Com. v. Shockley, J.

J-S04024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE SHOCKLEY,
Appellant No. 1042 EDA 2013
Appeal from the PCRA Order March 5, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008078-2007
BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J.*
CONCURRING MEMORANDUM BY BENDER, P.J.:FILED DECEMBER 17, 2014
I concur in the result reached by the Majority under the particular facts
of this case. I write separately to distance myself from the Majority’s
suggestion that Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
finally decided the issue of retroactive application of the new constitutional
rule announced in Miller v. Alabama, 132 S.Ct. 2455 (2012). See Majority
Decision at 8. Notably, the Cunningham Court did not decide whether
Miller’s holding qualifies as a watershed rule of criminal procedure,
satisfying the second exception to the general rule of non-retroactivity
delineated in Teague v. Lane, 489 U.S. 288 (1989) (plurality). See
Cunningham, 81 A.3d at 10 (declining to assess the second Teague
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S04024-14
exception because the appellant did “not develop[] his argument in such
terms”). Additionally, both the Cunningham Majority, as well as Justice
Castille in his concurring opinion, acknowledged that the Court did not
address whether there is a basis under Pennsylvania constitutional law to
afford a broader retroactive application to Miller. See Cunningham, 81
A.3d at 9, 13, 17-18 (Castille, J., concurring). Indeed, our Court has
recognized that retroactivity arguments premised upon state law – raised in
a timely PCRA petition - are not foreclosed by Cunningham and could be
considered by this Court. See Commonwealth v. Seskey, 86 A.3d 237,
243 (Pa. Super. 2014) (noting that while the appellant’s attempts to
circumvent Cunningham based upon Pennsylvania state constitutional law
“someday may require consideration by our courts,” we did not have
jurisdiction to examine those claims because they were raised in an untimely
PCRA petition).
In this case, Appellant did not raise any of the above-mentioned
arguments in his PCRA petition and, therefore, they are not preserved for
our review herein. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
However, if at some point Miller is held to apply retroactively by either our
Supreme Court or the United States Supreme Court, Appellant may seek
relief by filing another PCRA petition within 60 days of the date on which
such decision is filed.
Justice Fitzgerald joins this Concurring Memorandum.
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