J-S04024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JERMAINE SHOCKLEY,

                            Appellant                  No. 1042 EDA 2013


                   Appeal from the PCRA Order March 5, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008078-2007


BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J.*

CONCURRING MEMORANDUM BY BENDER, P.J.:FILED DECEMBER 17, 2014

        I concur in the result reached by the Majority under the particular facts

of this case.      I write separately to distance myself from the Majority’s

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

finally decided the issue of retroactive application of the new constitutional

rule announced in Miller v. Alabama, 132 S.Ct. 2455 (2012). See Majority

Decision at 8.      Notably, the Cunningham Court did not decide whether

Miller’s holding qualifies as a watershed rule of criminal procedure,

satisfying the second exception to the general rule of non-retroactivity

delineated in Teague v. Lane, 489 U.S. 288 (1989) (plurality).              See

Cunningham, 81 A.3d at 10 (declining to assess the second Teague

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S04024-14



exception because the appellant did “not develop[] his argument in such

terms”).   Additionally, both the Cunningham Majority, as well as Justice

Castille in his concurring opinion, acknowledged that the Court did not

address whether there is a basis under Pennsylvania constitutional law to

afford a broader retroactive application to Miller.   See Cunningham, 81

A.3d at 9, 13, 17-18 (Castille, J., concurring).      Indeed, our Court has

recognized that retroactivity arguments premised upon state law – raised in

a timely PCRA petition - are not foreclosed by Cunningham and could be

considered by this Court.   See Commonwealth v. Seskey, 86 A.3d 237,

243 (Pa. Super. 2014) (noting that while the appellant’s attempts to

circumvent Cunningham based upon Pennsylvania state constitutional law

“someday may require consideration by our courts,” we did not have

jurisdiction to examine those claims because they were raised in an untimely

PCRA petition).

      In this case, Appellant did not raise any of the above-mentioned

arguments in his PCRA petition and, therefore, they are not preserved for

our review herein.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

However, if at some point Miller is held to apply retroactively by either our

Supreme Court or the United States Supreme Court, Appellant may seek

relief by filing another PCRA petition within 60 days of the date on which

such decision is filed.

      Justice Fitzgerald joins this Concurring Memorandum.

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