J-S52029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANDRE COHEN,

                        Appellant                     No. 231 WDA 2015


              Appeal from the PCRA Order of January 8, 2015
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003563-1992


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 10, 2015

      Appellant, Andre Cohen, appeals from the order dated January 8,

2015, dismissing his third petition pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court briefly summarized this case as follows:

        [Appellant] was convicted of second[-]degree murder and
        sentenced to life in prison. He was 19 years old at the time
        he committed the crime. His sentence was affirmed by [this
        Court] on September 4, 1996[.] A few months later, our
        state [S]upreme [C]ourt denied review.         Two previous
        efforts at post-conviction relief were denied.

Trial Court Opinion, 3/16/2015, at 1 (unpaginated).

      On August 8, 2012, Appellant filed a pro se PCRA petition claiming his

sentence for life without parole was unconstitutional in light of the United

States Supreme Court decision in Miller v. Alabama, -- U.S. -- , 132 S.Ct.

2455 (2012). On August 20, 2012, the PCRA court appointed counsel for
J-S52029-15



Appellant. Following the grant of several extensions of time, PCRA counsel

filed an amended PCRA petition that included an alternative request for

habeas corpus relief.

       In an order filed on January 8, 2015, the PCRA court denied relief.

This timely appeal resulted.1 In its subsequent opinion pursuant to Pa.R.A.P.

1925(a), the trial court concluded that Miller was inapplicable to Appellant

because that case held it unconstitutional to sentence juveniles to life

imprisonment without the possibility of the parole, but Appellant was 19

years-old when he committed the second-degree murder.             PCRA Court

Opinion, 3/16/2015, at 2 (unpaginated). Moreover, the PCRA court, citing

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), recognized that

Miller does not apply retroactively to juveniles whose convictions were

already final when the decision was handed down. Id.

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

         Whether Appellant’s life sentence without the possibility of
         parole is unconstitutional under the Eighth Amendment of
         the United States Constitution as well as Article I, Section
         13 of the Pennsylvania Constitution and whether
         Pennsylvania’s constitutional guarantee of habeas corpus
         provides relief for Appellant.

Appellant’s Brief at 3.
____________________________________________


1
   Appellant filed a notice of appeal on February 6, 2015. On February 11,
2015, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
March 16, 2015.



                                           -2-
J-S52029-15



      In sum, Appellant argues:

        Here, Appellant was 19 years old when he committed the
        act that led to his conviction of second[-]degree murder in
        1993. He was given a mandatory life sentence. Although
        Miller v. Alabama only affords relief where the defendant
        is a juvenile at the time of the incident, Appellant seeks to
        apply the policy considerations and rationale of Miller v.
        Alabama and obtain habeas corpus relief. As in Miller,
        Appellant here was immature at the time of the incident and
        functioning as a juvenile; he was prone to substance abuse
        and addicted to crack cocaine at the time of the incident.
        Nonetheless, Appellant has been rehabilitated in prison and
        no longer presents a danger to society. He has already
        served 23 years and his continued incarceration no longer
        serves a purpose. Accordingly, Appellant requests a habeas
        corpus hearing in which the trial must consider Appellant’s
        individualized sentencing factors[.]

Id. at 7-8.

      We have previously rejected this argument.           Our decision in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013) is instructive.

Therein, we first noted that, “[i]n Miller, the Supreme Court of the United

States recognized a constitutional right for juveniles under the age of

eighteen, holding that mandatory life without parole for those under the age

of 18 at the time of their crimes violates the Eighth Amendment's prohibition

against cruel and unusual punishments.” Cintora, 69 A.3d at 764 (internal

quotations omitted).   In Cintora, brothers Oscar and Jesus Cintora “were

twenty-one and nineteen years old, respectively, when they committed the

underlying crimes, and twenty-two and nineteen years and eleven months

old, respectively, when they pled guilty to second degree murder and the

court sentenced them to life imprisonment.”     We determined, “the holding


                                    -3-
J-S52029-15



in Miller does not create a newly-recognized constitutional right that can

serve as the basis for relief for” those over the age of 18 at the time they

commit murder. Id. Here, Appellant was nineteen years old at the time he

committed murder.       Thus, Miller is inapplicable and cannot provide

Appellant relief.

      Even if Appellant were a juvenile at the time he committed the crime,

in Commonwealth v. Cunningham, 81 A.3d 1, 7-8 (Pa. 2013), our

Supreme Court determined that Miller does not apply retroactively to case

in which a defendant's judgment of sentence for murder became final prior

to Miller. Here, Appellant’s judgment of sentence became final on April 14,

1997, ninety days after our Supreme Court denied allowance of appeal on

January 13, 1997.     See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court

Rule 13.   The United States Supreme Court’s decision in Miller was filed on

June 25, 2012, well after Appellant’s judgment of sentence became final.

Thus, Miller cannot provide Appellant retroactive relief.

      Further, we reject Appellant’s alternative argument that he is entitled

to habeas corpus review to consider his claims based upon the rationale

expressed in Miller. Our Supreme Court has concluded:

         Prior to the enactment of statutory post-conviction
         remedies, habeas corpus petitions were frequently utilized
         for obtaining post-conviction review in criminal cases. […I]n
         Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998),
         [the Supreme Court determined] the PCRA subsumes the
         remedy of habeas corpus with respect to remedies offered
         under the PCRA [and that] the writ continues to exist only
         in cases in which there is no remedy under the PCRA.


                                     -4-
J-S52029-15


                            *         *           *
        The legislature has clearly directed that the PCRA provide
        the sole means for obtaining collateral review and relief,
        encompassing all other common law rights and remedies,
        including habeas corpus. See 42 Pa.C.S. § 9542. As certain
        penalty phase claims, which are not waived or otherwise
        forfeited are cognizable on traditional habeas corpus review,
        Section 9542 plainly requires that they must be considered
        exclusively within the context of the PCRA. Such claims
        could not be legislatively foreclosed, since the Pennsylvania
        Constitution provides, with limited exceptions not here
        applicable, that the privilege of the writ of habeas corpus
        shall not be suspended. Pa.Const, Article 1, Section 14.

        Given that the choice was between a unified statutory
        procedure or bifurcated review having statutory and
        common law components, it seems clear that the General
        Assembly intended to channel all claims requiring review
        through the framework of the PCRA. Thus, [when]
        petitioner's penalty phase claims are cognizable under the
        PCRA they will be addressed solely within the context of the
        PCRA, and any remedy to be afforded petitioner must be
        within the scope of the PCRA.

Commonwealth v. Chester, 733 A.2d 1242, 1250-1251 (Pa. 1999) (some

citations omitted), abrogated on other grounds by Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002).       The PCRA provides relief for criminal

convictions that resulted from “[a] violation of the Constitution of this

Commonwealth or the Constitution or laws of the United States[.]”         42

Pa.C.S.A. § 9543(a)(2)(i).   The PCRA also provides for relief from “[t]he

imposition of a sentence greater than the lawful maximum.” 42 Pa.C.S.A.

§ 9543(a)(2)(vii).

      Here, Appellant “seeks to apply the policy considerations and rationale

of Miller v. Alabama and obtain habeas corpus relief” based on our decision

in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014). We reject

                                    -5-
J-S52029-15



Appellant’s proposal. Appellant relies on the panel’s observation in Seskey

that habeas corpus relief may be available “where juvenile lifers are denied

post[-]conviction relief under Miller v. Alabama.”     Appellant’s Brief at 9.

Again, Appellant was not a juvenile at the time of the offense. Further, as

recited above, the PCRA is the proper mechanism for challenging illegal

sentences. Accordingly, there is no merit to Appellant’s claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




                                    -6-
