J-S40023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

COURTNEY BOYD

                            Appellant                  No. 2911 EDA 2014


                Appeal from the PCRA Order September 5, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0112641-1982


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                FILED JULY 12, 2016

        Appellant, Courtney Boyd, appeals from the September 5, 2014 order,

dismissing as untimely, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          After careful

review, we affirm in part, reverse in part, vacate the judgment of sentence,

and remand for resentencing.

        On October 21, 1983, the trial court imposed a mandatory, aggregate

sentence of life imprisonment without the possibility of parole, after

Appellant was found guilty of one count each of second-degree murder and

robbery.1 The parties agree that Appellant was under 18 years of age at the

time of the offenses.       Appellant’s Brief at 4; Commonwealth’s Brief at 16.

____________________________________________
1
    18 Pa.C.S.A. §§ 2502(b) and 3701, respectively.
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This Court affirmed the judgment of sentence on May 4, 1987, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

September 17, 1987. Commonwealth v. Boyd, 528 A.2d 254 (Pa. Super.

1987), appeal denied, 532 A.2d 436 (Pa. 1987). Appellant did not seek a

writ of certiorari from the United States Supreme Court.                   Thereafter,

Appellant filed petitions for post-conviction relief in 1989, 1997 and 2005,

none of which earned him relief.               Appellant filed the instant petition on

October 21, 2008. After several amendments, the PCRA court dismissed the

same as untimely on September 5, 2014. Appellant filed a timely notice of

appeal on October 6, 2014.2

       On appeal, Appellant presents the following two issues for our review.

              I.     Did the [PCRA] court err in denying [Appellant]
                     an evidentiary hearing when [Appellant]
                     asserted in his PCRA petition that he had newly
                     discovered evidence which showed that
                     [Appellant] was innocent of the crimes of
                     which he had been convicted and that
                     [Appellant] has acted within 60 days of
                     discovery of this evidence in filing his PCRA
                     petition?


____________________________________________
2
   We observe that the 30th day fell on Sunday, October 5, 2014. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Monday, October 6, 2014. As a result,
we deem his appeal timely filed. We further note that Appellant and the
PCRA court have complied with Pennsylvania Rule of Appellate Procedure
1925.



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               II.   Did the [PCRA] court err in imposing a life
                     sentence without parole for the crime of
                     second[-]degree murder because [Appellant]
                     was a 17[-]year[-]old juvenile at the time of
                     the alleged offense and both the U.S.
                     Constitution and [the] Constitution of the
                     Commonwealth of Pennsylvania prohibit the
                     imposition of a life sentence without parole
                     upon an individual who at the time of the
                     commission of the crime was a juvenile under
                     the age of 18 years of age?

Appellant’s Brief at 2.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Here, the PCRA court dismissed Appellant’s petition as untimely,

concluding it lacked jurisdiction to consider the merits of the same.


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Pennsylvania law makes clear that when “a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.”

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 103 (Pa. 2014). A petition is timely if it is

filed within one year of the date on which the judgment of sentence became

final. 42 Pa.C.S.A. § 9545(b)(1). “However, an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the

three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”     Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).

      Here, as noted above, our Supreme Court denied allocatur on

September 17, 1987. As Appellant did not seek a writ of certiorari from the

United States Supreme Court, his judgment of sentence became final on

November 16, 1987, when the period for filing a certiorari petition expired.

See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review[]”); U.S. S. Ct. R. 20.1 (former

Rule noting that the certiorari filing period was 60 days). Appellant filed the

instant petition on October 21, 2008; as a result, it was facially untimely.

      In this case, Appellant acknowledges that his petition is facially

untimely, but purports to raise two time-bar exceptions, which we address in


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turn.    First, Appellant avers that the newly-discovered fact exception at

Section 9545(b)(1)(ii) applies. Appellant’s Brief at 6. Specifically, Appellant

argues that his discovery of the medical examiner’s file showed that the

assistant medical examiner lied during his testimony at Appellant’s trial. Id.

        Our Supreme Court has previously described a petitioner’s burden

under the newly-discovered evidence exception as follows.

             [S]ubsection (b)(1)(ii) has two components, which
             must be alleged and proved. Namely, the petitioner
             must establish that: 1) “the facts upon which the
             claim was predicated were unknown” and 2) “could
             not have been ascertained by the exercise of due
             diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
             added).

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original). “Due diligence demands that the petitioner take reasonable steps

to protect his own interests.    A petitioner must explain why he could not

have learned the new fact(s) earlier with the exercise of due diligence.   This

rule is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012).

        Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                    The statutory exceptions to the timeliness
             requirements of the PCRA are also subject to a
             separate time limitation and must be filed within
             sixty (60) days of the time the claim could first have
             been presented. See 42 Pa.C.S.A. § 9545(b)(2).
             The sixty (60) day time limit … runs from the date
             the petitioner first learned of the alleged after-
             discovered facts. A petitioner must explain when he

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             first learned of the facts underlying his PCRA claims
             and show that he brought his claim within sixty (60)
             days thereafter.

Id. (some citations omitted).    Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar that a petitioner

must file the petition within 60 days that the claim could have first been

presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),

cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

     In this case, Appellant argues that he first became aware of the

additional files, which are from 1981-1982, around “the end of August

2008.” Appellant’s Brief at 6; see also Appellant’s Amended PCRA Petition,

2/22/12, at ¶ 26(c). The investigator was retained by Appellant on January

6, 2005.      Appellant’s Amended PCRA Petition, 2/22/12, at ¶ 26(a).

However, Appellant has not forwarded any argument as to why his claim

could not have been pursued between 1981 and 2005, especially given his

multiple prior PCRA petitions. Appellant argues “that this evidence could not

have been discovered by due or reasonable diligence because they [sic]

evidence was not provided to trial defense counsel and trial defense counsel

would not have been put on notice that the medical examiner who testified

and the Commonwealth were not disclosing documents that would have

helped [Appellant]’s case.”     Appellant’s Brief at 6-7.     We reject this

argument because, as noted above, the burden was on Appellant to explain

why these documents from the 1980s, prepared before trial, could not have


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been discovered earlier. See Williams, supra. He has not done so in this

case, as he does not specifically explain why he waited until 2005 to hire an

investigator for files from 1981-1982.           Based on these considerations, we

conclude Appellant has not satisfied the newly-discovered fact exception to

the time-bar. See Bennett, supra.

       Appellant next argues on appeal that the United States Supreme

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

retroactively to cases on collateral review.3          Appellant’s Brief at 10.   In

Miller, the Supreme Court held the Cruel and Unusual Punishment Clause of

the Federal Constitution forbids the imposition of a mandatory sentence of

life imprisonment without the possibility of parole upon a minor, even for a

homicide. Miller, supra at 2460. On January 25, 2016, the Supreme Court

decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which

concluded that Miller is to be applied retroactively to cases on state

collateral review. Montgomery, supra at 736.



____________________________________________
3
  Appellant amended his PCRA petition on August 7, 2012 to include a claim
based on the United States Supreme Court’s decision in Miller. Although
Appellant states his claim as a matter of habeas corpus relief, we construe it
as an argument under the PCRA and its new constitutional right exception.
See generally Commonwealth v. Brown, 71 A.3d 1009, 1015-1016 (Pa.
Super. 2013) (stating that claims pertaining to Miller go to the legality of
the sentence), appeal denied, 77 A.3d 635 (Pa. 2013); Commonwealth v.
Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (stating that legality of sentence
claims are cognizable under the PCRA); 42 Pa.C.S.A. §§ 9542,
9543(a)(2)(vii).



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      Given that Appellant is correct that Miller is retroactive to cases on

collateral review, we now address whether we may afford him a remedy at

this juncture.     Section 9545(b)(1)(iii) permits an exception to the PCRA

time-bar when the petition in question alleges and proves “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)(iii) (emphasis added).         In

Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our Supreme

Court held that the General Assembly’s use of the past tense in the phrase

“has been held” in Section 9545(b)(1)(iii) means that the applicable

“retroactivity determination must exist at the time that the petition is filed.”

Id. at 502.       As noted above, Appellant’s petition was initially filed on

October 21, 2008 and amended to include Miller on August 7, 2012, but

Montgomery was not decided until January 25, 2016.

      However, on February 9, 2016, this Court examined Abdul-Salaam

and held that any petition filed between Miller and Montgomery would be

considered timely for the purposes of both Section 9545(b)(1)(iii) and

Section 9545(b)(2). Commonwealth v. Secreti, 134 A.3d 77, 82-83 (Pa.

Super. 2016). The Court explained that this was necessary to “harmonize

the PCRA requirements with Montgomery, Miller, and Abdul-Salaam and

simultaneously achieve the justice this law was designed to promote.” Id.


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at 82.    Therefore, consistent with Secreti, Appellant’s petition was timely

and Miller does apply to his case. Furthermore, as noted above, Appellant

was given a mandatory sentence of life imprisonment without the possibility

of parole, and the Commonwealth acknowledges that Appellant was a minor

at the time of the offense. Appellant’s Brief at 4; Commonwealth’s Brief at

16.    As a result, Appellant is entitled to resentencing, consistent with

Montgomery, Miller, and Commonwealth v. Batts, 66 A.3d 286 (Pa.

2013).4

       Based on the foregoing, we conclude Appellant’s PCRA petition was

timely filed as to his sentencing claim, and he is entitled to resentencing in

light of Miller, Montgomery, and Secreti.5       However, we also conclude

that Appellant’s PCRA petition as to his claim of newly-discovered evidence is

time-barred.     Accordingly, the PCRA court’s September 5, 2014 order is

affirmed in part and reversed in part, the October 21, 1983 judgment of

sentence is vacated, and the case is remanded for resentencing, consistent

with this memorandum.
____________________________________________
4
  We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]”     18
Pa.C.S.A. § 1102.1(a), (c).
5
  On remand, the PCRA court shall appoint counsel for Appellant because
sentencing is a critical stage of a criminal proceeding, requiring counsel.
See generally Commonwealth v. Phillips, 93 A.3d 847, 854 (Pa. Super.
2014) (citation omitted).



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     Order affirmed in part and reversed in part.   Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016




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