J-S26004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT ROSSER,

                        Appellant                  No. 1733 EDA 2015


               Appeal from the PCRA Order of May 14, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0339101-1990


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 30, 2016

     Appellant, Robert Rosser, appeals from the order entered on May 14,

2015, which denied his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.     We vacate the order entered by

the PCRA court and remand for further proceedings consistent with this

memorandum.

     The factual and procedural history in this case is undisputed.       On

February 9, 1990, Appellant, then 16 years of age, fatally shot Linda Garcia.

As this Court previously explained:

        In exchange for the Commonwealth’s agreement to not
        seek the death penalty, [A]ppellant [pleaded] guilty to
        first[-]degree murder. The plea was accepted and, on May
        14, 1991, [Appellant] was sentenced to [serve a mandatory
        term of] life imprisonment [without the possibility of
        parole]. No post-sentence motion to withdraw the guilty
        plea or direct appeal to th[e Superior] Court was filed by
        then counsel.

*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Rosser, 679 A.2d 257 (Pa. Super. 1996) (unpublished

memorandum) at 1, appeal denied, 685 A.2d 544 (Pa. 1996).

         In the ensuing years, Appellant filed multiple unsuccessful petitions for

collateral relief. On June 25, 2012, the United States Supreme Court issued

its decision in Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012), concluding

that mandatory sentences of life without parole violated the Eighth

Amendment of the United States Constitution when imposed upon juvenile

homicide defendants. Thereafter, on July 25, 2012, Appellant filed this, his

fifth,    petition   for   collateral   relief   alleging   that   his   sentence   was

unconstitutional under Miller because he was 16 years of age when he

committed the murder.          The PCRA court did not appoint counsel and the

court then dismissed Appellant’s petition on May 14, 2015.

         Appellant raises the following questions for our review:

           [1.] Did Appellant’s filing of [the] PCRA petition meet the
           burden of Appellant’s claim in pleading and proving
           exceptions to the time bar rule of 60 days?

           [2.] Should Miller v. Alabama[] be viewed as retroactive?

Appellant’s Brief at 2 (some internal capitalization omitted).

         The   gravamen of Appellant’s complaint on appeal is that his

mandatory sentence of life imprisonment without the possibility of parole

violates his rights under the Eighth Amendment of the United States

Constitution and Article I, Section 13 of the Pennsylvania Constitution

because it was imposed for a homicide he committed as a juvenile.


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Appellant asserts that he is entitled to relief under the PCRA because the

United States Supreme Court’s decision in Miller rendered his petition timely

filed under the exception for newly-recognized constitutional rights. See 42

Pa.C.S.A. § 9545(b)(1)(iii).    Accordingly, Appellant argues that the PCRA

court erred in dismissing his petition as untimely.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by evidence of record and is free of legal error. Commonwealth

v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

We apply a de novo standard of review and a plenary scope of review to

challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d

117, 1183-1184 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

      The timeliness of a PCRA petition is a jurisdictional prerequisite. See

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2003).                   A petition

seeking relief under the PCRA, including a second or subsequent petition,

must be filed within one year of the date the judgment is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is




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met.1    See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000). A PCRA petition invoking one of the statutory exceptions must “be

filed within 60 days of the date the claims could have been presented.” Id.;

42 Pa.C.S.A. § 9545(b)(2).

        Appellant’s judgment of sentence became final in 1991. Appellant filed

the instant petition on July 25, 2012; hence, the petition is patently untimely

unless Appellant pleads and proves an exception to the PCRA’s time bar.

        Appellant claims that his petition is timely under the newly-recognized

constitutional rights exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). To

properly invoke this exception, Appellant must show that he filed his petition

within 60 days of the date on which the court filed the new decision.

____________________________________________


1
    The exceptions to the PCRA’s timeliness requirement are:

          (i) the failure to raise the claim previously was the result of
          interference by 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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Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001), appeal

denied, 863 A.2d 1141 (Pa. 2004).       Here, Appellant satisfied the 60-day

prerequisite since he filed his petition on July 25, 2012 and the United States

Supreme Court issued its decision in Miller June 25, 2012.

      We turn now to consider whether Appellant has advanced a valid claim

asserting a newly-recognized constitutional right, as that phrase is used in

§ 9545(b)(1)(iii). In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa.

2001), our Supreme Court explained that a petitioner seeking to invoke

§ 9545(b)(1)(iii) must plead and prove two elements: (1) the right asserted

must be a constitutional right that was recognized by the Supreme Court of

the United States or the Supreme Court of Pennsylvania after the expiration

of the time for filing a petition set forth in § 9545, and (2) that Court must

have held that that the right is to apply retroactively. Abdul-Salaam, 812

A.2d at 501.

      Recently, the United States Supreme Court issued its decision in

Montgomery v. Louisiana, 135 S.Ct. 1546 (2016).            Montgomery held

that Miller applies retroactively to cases pending on collateral review

wherein the judgment of sentence has already become final.         In view of

Montgomery, we conclude that Appellant has properly invoked the

newly-recognized constitutional rights exception found in § 9545(b)(1)(iii)




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and that Appellant’s petition is timely.2        Accordingly, we vacate the order

dismissing Appellant’s petition, vacate the judgment of sentence, and

remand this matter for re-sentencing under 18 Pa. C.S.A. § 1102.1

(sentence     of   persons     under    the    age   of   18   for   murder).    See

Commonwealth v. Secreti, ___ A.3d ___, 2016 WL 513341, *6 (Pa.

Super. 2016); see also Commonwealth v. Batts, 66 A.3d 286, 295-297

(Pa. 2013) (identifying factors to be considered in sentencing juvenile

homicide defendants).

       Order vacated. Case remanded for further proceedings.              Jurisdiction

relinquished.



____________________________________________


2
   Our Supreme Court recently recognized that Montgomery requires
retroactive application of Miller. See Commonwealth v. Freeman, 200
MAL 2015 (February 11, 2016) (per curiam order) (“Miller must be applied
retroactively” and “[petitioners are to be granted leave, to the extent
necessary,] to amend the post-conviction petition to assert the jurisdictional
provision of the [PCRA] extending to the recognition of constitutional rights
by the Supreme Court of the United States which it deems to be
retroactive.”); Commonwealth v. Goudy, 235 MAL 2015 (February 11,
2016) (per curiam order) (same); Commonwealth v. Phillips, 678 MAL
2015 (February 11, 2016) (per curiam order) (same). These developments
alleviate any concern with the requirement expressed in Abdul-Salaam
that, “[a] ruling concerning the retroactive application of [a] new
constitutional right must be made prior to the filing of the petition for
collateral relief.”    Abdul-Salaam, 812 A.2d at 501-502.                 See
Commonwealth v. Secreti, ___ A.3d ___, 2016 WL 513341, *3 (Pa.
Super. 2016). In addition, we need not address Appellant’s claims
concerning the amendment of his petition or his eligibility for habeas corpus
relief.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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