J-S41031-16


                                  2016 PA Super 106

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SAMUEL T. ROSS,

                            Appellant                  No. 2715 EDA 2015


                  Appeal from the PCRA Order August 17, 2015
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0003055-1996


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

CONCURRING OPINION BY BENDER, P.J.E.:                    FILED MAY 23, 2016

        I respectfully concur in the result reached by the Majority. However, I

write separately to note that I do not believe the Majority’s analysis under

Teague v. Lane, 489 U.S. 288 (1989), is appropriate in this context.

Appellant’s petition is clearly untimely, and he is attempting to prove the

applicability of the exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii).     As

this Court has declared,

        Section 9545(b)(1)(iii) states, in relevant part: “Any petition
        under this subchapter, including a second or subsequent
        petition, shall be filed within one year of the date the judgment
        becomes final, unless the petition alleges and the petitioner
        proves that [...] 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 [...].” 42 Pa.C.S.A. § 9545(b)(1)(iii)
        (emphasis added). Thus, in order to fit under this exception to
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S41031-16


     the PCRA's time bar, a PCRA petitioner must assert relief based
     on a constitutional right that has been affirmatively
     recognized by either the United States Supreme Court or
     the Supreme Court of Pennsylvania. [Commonwealth v.]
     Abdul–Salaam, 571 Pa. [219,] [] 226, 812 A.2d [497,] [] 501
     [(Pa. 2002)] (holding that for relief pursuant to § 9545(b)(1)(iii),
     the right asserted by the petitioner must be a constitutional right
     acknowledged by the Supreme Court of the United States [or]
     the Pennsylvania Supreme Court); see also Commonwealth v.
     Copenhefer, 596 Pa. 104, 110, 941 A.2d 646, 649 (2007).
Commonwealth v. Chambers, 35 A.3d 34, 43 (Pa. Super. 2011)

(emphasis added by Chambers omitted; other emphasis added).

     Here, the United States Supreme Court did not hold in Peugh v.

United States, ___ U.S. ___, 133 S.Ct. 2072 (2013), that its decision

applies retroactively, and the Court has not rendered any such holding since

Peugh.    Additionally, the Pennsylvania Supreme Court has not held that

Peugh applies retroactively. Accordingly, Appellant cannot satisfy the plain

language of section 9545(b)(1)(iii), and I would affirm the post-conviction

court’s denial of his petition on that basis alone. Because I do not believe

the Majority’s analysis under Teague is necessary, I respectfully concur.




                                    -2-
