J-S69033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STAN ROSENTHAL                             :
                                               :
                       Appellant               :   No. 1481 EDA 2019

               Appeal from the PCRA Order Entered May 3, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0607691-1986


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED FEBRUARY 06, 2020

        Appellant, Stan Rosenthal, pro se, appeals from the order entered

May 3, 2019, that dismissed his second petition filed under the Post Conviction

Relief Act (“PCRA”)1 without a hearing. We affirm.

        The facts and procedural history underlying this appeal are as follows:

        Police charged Appellant[, born March 6, 1958,] with first degree
        murder in the 1986 fatal beating and stabbing of his girlfriend,
        Dawn Teper. . . . Appellant admitted to police that he assaulted
        Dawn but insisted his attack resulted from heat of passion and his
        altered perception of reality due to drug abuse. Appellant filed a
        motion to suppress his statements to police, but the trial court
        denied the motion. Appellant waived his right to a jury trial in
        exchange for the Commonwealth’s promise not to seek the death
        penalty.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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     The trial court rejected Appellant’s argument that he was
     incapable of forming the specific intent to kill at the time of the
     murder due to ingestion of a great quantity of drugs. Appellant
     claimed his use of drugs was involuntary due to an addiction that
     he developed from use of drugs over a long period of time.
     Instead, the court credited testimony that Appellant previously
     had threatened to kill Dawn if she left him and concluded he acted
     on that threat. The court also gave little weight to the fact that a
     psychiatrist who saw Appellant after he was arrested concluded
     he was depressed and needed further observation to prevent a
     possible suicide. The court gave more weight to the fact that tests
     administered at the hospital failed to detect any residue of
     narcotics. It convicted Appellant of first degree murder and
     possession of an instrument of crime. The court immediately
     imposed a mandatory life sentence for first degree murder. On
     July 27, 1989, the trial court imposed a two and one-half to five
     year sentence for possession of an instrument of crime concurrent
     to the life sentence it previously imposed for murder.

     Appellant filed a direct appeal, and we affirmed the judgment of
     sentence.       Commonwealth v. Rosenthal, 583 A.2d 835
     (Pa.Super. 1990) (unpublished memorandum opinion). Appellant
     filed a petition for reargument that we denied. Next, Appellant
     filed a petition for remand for an evidentiary hearing to develop a
     factual basis in support of the claims of ineffective assistance of
     counsel he had made on direct appeal. We also denied this
     petition. Appellant then filed a petition for allowance of appeal,
     arguing that our Supreme Court should reconsider its decision in
     Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990).
     In Young, the Court concluded that defendants were not denied
     their constitutional rights under the fifth and sixth amendments to
     the United States Constitution when they are not informed about
     the potential harm to themselves by not consulting with an
     attorney before making a statement. Our Supreme Court denied
     Appellant’s request for an appeal on May 13, 1991. Appellant then
     filed a writ of certiorari to the United States Supreme Court, which
     that Court denied on December 16, 1991. Finally, Appellant filed
     [a] PCRA petition, his first, on January 12, 1996.

Commonwealth v. Rosenthal, No. 4334 Philadelphia 1996, unpublished

memorandum at 1-3 (Pa. Super. filed October 23, 1998). On October 31,




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1996, the PCRA court denied Appellant’s first PCRA petition. Id. at 1. On

October 23, 1998, this Court affirmed that denial of PCRA relief. Id.

       On March 28, 2016, Appellant pro se filed his second PCRA petition,

which stated:

       [Appellant] concedes that his current PCRA petition is not filed
       within one year of the date his judgment of sentence became
       final.[2] However, [Appellant]’s claim fulfills the exception of 42
       Pa.C.S. §9545(b)(1)(iii).

       [Appellant] claims that the US Supreme Court’s decision in
       Montgomery [v. Louisiana, 136 S. Ct. 718 (2016),] that held
       the Court’s previous ruling in Miller [v. Alabama, 567 U.S. 460
       (2012),] applied retroactively, “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 the Court to apply retroactively.”

PCRA Petition, 3/28/2016, at 5.

       On March 12, 2019, the PCRA court entered a notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it

lacked jurisdiction over Appellant’s petition, because the petition was untimely

and failed to satisfy an exception to the PCRA’s time bar. On March 25, 2019,

Appellant filed a response that did not request to amend the PCRA petition.




____________________________________________


2  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 one
of the three exceptions to the time limitations for filing the petition set forth
in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).



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       On May 3, 2019, the PCRA court dismissed Appellant’s petition.         On

May 13, 2019, Appellant filed this timely appeal.3

       Appellant presents the following issues for our review:

       (1)

       Did the PCRA [c]ourt err in dismissing [A]ppellant[’]s Post-
       Conviction Relief Act Petition as untimely which [A]ppellant filed
       within 60-days of MONTGOMERY V. LOUISIANA 136 S.Ct 718
       2018 challenging whether the Act of October 25, 2012 P.L. 204
       which authorizes as to findings of guilt for First and Second Degree
       Murder sentences of 20,25,30 and 35 years to life and did such
       repeal for similar conviction 18 Pa C.S.A. §1102(a)-sentence for
       first degree murder which authorizes death and life imprisonment
       and 18 Pa C.S.A.§1102(b)-sentence for second degree murder
       which authorizes life imprisonment?

       (2)

       Whether where the United States Supreme Court decision
       invalidating mandatory minimum and maximum sentencing
       statutes and other decisions invalidating mandatory death penalty
       statutes and statutes authorizing mandatory life imprisonment as
       to juveniles create a Constitutional Right which wasn’t
       recognize[d] as such satisfies the One year time limitations of 42
       Pa C.S. §9545(b)(1)(iii)?

Appellant’s Brief at 5.

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).



____________________________________________


3Appellant filed his statement of errors complained of on appeal on July 29,
2019.


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J-S69033-19


      Initially, we observe that Appellant is correct that the United States

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

that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively; Miller

held “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.’” Id. at 465. Petitioners who were at least 18 years

old at the time of their crimes – such as Appellant, who was 28 years old --

“are not within the ambit of the Miller decision [and its corollary,

Montgomery,] and therefore may not rely on that decision to bring

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

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016). Hence, Miller

and Montgomery are inapplicable to Appellant. Having discerned no error of

law, we affirm the order below. See Medina, 209 A.3d at 996.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/20




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