J-S54023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

BULI, ROBERT RUSSELL

                            Appellant                 No. 3438 EDA 2014


                Appeal from the PCRA Order November 7, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0001294-1978


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 21, 2015

        Appellant, Robert Russell Buli, appeals from the order dismissing as

untimely his petition pursuant to the Post Conviction Relief Act (“PCRA”). As

we conclude that none of the arguments raised by Buli fall outside the ambit

of existing Pennsylvania case law, we affirm.

        On November 15, 1979, the trial court sentenced Buli to a mandatory

term of life in prison without possibility of parole after he was convicted of

first degree murder and conspiracy.1 It is undisputed that at the time of the

murder, Buli was under 18 years old.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   Buli had pled guilty to an open charge of homicide, and was convicted of
first degree murder after a degree of guilt hearing.
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      In 2010, Buli filed a PCRA petition asserting that his sentence was

illegal under Graham v. Florida, 130 S.Ct. 2011 (U.S. 2010).         The PCRA

court dismissed Buli’s petition as untimely on December 23, 2010.          This

Court affirmed the PCRA court on December 5, 2011.

      On July 18, 2012, Buli filed the instant PCRA petition. Buli once again

argued that his sentence was illegal, this time under Miller v. Alabama,

132 S.Ct. 2455 (U.S. 2012) (holding that automatic sentences of life without

parole imposed upon juveniles are unconstitutional). Counsel was appointed

to represent Buli and, by agreement of the parties, the PCRA court deferred

addressing Buli’s petition pending the decision of the Supreme Court of

Pennsylvania in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

which addressed the retroactivity of the Miller decision.

      After the Supreme Court of Pennsylvania held that Miller is not

retroactive, the PCRA court dismissed Buli’s petition as untimely. This timely

appeal followed.

      It is undisputed on appeal that the instant petition is facially untimely.

“PCRA timeliness requirements are jurisdictional in nature and, accordingly,

a court cannot hear untimely PCRA petitions.”               Commonwealth v.

Flanagan, 854 A.2d 489, 509 (Pa. 2004) (citations omitted).          Thus, Buli

was required to plead and prove that an exception to the PCRA time-bar

applied.   See Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa.

2000).


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         Buli contends that he successfully pled the existence of a newly

recognized and retroactively applied constitutional right. The PCRA provides

an exception to the one-year filing requirement when “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 provided in

this section [has expired, and] ‘has been held’ by that court to apply

retroactively.”       Commonwealth. v. Abdul-Salaam, 812 A.2d 497, 501

(2002).        He asserts that Miller created a newly recognized constitutional

right against mandatory sentences of life in prison held by minors.

Furthermore, he asserts that this right is retroactive in nature.

         In support of these assertions, Buli raises several arguments on

appeal.        First, he argues that in Jackson v. Hobbs, a companion case to

Miller and disposed of in the Miller opinion, establishes that the right

announced in Miller is retroactive in nature.              The Supreme Court of

Pennsylvania has explicitly rejected this argument. See Cunningham, 81

A.3d at 9 (“we reject Appellant’s position that the Miller Court’s reversal of

the state appellate court decision affirming the denial of post-conviction

relief    in    the   Jackson   case    compels   the   conclusion    that    Miller   is

retroactive”). We therefore conclude that this argument merits no relief.

         Next, Buli contends that the Supreme Court of Pennsylvania erred in

Cunningham.           We, however, are bound by the decisions of the Supreme

Court     of     Pennsylvania   and    cannot   overrule   the   explicit    holding   of


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Cunningham, even if we disagreed with its reasoning.        See Eckman v.

Erie Ins. Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011) (Superior Court

is bound by existing precedent).    Buli is free to seek review of this issue

before the Pennsylvania Supreme Court and present this argument there.

      Buli also argues that the United States District Court for Eastern

District of Pennsylvania has held that the right announced in Miller is

retroactive in nature. See Songster v. Beard, 35 F.Supp.3d. 657 (E.D. Pa.

2014).   We are “not bound by decisions of federal courts, other than the

United States Supreme Court[.]”       Eckman, 21 A.3d at 1207 (citation

omitted). Furthermore, as noted above, the PCRA specifically provides that

the only forums that can establish retroactivity are the Supreme Court of the

United States and the Supreme Court of Pennsylvania. As the United States

Supreme Court has not explicitly addressed the issue, and the Pennsylvania

Supreme Court has explicitly held to the contrary, Songster cannot satisfy

the requirement of retroactivity under the PCRA.

      Finally, Buli argues that the Cunningham Court left open the question

of whether Miller is retroactive under Pennsylvania law as opposed to

federal law. While the Cunningham Court refused to address this issue as

the appellant had failed to brief it in detail, the Court emphasized the value

of finality of judgments to the court system. See Cunningham, 81 A.3d at

9.   In any event, as noted above, under the PCRA this Court cannot

recognize a right as retroactive in the first instance; we must await for such


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a pronouncement from either United States Supreme Court or the

Pennsylvania Supreme Court.        We therefore conclude that Buli’s final

argument merits no relief.

      As Buli has failed to establish that the PCRA court erred in concluding

that the timeliness exception contained in section 9545(b)(iii) did not apply,

we affirm the order of the PCRA court.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2015




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