J-S13004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALPHONSE JOHN PRITCHARD,

                            Appellant                 No. 1265 EDA 2016


               Appeal from the PCRA Order Entered June 2, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005339-1976


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 20, 2017

        Appellant, Alphonse John Pritchard, appeals pro se from the order

dismissing, as untimely, his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.         After careful review, we

affirm.

        Appellant’s conviction for first-degree murder and related offenses

stems from a homicide he committed with the assistance of two co-

conspirators on August 12, 1976. Pursuant to a scheme to capitalize on a

life insurance policy, Appellant

        struck the victim twice about the head with an ax, strangled the
        victim with electrical cord, and then continued his strangulation
        efforts with a heavier type cord after the thinner electrical cord
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S13004-17


        broke.    [Appellant] [and one of his co-conspirators,] after
        making efforts to clean the scene of the murder[,] transported
        and discarded the victim's body in the state of Delaware along a
        rural road.

PCRA Court Opinion (“PCO”), 10/18/16, at 1 n.2.

        A jury trial was held in January and February of 1977. On February 5,

1977, the jury found Appellant guilty of first-degree murder, possessing an

instrument of crime, and criminal conspiracy.1      On February 2, 1978, the

trial court sentenced Appellant to a mandatory term of life imprisonment

without the possibility of parole (“LWOP”) for first-degree murder. The trial

court also sentenced Appellant to a concurrent, aggregate term of 5-10

years’ incarceration for the remaining offenses, which has long since

expired.

        Appellant filed an unsuccessful direct appeal, the procedural history of

which is not germane to the current matter.2 Appellant then filed his first

post-conviction collateral petition on March 17, 1981.3 That petition was

dismissed by the PCHA court in 1982. See Opinion and Order, 2/8/82, at 4.

This Court affirmed that order on August 10, 1984. See Commonwealth v.

____________________________________________


1
    See 18 Pa.C.S. §§ 2502(a), 907, and 903, respectively.
2
  See Commonwealth v. Pritchard, 411 A.2d 810 (Pa. Super. 1979).
Although the record indicates that Appellant’s subsequent allocatur petition
to our Supreme Court was denied in 1980, we are unable to locate a citation
for that decision.
3
  Appellant’s first collateral petition was filed pursuant to the Pennsylvania
Post Conviction Hearing Act (“PCHA”), the predecessor to the PCRA.



                                           -2-
J-S13004-17



Pritchard, No. 538 Philadelphia 1982 (Pa. Super. 1983) (unpublished

memorandum). Our Supreme Court denied Appellant’s subsequent allocatur

petition on February 15, 1985. See Commonwealth v. Pritchard, No. 530

ED Allocatur Docket 1984 (Pa. 1985).

        The instant matter began when Appellant filed a pro se PCRA petition

on August 15, 2012.           Appellant was initially appointed PCRA counsel,

Stephen D. Molineux, Esq., but Attorney Molineux sought to withdraw his

appearance pursuant to Commonwealth v. Finley, 481 U.S. 551 (1987),

and Commonwealth v. Turner, 544 A.2d 927 (1988), by filing a no-merit

letter with the PCRA court.         By order dated January 13, 2014, the PCRA

court both granted Attorney Molineux’s petition to withdraw pursuant to

Turner/Finley, and notified Appellant of its intent to dismiss his petition

without a hearing pursuant to Pa.R.Crim.P. 907.          Appellant filed a timely

response to the court’s Rule 907 notice, but the court ultimately denied his

PCRA petition on June 2, 2014. See Order, 6/2/14, at 1-2. Appellant filed a

pro se notice of appeal from that order on April 22, 2016.4 Appellant then

filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on May 25, 2016.

The PCRA court issued its Rule 1925(a) opinion on October 18, 2016.

        Appellant now presents the following questions/issues for our review:




____________________________________________


4
    The timeliness of this filing is discussed, infra.



                                           -3-
J-S13004-17


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

      II.   Appellant argues Fourteenth Amendment equal protection
            rights of first impression. Should Appellant receive the
            benefit of the change in the new law like other similarly-
            situated individuals when the repealed statute enacted a
            lesser sentence [than] life imprisonment?

     III.   Miller v. Alabama[, 132 S.Ct. 2455 (2012),] is now ruled
            to be retroactive.

Appellant’s Brief at 3 (unnecessary capitalization, quotation marks, and

emphasis omitted).

      We begin by addressing the timeliness of Appellant’s notice of appeal,

filed nearly two years after the denial of his petition. This Court issued an

order directing Appellant “to show cause, within ten days of the date that

this Order is filed, why this appeal should not be quashed as untimely filed

on April 22, 2016 from the denial of the petition for post-conviction relief on

June 2, 2014. See Pa.R.A.P. 105(b); Pa.R.A.P. 903(a).” See Order to Show

Cause, 5/4/16, at 1 (single page). Rule 903(a) provides that, “[e]xcept as

otherwise prescribed by this rule, the notice of appeal required by Rule 902

(manner of taking appeal) shall be filed within 30 days after the entry of the

order from which the appeal is taken.”       Pa.R.A.P. 903(a).     Rule 105(b)

provides that:
      An appellate court for good cause shown may upon application
      enlarge the time prescribed by these rules or by its order for
      doing any act, or may permit an act to be done after the
      expiration of such time, but the court may not enlarge the time
      for filing a notice of appeal, a petition for allowance of appeal, a
      petition for permission to appeal, or a petition for review.



                                     -4-
J-S13004-17



Pa.R.A.P. 105(b).

      Appellant filed a timely pro se response to the order to show cause on

May 9, 2016. See Response to Order to Show Cause, 5/9/16, at 1-2. In

that filing, Appellant argued that his failure to file a timely appeal from the

PCRA court’s order was excusable because he never received a copy of the

PCRA court’s June 2014 order denying his petition.

      In its opinion, the PCRA court acknowledges that it was court error

that led to Appellant’s failure to initially file a timely notice of appeal:

      On June 2, 2014, this court entered an order dismissing
      [Appellant]'s PCRA action. See Order dated June 2, 2014. A
      review of the record at bar reveals that this order (June 2, 2014)
      was docketed on June 3, 2014, by the Delaware County Office of
      Judicial Support. See AOPC Docket[;] See Pa.R.Crim.P.
      114(A)(1). Although the docket reveals that the judicial support
      office timely forwarded a copy of this court's June 2, 2014,
      dismissal order20 to [Appellant] on June 3, 2016, through first
      class United States mail, a review of the order's corresponding
      "File Recipient List" details that the dismissal order was not sent
      to [Appellant]'s correct address. See Dismissal Order dated
      June 2, 2014, and Attached File Recipient List. Even though
      [Appellant] was previously sentenced to life without parole and
      incarcerated at SCI Graterford, the Delaware County Office of
      Judicial Support forwarded this court's June 2, 2014, dismissal
      order to [Appellant]'s residential Illinois address listed on the
      docket from 1975. (Such confusion surrounding [Appellant]'s
      mailing address at this court's urging has since been remedied.)
         20
             Although not this court's direct obligation, it did
         promptly forward [Appellant] copies of the dismissal order
         on June 2, 2016, by both regular mail and prepaid certified
         mail.   On the certified mail's confirmation card being
         returned to this court, the same evidenced [Appellant] did
         not receive a copy of the order as SCI Graterford mailroom
         staff refused to accept such correspondence due to
         [Appellant]'s inmate number being incorrectly listed.



                                        -5-
J-S13004-17


            Recognizing [Appellant] was neither properly nor timely
      advised this court had entered an order dismissing his collateral
      motion, the time period for his lodging of a notice of appeal from
      this dismissal order should not be seen as then having
      commenced. Therefore, [Appellant]'s present appeal should be
      deemed "timely" filed as the otherwise inexplicable actions of the
      Delaware County Judicial Support Office in "serving" [Appellant]
      with the June 2014 dismissal order by mailing it to a residential
      address noted of-record in 1976, although the same record
      unquestionably reflects his first degree murder conviction and
      related life imprisonment sentence, is the type of systematic
      breakdown warranting the pending appeal proceeding nunc pro
      tunc.

PCO at 10-11 (some footnotes omitted).

      We agree with the PCRA court. Generally speaking, “the [C]ourt may

not enlarge the time for filing a notice of appeal[.]”     Pa.R.A.P. 105(b).

However, we will we “address[] an untimely appeal [if] it [is] shown that [a]

breakdown of the processes of the trial court caused the appeal to be

untimely.”     Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super.

2002). As conceded by the PCRA court, and through no fault of Appellant,

the Delaware County Office of Judicial Support failed to serve Appellant with

a copy of the June 2014 order. Instead, it sent one copy of that document

to the location of Appellant’s residence in 1975. It sent the other copy to

the prison where Appellant currently resides, but it used an incorrect inmate

number for Appellant, causing the prison to reject the mail. This breakdown

directly led to Appellant’s failure to comply with Rule 903(a). The first time

Appellant became aware of the June 2014 order was in the PCRA court’s

February 16, 2016 response to Appellant’s subsequently filed supplemental

motions.     However, that correspondence “did not provide [Appellant] with


                                    -6-
J-S13004-17



the requisite recitation of his appeal rights[.]” PCO at 11 n.22. Accordingly,

the PCRA court advises that Appellant’s April 22, 2016 notice of appeal was

“dutiful[ly]” filed in light of the circumstances. We also agree with the PCRA

court in this regard.

      Consequently, we conclude that Appellant’s failure to file a timely

appeal from the June 2, 2014 order dismissing his PCRA petition was directly

caused by a “breakdown of the processes of the [PCRA] court[,]” and that

Appellant filed his notice of appeal with due diligence after first learning of

that order. Khalil, 806 A.2d at 420. As such, we will address Appellant’s

appeal despite its untimely filing. Id.

      Thus, we now turn to consider the dismissal of Appellant’s PCRA

petition.   This Court's standard of review regarding an order denying a

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

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

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).                     Our first

consideration is the timeliness of Appellant's petition, because the PCRA time

limitations implicate our jurisdiction and may not be altered or disregarded

in order to address the merits of a petition. Commonwealth v. Bennett,

930 A.2d 1264, 1267 (Pa. 2007).         Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date the judgment of sentence becomes final, unless one of

the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

                                        -7-
J-S13004-17


            (1) 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:

                  (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. § 9545(b)(1)(i)-(iii).          Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant’s PCRA petition is patently untimely – his sentence became

final in 1980, 37 years ago. Accordingly, Appellant must avail himself of one

of   the     Section      9545(b)(1)     timeliness   exceptions     to   be   entitled   to

consideration of the merits of the claim(s) raised in his petition.                  Here,

Appellant concedes the untimeliness of his petition, but argues that he

meets       the     new    retroactive    right    exception   set    forth    in   Section

9545(b)(1)(iii), and that he satisfied the 60-day rule of Section 9545(b)(2).

           As to the latter, Appellant is correct. Appellant’s claim relies on the

Miller decision, which was decided on June 25, 2012.                  Appellant filed his



                                             -8-
J-S13004-17



current PCRA petition on August 15, 2012, well within 60 days of the Miller

decision.   Accordingly, Appellant’s Miller-based retroactivity claim satisfied

Section 9545(b)(2).

      We must now turn to Section 9545(b)(1)(iii), to determine if the

Miller decision is retroactive, and whether it applies to Appellant.         The

Supreme Court of the United States (“SCOTUS”) established a new

constitutional right in Miller by holding “that mandatory life without parole

for those under the age of 18 at the time of their crimes violates the Eighth

Amendment's prohibition on ‘cruel and unusual punishments.’” Miller, 132

S.Ct. at 1260.    Moreover, in Montgomery v. Louisiana, 136 S.Ct. 718,

735–36 (2016), SCOTUS clarified that Miller applies retroactively. The only

remaining question, therefore, is whether Appellant is in the class of

individuals entitled to relief under Miller.

      By the nature of his arguments, Appellant implicitly concedes that he

was not under the age of 18 at the time of his crime. Appellant’s Brief at 12.

Indeed, the PCRA court indicates that Appellant was 26 years old when he

murdered the victim. PCO at 16 n.25. Nevertheless, Appellant asserts that

he is being denied equal protection of the law.          Specifically, Appellant

believes he is a member of a distinct class (prisoners serving LWOP

sentences), and that “to give parole to part of the ‘class’ and not to all the

‘class,’ is a violation of the Equal Protection Clause.” Appellant’s Brief at 19.

It is therefore clear that Appellant is not seeking direct application of Miller

to his case, as Miller, by its own terms, applies only to juveniles sentenced

                                      -9-
J-S13004-17



to LWOP. Instead, Appellant is attempting to extend the holding in Miller to

an   entirely   different   class   of   prisoners   with   LWOP   sentences   and,

particularly, to the very same class excluded by the Miller decision – adults

sentenced to LWOP.

      Appellant’s argument appears even weaker than those made by the

petitioners in Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.

2013). In Cintora, the co-appellants, who were 19 and 21 years old at the

time of their crimes, argued that Miller applied to them because a human

brain does not fully develop until the age of 25, and because “it would be a

violation of equal protection for the courts to treat them[,] or anyone else

with immature brains, as adults.” Cintora, 69 A.3d at 764.              This Court

rejected these claims, stressing that the co-appellants' “contention that a

newly-recognized constitutional right should be extended to others does not

render their petition timely pursuant to section 9545(b)(1)(iii).” Id.

      We recently reaffirmed Cintora's holding in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). There, the appellant, who was 19

years old when he committed his crimes, argued that he “may invoke Miller

because he was a ‘technical juvenile’” based on “neuroscientific theories

regarding immature brain development….”               Furgess, 149 A.2d at 94.

Relying on Cintora, we reiterated that “petitioners who were older than 18

at the time they committed murder are not within the ambit of the Miller

decision and therefore may not rely on that decision to bring themselves

within the time-bar exception in Section 9545(b)(1)(iii).” Id.

                                         - 10 -
J-S13004-17



      Here, Appellant does not even attempt to allege that he is similarly

situated with respect to the class of juvenile LWOP offenders affected by

Miller beyond the sentence itself, reflecting a severe misunderstanding of

the import of Miller, which was justified exclusively on issues pertaining to

the immaturity of juveniles in relation to the permanence of LWOP

sentences.    The Miller Court did not rule that LWOP sentences, generally,

violate the Eighth Amendment; indeed, the Miller Court did not even hold

that mandatory LWOP sentences violate the Eighth Amendment.             Instead,

the Miller Court ruled that it was cruel and unusual punishment to impose

mandatory LWOP sentences on juveniles.          It is by definition, then, that

Appellant is not entitled to relief under Miller. Therefore, like the petitioners

in Cintora and Furgess, Appellant cannot satisfy the time-bar exception set

forth in Section 9545(b)(1)(iii).   Accordingly, we conclude that the PCRA

court did not err when it dismissed Appellant’s PCRA petition as being time-

barred.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




                                     - 11 -
