a jury trial in
exchange for the Commonwealth’s promise not to seek the death
penalty.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
J-S69033-19
The trial court rejected Appellant’s argument that he was
incapable of forming the specific intent to kill at the time of the
murder due to ingestion of a great quantity of drugs. Appellant
claimed his use of drugs was involuntary due to an addiction that
he developed from use of drugs over a long period of time.
Instead, the court credited testimony that Appellant previously
had threatened to kill Dawn if she left him and concluded he acted
on that threat. The court also gave little weight to the fact that a
psychiatrist who saw Appellant after he was arrested concluded
he was depressed and needed further observation to prevent a
possible suicide. The court gave more weight to the fact that tests
administered at the hospital failed to detect any residue of
narcotics. It convicted Appellant of first degree murder and
possession of an instrument of crime. The court immediately
imposed a mandatory life sentence for first degree murder. On
July 27, 1989, the trial court imposed a two and one-half to five
year sentence for possession of an instrument of crime concurrent
to the life sentence it previously imposed for murder.
Appellant filed a direct appeal, and we affirmed the judgment of
sentence. Commonwealth v. Rosenthal, 583 A.2d 835(Pa.Super. 1990) (unpublished memorandum opinion). Appellant
filed a petition for reargument that we denied. Next, Appellant
filed a petition for remand for an evidentiary hearing to develop a
factual basis in support of the claims of ineffective assistance of
counsel he had made on direct appeal. We also denied this
petition. Appellant then filed a petition for allowance of appeal,
arguing that our Supreme Court should reconsider its decision in
Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990).
In Young, the Court concluded that defendants were not denied
their constitutional rights under the fifth and sixth amendments to
the United States Constitution when they are not informed about
the potential harm to themselves by not consulting with an
attorney before making a statement. Our Supreme Court denied
Appellant’s request for an appeal on May 13, 1991. Appellant then
filed a writ of certiorari to the United States Supreme Court, which
that Court denied on December 16, 1991. Finally, Appellant filed
[a] PCRA petition, his first, on January 12, 1996.
Commonwealth v. Rosenthal, No. 4334 Philadelphia 1996, unpublished
memorandum at 1-3 (Pa. Super. filed October 23, 1998). On October 31,
-2-
J-S69033-19
1996, the PCRA court denied Appellant’s first PCRA petition. Id. at 1. On
October 23, 1998, this Court affirmed that denial of PCRA relief. Id.
On March 28, 2016, Appellant pro se filed his second PCRA petition,
which stated:
[Appellant] concedes that his current PCRA petition is not filed
within one year of the date his judgment of sentence became
final.[2] However, [Appellant]’s claim fulfills the exception of 42
Pa.C.S. §9545(b)(1)(iii).
[Appellant] claims that the US Supreme Court’s decision in
Montgomery [v. Louisiana, 136 S. Ct. 718 (2016),] that held
the Court’s previous ruling in Miller [v. Alabama, 567 U.S. 460(2012),] applied retroactively, “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 the Court to apply retroactively.”
PCRA Petition, 3/28/2016, at 5.
On March 12, 2019, the PCRA court entered a notice of intent to dismiss
all claims without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it
lacked jurisdiction over Appellant’s petition, because the petition was untimely
and failed to satisfy an exception to the PCRA’s time bar. On March 25, 2019,
Appellant filed a response that did not request to amend the PCRA petition.
____________________________________________
2 Generally, 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 petitioner proves one
of the three exceptions to the time limitations for filing the petition set forth
in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).
-3-
J-S69033-19
On May 3, 2019, the PCRA court dismissed Appellant’s petition. On
May 13, 2019, Appellant filed this timely appeal.3
Appellant presents the following issues for our review:
(1)
Did the PCRA [c]ourt err in dismissing [A]ppellant[’]s Post-
Conviction Relief Act Petition as untimely which [A]ppellant filed
within 60-days of MONTGOMERY V. LOUISIANA 136 S.Ct 718
2018 challenging whether the Act of October 25, 2012 P.L. 204
which authorizes as to findings of guilt for First and Second Degree
Murder sentences of 20,25,30 and 35 years to life and did such
repeal for similar conviction 18 Pa C.S.A. §1102(a)-sentence for
first degree murder which authorizes death and life imprisonment
and 18 Pa C.S.A.§1102(b)-sentence for second degree murder
which authorizes life imprisonment?
(2)
Whether where the United States Supreme Court decision
invalidating mandatory minimum and maximum sentencing
statutes and other decisions invalidating mandatory death penalty
statutes and statutes authorizing mandatory life imprisonment as
to juveniles create a Constitutional Right which wasn’t
recognize[d] as such satisfies the One year time limitations of 42
Pa C.S. §9545(b)(1)(iii)?
Appellant’s Brief at 5.
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).
____________________________________________
3Appellant filed his statement of errors complained of on appeal on July 29,
2019.
-4-
J-S69033-19
Initially, we observe that Appellant is correct that the United States
Supreme Court in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held
that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively; Miller
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. Petitioners who were at least 18 years
old at the time of their crimes – such as Appellant, who was 28 years old --
“are not within the ambit of the Miller decision [and its corollary,
Montgomery,] and therefore may not rely on that decision to bring
themselves within the time-bar exception in Section 9545(b)(1)(iii).”
Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016). Hence, Miller
and Montgomery are inapplicable to Appellant. Having discerned no error of
law, we affirm the order below. See Medina, 209 A.3d at 996.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/20
-5-