                           [J-53-2017 and J-63-2017]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,               :   No. 731 CAP
                                            :
                    Appellee                :   Appeal from the Order entered on
                                            :   October 12, 2016 in the Court of
                                            :   Common Pleas, Cumberland County,
             v.                             :   Criminal Division at No. CP-21-CR-
                                            :   0000794-1995.
                                            :
MARK NEWTON SPOTZ,                          :   SUBMITTED: June 29, 2017
                                            :
                    Appellant               :

COMMONWEALTH OF PENNSYLVANIA,               :   No. 734 CAP
                                            :
                    Appellee                :   Appeal from the Order dated January
                                            :   11, 2017 in the Court of Common Pleas,
                                            :   Schuylkill County, Criminal Division at
             v.                             :   No. CP-54-CR-0000269-1995.
                                            :
                                            :   SUBMITTED: July 13, 2017
MARK NEWTON SPOTZ,                          :
                                            :
                    Appellant               :

                                      OPINION

JUSTICE WECHT                                         DECIDED: October 18, 2017
      In these consolidated appeals,1 we consider whether the invocation of the United

States Supreme Court’s decisions in Johnson v. United States, ___ U.S. ___, 135 S.Ct.

2551 (2015), and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), satisfies


1
      We consolidated these death penalty collateral appeals sua sponte. See
generally Pa.R.A.P. 513 (permitting consolidation, in the appellate court’s discretion,
when “the same question is involved in two or more appeals in different cases”).
the newly-recognized constitutional right exception to the time limit prescribed by the

Post Conviction Relief Act (“PCRA”).2        See 42 Pa.C.S. § 9545(b)(1) (requiring all

petitions for relief to be filed within one year of the judgment of sentence becoming

final); id. § 9545(b)(1)(iii) (providing an exception to the time limit upon the recognition of

a new constitutional right that is held to apply retroactively to petitioners whose

judgments of sentence have become final). We hold that neither Johnson nor Welch

created a constitutional right that applies retroactively to Mark Spotz. Consequently, the

timeliness exception does not apply. We affirm the PCRA court’s conclusion that Spotz’

petitions are untimely, rendering Pennsylvania courts without jurisdiction to provide

relief.

          In 1995, Spotz embarked upon a three-day homicide spree through York,

Schuylkill, Cumberland, and Clearfield Counties. Spotz killed four people, one of whom

was his own brother.       In 1996, Spotz was convicted of first-degree murder and

sentenced to death in York, Schuylkill, and Cumberland Counties. In Clearfield County,

Spotz was convicted of, inter alia, voluntary manslaughter for the killing of his brother,

and received a lengthy prison sentence. The lengthy factual and procedural histories of

Spotz’ cases have been detailed in the eight prior opinions that this Court has issued in

relation to Spotz’ various appeals and pursuits of collateral relief.3 That material is

irrelevant to our disposition of the present appeals, and we will not recount it here.

2
          See 42 Pa.C.S. § 9541-46.
3
       See Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014); Commonwealth v. Spotz,
47 A.3d 63 (Pa. 2012); Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011);
Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006); Commonwealth v. Spotz, 870 A.2d
822 (Pa. 2005); Commonwealth v. Spotz, 759 A.2d 1280 (Pa. 2000); Commonwealth v.
Spotz, 756 A.2d 1139 (Pa. 2000); Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998).
In addition to the eight substantive opinions, former Chief Justice Castille authored a
“Single Justice Opinion on Post-Decisional Motions” responding to Spotz’ lawyers’
request that he withdraw a Concurring Opinion that he had issued in one of Spotz’
(continued…)
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                                             -2
       The only two cases at issue presently are Spotz’ death sentences in Cumberland

and Schuylkill Counties.     In each case, Spotz filed facially untimely petitions for

collateral relief, in which he maintained that Johnson and Welch sufficed to satisfy the

newly-recognized constitutional right exception.4 As discussed in more detail below, in

Johnson, The Supreme Court of the United States held that the “residual clause” of the

federal Armed Career Criminal Act of 1984 (the “Act”), 18 U.S.C. § 924 (generally); id. §

924(e)(2)(B)(ii) (residual clause), was unconstitutionally vague, violating the Due

Process Clause of the Fourteenth Amendment to the United States Constitution. See

Johnson, 135 S.Ct. at 2563. The “residual clause” permitted increased sentences for

those individuals who had committed three or more “violent felonies,” which included

any felony that “involves conduct that presents a serious potential risk of physical injury


(…continued)
appeals, in which he criticized counsel’s involvement in the case. See Commonwealth
v. Spotz, 99 A.3d 866 (Pa. 2014).
4
        In Cumberland County, Spotz was sentenced to death on June 17, 1996. His
direct appeal to this Court was denied on October 20, 2000. On January 14, 2002, the
United States Supreme Court denied Spotz’ petition for certiorari. Therefore, Spotz had
until approximately January 14, 2003 to file a timely petition for collateral relief. See 42
Pa.C.S. § 9545(b)(3) (stating that, for purposes of calculating the timeliness of a
petition, 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.”). Spotz filed his
Cumberland County petition on June 16, 2016, over thirteen years after his judgment of
sentence became final.
Similarly, in Schuylkill County, Spotz was sentenced to death on March 6, 1996, and his
direct appeal was denied on July 20, 1998. The United States Supreme Court denied
certiorari on April 19, 1999. To be timely, any petition had to be filed on or before April
19, 2000. Spotz filed his present petition in Schuylkill County on June 16, 2016. The
petition exceeded the time constraint by approximately sixteen years.
Hence, both petitions at issue here facially are untimely, and require the invocation of
an enumerated exception to the timeliness requirement in order to establish the
jurisdiction of our courts to review the claims raised therein.


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                                            -3
to another.” 18 U.S.C. § 924(e)(2)(B)(ii). In the next term, the Court held in Welch that

its decision in Johnson with regard to the “residual clause” was a new substantive rule

that necessitated its application even to those whose judgments of sentence had

become final. Welch, 136 S.Ct. at 1265.

       According to Spotz, the unconstitutional language in the Act’s “residual clause”

substantively is identical to the aggravating circumstance set forth in 42 Pa.C.S. §

9711(d)(9) (the “(d)(9) aggravator”), which requires proof by the Commonwealth that

“[t]he defendant has a significant history of felony convictions involving the use or threat

of violence to the person.” Id. Because the “residual clause” at issue in Johnson

effectively mirrors the (d)(9) aggravator, Spotz believes that Johnson and Welch are

sufficient to satisfy the elements of the newly-recognized constitutional right exception

to the PCRA’s time bar. Both PCRA courts rejected this line of argument because, inter

alia, those cases found a federal sentencing statute unconstitutional, whereas Spotz

was sentenced under a state statute. The courts held that Johnson and Welch simply

did not apply to Spotz, at least for purposes of the exception being invoked by Spotz.

See Trial Court Opinion—Cumberland Cty., 10/12/2016, at 3 (explaining that Spotz

“was not sentenced under this federal statute”); Trial Court Opinion—Schuylkill Cty.,

12/13/2016, at 3 (agreeing with the Commonwealth’s argument that Spotz did “not meet

the requirements of the exception, because Johnson and Welch apply only to a federal

statute that has nothing to do with Spotz’ case”); id. at 5 (noting that “Spotz has also not

been sentenced under the federal statute ruled unconstitutional, nor are the two statutes

used in the same manner”). Accordingly, both courts held that Spotz’ petitions were




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                                            -4
untimely, that no exception applied, and that no court had jurisdiction to afford the relief

sought by Spotz. Spotz then appealed both cases to this Court.5

       Our standard of review for issues arising from the denial of PCRA relief is well-

settled. We must determine whether the PCRA court’s ruling is supported by the record

and free of legal error. Commonwealth v. Washington, 927 A.2d 586, 593 (Pa. 2007).

       As noted earlier, the two collateral petitions filed by Spotz in these cases are

facially untimely. See supra n.4. Thus, our sole inquiry is whether Spotz sufficiently

has satisfied a statutory exception so as to overcome the patent untimeliness of his

petitions. For the reasons that follow, we conclude that he has not done so.

       To be timely, a PCRA petition, including a second or subsequent petition, must

be filed within one year of a judgment of sentence becoming final. See 42 Pa.C.S. §

9545(b)(1). This time constraint is jurisdictional in nature, and is not subject to tolling or

other equitable considerations. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016) (citing Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014);

Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa. 1998)). The statutory time bar

“implicates the court’s very power to adjudicate a controversy and prohibits a court from

extending filing periods except as the statute permits.” Robinson, 139 A.3d at 185

(citing Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999)). Thus, the jurisdictional

time bar only can be overcome by satisfaction of one of the three statutory exceptions

codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii). The PCRA petitioner bears the burden of

proving the applicability of one of the exceptions. Commonwealth v. Edmiston, 65 A.3d

339, 346 (Pa. 2013).


5
      This Court has exclusive jurisdiction over appeals of determinations made in
death penalty cases on both direct and collateral appeal. Commonwealth v. Collins,
888 A.2d 564, 568 (Pa. 2005); 42 Pa.C.S. § 722(4); 42 Pa.C.S. § 9546(d).


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                                            -5
       Only the newly-recognized constitutional right exception is relevant here.6 We

examined the terms of this exception, and a petitioner’s burden thereunder, in

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

       Subsection (iii) of Section 9545[(b)(1)] has two requirements. First, it
       provides that the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or this [C]ourt after
       the time provided in this section. Second, it provides that the right “has
       been held” by “that court” to apply retroactively. Thus, a petitioner must
       prove that there is a “new” constitutional right and that the right “has been
       held” by that court to apply retroactively. The language “has been held” is
       in the past tense. These words mean that the action has already
       occurred, i.e., “that court” has already held the new constitutional right to
       be retroactive to cases on collateral review. By employing the past tense
       in writing this provision, the legislature clearly intended that the right was
       already recognized at the time the petition was filed.

Id. at 501. As noted, Spotz relies upon the United States Supreme Court’s decisions in

Johnson and Welch. We briefly turn our attention to those cases.

       The Armed Career Criminal Act of 1984 permits more severe punishments for

felony defendants who have committed three or more previous “violent felonies,”7 which


6
       The other two exceptions permit consideration of otherwise untimely petitions
when “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,” or when
“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.” 42 Pa.C.S. §
9545(b)(1)(i), (ii). Spotz does not seek relief under either of these exceptions.
        The PCRA also requires that petitions invoking one of the exceptions be filed
within sixty days of the relevant event that triggered the filing of the petition. See 42
Pa.C.S. § 9545(b)(2). The Commonwealth does not dispute that Spotz filed his
petitions within sixty days of the United States Supreme Court issuing its decision in
Welch. Moreover, the common pleas courts’ docket sheets reflect that the petitions
were both filed on June 16, 2016, within the sixty-day time limit.
7
      The Act defines “violent felony” as any crime punishable by imprisonment for a
term exceeding one year that either:
(continued…)
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                                            -6
the Act defines, in part, as including any felony that “involves conduct that presents a

serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The

United States Supreme Court scrutinized this language, known as the “residual clause,”

in Johnson.

       Johnson was a felon and a known member of a white-supremacist organization.

In 2010, Johnson disclosed to an undercover federal agent that he had explosives and

planned to commit terrorist attacks at various locations in Minnesota, and that he was in

possession of an AK-47 rifle. After his subsequent arrest, Johnson pleaded guilty to

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). 8

       The United States requested an enhanced sentence in reliance upon the

“residual clause” of the Act. The United States argued that three of Johnson’s previous

offenses under Minnesota law, including unlawful possession of a short-barreled

shotgun,9 qualified as violent felonies under the clause. The district court agreed with

the United States, and sentenced Johnson to 15 years’ incarceration. The Court of

Appeals for the Eighth Circuit affirmed the application of the “residual clause.” The



(…continued)
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves [the] use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B)(i)-(ii).
8
        Federal law for unlawful acts with firearms forbids certain individuals, including
convicted felons, “to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.” 18. U.S.C. §
922(g).
9
       See Minn. Stat. § 609.67 (2006).


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United States Supreme Court granted certiorari to decide whether Minnesota’s offense

of unlawful possession of a short-barreled shotgun ranks as a violent felony. After oral

argument, the Court directed the parties to provide the Court with supplemental briefing

on the question of whether the “residual clause” ran afoul of the United States

Constitution’s void-for-vagueness doctrine, and ordered a second round of oral

argument on that issue.

      The Court reversed the Eighth Circuit, and held that the Act’s “residual clause”

was unconstitutionally vague, and, thus, a violation of Johnson’s due process rights.

The Court identified two features of the “residual clause” that rendered the language

unconstitutionally vague:   (1) the “grave uncertainty about how to estimate the risk

posed by the crime”; and (2) “uncertainty about how much risk it takes for a crime to

qualify as a violent felony.” Johnson, 135 S.Ct. at 2557-58. The Court noted that the

Court’s assessment of risk and how much risk qualifies as violent is tied to an abstract

“ordinary case.” The Court found no reliable way to discern what is “ordinary,” and,

accordingly, held that the assessment required under the “residual clause” fails to offer

the predictability and fairness that the Due Process Clause demands.

      The Court also discussed the “persistent efforts”10 that the Court made over the

previous nine years to attempt to clarify the Act’s “residual clause,” but noted that the

Court has failed every time.11 The Court rejected the argument that the existence of

some clearly risky crimes could save the clause’s constitutionality.




10
        See United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921) (noting that
the failure of “persistent efforts” to establish a standard may be evidence of vagueness).
11
      See Sykes v. United States, 564 U.S. 1 (2011); Chambers v. United States, 555
U.S. 122 (2009); James v. United States, 550 U.S. 192 (2007).


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       One year later in Welch, the Supreme Court confronted the complex task of

determining whether its decision in Johnson should apply retroactively to cases on

collateral review. Gregory Welch was sentenced under the “residual clause” of the Act

after the district court found that three prior violent felony convictions triggered the

increased penalty. In doing so, the district court determined that Florida’s “strong-arm

robbery” statute qualified as a violent felony under the “residual clause.” Welch was

sentenced to fifteen years’ incarceration. The Court of Appeals for the Eleventh Circuit

affirmed the sentence. Following Johnson, Welch filed a petition for a writ of certiorari,

which the Court granted, to address the retroactivity of Johnson.

       The Supreme Court vacated the Eleventh Circuit’s decision and remanded the

case, holding that Johnson created a new substantive rule that had to apply

retroactively. The Court applied the Teague framework,12 which generally prescribes

that “new constitutional rules of criminal procedure will not be applicable to those cases

which have become final before the new rules are announced.” Welch, 136 S.Ct. at

1264. But there are two exceptions. First, new substantive rules will apply retroactively.

Second, new “watershed rules of criminal procedure, which are procedural rules

implicating the fundamental fairness and accuracy of the criminal proceeding, will also

have retroactive effect.” Id. (internal quotation marks omitted).

       The Court reasoned that Johnson produced a new substantive rule, because it

altered “the range of conduct or the class of persons that the [Act] punishes.” Id. at

1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). The Court found that

the rule could not be procedural, because it “had nothing to do with the range of

permissible methods a court might use to determine whether a defendant should be


12
       See Teague v. Lane, 489 U.S. 288 (1989).


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                                            -9
sentenced under the Armed Career Criminal Act.” Id. Accordingly, the Court held that

the new substantive rule from Johnson must apply retroactively, as the “residual clause”

no longer can mandate or maintain any sentence, past or future.

       Spotz maintains that this combination of rulings satisfies the elements of the

newly-recognized constitutional right exception. See Reply Brief of Appellant, No. 734

CAP, at 2. However, Spotz was not sentenced under the Act. He was sentenced under

Pennsylvania’s death penalty statute after the jury found the existence of the (d)(9)

aggravator. It is true that Johnson created a substantive, constitutional rule. It also is

true that Welch requires retroactive application of that rule. Nonetheless, Spotz still

must demonstrate that those cases created a right that applies to him. It is axiomatic,

and self-evident, that the asserted newly-created right actually must enure to the benefit

of the petitioner. The right or rule established by the Supreme Court actually must

touch upon the facts or procedure that resulted either in the petitioner’s conviction or

sentence.    For example, for purposes of the newly-recognized constitutional right

exception, a person serving a sentence of life imprisonment cannot invoke new

constitutional rights that govern only death penalty cases, an adult cannot rely upon

constitutional decisions that affect only processes pertaining to juveniles, and a state

prisoner cannot seek redress based upon constitutional rulings that extend only to

federal statutes, as is the case here.

       Spotz argues that the PCRA courts in this matter, by rejecting his attempts to

invoke the newly-recognized constitutional right exception, erroneously considered the

underlying merits of his claim, i.e. whether the language of the two provisions are so

similar as to require a new sentencing hearing, and failed to strictly apply the statutory

requirements. In his view, because the “residual clause” and the (d)(9) aggravator are

substantially similar, the combination of Johnson and Welch ipso facto render his


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petitions timely. However, such an automatic conclusion would require that we ignore

the basic, threshold necessity of showing that the right at issue is one that applies to the

petitioner’s case. For purposes of the exception, we consider only whether, at this point

in time, either the United States Supreme Court or this Court has recognized a new

constitutional right that is applicable to the petitioner. See Abdul-Salaam, 812 A.2d at

501. The only established right at this juncture applies to federal prisoners who have

been sentenced under the federal statute. Nothing in Johnson suggests that the rule

extends to state prisoners.      In order for Spotz’ petitions to be timely, the (d)(9)

aggravator must have been held unconstitutional at the time that he filed his petitions. It

has not been so held. Only the federal provision has been stricken.

       Subsection 9545(b)(1)(iii) requires the assertion of a “right.” See 42 Pa.C.S. §

9545(b)(1)(iii). As Spotz was sentenced under a state death penalty statutory scheme,

and not under the unconstitutional federal statute at issue in Johnson, there simply is no

“right” that Spotz can assert at this time. Thus, his invocation of the newly-recognized

constitutional right exception necessarily fails.

       Whether the “residual clause” and the (d)(9) aggravator are so similar that

Johnson compels a similar void-for-vagueness invalidation—which would necessitate a

significant deviation from our prior rulings13—is a substantive question requiring

consideration of whether a new, but inapplicable, right should be extended to a matter

of state law or to a different area of substantive law. Only a court with jurisdiction can



13
       Notably, this Court repeatedly has held that the language in the (d)(9) aggravator
is not unconstitutionally vague. See Commonwealth v. Williams, 863 A.2d 505, 521
(Pa. 2004) (citing Commonwealth v. Hill, 666 A.2d 642 (Pa. 1995); Commonwealth v.
Rivers, 644 A.2d 710 (Pa. 1994); Commonwealth v. Fahy, 516 A.2d 689 (Pa. 1986);
Commonwealth v. Goins, 495 A.2d 527 (Pa. 1985); Commonwealth v. Beasley, 475
A.2d 730 (Pa. 1984)).


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answer that question.       Because Spotz has not satisfied the newly-recognized

constitutional right exception, like the PCRA court, we lack that jurisdiction.

       We affirm the PCRA courts’ dismissal of Spotz’ untimely petitions.

       Chief Justice Saylor and Justice Baer, Justice Todd, Justice Donohue, Justice

Dougherty and Justice Mundy join the opinion.




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