J-S60032-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
JOHN K. YOUNG,                            :
                                          :
                 Appellant                :    No. 3783 EDA 2015

               Appeal from the PCRA Order December 1, 2015
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0323691-1975

BEFORE:     SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED OCTOBER 19, 2016

      John K. Young (Appellant) appeals pro se from the December 1, 2015

order that dismissed without a hearing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm in part

and reverse in part the order dismissing the petition; vacate Appellant’s

judgment of sentence; and remand for resentencing.

            At approximately 6:30 a.m. on March 11, 1975, Miss
      Jacqueline Mack, of 2123 Etting Terrace, Philadelphia,
      Pennsylvania, heard the sounds of loud screaming and footsteps
      coming from the house next door wherein Marlene Mapp and her
      family resided. She also heard the voice of one of Mrs. Mapp’s
      children crying out to leave his mother alone.          Miss Mack
      telephoned the police and then telephoned next door. One of
      Mrs. Mapp’s children, Larry Mapp, answered the phone and
      screamed his mother had been stabbed. Miss Mack then went to
      the rear door of the Mapp house and pushed it open. She was
      met by Larry who was covered with blood. The police arrived
      and found Marlene Mapp lying wedged against her front door at
      the foot of the staircase leading to the second floor. There was a


*Retired Senior Judge assigned to the Superior Court.
J-S60032-16


     trail of blood from a bedroom on the second floor down to the
     bottom of the staircase. A woman’s purse was lying open on the
     living room sofa with its contents strewn about. The front door
     was locked and entrance to the house appeared to have been
     effected through the rear door by means of a coat hanger being
     inserted through a hole in the glass of a window next to the door
     and so manipulated as to unlatch the door.

            A post-mortem examination established Marlene Mapp died
     from a deep cut of the neck which severed the jugular vein and
     the right subclavian artery.

            Larry Mapp, six years old at the time of this incident but
     seven at the time of trial, testified he was sleeping in the same
     bed as his mother when he was awakened by voices and saw a
     person he described as “the boy” on the bed on his knees. He
     identified “the boy” as [Appellant]. Larry Mapp further testified
     that [Appellant] told his mother to tell him to take his five-year-
     old sister, Chantel, and leave the room. In the course of doing
     so, Larry saw [Appellant] pull out a knife. When this happened,
     he ran downstairs to try to find a knife with which to attack the
     intruder, but could find none. He then ran back upstairs with his
     sister to the other bedroom and [Appellant] then ran downstairs
     and out the back door with Larry running after him. Later, he
     saw his mother lying against the front door. He spoke to her but
     there was no answer. Larry also testified he recognized the
     intruder as a youth he had seen hanging out clothes in the
     backyard of the house to the rear of his own.

           In the course of their investigation, police found a black
     scarf with stains of human blood in the backyard of the Mapp
     house, and in a search of [Appellant’s] residence, pursuant to a
     search warrant, found three butcher knives with one bearing
     traces of human blood, a pair of pants, a pair of shoes and a
     washcloth, all of which bore stains of human blood.

Commonwealth v. Young, 383 A.2d 899, 900 (Pa. 1978).

     Appellant, who was a juvenile at the time of the murder, was inter

alia, convicted of second-degree murder and sentenced to life imprisonment

without possibility of parole.   Our Supreme Court affirmed Appellant’s


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judgment of sentence in 1978, id., and subsequent collateral attacks on that

judgment were unsuccessful.     See Commonwealth v. Young, 465 A.2d

684, 685 (Pa. Super. 1983) (affirming denial of petition filed under the Post-

Conviction Hearing Act (PCHA)); Commonwealth v. Young, 635 A.2d 209

(Pa. Super. 1993) (unpublished memorandum) (affirming denial of second

PCHA petition). Appellant later sought DNA testing under the PCRA, but his

request was denied, appealed, and affirmed by this Court, inter alia, on the

basis that Appellant’s confession barred him from asserting a claim of actual

innocence. Commonwealth v. Young, 873 A.2d 720 (Pa. Super. 2005).

      On July 8, 2010, Appellant filed a PCRA petition wherein he claimed his

sentence was illegal under Graham v. Florida, 560 U.S. 48, 130 S.Ct.

2011, 176 L.Ed.2d 825 (2010) (holding unconstitutional sentences of life

imprisonment without parole for non-homicide juvenile offenders).          The

PCRA court did nothing.       On November 16, 2011, Appellant filed a

supplement to the PCRA petition seeking DNA testing based upon the fact

that our Supreme Court in Commonwealth v. Wright, 14 A.3d 798 (Pa.

2011), overturned the 2005 Young decision of this Court disposing of

Appellant’s earlier request for DNA testing. The PCRA court did nothing. On

July 16, 2012, Appellant filed another supplement to his petition citing, inter

alia, Miller v. Alabama, 132 S.Ct. 2455 (2012).          The PCRA court did

nothing.   On December 23, 2013, Appellant filed another amendment




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discussing Miller and our Supreme Court’s decision in Commonwealth v.

Cunningham, 81 A.3d 1, 11 (Pa. 2013).

      On June 12, 2014, the PCRA court finally acknowledged Appellant’s

filings by issuing a notice of intent to dismiss them as untimely-filed

pursuant to Pa.R.Crim.P. 907. On July 1, 2014, Appellant filed objections,

citing, inter alia, Miller.   On December 1, 2015, upon consideration of

Appellant’s   PCRA   petition,    the   supplements   thereto,   and   Appellant’s

response to the 907 Notice, the PCRA court dismissed Appellant’s petition.1

Appellant timely filed a notice of appeal.

      The timeliness of a post-conviction petition is jurisdictional. See, e.g.,

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.    Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,



1
  That Appellant’s petition went unaddressed for nearly four years despite
his repeatedly bringing it to the court’s attention by filing supplements and
amendments, and then another 17 months elapsed before a final order was
entered allowing Appellant to appeal to this Court, raises serious questions
about whether justice is being served. There is simply no excuse for such
lengthy delays.

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that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.          42

Pa.C.S. § 9545(b). However, “the one-year time bar proscribed under the

PCRA does not apply to petitions for post-conviction DNA testing….”

Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008).

      We begin by addressing the denial of Appellant’s request for DNA

testing. Such a claim is governed by 42 Pa.C.S. § 9543.1.

      The statute sets forth several threshold requirements to obtain
      DNA testing: (1) the evidence specified must be available for
      testing on the date of the motion; (2) if the evidence was
      discovered prior to the applicant’s conviction, it was not already
      DNA tested because (a) technology for testing did not exist at
      the time of the applicant’s trial; (b) the applicant’s counsel did
      not request testing in a case that went to verdict before January
      1, 1995; or (c) counsel sought funds from the court to pay for
      the testing because his client was indigent, and the court refused
      the request despite the client’s indigency.

Commonwealth v. Walsh, 125 A.3d 1248, 1254 (Pa. Super. 2015)

(quoting Commonwealth v. Williams, 35 A.3d 44, 49 (Pa. Super. 2011)).

Further,

      The text of the statute set forth in Section 9543.1(c)(3) and
      reinforced in Section 9543.1(d)(2) requires the applicant to
      demonstrate that favorable results of the requested DNA testing
      would establish the applicant’s actual innocence of the crime of
      conviction. The statutory standard to obtain testing requires
      more than conjecture or speculation; it demands a prima facie
      case that the DNA results, if exculpatory, would establish actual
      innocence.

Id. at 1254-55.




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      As noted above, the police recovered numerous blood-stained articles

from Appellant’s residence, as well as one article from the victim’s yard,

which abutted that of Appellant.    At trial, the Commonwealth introduced

evidence that the blood on all of the items was human; however, nothing

more, such as blood type, was tested. Young, 873 A.2d at 727. In 2002,

Appellant sought DNA testing of these articles, claiming that the results

would establish that the blood was his own rather than Ms. Mapp’s. Id. at

725. This Court affirmed the PCRA court’s denial of the request, holding that

Appellant’s challenged-and-upheld confession barred him from asserting a

claim of actual innocence.   Id. at 727.   This Court went on to state the

following:

             Moreover, even if we would have found Appellant’s
      confession did not bar recourse pursuant to Section 9543.1,
      Appellant would still not be entitled to the relief requested. As
      the PCRA court noted above, the victim’s son unequivocally
      identified Appellant as the person who had broken into their
      home and who had ordered him and his little sister out of the
      bedroom while producing a knife and holding it toward his
      mother. Although Appellant challenged the credibility of Larry
      Mapp’s testimony and his identification of Appellant as the
      perpetrator, substantial evidence of identification was presented
      to the jury for their consideration. Thus, even assuming that the
      DNA testing of the pants, shoes, knife and washcloth produced
      exculpatory results, it would not be enough to establish
      Appellant’s actual innocence of the offense for which he was
      convicted.

            For the foregoing reasons, Appellant has failed to satisfy
      the requirement of 42 Pa.C.S.A. section 9543.1. Accordingly, we
      affirm the PCRA court’s order denying Appellant’s request for
      DNA testing.



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Id. at 727-28.

      In 2011, our Supreme Court rejected the first basis for this Court’s

decision, holding “a confession, in and of itself, is not a per se bar … to a

convicted individual establishing a prima facie case that DNA testing would

establish actual innocence of the crime for which he or she was convicted….”

Wright, 14 A.3d at 817.

      Appellant’s request for DNA testing at issue in the present appeal did

not attempt to set forth all of the threshold requirements of Section 9543.1

quoted above. He merely asserted that because this Court’s 2005 decision

had been overruled, he is entitled to the testing.     Similarly, in his brief

Appellant only argues, under Wright, that his confession is not a bar to his

meeting the actual-innocence requirement for testing.     Appellant’s Brief at

23-30.

      Such argument ignores this Court’s prior ruling that the tests, even if

they produced the results Appellant wanted, would not establish that he did

not murder Ms. Mapp. This Court’s prior even-if rejection of the merits of

Appellant’s request for DNA testing constitutes the law of the case,

preventing us from reaching a different conclusion.      Commonwealth v.

Reed, 971 A.2d 1216, 1220 (Pa. 2009). Nor has Appellant cited to a factual

or legal change that would warrant our revisiting the issue. Accordingly, we

affirm the PCRA court’s order to the extent that it denied Appellant’s request

for DNA testing.


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      We now consider the propriety of the PCRA court’s dismissal as

untimely-filed of Appellant’s claim for resentencing. The petition is facially

untimely, as Appellant’s judgment of sentence became final decades ago.

However, he claims that his petition satisfies the timeliness exception

codified at 42 Pa.C.S. § 9545(b)(1)(iii), for newly-recognized, retroactively-

applicable constitutional rights.   Specifically, Appellant asserts that the

holding of the United States Supreme Court in Miller, that mandatory

sentences of life imprisonment without possibility of parole imposed upon

individuals who were juveniles at the time they committed homicides are

unconstitutional, applies to him.

      The PCRA court determined that Appellant did not properly invoke that

exception because our Supreme Court held in Cunningham that Miller does

not apply retroactively. However, while this appeal was pending, the United

States Supreme Court in Montgomery v. Louisiana, 136 S.Ct. 718 (2016),

overruled Cunningham by holding that Miller announced a new substantive

rule of law which does apply retroactively. Thereafter, this Court held that

Montgomery renders “retroactivity under Miller effective as of the date of

the Miller decision.”   Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.

Super. 2016).

      Under Secreti, Appellant’s PCRA petition meets the           timeliness

exception provided by 42 Pa.C.S. § 9545(b)(1)(iii).            Under Miller,

Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form


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of resentencing.2,3   Accordingly, the order is reversed to the extent that it

denied Appellant’s request for resentencing.

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

vacated. Case remanded for resentencing.4 Jurisdiction relinquished.




2
 The Commonwealth agrees that Appellant is entitled to resentencing under
Montgomery. Commonwealth’s Brief at 7.
3
  The court may not resentence Appellant to life imprisonment without the
possibility of parole without unless it considers the appropriate age-related
factors:

      at a minimum [the sentencing court] should consider a juvenile’s
      age at the time of the offense, his diminished culpability and
      capacity for change, the circumstances of the crime, the extent
      of his participation in the crime, his family, home and
      neighborhood environment, his emotional maturity and
      development, the extent that familial and/or peer pressure may
      have affected him, his past exposure to violence, his drug and
      alcohol history, his ability to deal with the police, his capacity to
      assist his attorney, his mental health history, and his potential
      for rehabilitation.

Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (quoting
Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012)).
4
   Appellant is entitled to the assistance of counsel for his resentencing
proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966)
(noting that sentencing is a critical stage of a criminal proceeding at which a
criminal defendant has a constitutional right to counsel). According to the
Commonwealth, the Defender Association of Philadelphia was appointed to
represent Appellant on May 25, 2016, for Montgomery purposes.
Commonwealth’s Brief at 5.

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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/19/2016




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