J-S09029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN MILLER                            :
                                               :
                       Appellant               :   No. 1401 EDA 2019

              Appeal from the PCRA Order Entered April 23, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0600481-2003


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 17, 2020

        Jonathan Miller appeals, pro se, from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing as untimely his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After our review of the record, the parties’ briefs, and the

applicable case law, we agree with the PCRA court’s determination that Miller’s

petition is untimely and he has failed to allege an exception to the

jurisdictional time bar. We, therefore, affirm.

        This Court has previously set forth the relevant facts of this case as

follows:

        On July 16, 2001, [T.W.], age 15, was at the home of her sister,
        [T.S.], [on West Atlantic Street] in Philadelphia. [T.W.]’s brother
        and niece were also present, but were asleep. Between 10 and
        11 p.m., [T.W.] and her girlfriend were in the living room of the
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*   Retired Senior Judge assigned to the Superior Court.
J-S09029-20


     house. According to [T.W.], two men, one of whom was Miller,
     knocked at the door and asked for “Phyllis.” [T.W.] replied that
     Phyllis did not live there. She instructed the men to go around
     the corner and “see if she’s home where she live[s].” Miller then
     said, “Well, your house is a whorehouse anyway.” [T.W.] replied,
     “Whatever.”

     About forty-five minutes later, Miller’s companion came back to
     the house on West Atlantic. At this time, [T.W.]’s sister, [T.S.],
     was present. The man spoke to [T.S.] and said he wished to
     apologize for Miller calling her house a whorehouse. [T.W.] and
     [T.S.] said, “Okay, whatever,” and went back into the house.

     About twenty minutes later, Miller came back to the house and
     screamed into the window, “[Y]es, it was me that called your
     house [a] whorehouse.” [T.W.] and [T.S.] went to the door, at
     which point Miller told them that he did not call their house a
     whorehouse. [T.W.] told him to stop lying, and then Miller
     “proceeded to start calling [her] all types of [expletives].” [T.W.]
     told Miller [to stop,] “or I’m going to spit on you.” Miller said, “[I]f
     you spit on me, I’m going to shoot you.” According to [T.W.], she
     then spit on Miller[,] and “before [she] could even see the gun or
     anything[, Miller] shot [her].” [T.W.] indicated that she was shot
     in her left forearm and in the left side of her abdomen. Miller was
     approximately three and one-half to four feet away from [T.W.]
     when she was shot.

                                  ***

     The police subsequently investigated the shooting. On October
     18, 2001, [T.W.] identified a different man, from a police photo
     imaging machine, as the man who shot her. The police then
     placed this photograph in an array and showed it to [T.S.], who
     was unable to make an identification.

     On October 25, 2001, [T.W.] came into the police station and
     informed the police that she had just seen the shooter on the bus.
     The police were able to locate the bus and take a suspect into
     custody. The suspect was also not Miller. The police obtained a
     photograph of the suspect and included it in a photo array that
     was shown to [T.S.]. [T.S.] was unable to make an identification.

     On March 18, 2003, based on information received by Detective
     Sekou Kinebrew, the police prepared a photo array that contained

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        Miller’s photograph. Detective Kinebrew met separately with
        [T.S.] and showed her the photo array, at which time [T.S.]
        positively identified Miller.   Detective Kinebrew subsequently
        arrested Miller. [T.W.] also identified Miller from a line-up.

Trial Court Opinion, 10/31/08, at 1-4.

        On June 22, 2004, a jury found Miller guilty of attempted murder,1

aggravated assault,2 and carrying firearms without a license.3 On December

23, 2004, Miller was sentenced to a term of ten to twenty years’ imprisonment

for attempted murder, and to a consecutive term of two-and-one-half to five

years’ imprisonment for carrying firearms without a license; the aggravated

assault conviction merged with attempted murder for sentencing purposes.

Miller did not file a direct appeal.

        Miller filed his first pro se PCRA petition on October 14, 2005. The trial

court appointed counsel to represent Miller, who filed an amended petition

requesting reinstatement of Miller’s appellate rights nunc pro tunc. On August

31, 2006, the trial court granted Miller leave to file a direct appeal nunc pro

tunc, which Miller filed on October 3, 2006. Miller’s counsel subsequently filed

an application to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967), and an accompanying Anders brief. Miller filed a motion to proceed



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1   18 Pa.C.S.A. §§ 901, 2502.

2   18 Pa.C.S.A. § 2702(a)(1).

3   18 Pa.C.S.A. § 6106.


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on appeal pro se, which this Court denied as moot, explaining that Miller was

automatically permitted to appeal pro se under Anders. On appeal, Miller

contested the sufficiency of the evidence for his attempted murder conviction,

as well as the trial court’s Kloiber4 instruction to the jury regarding T.W.’s

and T.S.’s identification testimony.           Ultimately, this Court affirmed Miller’s

judgment of sentence on October 31, 2008. Commonwealth v. Miller, 2635

EDA 2006 (Pa. Super. filed Oct. 31, 2008) (unpublished memorandum). On

June 30, 2009, the Pennsylvania Supreme Court denied Miller’s petition for

allowance of appeal. Commonwealth v. Miller, 980 A.2d 110 (Pa. 2009)

(Table).

       Miller filed a second pro se PCRA petition on July 27, 2009, which was

amended by appointed PCRA counsel on May 26, 2010. On July 15, 2011, the

PCRA court denied Miller’s petition. Miller appealed to this Court on August

15, 2011, and this Court affirmed the PCRA court’s denial of Miller’s petition

on August 20, 2012. Commonwealth v. Miller, 2173 EDA 2011 (Pa. Super.

filed Aug. 20, 2010) (unpublished memorandum).

       On November 6, 2017, Miller filed a third pro se PCRA petition which he

amended on October 4, 2018. On April 23, 2019, the PCRA court dismissed

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4 See Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 1954) (where
witness had good opportunity for identification, is positive as to identity, and
identification not weakened by prior failure to identify, testimony regarding
identification need not be received with caution; conversely, where witness
was not in position to clearly observe assailant, is not positive as to identity,
or identification weakened by prior failure to identify, court “should warn the
jury that the testimony as to identity must be received with caution”).
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Miller’s amended petition as untimely. Miller timely filed a notice of appeal,

and presently raises the following issues for our review:

      I.     Whether [a] state court has the jurisdiction in the filing of
             second or subsequent PCRA petitions to enforce the right to
             effective assistance of PCRA counsel where initial collateral
             counsel’s representation fell below the [standards of the]
             Pennsylvania Constitution and Pennsylvania statutes
             relating to their guarantee of effective representation that
             resulted in a miscarriage of justice, [in that counsel’s
             ineffectiveness qualifies as] a timel[iness] exception [to the
             PCRA] that should apply to defaulted state claims[,] [and if
             not, whether this] violat[es] [Miller’]s state and federal
             Constitutional right to due process?

      II.    Whether [the failure of] [Miller]’s appellate counsel in an
             initial collateral proceeding[] to raise a claim of trial
             counsel’s ineffectiveness [excuses any resulting] procedural
             default?

      III.   Whether [Miller]’s trial counsel provided ineffective
             assistance of counsel by failing to object to a faulty Kloiber
             instruction, in violation of [the] Fourteenth Amendment
             right to due process clause.

Brief of Appellant, at 1-2 (unnecessary capitalization removed).

      When reviewing the denial of PCRA relief, we must determine whether

the ruling of the PCRA court is supported by the record and free of legal error.

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). The scope of

our review is limited to the findings of the PCRA court and the evidence of the

record viewed in the light most favorable to the Commonwealth as the

prevailing party. Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005).

We may affirm a PCRA court’s decision on any grounds if supported by the

record. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).


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        Before reaching the issues that Miller raises in his appellate brief, we

must first ascertain whether the PCRA court correctly determined that the

instant petition was untimely. See Commonwealth v. Murray, 753 A.2d

201, 203 (Pa. 2000) (PCRA time limit is jurisdictional; court may only review

untimely petition if petitioner pleads and proves statutory exception).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence becomes final unless the petitioner alleges, and proves, an

exception to the time for filing the petition, as set forth at 42 Pa.C.S.A. §§

9545(b)(1)(i), (ii), and (iii).5 A PCRA petition invoking one of these statutory

exceptions must “be filed within 60 days of the date the claims could have



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5   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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)(i), (ii), and (iii).



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been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 651-

52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §

9545(b)(2).6     Furthermore, the petitioner must establish that his claim is

based upon issues that have not been either waived or previously litigated.

Commonwealth v. Banks, 656 A.2d 467 (Pa. 1995).7

       Here, Miller’s judgment of sentence became final upon the expiration of

the 90-day period following the Pennsylvania Supreme Court’s denial of his

petition for allowance of appeal on June 30, 2009, when the time for seeking

discretionary review with the United States Supreme Court expired. See U.S.

Supreme Court Rule 13.8 Therefore, Miller had until September 28, 2009, to

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6 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. In this case, Miller’s claims arise from his
trial counsel’s failure in 2004 to object to specific jury instructions, and his
PCRA counsel’s failure in 2011 to raise claims of trial counsel’s ineffectiveness
for the same. The amendment, therefore, does not apply here.

7 An issue is deemed waived if “the petitioner could have raised it but failed
to do so before trial, at trial . . . on appeal or in a prior state post-conviction
proceeding.” 42 Pa.C.S.A. § 9544(b). An issue is deemed finally litigated if
“the highest appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue.” 42 Pa.C.S.A. §
9544(a)(2).

8 See also 42 Pa.C.S.A. § 9545(b)(3) (judgment is deemed final “at the
conclusion of direct review . . . or at the expiration of time for seeking
review.”); Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (judgment is
deemed final ninety days after Pennsylvania Supreme Court denies petition
for allowance of appeal, since defendants have ninety days to seek review
with United States Supreme Court).
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file a timely PCRA petition. The instant petition, filed over eight years later,

is patently untimely. Accordingly, Miller must plead and prove that one of the

statutory timeliness exceptions applies, and he must have filed the instant

petition within sixty days of the date the claim could have been brought. 42

Pa.C.S.A. §§ 9545(b)(1)-(2).

      Here, Miller argues that under Martinez v. Ryan, 566 U.S. 1 (2012),

trial counsel’s failure to object to the court’s Kloiber instruction, coupled with

PCRA counsel’s failure to raise ineffectiveness claims for the same, constitutes

an exception to the PCRA’s timeliness requirement. Brief of Appellant, at 10-

21. This claim fails.

      In Martinez, supra, the United States Supreme Court held that:

      [w]here, [as in Pennsylvania,] under state law, claims of
      ineffective assistance of trial counsel must be raised in an initial-
      review collateral proceeding, a procedural default will not bar a
      federal habeas corpus court from hearing a substantial claim of
      ineffective assistance at trial if, in the initial-review collateral
      proceeding there was no counsel or counsel in that proceeding
      was ineffective.

Id. at 1320 (unnecessary italics removed).

      In other words, the Martinez Court held that, where counsel is

ineffective in an initial state collateral review proceeding, and where that

ineffectiveness caused the petitioner to procedurally default on a substantive

claim, such ineffectiveness “may provide cause [to excuse] a procedural

default in a federal habeas proceeding.” Id. at 1315. The Supreme Court

made clear that its ruling was “equitable” rather than “constitutional,” and


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that, accordingly, “state collateral cases on direct review from state courts are

unaffected by the ruling in this case.” Id. at 1320.

       In Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013),

this Court addressed whether Martinez provides an exception to the PCRA’s

time-bar to allow defendants to raise PCRA counsel’s ineffectiveness for

waiving claims that could have been raised in an initial proceeding. Id. at

162.   There, we recognized that “[w]hile Martinez represents a significant

development in federal habeas corpus law, it is of no moment with respect to

the way Pennsylvania courts apply the plain language of the time bar set forth

in section 9545(b)(1) of the PCRA.” Id. at 165. See also Commonwealth

v. Holmes, 79 A.3d 562 (Pa. 2013) (“As the [Supreme] Court made clear,

Martinez did not recognize a new constitutional right that the [s]tates are

obliged to accommodate in any specific fashion.”); Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (“[A]llegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.”); Commonwealth v. Henkel, 90 A.3d 16 (Pa.

Super. 2014) (rejecting petitioner’s argument that Martinez affects PCRA

time-bar).




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       Miller has not attempted to plead and prove any other exception to the

PCRA’s time-bar.9       Accordingly, we conclude that Miller’s petition is time-

barred and that our “courts are without jurisdiction to offer [him] any form of

relief.” Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Miller’s serial PCRA

petition as untimely.

       Order affirmed.10


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/20


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9 To the extent Miller sought to argue instead that Martinez created a newly-
recognized constitutional right that applies retroactively, it would not entitle
him to relief. The Martinez Court expressly stated that its ruling was not
constitutional, and that it does not “provide defendants a freestanding
constitutional claim to raise.” Martinez, supra at 1319.

10As the PCRA court noted in its July 1, 2019 opinion, on March 11, 2019, the
PCRA court erroneously sent its notice of intent to dismiss Miller’s petition
without a hearing, pursuant to Pa.R.Crim.P. 907, to State Correctional
Institute (SCI) Albion rather than SCI Houtzdale where Miller was housed.
PCRA Opinion, 7/1/19, at 3. This notice failed to comply with Pa.R.Crim.P.
114, which provides that such notice shall be served by mail to the party’s
place of confinement. See Pa.R.Crim.P. 114(B)(3)(v). Miller was therefore
denied an opportunity to respond. Because Miller’s serial petition is untimely,
however, we conclude that remand is not necessary to correct this procedural
error. See Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000).
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