J-S26031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :           PENNSYLVANIA
                    Appellee                  :
                                              :
                        v.                    :
                                              :
FELIX SUMMERS,                                :
                                              :
                    Appellant                 :     No. 2711 EDA 2014

                   Appeal from the PCRA Order August 20, 2014
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0101621-2002

BEFORE:        OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED JULY 20, 2016

        Felix Summers (Appellant) pro se appeals in forma pauperis (IFP) from

the August 20, 2014 order that denied his petition filed pursuant to the Post

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

PCRA order, vacate Appellant’s judgment of sentence, and remand for

resentencing.

        In 2006, Appellant was sentenced to life imprisonment without

possibility of parole following conviction by a jury of first-degree murder and

possessing an instrument of crime for events that occurred when Appellant

was 17 years old.       The order from which Appellant filed the instant appeal

denied his request for PCRA relief based upon, inter alia, the United States

Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), in

which    the    Court   held    unconstitutional   mandatory   sentences   of   life


*Retired Senior Judge assigned to the Superior Court.
J-S26031-16


imprisonment without possibility of parole imposed upon individuals who

were juveniles at the time they committed homicides.       The PCRA court

determined that Appellant did not properly invoke the newly-recognized-

constitutional-right exception to the PCRA’s one-year timeliness requirement

provided in 42 Pa.C.S. §9545(b)(1)(iii) because our Supreme Court held in

Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), that Miller

does not apply retroactively.

      While this appeal was pending, the U.S. Supreme Court decided in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a

new substantive rule of law which applies retroactively.    Thereafter, this

Court held that Montgomery renders “retroactivity under Miller effective as

of the date of the Miller decision.” Commonwealth v. Secreti, 2016 Pa.

Super. 28, 2016 WL 513341 at *5 (Pa. Super. filed February 9, 2016).

      Under Secreti, Appellant’s PCRA petition meets the          timeliness

exception provided by 42 Pa.C.S. § 9545(b)(1)(iii).          Under   Miller,

Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form

of resentencing following judicial consideration of appropriate age-related

factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).1



1
      [A]t a minimum [the sentencing court] should consider a
      juvenile’s age at the time of the offense, his diminished
      culpability and capacity for change, the circumstances of the
      crime, the extent of his participation in the crime, his family,
      home and neighborhood environment, his emotional maturity


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      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.2

      Judge Olson joins.

      Judge Stabile concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/20/2016




      and development, the extent that familial and/or peer pressure
      may have affected him, his past exposure to violence, his drug
      and alcohol history, his ability to deal with the police, his
      capacity to assist his attorney, his mental health history, and his
      potential for rehabilitation.

Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745
(Pa. Super. 2012)).
2
  After this case was submitted to this panel, counsel entered his appearance
on behalf of Appellant and filed a petition for remand requesting that this
Court remand this case to the PCRA court. The Commonwealth filed a
response agreeing that this Court should remand this case. Based on our
disposition, we deny the petition for remand as moot.


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