Com. v. Jones, T.

J-S50030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE JONES
Appellant No. 1771 EDA 2014
Appeal from the Order Entered May 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0612181-1973
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 08, 2015
Appellant, Tyrone Jones, appeals from the May 21, 2014 order
dismissing, as untimely, his sixth petition, as amended, filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
consideration, we affirm.
We summarize the early history of this case as follows. Appellant, who
was a juvenile but tried as an adult, was convicted in May 1975 of first-
degree murder, carrying a firearm on a public street, and criminal conspiracy
in connection with the slaying of a 17-year-old victim as part of a gang
initiation.1 Appellant was sentenced to a mandatory term of life in prison
without the possibility of parole on October 28, 1975. Appellant filed a
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1
18 Pa.C.S.A. §§ 2502, 6108, and 903, respectively.
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direct appeal, which was denied by our Supreme Court on April 28, 1977.
Commonwealth v. Jones, 372 A.2d 814 (Pa. 1977). After filing a Post
Conviction Hearing Act petition, Appellant was permitted to file additional
post-sentence motions nunc pro tunc, which were denied by the trial court.
In a second direct appeal, Appellant’s sentence was affirmed by this Court
on October 23, 1986, and our Supreme Court denied Appellant’s petition for
allowance of appeal on April 30, 1987. Commonwealth v. Jones, 517
A.2d 1365 (Pa. Super. 1987) (unpublished memorandum), appeal denied,
527 A.2d 536 (Pa. 1987). Subsequently, Appellant filed a series of PCRA
petitions in 1993, 1997, 2001, and 2007, in which he claimed, inter alia, that
various witnesses existed who could provide alibis or testify that he was not
present at the shooting. All of Appellant’s petitions were dismissed.2
Appellant filed the instant petition on July 14, 2010. After several
authorized and unauthorized amendments, the PCRA court entered an order
notifying Appellant of its intent to dismiss Appellant’s PCRA petition without
a hearing on April 21, 2014. Appellant did not file a response, and on May
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2
Appellant was appointed counsel for his 1993 and 1997 PCRA proceedings.
Appellant’s 2001 and 2007 petitions were dismissed as untimely. Appellant
appealed from the denial of the 1997, and 2001 petitions, and this Court
affirmed the rulings. Commonwealth v. Jones, 1076 EDA 1998 (Pa.
Super. 1999), appeal denied, 423 EDA 1999 (Pa. 1999); Commonwealth v.
Jones, 1495 EDA 2002 (Pa. Super. 2003).
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21, 2014, the PCRA court entered an order dismissing Appellant’s PCRA
petition.3 Appellant filed a timely notice of appeal on June 20, 2014.4
On appeal, Appellant raises the following issues for our review.
[1] Did the PCRA court err in ruling that
[Appellant’s] Rule 1925(b) Statement of Errors on
Appeal — claiming that the court erred in
determining his Fourth Amended Petition “was
untimely” — was too vague when: the statement
complied with Pennsylvania Rule of Appellate
Procedure 1925(b)(4)(v), as amended in 2007, and
encompassed all subsidiary issues; and the issue was
not only fully preserved in the record but was the
only substantive issue addressed in the court below?
[2] Did the PCRA court err in ruling that
[Appellant] waived review of the issues set forth in
his Fourth Amended Petition by failing to seek leave
to amend his petition when [Appellant] consistently
informed the court of his intent to amend, the
Commonwealth filed a motion to dismiss the Fourth
Amended Petition, and the court implicitly accepted
his Fourth Amended Petition as the operative
pleading?
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3
On June 4, 2014, the PCRA court filed a second order, redundantly
dismissing Appellant’s PCRA petition.
4
Appellant filed a second notice of appeal at the same time, treating the
PCRA court’s order as separate dismissals of his fourth amended PCRA
petition and his April 4, 2014 emergency petition. In compliance with the
PCRA court’s directive, Appellant also filed separate concise statements of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). On October 24, 2014, this Court dismissed the appeal
at 1770 EDA 2014 as duplicative. See Commonwealth v. Jones, 1770
EDA 2014, Per Curiam Order, 10/24/14. On November 24, 2014, this Court
clarified that Appellant was free to raise the issues from both Rule 1925(b)
statements in his brief for the instant appeal. See id. Per Curiam Order,
11/24/14. In the meantime, the PCRA court issued two Rule 1925(a)
opinions on August 21, 2014 and September 2, 2014, respectively.
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[3] Did the PCRA court err in ruling, without an
evidentiary hearing, that [Appellant] had not
exercised due diligence in obtaining new evidence
when: (a) [Appellant] raised issues of material fact
regarding his diligence that required an evidentiary
hearing under Pennsylvania Rule of Criminal
Procedure 908(2); and (b) the PCRA court’s findings
regarding [Appellant’s] alleged lack of diligence are
not supported by the record?
[4] Did the PCRA court err in dismissing
[Appellant’s] claim under Brady v. Maryland, 373
U.S. 83 (1963) when: (a) the evidence withheld by
the Commonwealth was material and favorable to
[Appellant]; and (b) the court failed to conduct a
fact-intensive inquiry to determine the materiality of
the withheld evidence, consequently misconstruing
the facts of record and misapplying the principles of
Brady?
[5] Did the PCRA court prematurely deny
[Appellant’s] request for discovery when it had not
yet determined whether it had jurisdiction over
[Appellant’s] claims?
[6] Did the PCRA court err in dismissing
[Appellant’s] independent actual innocence claim
when: (a) such a claim should be recognized under
the Pennsylvania and United States Constitutions;
and (b) the PCRA court’s finding that [Appellant]
could not establish actual innocence was made
without an evidentiary hearing?
[7] Did the PCRA [c]ourt err in concluding that
[Appellant] failed to timely file his Amended
Emergency Petition under the PCRA?
[8] Did the PCRA [c]ourt err in concluding that, if,
[Appellant’s] claims are not cognizable under the
PCRA, he may not seek relief through a writ of
habeas corpus?
[9] Does the failure to apply Miller v. Alabama,
[]132 S. Ct. 2455 (2012) retroactively in
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Commonwealth v. Cunningham, 81 A.3d 1 (Pa.
2013), render [Appellant’s] sentence unlawfully
disproportionate in violation of the United States
Constitution’s bar on cruel and unusual punishment
and the Pennsylvania Constitution’s prohibition on
cruel punishment?
[10] Is the failure to apply Miller retroactively in
Cunningham so unfair and inequitable that it
independently violates the Pennsylvania
Constitution’s prohibition on cruel punishment?
[11] Does the failure to apply Miller retroactively in
Cunningham irrationally and without justification
treat similarly-situated juvenile offenders differently
and thus violate [Appellant’s] state and federal
constitutional rights to equal protection and due
process?
[12] Under the constitutional avoidance canon,
should this Court refrain from deciding the
constitutional issues raised in Questions 9-11 and,
instead, conclude that Miller applies retroactively
under settled Pennsylvania law because good
grounds exist to do so and the Miller rule comports
with Pennsylvania norms?
Appellant’s Brief at 4-8.
We address the denial of PCRA relief according to the following
standards.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
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Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014).
We elect to first address Appellant’s second issue, raised in response
to the PCRA court’s contention that the issues Appellant raised in his fourth
amended PCRA petition are waived because leave to file said amended
petition was not expressly sought by Appellant or granted by the PCRA
court.5 Appellant’s Brief at 33; PCRA Court Opinion, 9/2/14 at 12.
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5
At the outset, we address Appellant’s first issue, which counters the PCRA
court’s suggestion in its September 2, 2014 opinion, that Appellant has
waived his issues on appeal that challenge the PCRA court’s determination
that the PCRA petition was untimely because his Rule 1925(b) statement
was too vague. PCRA Court Opinion, 9/2/14, at 11-12. In pertinent part,
Appellant’s 1925(b) statement reads that “[t]he [PCRA c]ourt erred in ruling
that [Appellant’s] Fourth Amended PCRA Petition was untimely.” Appellant’s
Rule 1925(b) Statement, 7/14/14, at 2. We note, that the PCRA court did
not promulgate any particular findings or supply any exposition of its
reasons beyond its determination that Appellant’s petition was untimely
when it filed its Rule 907 notice, or its May 21, 2014 order dismissing
Appellant’s PCRA petition. Accordingly, Appellant did not have the PCRA
court’s particular rationale to make a more particularized articulation of his
(Footnote Continued Next Page)
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Our criminal procedural rules reflect that the PCRA
judge “may grant leave to amend … a petition for
post-conviction collateral relief at any time,” and that
amendment “shall be freely allowed to achieve
substantial justice.” Pa.R.Crim.P. 905(A); see
Commonwealth v. Williams, 573 Pa. 613, 633,
828 A.2d 981, 993 (2003) (noting that the criminal
procedural rules contemplate a “liberal amendment”
policy for PCRA petitions). Nevertheless, it is clear
from the rule’s text that leave to amend must be
sought and obtained, and hence, amendments are
not “self-authorizing.” Commonwealth v. Porter,
613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for
example, a petitioner may not “simply ‘amend’ a
pending petition with a supplemental pleading.” Id.Rather, Rule 905 “explicitly states that amendment
is permitted only by direction or leave of the PCRA
Court.” Id. at 523–24, 35 A.3d at 12[.]
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014).
Appellant argues that a PCRA court’s implicit acceptance of an
amended pleading is sufficient. Appellant’s Brief at 34, citing
Commonwealth v. Roney, 79 A.3d 595, 615-616 (Pa. 2013) (noting where
a PCRA court did not “address or … delineate” claims raised in an amended
PCRA petition, it did not “implicitly or explicitly accept” them), cert. denied,
Roney v. Pennsylvania, 135 S. Ct. 56 (2014). Instantly, following the
filing of Appellant’s fourth amended PCRA petition on September 6, 2012,
the Commonwealth filed a motion to dismiss it on May 31, 2013.
Subsequently, the PCRA court directed the parties to brief the issues
contained therein and entertained oral arguments on August 5, 2013.
_______________________
(Footnote Continued)
issue. Under these circumstances, we decline to find waiver based on the
wording of Appellant’s Rule 1925(b) statement.
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Additionally, by order dated August 12 2013, the PCRA court explicitly
treated Appellant’s July 12, 2012 “Petition for Vacation of Illegal Sentence,”
raising the Miller issues discussed infra, as an amendment to Appellant’s
PCRA petition and held Appellant’s after discovered evidence claims in
abeyance to address all issues together. PCRA Court Order, 8/12/13, at 1.
Finally, on January 8, 2014, the PCRA court granted Appellant’s motion to
further amend his “Petition for Habeas Corpus and/or Post Conviction relief.”
PCRA Court Order, at 1.
Given these circumstances, we agree with Appellant that the PCRA
court implicitly accepted Appellant’s fourth amended petition as well as
explicitly granting leave for the subsequent amendments through Appellant’s
“Petition for Vacation of Illegal Sentence.” Accordingly, we do not conclude
Appellant has waived any of his issues on the basis that they were contained
in an unauthorized amended pleading. See Roney, supra; see also, e.g.,
Commonwealth v. Torres, 101 A.3d 781, 781 n.1 (Pa. 2014) (per curiam)
(recognizing that where a PCRA court entertained issues raised in an
amendment to a PCRA, it was implicitly accepted).
We therefore proceed to address Appellant’s issues challenging the
PCRA court’s determination that his sixth PCRA petition is untimely and that
none of the statutory exceptions apply. “[I]t is well-settled that … a
question of timeliness implicates the jurisdiction of our Court.”
Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (internal
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quotation marks and citation omitted), appeal denied, 49 A.3d 442 (Pa.
2012). “It is well settled that [a]ny and all PCRA petitions must be filed [in a
timely manner] unless one of three statutory exceptions applies.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)
(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege
and prove that one of the timeliness exceptions applies. Whether [the
a]ppellant has carried his burden is a threshold inquiry prior to considering
the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339,
346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,
134 S. Ct. 639 (2013).
Instantly, it is uncontested that Appellant’s sixth PCRA petition, filed
July 14, 2010, is facially untimely.6 Appellant’s Brief at 39. Specifically, in
his third issue, Appellant asserts that he properly pled the application of
Section 9545(b)(1)(ii)’s newly discovered fact exception to the PCRA’s
timeliness constraints. Appellant’s Brief at 39; 42 Pa.C.S.A. § 9545(b)(1)(ii)
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6
The 1995 amendments to the PCRA provide that any PCRA petition must
be filed within one year of the date that a defendant’s judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(3). For judgments that became final
before the effective date of 1995 amendments, a petition must be filed
within one year of the amendments’ effective date of January 15, 1996. 42
Pa.C.S.A. § 9545(b). Here, Appellant’s judgment of sentence became final
on June 29, 1987, at the expiration of the 60 days he had to seek certiorari
review from the United States Supreme Court of our Supreme Court’s April
30, 1987 affirmance of his judgment of sentence on Appellant’s second
direct appeal.
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(providing that it is an exception to the PCRA’s timeliness bar when the
petitioner proves “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”). In his various amendments to his sixth PCRA
petition, Appellant averred the discovery of new facts in the form of various
witness statements. See generally Fourth Amended PCRA petition, 9/6/12.
[S]ubsection (b)(1)(ii) has two components, which
must be alleged and proved. Namely, the petitioner
must 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.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
added).
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). “Due
diligence demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have learned the
new fact(s) earlier with the exercise of due diligence. This rule is strictly
enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011)
(citations omitted), appeal denied, 50 A.3d 121 (Pa. 2012). Our Supreme
Court has “held that a petitioner must allege and prove previously unknown
‘facts,’ not merely a newly discovered or newly willing source for previously
known facts.” Edmiston, supra at 353 (internal quotation marks and
citations omitted). A due diligence inquiry is a preliminary one, addressed to
the application of the timeliness exception at Section 9545(b)(1)(ii), and
does not include a merits analysis of the claim. Bennett, supra at 1271-
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1272. This Court has recently clarified “that due diligence requires neither
perfect vigilance nor punctilious care, but rather it requires reasonable
efforts by a petitioner, based on the particular circumstances, to uncover
facts that may support a claim for collateral relief.” Commonwealth v.
Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc) (citations
omitted). Additionally, the “due diligence inquiry is fact-sensitive and
dependent upon the circumstances presented.” Id. at 1070.
Instantly, the PCRA court determined that Appellant did not exercise
due diligence in identifying the witnesses and securing the proffered
statements. PCRA Court Opinion, 9/2/14, at 19. “[B]ecause [Appellant]
failed to aver why these witnesses could not have been discovered sooner,
this claim should be denied.” Id. Appellant contends that the PCRA court
erred by not conducting a hearing on the issue of Appellant’s exercise of due
diligence. Appellant’s Brief at 39.
With his petition, Mr. Jones included certifications
from counsel and his investigator regarding the
extraordinary efforts made to find each and every
witness who provided information included in the
petition… and, in his response to the
Commonwealth’s motion to dismiss, [Appellant]
provided a detailed proffer of the evidence he would
present at a hearing to establish his diligence…. In
addition, [Appellant’s] most recent submission on
this topic — made after the PCRA court raised
questions about his diligence at an August 2013 oral
argument on the Commonwealth’s motion —
included detailed certifications from [Appellant],
[Appellant’s counsel], and [Appellant’s investigator]
regarding their efforts to find new evidence in
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[Appellant’s] case over the years as well as twenty
letters documenting those efforts.
Id. at 40-41.7
The PCRA court detailed the relevant witness statements and
summarized the circumstances surrounding their discovery by Appellant.
PCRA Court Opinion, 9/2/14, at 13-16.8 The PCRA court concluded that
Appellant did not present a contested fact demonstrating his exercise of due
diligence in seeking out these witnesses.
[Appellant’s] assertions belie the fact that he has
filed numerous prior PCRA petitions that alleged
witnesses existed who could exonerate him. Despite
knowing that such witnesses existed [Appellant] has
failed to aver that he ever made any attempt to
locate them. In this Court’s view, this was fatal to
his claim because it shows that [Appellant] did not
take “reasonable” steps to find any witnesses.
Id. at 18-19.
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7
The proffered witnesses included co-defendant Michael Long, whose
statement indicates Appellant shot at but did not hit anyone during the
incident; Howard and Darryl Williams, located through neighborhood
inquiries, whose statements indicate they were eyewitnesses and Appellant
was not present during the shooting; Arthur Lynn, who came to Appellant’s
attention via a letter from Robert Perkins, an inmate who met Lynn in
prison, whose statement indicates he was an eyewitness and Appellant was
not present during the shooting; and Andrew Monroe, a friend of Appellant’s
brother, whose statement purports that Monroe knows who the true killers
were. See PCRA Court Opinion, 9/2/14, at 13-16.
8
The PCRA court noted that Appellant “concedes in his response to the
Commonwealth’s Motion to Dismiss that he did not establish due diligence
with respect to [other witnesses from whom statements were obtained, i.e.,]
Alan Smith, Curtis Anthony, Ivory Rainey, and the victim’s family.” PCRA
Court Opinion, 9/2/14, at 21.
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As explained by the PCRA court, Appellant’s description of the effort
expended in locating the witnesses and securing the subject statements
does not explain why that effort was not commenced years earlier or
establish the information obtained as unknown. Id. at 20-21. For example,
Appellant was certainly aware the potential of co-defendant Long as an alibi
witness. Accordingly, Long’s statement does not contain unknown facts, but
merely represents a newly located source for the information. As noted
above, a newly identified source of a known fact does not constitute a
newly-discovered fact for the purposes of Section 9545(b)(1)(ii). See
Edmiston, supra.
Additionally, Appellant was aware of the existence of potential
witnesses from the neighborhood of the shooting but failed to aver why
efforts to locate witnesses could not have commenced earlier. Appellant had
averred the existence of such witnesses in his earlier counseled PCRA
petitions, albeit without identifying them. See generally PCRA Petition,
10/14/93; PCRA Petition, 1/16/97. As the PCRA court notes, Daryl and
Howard Williams were still able to be located by canvassing the
neighborhood some 40 years after the crime, and Monroe was a friend of the
family. PCRA Court Opinion, 9/2/14, at 20. With regard to Lynn, the PCRA
court found the failure to produce the purported letter from Perkins resulted
in an insufficient averment of when Lynn’s information was discoverable.
Id.
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Appellant cites as evidence of his due diligence the fact that he
repeatedly sought relief in the courts despite his attorneys filing no-merit
letters. Appellant’s Brief at 41. We view this argument as an implicit attack
on the effectiveness of prior counsel, which our Supreme Court has held will
not support a newly discovered fact claim. “[T]o the extent that Appellant is
arguing that PCRA counsel’s ineffectiveness was after-discovered ‘fact,’ we
conclude that such a claim will not establish jurisdiction under 42 Pa.C.S.A.
§ 9545(b)(1)(ii).” Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 786
(Pa. 2000).
Based on our review of the record, we agree with the PCRA court’s
determination that Appellant has not presented sufficient facts in dispute
establishing his due diligence in securing the witness statements or that the
information contained therein was truly unknown as opposed to being
merely offered by a “newly discovered or newly willing source.” Edmiston,
supra. Accordingly we discern no abuse of discretion by the PCRA court in
determining Appellant failed to adequately plead due diligence or in declining
to hold a hearing. See Williams, supra.
Appellant alleges in his fourth issue the PCRA court erred in evaluating
Appellant’s Brady claim relative to information alleged to have been
withheld by the Commonwealth about a gun found where co-defendant Long
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directed them to look.9 Appellant’s argument centers on the PCRA court’s
alternative discussion on the merits of the Brady claim and whether the
withheld information was material.
However the PCRA court determined Appellant’s Brady claim was
untimely and did not fall under either the newly discovered fact or
governmental interference timeliness exceptions under Sections
9545(b)(1)(i) and (ii). Again, the PCRA court determined Appellant failed to
establish he acted with due diligence in discovering the information. PCRA
Court Opinion, 9/2/14, at 22. Noting Appellant was aware of Long’s
statement, the PCRA court stated, “in those statements Long referred to
Stewart and told police about the gun at Stewart’s house. Consequently,
because [Appellant] was aware of this information he certainly could have
investigated Stewart and the gun well prior to his filing of his most recent
petition.” Id. The PCRA court also determined that, to the extent Appellant
asserted the governmental interference exception, he failed to raise the
claim within 60 days of when it could have been discovered as required by
42 Pa.C.S.A. § 9545(b)(2). Id. Because Appellant has provided no
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9
Specifically, Appellant alleged the Brady violation consisted of the
following. Appellant’s initial statements to the police included conflicting
descriptions of a gun he said his co-defendant fired toward the victim.
Subsequent statements from Long indicated the weapon was at the
residence of Gary Stewart. The gun retrieved by the police from the Stewart
residence was determined not to be the murder weapon and statements
from Stewart indicated the same. The information about the gun retrieved
from Stewart’s residence and Stewart’s statement was not provided to
Appellant by the Commonwealth. Appellant’s Brief at 49-50.
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argument in his brief challenging the PCRA court’s timeliness grounds for
rejecting his Brady claim within the instant PCRA petition, we conclude he
has waived the issue on appeal. See Commonwealth v. Treiber, 121
A.3d 435, 461 (Pa. 2015) (holding appellant waived PCRA Brady claim
where he did not show why the claim could not have been raised earlier).
In his fifth and sixth issues, Appellant avers the PCRA court erred in
rejecting his “independent actual innocence claim.” Appellant’s Brief at 56.
The PCRA court noted that such a claim does not obviate the jurisdictional
time-bar of the PCRA. PCRA Court Opinion, 9/2/14, at 25-26. Appellant
asserts that the PCRA court’s premise was faulty and that he was actually
asserting an independent right, citing federal habeas corpus precedent.
Appellant’s Brief at 57-58. Our Supreme Court has long rejected such
arguments. Commonwealth v. Fahy, 737 A.2d 214, 223, (Pa. 1999).
Appellant’s remaining issues pertain to his Miller legality of sentencing
issue and the application of the newly established constitutional right
exception to the timeliness requisites of the PCRA under Section
9545(a)(1)(iii). However, our Supreme Court has held that Miller has not
been held to apply retroactively. Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2014), cert denied, Cunningham v. Pennsylvania, 134 S. Ct.
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2724 (2014). As a result, Appellant cannot invoke the new constitutional
right exception to the time-bar.10
For all the foregoing reasons, we conclude the PCRA court correctly
determined that Appellant’s sixth PCRA petition was untimely filed and none
of the enumerated time-bar exceptions apply. Accordingly, the PCRA court’s
May 21, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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10
On March 23, 2015, the Supreme Court granted certiorari in
Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), which presents the
Miller retroactivity question. Nonetheless, until the United States Supreme
Court issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.
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