J-S03035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LONNIE DAY, JR.

                        Appellant                   No. 1372 EDA 2015


                 Appeal from the PCRA Order April 14, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1223441-1981


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 22, 2016

      Lonnie Day, Jr. (“Appellant”), appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

      The PCRA court summarized the procedural posture of this matter as

follows:

             On April 29, 1982, following a jury trial, [Appellant] was
      found guilty of second-degree murder, criminal conspiracy, and
      possession of an instrument of crime. On July 27, 1983, the
      [trial court] sentenced [Appellant] to life imprisonment on the
      second-degree murder charge.         On August 16, 1985, the
      Superior Court upheld the judgment of sentence and [Appellant]
      subsequently did not file a [p]etition for [a]llowance of [a]ppeal
      with the Supreme Court of Pennsylvania.

            On July 24, 1986, [Appellant] filed his first petition for
      post-conviction relief. On May 7, 1988, [Appellant’s] petition
      was denied following a hearing. On December 28, 1988, the
      Superior Court upheld the denial of [Appellant’s] petition. On
      March 7, 2008, [Appellant] filed a second petition for post-
J-S03035-16


       conviction relief. On October 18, 2010, [Appellant’s] petition
       was dismissed as untimely by [the PCRA court]. On June 24,
       2011, the Superior Court upheld the dismissal of [Appellant’s]
       petition. On July 20, 2011, [Appellant] filed a [p]etition for
       [a]llowance of [a]ppeal with the Supreme Court. On December
       5, 2011, the Supreme Court denied [Appellant’s] [p]etition for
       [a]llowance of [a]ppeal.

              On April 22, 2013, [Appellant] filed his third, and instant,
       petition for post-conviction relief.     In his pro se petition,
       [Appellant] raised the after-discovered evidence exception to the
       time-bar based upon the opinion in United States v. Greene, a
       Fourth Circuit case decided on January 3, 2013, in which that
       [c]ourt detailed recent studies that showed the effect that stress,
       weapons focus, and race can have on the reliability of
       eyewitness identification. See United States v. Greene, 704
       F.3d 298 (4th Cir. 2013). On January 2, 2014, [the PCRA court]
       appointed PCRA counsel. On May 3, 2014, [PCRA counsel] filed
       a Finley[1] Letter stating that [Appellant’s] petition was untimely
       and the issues raised therein were without merit.

              On June 10, 2014, [Appellant] filed an amended petition
       pro se, raising a second claim based upon the retroactive
       application of a constitutional right. In this petition, [Appellant]
       argued that the United States Supreme Court’s holding in Miller
       v. Alabama, in which the Court held that mandatory sentences
       of life without the possibility of parole for a juvenile was cruel
       and unusual punishment, and Alleyne v. United States, in
       which the Court held that any fact which increased the
       mandatory minimum of a sentence was an element of the crime
       and had to be submitted to the jury, should be applied
       retroactively to his case. See Miller v. Alabama, __ U.S. ___,
       132 S.Ct. 2455 (2012); [s]ee also Alleyne v. United States,
       __ U.S. ___, 133 S.Ct. 2151 (2013). [Appellant] argued that
       these two cases, taken together, meant that the jury in his case
       should have been required to find that he was not a juvenile
       before he was sentenced to life imprisonment on the second-
       degree murder charge. On July 10, 2014, [PCRA counsel] filed a


____________________________________________


1
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).




                                           -2-
J-S03035-16


     reply to [Appellant’s] amended PCRA petition, arguing that the
     issues raised in the petition were untimely and without merit.

            On August 11, 2014, [the PCRA c]ourt sent [Appellant] a
     notice pursuant to [Pa.R.Crim.P.] 907, indicating that his petition
     would be dismissed because PCRA counsel had determined that
     the issues raised therein were without merit and because the
     petition was untimely. On August 29, 2014, [Appellant] filed a
     response to the 907 notice, again raising the argument found in
     his amended pro se petition. On September 13, 2014, [PCRA
     counsel] filed a reply to [Appellant’s] response to the 907 notice.
     On October 16, 2014, after independent review of [Appellant’s]
     pro se petition with amendments, PCRA counsel’s Finley letter,
     [Appellant’s] reply to the 907 notice, and counsel’s reply to
     [Appellant’s] response to the 907 notice, [the PCRA c]ourt
     dismissed [Appellant’s] petition for post-conviction relief based
     upon counsel’s Finley letter and untimeliness.

           On October 22, 2014, [Appellant] filed another amended
     PCRA petition, again raising the Miller and Alleyne issues found
     in his first amended petition.         On December 29, 2014,
     [Appellant] filed a petition for reconsideration. On April 14,
     2015, [the PCRA c]ourt dismissed [Appellant’s] second petition
     as untimely and without merit and denied his petition for
     reconsideration. On April 24, 2015, [Appellant] appealed the
     dismissal of his PCRA petitions to the Superior Court.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed May 29, 2015 (“1925(a)

Opinion”), pp. 1-3 (footnote omitted).

     Appellant raises the following claims for our review:

     1. Does not the recent decision of the United States Supreme
     Court in Alleyne v. United States, 133 S.Ct. 2151, 2156, 2164
     (2013), which held that any fact that increases the mandatory
     minimum sentence for a crime is an element that must be
     submitted to the jury and found beyond a reasonable doubt ?

     2. By relying upon the recent interpretation of the relevant law
     for the first time which made it clear that Appellant’s conduct
     was not within the scope of the Constitutional construction of
     statutes under Section 1 Pa.C.S.A. § 1925, does not the
     Pennsylvania Superior Court in Commonwealth v. Newman, 99
     A.3d 86, 2014 WL 4088805 (Pa. Super. 2014) (en banc),

                                    -3-
J-S03035-16


      constitute the application of both newly-discovered facts
      exception and the rights asserted is a constitutional right that
      was recognized by the Supreme Court of the United States
      within the meaning of the Pennsylvania Post-Conviction Relief
      Act, exceptions to the time constraints under that Act, 42
      Pa.C.S.A. § 9545(b)(1)(ii)(iii)(2) ? Of course, our Supreme
      Court is currently considering whether Alleyne claims are non-
      waivable legality of sentence issues. Commonwealth v. Johnson,
      93 A.2d 806 (Pa. 2014). Reading decisions from this Court that
      have ruled that mandatory minimum sentencing statutes that
      violate Alleyne are both unconstitutional and non-severable in
      combination with precedent establishing that Alleyne-styled
      claims are legality of sentence questions.

      3. By applying retroactively its holdings in Alleyne v. United
      States, 133 S.Ct. 2151, 2156, 2164 (2013), and Commonwealth
      v. Newman, 99 A.3d 86, 2014 WL 4088805 (Pa. Super. 2014)
      (en banc), does not the Pennsylvania Supreme Court in
      Commonwealth v. Cunningham, No. 38 EAP 2012, decided
      October 30, 2013, Slip. Op. at 13-14, invite litigates to argue for
      a broader retroactively analysis under Pennsylvania law,
      presenting arguments that the new rule is resonate with
      Pennsylvania norms and that “good grounds” exist to apply the
      rule retroactively on collateral review ?

      4. Does not Alleyne and Newman’s decisions resonate with
      Pennsylvania norms ?

      5. Does not Good grounds exist to apply the Alleyne and
      Newman’s decisions retroactively ?

      6. Does not the Court have jurisdiction to review these claims
      under Pennsylvania constitutional guarantee of habeas corpus ?

      7. Does not the creation of two classes of defendant offenders
      violates the Pennsylvania Constitution ?

      8. Does not the sentencing disproportionality violates both the
      United State and Pennsylvania Constitution ?

Appellant’s Brief, pp. 2-3 (verbatim).

      In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is


                                     -4-
J-S03035-16



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

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Genece E.

Brinkley, we conclude Appellant’s issues merit no relief.     The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented. See 1925(a) Opinion, pp. 6-7 (finding: (1) Appellant’s petition

patently untimely; (2) judicial opinions do not constitute newly-discovered

evidence for PCRA time-bar exception purposes; (3) even if a judicial opinion

could constitute newly-discovered evidence, Appellant did not file his petition

within 60 days of Greene, supra; (4) neither Miller, supra, nor Alleyne,

supra, have been held by the Supreme Court of the United States or the

Supreme Court of Pennsylvania to apply retroactively; and (5) even if

Alleyne and Miller applied retroactively, they do not apply to Appellant,

who was a not a minor, but instead 31 years old at the time of his crimes.

Accordingly, we affirm on the basis of the PCRA court’s opinion.

      Order affirmed.




                                     -5-
J-S03035-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




                          -6-
                                                                                     Circulated
                                                                                     Circulated 12/29/2015
                                                                                                12/29/2015 11:52
                                                                                                          1 1:52 AM




                           IN THE COURT OF COMMON PLEAS
                      FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                               CRIMINAL TRIAL DIVISION


  COMMONWEALTH                                                         CP- 51 -CR- 1223441 -1981



         vs.                            MY 2 gi 2015
                                   ri
                                    ,  a¡
                                          ppeafs
                                 Firg Mo#aIDistrict
                                                       Unit
                                                       of PA
                                                                       SUPERIOR COURT
 LONNIE DAY                                                            1372 EDA 2015



 BRINKLEY, J.                                                          MAY 29, 2015

                                             OPINION

        Defendant Lonnie Day filed a third petition for relief pursuant to the Post Conviction

 Relief Act (PCRA), 42 Pa.C.S.A.   § 9541   et seq. (eff. Jan. 16, 1996), raising claims based upon

 after-discovered evidence and retroactive constitutional rights. After independent review of

Defendant's pro se PCRA petition, PCRA counsel's no merit/Finley letter, Defendant's response

to the 907 notice, and PCRA counsel's reply to Defendant's response to the 907 notice, this

Court dismissed Defendant's petition without a hearing as being untimely and without merit.

Defendant appealed this dismissal to the Superior Court. The sole issue addressed in this

Opinion is whether this Court properly dismissed Defendant's PCRA petition. This Court's

decision should be affirmed.

                          PROCEDURAL HISTORY AND FACTS

       On April 29, 1982, following a jury trial, Defendant was found guilty of second- degree

murder, criminal conspiracy, and possession of an instrument of crime. On July 27, 1983, the

Honorable Judge Berel. Caesar sentenced Defendant to life imprisonment on the second -degree
                                                  1
  murder charge. On August 16, 1985, the Superior Court upheld the judgment of sentence and

  Defendant subsequently did not file a Petition for Allowance of Appeal with the Supreme Court

  of Pennsylvania.

          On July 24, 1986, Defendant filed his first petition for post- conviction relief. On May 7,

  1988, Defendant's petition was denied following a hearing. On December 28, 1988, the Superior

  Court upheld the denial of Defendant's petition. On March 7, 2008, Defendant filed a second

 petition for post -conviction relief. On October 18, 2010, Defendant's petition was dismissed as

 untimely by the Honorable Judge Sheila Woods- Skipper. On June 24,2011, the Superior Court

 upheld the dismissal of Defendant's petition. On July 20, 2011, Defendant filed a Petition for

 Allowance of Appeal with the Supreme Court. On December 5, 2011, the Supreme Court denied

 Defendant's Petition for Allowance of Appeal.

        On April 22, 2013, Defendant filed his third, and instant, petition for post- conviction

 relief In his pro se petition, Defendant raised the after- discovered evidence exception to the

 time -bar based upon the opinion in United States v. Greene, a Fourth Circuit case decided on

 January 3, 2013, in which that Court detailed recent studies that showed the effect that stress,

weapons focus, and race can have on the reliability of eyewitness identification. See United

States v. Greene, 704 F.3d 298 (4`h Cir. 2013). On January 2, 2014, Mitchell Scott Struttin,

Esquire, was appointed PCRA counsel. On May 3, 2014, Mr. Struttin filed a Finley Letter stating

that Defendant's petition was untimely and the issues raised therein were without merit.

       On June 10, 2014, Defendant filed an amended petition pro se, raising a second claim

based upon the retroactive application of a constitutional right. In this petition, Defendant argued

that the United States Supreme Court's holding in Miller v. Alabama, in which the Court held

that mandatory sentences of life without the possibility of parole for a juvenile was cruel and



                                                 2
  unusual punishment, and Alleyne v. United States, in which the Court held that any fact which

  increased the mandatory minimum of a sentence was an element of the crime and had to be

  submitted to the jury, should be applied retroactively to his case. See Miller v. Alabama,

  U.S.   _,   132 S.Ct, 2455   (2012); See also Alleyne v. United States,       U.S.     ,   133 S.Ct.

  2151 (2013). Defendant argued that these two cases, taken together, meant that the jury in his

  case should have been required to find that he was not a juvenile before he was sentenced to life

  imprisonment on the second -degree murder charge. On July 10, 2014, Mr. Struttin filed a reply

 to Defendant's amended PCRA petition, arguing that the issues raised in the petition were

 untimely and without merit.

         On August 11, 2014, this Court' sent Defendant a notice pursuant to Rule 907, indicating

 that his petition would be dismissed because PCRA counsel had determined that the issues raised

 therein were without merit and because the petition was untimely. On August 29, 2014,

 Defendant filed a response to the 907 notice, again raising the argument found in his amended

pro se petition. On September       13, 2014, Mr. Struttin filed a reply to Defendant's response to the

 907 notice. On October 16, 2014, after independent review of Defendant's pro se petition with

amendments, PCRA counsel's Finley letter, Defendant's reply to the 907 notice, and counsel's

reply to Defendant's response to the 907 notice, this Court dismissed Defendant's petition for

post- conviction relief based upon counsel's Finley letter and untimeliness.

         On October 22, 2014, Defendant filed another amended PCRA petition, again raising the

Miller and Alleyne issues found in his first amended petition. On December 29, 2014, Defendant

filed a petition for reconsideration. On April 14, 2015, this Court dismissed Defendant's second

petition as untimely and without merit and denied his petition for reconsideration. On April 24,

2015, Defendant appealed the dismissal of his PCRA petitions to the Superior Court.

 On May 20, 2014, Defendant's PCRA petition was reassigned to this Court.

                                                      3
                                                   ISSUES

          I.         WHETHER THIS COURT PROPERLY DISMISSED DEFENDANT'S
                     PETITION AS BEING UNTIMELY AND WITHOUT MERIT.

                                               DISCUSSION

          I.        THIS COURT PROPERLY DISMISSED DEFENDANT'S PETITION AS
                    UNTIMELY AND WITHOUT MERIT.

         This Court properly dismissed Defendant's PCRA petition as untimely and without merit.

 When reviewing the denial of PCRA relief, the appellate court's standard of review is limited to

 determining whether the PCRA court's findings are supported by the record and without legal

 error. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing

 Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). It is well -settled in

 Pennsylvania that all petitions under the PCRA, including subsequent petitions, must be filed

 within one year of the date the judgment becomes final, unless the petition alleges, and the

 petitioner proves, an exception to the one -year time period. Commonwealth v. Albrecht, 606 Pa.

 64, 994 A.2d 1091, 1094 (2010) (citing Commonwealth v. Hawkins, 598 Pa. 85, 953 A.2d 1248,

 1252 (2008)). The exceptions apply where the petition successfully alleges and proves one or

more of the following:


        (i)         the failure to raise this claim previously was the result of interference by
                    government officials with presentation of the claim in violation of the
                   Constitution of 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 of 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)(i)- (iii). A petition invoking one of these exceptions must be filed

within 60 days of the date the claim could first have been presented. 42 Pa. C.S.A.      §   9545(b)(2).

                                                     4
 The petitioner must plead and prove specific facts that demonstrate his claim was raised within

 the 60 day time frame. Commonwealth v. Hernandez, 79 Aid 649, 651 -52 (2013).

         The PCRA's timeliness requirements are jurisdictional in nature. Commonwealth v.

 Johnston, 2012 PA Super 67, 42 A.3d 1120, 1130 (2012) (citing Commonwealth v. Abu -Jamal,

 596 Pa. 219, 941 A.2d 1263, 1267 -68 (2008)). The time "limitations are mandatory and are

 interpreted literally; thus, a court has no authority to extend filing periods except as statute

 permits." Commonwealth v. Seskey, 2014 PA Super 27, 86 A.3d 237, 242 (2014) (quoting

 Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999)). "If the petition is determined

 to be untimely, and no exception has been pled and proven, the petition must be dismissed

 without hearing because Pennsylvania courts are without jurisdiction to consider the merits of

the petition." Id. (quoting Commonwealth v. Jackson, 30 A.3d 516, 518 -19 (Pa. Super. 2011);

Commonwealth v. Perrin, 947 A.2d 1284, 1285 (2008)).

        To obtain relief based on after- discovered evidence, the defendant must demonstrate that

the evidence: (I) could not have been obtained prior to the conclusion of the trial by the exercise

of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely

to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new

trial were granted. Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008) (citing

Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1283 (2005)). The test is

conjunctive; the defendant must show by a preponderance of the evidence that each of these

factors has been met in order for a new trial to be warranted. Commonwealth v. Padillas, 2010

PA Super 108, 997 A.2d 356, 363 (2010) (citing Commonwealth v. Rivera, 939 A.2d 255, 259

(Pa. Super. 2007)). The focus of the after- discovered evidence exception is on the newly

discovered facts, not on a newly discovered or newly willing source for previously known facts.



                                                   5
 Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 720 (2008) (citing Commonwealth v.

 Johnson, 580 Pa. 594, 863 A.2d 423, 427 (2004)). A judicial opinion does not constitute after-

 discovered evidence for the purposes of the time -bar. Commonwealth v. Watts, 611 Pa. 80, 23

 A.3d 980, 986 -87 (2011).

          In Alleyne v. United States, the United States Supreme Court held that any facts leading

 to an increase in a mandatory minimum sentence are elements of the crime and must be

 presented to a jury and proven beyond a reasonable doubt. Commonwealth v. Valentine, 2014

 PA Super 220, 101 A.3d 801, 809 (2014) (citing Alleyne, 133 S. Ct. at 2155). In Miller v.

 Alabama, the Supreme Court announced that mandatory life -without -parole sentences, as applied

to those under the age of eighteen, offend the Eighth Amendment by preventing sentencing

authorities from considering juveniles' "diminished culpability and heightened capacity for

change." Commonwealth. v. Cunningham, 622 Pa. 543,        81   A.3d   1, 3   (2013) (quoting Miller, 132

S.Ct. at 2469). Neither the holdings of Miller nor Alleyne apply retroactively to final judgments

in Pennsylvania. Cunningham, 81 A.3d at 10 -11; Commonwealth v. Miller, 2014 PA Super 214,

102 A.3d 988, 995 (2014).

        In the case at bar, Defendant's judgment of sentence became final on September 16,

1985, when his opportunity to file a Petition for Allowance of Appeal with the Pennsylvania

Supreme Court expired. Defendant thus had until September 16, 1986 to file a timely petition for

post -conviction relief: Defendant filed the instant petition on April 22, 2013, more than 26 years

after the date to file a timely petition had passed. To avoid the time -bar, Defendant alleged the

after- discovered evidence exception and the retroactive application of a constitutional right

exception. However, Defendant's arguments are without merit and neither exception applies to

his petition.



                                                 6
          Defendant alleged the after- discovered evidence exception based on a Fourth Circuit

  Court of Appeals case in which the Court held that factors such as stress, weapons focus and race

  can affect the reliability of eyewitness identification. However, a judicial opinion, especially one

 from another jurisdiction, does not constitute after-discovered evidence to escape the time -bar.

 Furthermore, even if the opinion did constitute after- discovered evidence, Defendant did not file

 the instant petition within 60 days of the date from when the opinion was published and the

 claim could have been presented nor did Defendant demonstrate that the information would

 likely result in a different verdict if a new trial were granted, as Defendant did not make any

 allegation that any eyewitness identification at his trial was influenced by any of the factors

 discussed in Greene.

        Defendant further alleged the retroactive application of a constitutional right exception

 based upon the Supreme Court's holdings in Miller and Alleyne. However, neither Miller nor

 Alleyne apply retroactively to final judgments in Pennsylvania and therefore do not qualify for

the exception to the time -bar. Even if both of those holdings applied retroactively, Defendant

 would still not be entitled to relief based on the retroactive application of a constitutional right

exception. Defendant, who was 31 years old at the time of the murder, was not a minor at the

time of the crime nor was his age an element of the crime which led to an increase in a

mandatory minimum sentence and therefore needed to be submitted to the jury. Thus, even if

they were to apply retroactively, the holdings of Miller and Alleyne do not encompass

Defendant. As Defendant's instant PCRA petition was filed more than 26 years after the PCRA's

jurisdictional tirine -bar, and Defendant failed to prove any exception to the time-bar, this Court

properly dismissed his petition as untimely and without merit.




                                                   7
                                        CONCLUSION

       After review of the applicable case law, testimony and statutes, this Court committed no

error. Defendant's PCRA petition, with amendments, was properly dismissed as being untimely

and without merit. Accordingly, this Court's decision should be affirmed.




                                              8
