Com. v. Moody, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON NATHANIEL N. MOODY :
:
Appellant : No. 2485 EDA 2021
Appeal from the PCRA Order Entered October 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006659-2007
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 27, 2023
Brandon Nathaniel N. Moody (“Moody”) appeals pro se from the order
dismissing as untimely his second petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
In 2006, when Moody was eighteen years and nine months old, he shot and
killed Israel Rivera. A jury found Moody guilty of first-degree murder and
related offenses, and the trial court sentenced him to a mandatory prison
sentence of life without parole for murder and concurrent sentences for the
other crimes. This Court affirmed Moody’s convictions, and our Supreme
Court denied allowance of appeal on November 14, 2011. See
Commonwealth v. Moody, 24 A.3d 449 (Pa. Super.) (unpublished
memorandum), appeal denied, 34 A.3d 828 (Pa. 2011). Moody timely filed a
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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first PCRA petition in 2012, and the court appointed counsel (“PCRA counsel”),
who filed a no-merit letter and a petition to withdraw from representation.2
Lengthy proceedings ensued, during which Moody filed pro se responses to
counsel’s no-merit letter and sought leave to file amended petitions, and
asserted PCRA counsel’s ineffectiveness for filing a no-merit letter. The PCRA
court issued a Rule 907 notice, and Moody filed a pro se response again
seeking leave to amend his petition and, in relevant part, asserting a new
claim that the mandatory imposition of a life without parole sentence was
unconstitutional because Miller v. Alabama, 567 U.S. 460 (2012),3 should
be extended to offenders over the age of eighteen. See Pro Se Response to
Intent to Dismiss First PCRA Amended Petition, 6/3/15, at 14-15 (referencing
studies cited in Miller indicating that adolescence did not end until the age of
twenty). The PCRA court ordered PCRA counsel to respond to Moody’s pro se
filings, and PCRA counsel filed a supplemental no-merit letter. In June 2018,
the PCRA court denied relief without a hearing and permitted PCRA counsel to
withdraw. Moody took a pro se appeal, and this Court affirmed the PCRA
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 The U.S. Supreme Court held in Miller that a mandatory life without parole
sentence constituted a cruel and unusual punishment when imposed on
individuals who committed their offense before turning eighteen years of age.
See Miller, 567 U.S. at 465.
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court’s denial of Moody’s first PCRA petition.4 See Commonwealth v.
Moody, 221 A.3d 291, 2019 WL 3913232 (Pa. Super. 2019) (unpublished
memorandum). Our Supreme Court denied allowance of appeal on March 16,
2020. See Commonwealth v. Moody, 221 A.3d 291, 2019 WL 3913232(Pa. Super. 2019) (unpublished memorandum), appeal denied, 227 A.3d 313(Pa. 2020).
Moody filed the instant pro se PCRA petition, his second, in March 2021,
wherein he asserted that the mandatory imposition of his life without parole
sentence was unconstitutional. Moody acknowledged that Miller did not apply
to offenders over eighteen years of age and maintained that he was not
attempting to “extend” Miller. See Pro Se PCRA Petition, 3/12/21, at 2.
Rather, Moody claimed that he obtained new information that individuals over
eighteen years old have similar behaviors, cognitive levels, and brain functions
as those under eighteen years old. See id. Those facts, he noted, had been
discussed by or presented to other courts in Cruz v. United States, 11-CV-
787 (JCH), 2018 WL 1541898 (D. Conn. Mar. 29, 2018), vacated and
remanded, 826 Fed.Appx. 49 (2d Cir. 2020), and People v. Antolin Garcia-
Torres, No. 213515 (Ca. Super. Ct. (Santa Clara Cty. 2012 to 2017)). See
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4This Court considered and rejected Moody’s argument that PCRA counsel had
been ineffective by filing no merit letters to the claims Moody attempted to
raise during the litigation of his first PCRA petition. See Moody, 2019 WL
3913232, at *7. It is unclear, however, whether Moody pursued an
unconstitutional sentencing claim in his appeal. See id.-3-
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Pro Se PCRA Petition, 3/12/21, at 2.5 He also alleged that prison officials had
interfered with the timely presentation of his constitutional claim by
confiscating his mail containing documents related to Cruz and Garcia-
Torres and refusing him access to his mail before the PCRA court denied relief
on his first PCRA petition. See id. at 1-2, 5.6
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5 Moody asserted that he learned of this information from a third-party who
assisted in researching cases, including Cruz and Garcia-Torres, and who
attempted to mail him documents from those cases. More specifically, Moody
identified materials or passages in Garcia-Torres and Cruz from two
scientists, Dr. Erin Bigler (“Dr. Bigler”) and Dr. Laurence Steinberg (“Dr.
Steinberg”), indicating, in part, that recent studies revealed further insight
into the brains and behaviors of adolescents and that it was now accepted that
the portions of the brain or an individual’s cognitive capacity relating to
criminal culpability do not fully mature until people reach their mid-twenties.
See, e.g., Declaration of Dr. Erin Bigler, 8/29/17, at 3 (filed in Garcia-
Torres, No. 213515, and attached to Moody’s pro se PCRA petition). We add
that we have not been able locate a reference to a decision in Garcia-Torres
in a commercial database; but materials in that case are available at:
https://www.scscourt.org /general_info/news_media/garcia-torres.shtml.
6 Moody also attached to his pro se PCRA petition copies of correspondence
with and his grievances to the Department of Corrections from May 2018 to
June 11, 2018, two days before the PCRA court dismissed his first PCRA
petition. The correspondence indicated that prison officials confiscated the
mail due to a policy of not allowing inmates to receive legal paperwork that
do not belong to the addressee.
Although Moody did not specify when he actually received the information
withheld by prison official, he has alleged adequate facts to conclude that he
did not receive or discover the information until after he appealed the
dismissal of his first PCRA petition. See Commonwealth v. Lark, 746 A.2d
585 (Pa. 2000); Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.
Super. 2018) (en banc) (clarifying that a petitioner may not file a subsequent
PCRA petition until an appeal concerning a previous PCRA petition is
completed).
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In sum, Moody asserted that he discovered more recent scientific
studies to challenge the categorical distinction between individuals, like
himself, who were just over eighteen years old at the time of their offense and
those who were under eighteen years of age. See generally Roper v.
Simmons, 543 U.S. 551, 572-75 (2005) (adopting a categorical distinction at
eighteen years of age and holding that the imposition of the death penalty for
“juvenile offenders” who committed an offense when they were under
eighteen years of age is unconstitutional); Graham v. Florida, 560 U.S. 48,
68, 82 (2010) (holding that sentences of life without parole were
unconstitutional for juvenile offenders who did not commit homicide and
noting that “developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds”); Miller, 567 U.S.
at 465, 479-80 (extending the rationale of Roper and Graham to hold that
the mandatory imposition of a sentence of life without parole on those who
were under the age of eighteen at the time of the offense was
unconstitutional). Moody concluded that he properly alleged newly discovered
facts and governmental interference so that the PCRA court had jurisdiction
to consider his claims that his sentence constituted a cruel and unusual
punishment and denied him equal protection.
The PCRA court issued a Rule 907 notice of intent to dismiss Moody’s
pro se PCRA petition in August 2021 and dismissed the petition on October
21, 2021. Moody timely appealed. The PCRA court did not order a Pa.R.A.P.
1925(b) statement but filed an opinion reasoning that Moody failed to
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establish a PCRA time bar exception because court decisions do not constitute
new facts. See PCRA Court Opinion, 12/22/21, at 3 (citing Commonwealth
v. Cintora, 69 A.3d 759 (Pa. Super. 2013), abrogation recognized in
Commonwealth v. Lee, 206 A.3d 1, 3 n.3 (Pa. Super. 2019) (en banc)).
The PCRA court further concluded that even if prison officials withheld his mail,
Moody could have challenged the constitutionality of his sentence in a post-
sentence motion, his direct appeal, or in his first PCRA proceeding. See id.Moody raises the following issues for our review:
I. Whether the PCRA [c]ourt erred in dismissing the
second/subsequent PCRA petition without first holding a
hearing to determine if the facts presented therein,
including the supporting documents attached, accepted as
true, are sufficient to establish the exceptions to the PCRA’s
one year time bar for governmental interference and/or
after-discovered facts?
II. Whether the PCRA [c]ourt erred in concluding that the
averments of two reputable experts in adolescent brain
development, revealed in both a declaration and
postconviction hearing testimony, respectively, are not
considered facts for the purpose of satisfying the time bar
exceptions?
III. Whether the facts presented by Doctors Bigler and
Steinberg, regarding the diminished culpability of late
adolescents (over 18), raise a genuine issue that the
mandatory life without parole sentence imposed upon
[Moody] is unconstitutional, which is cognizable for relief
pursuant to 42 Pa.C.S.[A. §] 9543(a)(2)(vii)?
Moody’s Brief at 4-5.
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Moody’s first two issues are related; therefore, we address together his
claims that he timely filed the instant PCRA petition. Our standard of review
is well-settled:
When reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is supported by the
record and free of legal error. Generally, we are bound by a PCRA
court’s credibility determinations. However, with regard to a
court’s legal conclusions, we apply a de novo standard.
Lee, 206 A.3d at 6 (internal citation omitted).
Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Moody acknowledges that the instant PCRA petition was facially
untimely because he did not file it until 2021, more than nine years after his
convictions became final. See Moody’s Brief at 15; see also 42 Pa.C.S.A. §
9545(b)(1), (3). Therefore, we consider whether he stated an exception to
the PCRA time bar.
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Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(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.
42 Pa.C.S.A. § 9545(b)(1). Any petition attempting to invoke one of these
exceptions must “be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2).
When reviewing claims that a PCRA petition alleged newly discovered
facts pursuant under section 9545(b)(1)(ii), a court must pay careful attention
to the fact alleged. The relevant fact for section 9545(b)(1)(ii) is not the
publication of a scientific report, but the scientific principles contained in the
report. See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013)
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(concluding that information in a scientific report critiquing the reliability of
hair comparison analysis did not constitute a new fact), overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020) (abrogating
the “public records presumption” that information available in a public record
could not be deemed unknown to the petitioner). However, sources containing
information repudiating previously accepted scientific methods and evidence
may set forth new facts. See Commonwealth v. Chmiel, 173 A.3d 617, 626
(Pa. 2017) (distinguishing Edmiston). A petitioner must establish that he
acted with due diligence; the focus is on a “circumstance-dependent analysis
of the petitioner’s knowledge, not that of the public at large.” See Small, 238
A.3d at 1283. A petitioner’s presentation of a previously known fact through
a newly discovered source will not establish a timeliness exception under
section 9545(b)(1)(ii). See Chmiel, 173 A.3d at 625.
To establish the governmental interference exception, a petitioner must
plead and prove: (1) the failure to previously raise the claim was the result of
interference by government officials, and (2) the petitioner could not have
obtained the information earlier with the exercise of due diligence. See
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Interference based on the conditions on a petitioner’s incarceration or access
to resources requires a showing that the government interference, i.e. the
restriction on access to prison resources, was illegal. See Commonwealth
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v. Bankhead, 217 A.3d 1245, 1248 (Pa. Super. 2019); Commonwealth v.
Rizvi, 166 A.3d 344, 348 (Pa. Super. 2017).
Moody claims that he stated a time bar exception under section
9545(b)(1)(ii) because he recently received information about recent scientific
studies to challenge the categorical distinction between adult and juvenile
offenders at eighteen years of age. See id. at 21. Moody further asserts that
he stated a time bar exception under section 9545(b)(1)(i) because prison
officials had confiscated his mail containing such information and prevented
him from challenging the constitutionality of his sentence when litigating his
timely first PCRA petition. See id. at 15.
The PCRA court, as noted above, did not specifically address Moody’s
assertions that he discovered new facts, but rather concluded that Moody
could not rely on the decisions in Cruz and Garcia-Torres as new facts and
prison officials did not prevent Moody from raising his constitutional claims
earlier. The court also concluded that even if it would have addressed the
merits of Moody’s claims, no relief would be due.
Following our review, we affirm the PCRA court’s dismissal of Moody’s
petition, albeit for different reasons. See Commonwealth v. Doty, 48 A.3d
451, 456 (Pa. Super. 2012) (noting that this Court may affirm the PCRA court
on any basis). Our review shows that Moody attempted to litigate a similar
unconstitutional sentencing claim in relation to his first PCRA petition,
although PCRA counsel at the time asserted that his attempt to extend Miller
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to offenders over eighteen years old was meritless. See Pro Se Response to
Intent to Dismiss First PCRA Amended Petition for PCRA Relief, 6/3/15, at 14-
15 (asserting that studies at that time indicated that adolescence did not end
until the age of twenty); Counsel’s Letter to the PCRA Court, 1/4/16, at 8.7
Although Moody references Dr. Bigler’s and Dr. Steinberg’s discussions of
more recent studies, those studies constitute new sources of existing facts or
scientific principles for the purpose of the PCRA time bar, not new facts or
scientific principles.8 Cf. Edmiston, 65 A.3d at 352; accord
Commonwealth v. Howard, 285 A.3d 652, 669 (Pa. Super. 2022) (holding
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7 We add that Moody arguably failed to plead that his constitutional sentencing
claim was not previously litigated or waived by failing to raise the issue in his
first PCRA appeal. See 42 Pa.C.S.A. § 9544.
8 We add that by 2019, when this Court affirmed the dismissal of Moody’s first
PCRA petition, litigants and courts were well aware of the scientific principles
and the acceptance of studies that adolescent behavior, cognition, and brain
functioning applied equally to those under eighteen and those over eighteen
years old. For example, in 2017, nearly one year before the dismissal of
Moody’s first PCRA petition, and more than two years before this Court
affirmed the dismissal of that petition, a trial court in Kentucky summarized
many of the scientific principles on which Moody relies and concluded that that
state’s death penalty was a disproportionate sentence when imposed on
offenders younger than twenty-one years of age. See Commonwealth v.
Bredhold, 2017 WL 8792559, at *3 (Ky. Cir. Ct. 2017). In Lee, which was
decided five months before our decision in Moody’s first PCRA appeal, an en
banc panel of this Court recognized the “vast expert research” in the area of
adolescent behavior and brain functioning and urged “our Supreme Court to
review this issue in light of the research available” even since 2017. See Lee,
206 A.3d at 11 & n.11. Moody’s reliance on Garcia-Torres and Cruz for
information concerning recent studies into adolescence, therefore, also
implicates new sources of information rather than new facts.
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that a governmental report concerning jury selection in capital cases did not
contain new facts satisfying section 9545(b)(1)(ii)).
Furthermore, Moody’s arguments based on the governmental
interference and the new facts exceptions in section 9545(b)(1)(i) and (ii) rely
on his actual discovery of the materials in Garcia-Torres and Cruz, which
prison officials delayed when refusing to forward him filings from other cases.
However, Moody has not established that the prison’s mail regulations were
illegal or unconstitutional interferences by government officials. See
Bankhead, 217 A.3d at 1248. Critically, the record also lacks any indication
that Moody alerted either the first PCRA court or this Court to these cases or
his difficulties obtaining the materials despite being aware of the information
and mailing issues as early as May 2018. Thus, we conclude that Moody failed
to establish due diligence in obtaining the allegedly new information discussed
in Garcia-Torres and Cruz or in overcoming the obstacles presented by the
prison mailing system. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Abu-Jamal, 941
A.2d 1263, 1268.
For these reasons, we will not disturb the PCRA court’s decision to
dismiss Moody’s petition as untimely. Moreover, we discern no issues of fact
to support Moody’s assertion that he was entitled to an evidentiary hearing.
See Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008) (rejecting
a claim that a PCRA petitioner was entitled to an evidentiary hearing when the
PCRA court properly determined it lacked jurisdiction to entertain the petition).
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Lastly, because Moody did not invoke a court’s jurisdiction pursuant to the
PCRA, we will not address the merits of Moody’s final issue challenging the
constitutionality of his sentence. See Albrecht, 994 A.2d at 1093.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2023
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