J-S10015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DAVID MORRIS,

                         Appellant                  No. 122 EDA 2016

           Appeal from the PCRA Order Entered December 15, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0125621-1981


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 28, 2017

      Appellant, David Morris, appeals pro se from the post-conviction

court’s December 15, 2015 order denying, as untimely, his petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we vacate the court’s order and remand for a hearing.

      This Court previously summarized the facts of Appellant’s case, as

follows:

            On December 30, 1980, [A]ppellant and Kevin Davis spent
      a majority of the day together. According to Davis who testified
      for the Commonwealth, [A]ppellant was armed with a gun. In
      the early morning hours of December 31st, the pair,
      accompanied by John Ferguson and Tony Downing, left an all-
      night disco on 13th and Locust Streets and flagged a Yellow Cab
      driven by Matthew McNeil. McNeil was instructed to proceed to
      13th and Catherine Streets, near the Martin Luther King Housing
      Project. Appellant, in the front seat, told McNeil to enter a
      parking lot. McNeil, however, pulled over to the side, whereupon
      [A]ppellant drew a pistol and demanded money. McNeil was
      robbed of his wallet, watch, radio and several gold and silver
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     chains, in addition to $80.00. McNeil then drove to Broad and
     Catherine where, finding a policeman, he recounted the incident
     giving a detailed description of [A]ppellant.

          Following the robbery, the quartet went to the home of
     [A]ppellant's sister where they divided the stolen goods.

            Sometime thereafter, [A]ppellant suggested that the four
     "get some more money." Appellant, Davis and Ferguson then
     walked up to Broad and Catherine Streets where they flagged
     down a United Cab. With Ferguson in the front seat, Davis and
     [A]ppellant in the back, they told the driver, Russell Hubert, to
     drive to 12th and Catherine Streets. As Hubert drove into a lot
     between 12th and 13th and Catherine Streets, Ferguson pulled a
     pistol. Russell tried to grab the gun but Ferguson shot him in
     the head and ran from the cab. Appellant and Davis pulled the
     victim from the cab and robbed him of approximately $15.00.
     Davis then ran into the housing project, leaving [A]ppellant, who
     attempted to drive away in the cab.          Instead, [A]ppellant
     crashed into a trash dumpster. By that time police had arrived
     at the scene, but [A]ppellant managed to flee into one of the
     buildings.

          Hubert was transported to Pennsylvania Hospital where he
     was pronounced dead at 6:00 a.m., [on] December 31, 1980.
     The cause of death was a gunshot wound to the head.

           Appellant surrendered to Housing Authority Police on the
     afternoon of December 31, 1980.

Commonwealth v. Morris, No. 305 Philadelphia 1982, unpublished

memorandum at 2-3 (Pa. Super. filed January 27, 1984).

     Based on these facts, a jury convicted Appellant of second-degree

murder, two counts of robbery, and two counts of criminal conspiracy. On

January 11, 1982, he was sentenced to a mandatory term of life

imprisonment without the possibility of parole (LWOP) for his murder

conviction, and two lesser concurrent terms of incarceration for his other

offenses.   See id. at 1.   On direct appeal, this Court affirmed Appellant’s



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judgment of sentence. See id. According to the PCRA court, our Supreme

Court denied Appellant’s subsequent petition for allowance of appeal on July

20, 1984.1 See PCRA Court Opinion (PCO), 1/26/17, at 1.

        “Over the next twenty years, [Appellant] submitted nine petitions for

collateral relief, all of which were denied as meritless or untimely.” PCO at 1

(footnote omitted). On May 17, 2012, Appellant filed his tenth pro se, PCRA

petition, which underlyies the present appeal.        Therein, he argued various

claims not relevant to the issue before us on appeal. While that petition was

pending, on June 25, 2012, the United States Supreme Court issued its

decision in Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012) (holding that

“the Eighth Amendment forbids a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders”). On July 9, 2012,

Appellant filed an amended PCRA petition, asserting that under Miller, his

facially untimely PCRA petition satisfied the ‘new retroactive right’ exception

to the PCRA’s one-year time-bar.           See 42 Pa.C.S. § 9545(b)(1)(iii) (“Any

petition filed 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 … (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

____________________________________________



1
    This Court cannot locate a citation for that decision.



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time period provided in this section and has been held by that court to apply

retroactively.”).2 More specifically, Appellant, whose 18th birthday was the

day the murder took place, claimed that Miller applied to him because,

based on the precise time of his birth, he was still 17 years old when the

murder occurred. To support this claim, Appellant attached to his petition a

photocopied document appearing to be his birth certificate, which indicates

that his date of birth was December 31, 1962, and his time of birth was

11:10 a.m. See Amended PCRA Petition, 7/9/12, at “Exhibit A.”

        While Appellant’s amended petition asserting Miller was pending, the

Pennsylvania Supreme Court issued Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), holding that the rule announced in Miller does not apply
____________________________________________


2
    As the PCRA court points out:

        The current version of the PCRA contains a provision permitting
        a defendant whose conviction became final prior to January 16,
        1996, the date the current version of the PCRA took effect, to file
        a timely first PCRA petition within one year of that date. See
        Commonwealth v. Alcorn, 703 A.2d 1054, 1056-57 (Pa.
        Super. 1997) (holding that where a petitioner’s judgment of
        sentence became final on or before the effective date of the
        amendment to the PCRA, the amended PCRA contained a
        provision whereby a first PCRA petition could be filed by January
        16, 1997, even if the conviction in question became final more
        than a year prior to the date of the filing). [Appellant’s] most
        recently filed PCRA petition was neither his first nor was it filed
        within one year of the date the amendment took effect; his
        petition is therefore untimely.

PCO at 2 n.4.




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retroactively to defendants, like Appellant, whose judgments of sentence

were final before Miller was decided.            Over the ensuing years, Appellant

filed numerous other pro se documents with the PCRA court (and even with

this Court), including a petition for writ of habeas corpus and other

amendments to his PCRA petition, seeking sentencing relief under Miller

and attempting to distinguish his case from the ruling in Cunningham. The

PCRA court took no action on these filings.

        It was not until November 4, 2015, that the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition.3

Therein, the court stated that Appellant’s petition was untimely, and he

could    not   satisfy    the   ‘new    retroactive   rule’   exception   of   section

9545(b)(1)(iii) based on Miller, as our Supreme Court held in Cunningham

that Miller does not apply retroactively. On November 13, 2015, Appellant

filed a pro se response to the court’s Rule 907 notice, asking for his case to

be stayed until the United States Supreme Court decided the issue of

Miller’s retroactivity in the pending case of Montgomery v. Louisiana,

136 S.Ct. 718 (2016). On December 15, 2015, the PCRA court effectively




____________________________________________


3
  The court noted in its Rule 907 notice that it considered Appellant’s
“numerous subsequent filings, including [his] petitions seeking habeas
corpus relief, … as supplemental PCRA petitions because they raised issues
remediable under the PCRA.” Rule 907 Notice, 11/4/15, at 1.




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denied Appellant’s stay request by issuing an order denying his petition as

being untimely.

       On December 23, 2015, Appellant filed a timely, pro se notice of

appeal. Shortly thereafter, on January 25, 2016, our Supreme Court issued

Montgomery,         holding    that   Miller     does   apply   retroactively.   See

Montgomery, 136 S.Ct. at 735-36.4                On January 26, 2017, this Court

received a Pa.R.A.P. 1925(a) opinion from the PCRA court concluding that,

based on the intervening case law, Appellant is now entitled to post-

conviction relief. See PCO at 4. Specifically, the court concluded that Miller

must apply retroactively to Appellant because he was a juvenile at the time

of the murder for which he received a mandatory LWOP sentence.                    In

deeming Appellant a juvenile, the court noted that,

       [a]ccording to his certificate of live birth, [Appellant] was born
       on December 31, 1962 at 11:10 am.               See Supplemental
       Petition, 7/9/12[,] at Exhibit “A.” The offense occurred in the
       early morning hours of December 31, 1980[,] as the victim was
       pronounced dead at approximately 6:00 am.
____________________________________________


4
  Shortly after Montgomery was decided, this Court filed Commonwealth
v. Secreti, 134 A.3d 77 (Pa. Super. 2016), which directed that
Montgomery must be interpreted “as making retroactivity under Miller
effective as of the date of the Miller decision” so as to “satisfy the ‘has been
held’ conditional language enunciated in [Commonwealth v. Abdul–
Salaam[, 812 A.2d 497 (Pa. 2002)].” Secreti, 134 A.3d at 82. Here,
Appellant’s initial PCRA petition was filed before Miller was decided, and his
amended petition asserting the applicability of Miller was filed on July 9,
2012, well within 60 days of Miller’s issuance on June 25, 2012. Therefore,
Appellant satisfied the 60-day requirement of section 9545(b)(2).




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Id. at 4 n.6.

      On July 20, 2016, Appellant filed a pro se brief with this Court.

Therein, he argues that, pursuant to Montgomery, he is entitled to

retroactive application of Miller, which renders his LWOP sentence illegal.

However, in the Commonwealth’s brief, it contends that Appellant was not a

juvenile at the time of the murder and, therefore, Miller is inapplicable.

Specifically, the Commonwealth reasons that,

      [u]nder Pennsylvania law, a person is eighteen years old at
      12:01 a.m. on the eighteen [sic] anniversary of his birthdate.
      [Appellant], thus, was eighteen years old when he committed
      the murder. Miller is inapposite. [Appellant’s] tenth PCRA
      petition is time-barred.

Commonwealth’s Brief at 6.

      In response to the Commonwealth’s argument, Appellant has filed a

reply brief with this Court, maintaining that the exact time of his birth must

govern for purposes of determining his age at the time of the murder. In

other words, he argues that he was not 18 years old until 11:10 a.m. on

December 31, 1980.     Because the murder was committed at some point

earlier than 6 a.m. on that day (as that was the time at which the victim was

pronounced dead), Appellant argues that he was 17 years old at the time of

the murder.

      The unique and complicated factual and procedural history of this

case, combined with the novel arguments presented by both Appellant and

the Commonwealth, compel us to vacate the PCRA court’s order and remand

for further proceedings.   The PCRA court denied Appellant’s petition based

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solely on Cunningham’s holding that Miller does not apply retroactively;

the PCRA court made no factual determination regarding Appellant’s age at

the time of the offense.          Clearly, the basis for the PCRA court’s order

denying Appellant’s petition is now erroneous in light of Montgomery.

       Moreover, in its Rule 1925(a) opinion, the PCRA court changes course,

concluding that Appellant is entitled to resentencing under Miller, as he was

a juvenile at the time of the murder for which he received a mandatory

LWOP sentence. See PCO at 4. In reaching this factual determination, the

PCRA court did not have the opportunity to consider the arguments now

being proffered by Appellant and the Commonwealth regarding the precise

moment at which Appellant turned 18, i.e. 12:01 a.m., or 11:10 a.m., on

December 31, 1980.          More importantly, the PCRA court’s conclusion that

Appellant was a juvenile when he committed the murder rests solely on a

photocopy of a birth certificate attached to Appellant’s amended PCRA

petition. The original of that document was never entered into evidence.

       Based on this record, we conclude that it is necessary to vacate the

PCRA court’s order denying Appellant’s petition and remand for an

evidentiary hearing on the issue of when Appellant turned 18 for purposes of

applying the rule announced in Miller.5          At that hearing, Appellant may
____________________________________________


5
 Because we are remanding this case for an evidentiary hearing, we deny
Appellant’s pro se motion for “Judicial Notice of Adjudicative Facts[,]” filed
on December 5, 2016.




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admit into evidence an original copy of his birth certificate. Additionally, the

parties may argue their respective positions on this issue, and the PCRA

court will have the opportunity to make a factual determination regarding

Appellant’s age at the time of the pertinent offense.6

       Order vacated. Case remanded for further proceedings.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




____________________________________________


6
  While we recognize that Appellant is not entitled to counsel, as this is not
his first PCRA petition, it would seem prudent for the PCRA court to appoint
him an attorney to assist him at the evidentiary hearing.



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