J-S40022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

VINCENT BOYD

                            Appellant                      No. 2899 EDA 2014


                Appeal from the PCRA Order September 5, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1202951-1981


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                     FILED JULY 08, 2016

        Appellant, Vincent Boyd, appeals from the September 5, 2014 order,

dismissing, as untimely, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.               After careful

review, we affirm in part, reverse in part, vacate the judgment of sentence,

and remand for resentencing.

        On May 3, 1983, the trial court imposed a mandatory, aggregate

sentence of life imprisonment without the possibility of parole, after

Appellant was found guilty of one count each of second-degree murder,

robbery, and criminal conspiracy.1             The parties agree that Appellant was

under 18 years of age at the time of the offenses. Appellant’s Brief at 4;

____________________________________________
1
    18 Pa.C.S.A. §§ 2502(b), 3701 and 903(a), respectively.
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Commonwealth’s Brief at 16. This Court affirmed the judgment of sentence

on April 19, 1985, and our Supreme Court denied Appellant’s petition for

allowance of appeal on March 31, 1986.               Commonwealth v. Boyd, 500

A.2d 809 (Pa. Super. 1985), appeal denied, 619 E.D. Alloc. Dkt. 1985 (Pa.

1986).    Appellant did not seek a writ of certiorari from the United States

Supreme Court.        Thereafter, Appellant filed petitions for post-conviction

relief in 1988, 1997 and 2005, none of which earned him relief. Appellant

filed the instant petition on October 21, 2008. After several amendments,

the PCRA court dismissed the same as untimely on September 5, 2014.

Appellant filed a timely notice of appeal on October 3, 2014.2

       On appeal, Appellant presents the following issue for our review.

               I.    Did the PCRA court err when it dismissed
                     [Appellant]’s various [a]mended [p]etitions
                     without granting a hearing, and all where
                     [Appellant] pled and proved that he was
                     entitled to relief and entitled to an evidentiary
                     hearing?

Appellant’s Brief at 3.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA    relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation


____________________________________________
2
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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marks and citation omitted). “The 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 trial level.”    Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).       “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”       Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Here, the PCRA court dismissed Appellant’s petition as untimely,

concluding it lacked jurisdiction to consider the merits of the same.

Pennsylvania law makes clear that when “a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.”

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 103 (Pa. 2014). A petition is timely if it is

filed within one year of the date on which the judgment of sentence became

final. 42 Pa.C.S.A. § 9545(b)(1). “However, an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”     Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).




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        Here, as noted above, our Supreme Court denied allocatur on March

31, 1986.    As Appellant did not seek a writ of certiorari from the United

States Supreme Court, his judgment of sentence became final on May 30,

1986, when the period for filing a certiorari petition expired.            See 42

Pa.C.S.A.    § 9545(b)(3)   (stating,    “a   judgment   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[]”); U.S. S. Ct. R. 20.1 (former

Rule noting that the certiorari filing period was 60 days). Appellant filed the

instant petition on October 21, 2008. As a result, it is facially untimely.

        In this case, Appellant acknowledges that his petition is facially

untimely, but raises two purported time-bar exceptions, which we address in

turn.    First, Appellant avers that the newly-discovered fact exception at

Section 9545(b)(1)(ii) applies.         Appellant’s Brief at 19.     Specifically,

Appellant argues that his discovery of the medical examiner’s file showed

that the assistant medical examiner lied during his testimony at Appellant’s

trial. Id. at 10-12.

        Our Supreme Court has previously described a petitioner’s burden

under the newly-discovered evidence exception as follows.

             [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


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             diligence.”   42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
             added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original). “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) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                     The statutory exceptions to the timeliness
             requirements of the PCRA are also subject to a
             separate time limitation and must be filed within
             sixty (60) days of the time the claim could first have
             been presented. See 42 Pa.C.S.A. § 9545(b)(2).
             The sixty (60) day time limit … runs from the date
             the petitioner first learned of the alleged after-
             discovered facts. A petitioner must explain when he
             first learned of the facts underlying his PCRA claims
             and show that he brought his claim within sixty (60)
             days thereafter.

Id. (some citations omitted).     Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar that a petitioner

must file the petition within 60 days that the claim could have first been

presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),

cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

      In this case, Appellant argues that he first became aware of the

additional files, which are from 1981-1982, “on or about August 26, 2008,”

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after an investigator, hired by Appellant’s nephew and co-defendant,

Courtney Boyd, procured and mailed them to Courtney Boyd on August 15,

2008.3 Appellant’s Brief at 19. The investigator was retained by Courtney

Boyd on January 6, 2005. Id. Even assuming that Courtney Boyd’s efforts

may be imputed to Appellant for the purposes of Section 9545(b)(1)(ii),

Appellant has not forwarded any argument as to why he could not have

pursued his claim earlier, between 1981 and 2005, especially given his

multiple prior PCRA petitions.          Appellant argues “that any duty of due

diligence arose only after [Appellant] was placed on notice that something

was amiss and [his] filing within 60 days was sufficient under 42 Pa.C.S.A.

§ 9545(b)(1)(ii).”     Appellant’s Brief at 22.    We reject this argument, as

noted above, the burden was on Appellant to explain why these documents

from the 1980s, prepared before trial, could not have been discovered

earlier. See Williams, supra. He has not done so in this case. Based on

these considerations, we conclude Appellant has not satisfied the newly-

discovered fact exception to the time-bar. See Bennett, supra.

       Appellant next argues that his petition is timely under the new

constitutional right exception at Section 9545(b)(1)(iii) because the United

States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455



____________________________________________
3
  Courtney Boyd’s appeal is currently pending in this Court at 2911 EDA
2014.



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(2012) applies retroactively to cases on collateral review.4 Appellant’s Brief

at 23, 24.       In Miller, the Supreme Court held the Cruel and Unusual

Punishment Clause of the Federal Constitution forbids the imposition of a

mandatory sentence of life imprisonment without the possibility of parole

upon a minor, even for a homicide. Miller, supra at 2460. On January 25,

2016, the Supreme Court decided Montgomery v. Louisiana, 136 S. Ct.

718 (2016), which concluded that Miller is to be applied retroactively to

cases on state collateral review. Montgomery, supra at 736.

       Given that Appellant is correct that Miller is retroactive to cases on

collateral review, we now address whether we may afford him a remedy at

this juncture.     Section 9545(b)(1)(iii) permits an exception to the PCRA

time-bar when the petition in question alleges and proves “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)(iii) (emphasis added).        In

Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002) our Supreme

Court held that the General Assembly’s use of the past tense in the phrase

“has been held” in Section 9545(b)(1)(iii) means that the applicable

“retroactivity determination must exist at the time that the petition is filed.”
____________________________________________
4
  Appellant amended his PCRA petition on December 16, 2013 to include a
claim based on the United States Supreme Court’s decision in Miller.



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Id. at 502.       As noted above, Appellant’s petition was initially filed on

October 21, 2008 and amended to include Miller on December 16, 2013,

but Montgomery was not decided until January 25, 2016.

       However, on February 9, 2016, this Court examined Abdul-Salaam

and held that any petition filed between Miller and Montgomery would be

considered timely for the purposes of both Section 9545(b)(1)(iii) and

Section 9545(b)(2). Commonwealth v. Secreti, 134 A.3d 77, 82-83 (Pa.

Super. 2016). The Court explained that this was necessary to “harmonize

the PCRA requirements with Montgomery, Miller, and Abdul-Salaam and

simultaneously achieve the justice this law was designed to promote.” Id.

at 82.    Therefore, consistent with Secreti, Appellant’s petition was timely

and Miller does apply to his case.5 Furthermore, as noted above, Appellant

was given a mandatory sentence of life imprisonment without the possibility

of parole, and the Commonwealth acknowledges that Appellant was a minor

at the time of the offense. Appellant’s Brief at 2; Commonwealth’s Brief at

7.    As a result, Appellant is entitled to resentencing, consistent with

Montgomery, Miller, and Commonwealth v. Batts, 66 A.3d 286 (Pa.

2013).6


____________________________________________
5
  The Commonwealth agrees that Appellant is entitled to resentencing.
Commonwealth’s Brief at 16, 18.
6
  We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
(Footnote Continued Next Page)


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      Based on the foregoing, we conclude Appellant’s PCRA petition was

timely filed as to his sentencing claim, and he is entitled to resentencing in

light of Miller, Montgomery and Secreti.7 However, we also conclude that

Appellant’s PCRA petition as to his claim of newly-discovered evidence is

time-barred.    Accordingly, the PCRA court’s September 5, 2014 order is

affirmed in part and reversed in part, the May 3, 1983 judgment of sentence

is vacated, and the case is remanded for resentencing, consistent with this

memorandum.

      Order affirmed in part and reversed in part.     Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016



                       _______________________
(Footnote Continued)

juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]”      18
Pa.C.S.A. § 1102.1(a), (c).
7
  On remand, the PCRA court shall appoint counsel for Appellant, because
sentencing is a critical stage of a criminal proceeding, requiring counsel.
See generally Commonwealth v. Phillips, 93 A.3d 847, 854 (Pa. Super.
2014) (citation omitted).



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