J-S24020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MIGUEL A. GARCIA,

                            Appellant                    No. 2600 EDA 2014


             Appeal from the PCRA Order entered September 5, 2014,
               in the Court of Common Pleas of Philadelphia County,
               Criminal Division, at No(s): CP-51-CR-0502041-2001


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                                 FILED APRIL 13, 2015

          Miguel A. Garcia (“Appellant”) appeals from the order denying his

second petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. Appellant has also filed an

application to stay his appeal.         For the reasons discussed below, we deny

Appellant’s application to stay, and affirm the PCRA court’s order denying

relief.

          The pertinent facts have been summarized as follows:

            Appellant, his co-defendant Antonio Lambert and Anthony
            Cheatam were in Appellant’s car all afternoon on the date
            in question. Appellant and Cheatam smoked marijuana.
            Lambert told Appellant he wanted to get high and he
            directed Appellant to drive to an area where they
            purchased some Xanax pills, which they subsequently
            ingested. They stopped at a gas station and got gas.
            Upon leaving the gas station, Lambert told Appellant to
            pull over. Both Appellant and Lambert exited the car and
            attempted to steal the purse of a woman pushing a
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         shopping cart. When the woman resisted, Lambert shot
         her, fatally wounding her. Both men returned to the car.
         Lambert, still holding the gun, told Appellant to drive
         away. Cheatam insisted on being let out of the car and he
         was. Appellant and Lambert remained together the rest of
         the evening. Early the next morning, still in Appellant’s
         car, they were pulled over for a traffic violation. Appellant
         drove away before the police officer exited his car and a
         pursuit ensued. Appellant’s car crashed; the occupants
         exited and fled on foot. Appellant, Lambert, and a third
         companion were apprehended; Appellant discarded the
         murder weapon during the foot chase.

Commonwealth v. Garcia, 847 A.2d 67, 70 (Pa. Super. 2004) (footnote

omitted).

      The PCRA court summarized the protracted procedural history that

followed Appellant’s arrest:

             On June 10, 2002, following a jury trial before this
         [c]ourt, [Appellant] was found guilty of murder of the
         second degree, robbery, and criminal conspiracy. Also on
         June 10, 2002, [Appellant] was sentenced to a term of life
         imprisonment on the murder conviction, with the robbery
         bill merging, and a concurrent sentence of five (5) to ten
         (10) years of imprisonment for conspiracy.        At trial,
         [Appellant] was represented by Attorney A. Charles
         Peruto, Jr.[]

             [Appellant] filed a timely notice of appeal, and on March
         11, 2004, [Appellant’s] judgment of sentence was
         affirmed.    [Garcia, supra.]       [Appellant] then sought
         allowance of appeal.        On September 17, 2004, the
         Pennsylvania Supreme granted allowance of appeal as to
         one issue.        During the direct appeal proceedings,
         [Appellant] was represented by Mitchell S. Strutin, Esquire.
         On December 27, 2005, the Supreme Court affirmed the
         judgment of sentence. [Commonwealth v. Garcia, 888
         A.2d 633 (Pa. 2005).] [Appellant] did not seek certiorari.

            On September 18, 2006, [Appellant] filed a pro se
         [PCRA petition]. On March 18, 2008, Daniel Rendine,


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       Esquire, who was appointed to represent [Appellant], filed
       an amended petition on [Appellant’s] behalf. On July 3,
       2008, the Commonwealth filed a Motion to Dismiss
       [Appellant’s] amended petition. On July 17, 2008, this
       court granted the Commonwealth’s Motion to Dismiss. On
       July 23, 2008, this court sent a notice of intent to dismiss
       pursuant to Pennsylvania Rule of Criminal Procedure 907.

          On August 21, 2008, [Appellant] filed a motion to
       proceed pro se. On September 22, 2008, following a
       Grazier hearing, this court granted [Appellant’s] request
       to proceed pro se and directed him to file a supplemental
       pro se petition. Attorney David Rudenstein was appointed
       by this court as backup counsel. On March 4, 2009,
       [Appellant] filed pro se an Amended [PCRA Petition] with
       Attached Memorandum of Law.           On May 7, 2009,
       [Appellant] filed a supplement to his PCRA petition. On
       June 10, 2009, this court issued a second notice of its
       intent to dismiss pursuant to Pennsylvania Rule of Criminal
       Procedure 907. On July 8, 2009, this [c]ourt denied
       [Appellant’s] PCRA petition.

         [Appellant] appealed the denial of PCRA relief. On
       December 15, 2010, the Superior Court affirmed.
       [Commonwealth v. Garcia, 23 A.3d 582 (Pa. Super.
       2010).] On September 26, 2011, allocatur was denied.
       [Commonwealth v. Garcia, 29 A.3d 795 (Pa. 2011).]

          [Appellant] is seeking relief for a second time. On or
       about July 6, 2012, [Appellant], represented by Daniel
       Silverman, Esquire, filed his second [PCRA petition] and/or
       Motion for Re-Sentencing under the authority of Miller v.
       Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)
       (holding that a mandatory sentence of life imprisonment
       without parole for juvenile offenders is unconstitutional).

          On August 14, 2012, [Appellant] filed a supplemental
       petition alleging that under Miller, his conviction is
       unconstitutional “as applied to children like him who had
       no homicidal malice and neither killed nor intend to kill the
       victim of a robbery. . . .” Supplemental [PCRA Petition,
       8/14/12, at 1]. [Appellant was 17½ years old at the time
       the crime was committed.] He argued that his conviction,
       therefore, must be vacated.



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           On August 24, 2012, [Appellant] filed a Second
        Supplemental [PCRA Petition] and/or Second Supplemental
        Motion for Re-sentencing.     On September 4, 2012,
        [Appellant] filed a Memorandum of Law in Support of
        [PCRA] Relief.

           On September 18, 2013, the Commonwealth asked this
        court to permit the Commonwealth to refrain from
        responding    to     [Appellant’s]   pleadings   until   the
        Pennsylvania Supreme Court decides Commonwealth v.
        Cunningham, 81 A.3d 1 (Pa. 2013) cert. denied, 134
        S.Ct. 2724 (U.S. 2014) (considering whether Miller
        applies retroactively to juvenile offenders sentenced to life
        imprisonment without the possibility of parole).

           On December 5, 2013, [Appellant] filed a Motion for
        Leave to Amend Petition for Habeas Corpus Relief under
        Article [1], Section 14 of the Pennsylvania Constitution and
        for Post-Conviction Relief under the [PCRA].         Also on
        December      5,    2013,    [Appellant]  filed  his    Third
        Supplemental [PCRA Petition] and/or Amended Petition for
        Habeas Corpus Relief under Article [1], Section 14 of the
        Pennsylvania Constitution.

           On June 26, 2014, the Commonwealth filed a Motion to
        Dismiss [Appellant’s] Second PCRA Petition. On July 1,
        2014, [Appellant] filed a Reply to the Commonwealth’s
        Motion to Dismiss.

           After conducting a review of the record, this court
        dismissed [Appellant’s] PCRA petition on September 5,
        2014.

PCRA Court Opinion, 10/31/14, at 1-4 (footnotes omitted).         This timely

appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

     Appellant raises the following issues:

        1. Should this Court stay these proceedings pending the
        United States Supreme Court’s decision in Toca v.
        Louisiana?

        2. Did the PCRA court err in dismissing [Appellant’s] PCRA
        petition in which he alleged that under the authority of


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          Miller v. Alabama, 132 S.Ct. 2455 (2012) and the
          Pennsylvania Constitution his sentence of mandatory life
          imprisonment is unconstitutional since he was a child at
          the time he participated as the non-shooting accomplice in
          a robbery in which his adult co-defendant killed the victim?

             (a) Did the PCRA court err in refusing to apply Miller
          retroactively on the basis that the United States Supreme
          Court has already applied Miller retroactively?

             (b) Did the PCRA court err in refusing to apply Miller
          retroactively on the basis that Miller announced a new
          watershed rule of substantive law?

             (c)   Did the PCRA court err in refusing to apply Miller
          retroactively on the broader principles of retroactivity
          based in Pennsylvania law as suggested by the majority
          and concurring opinions in Cunningham itself?

          [3]. Did the PCRA court err in failing to find under the
          authority of Graham v. Florida and its progeny that
          applying the felony murder rule is unconstitutional as
          applied to children like him who had no homicidal malice
          and neither killed nor intended to kill the robbery victim?

Appellant’s Brief at 3-4 (footnote omitted).1

       Our standard of review regarding an order dismissing 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. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).              The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
____________________________________________


1
  In the omitted footnote, Appellant asserted, “All claims raised in this
appeal are based on both the United States Constitution and the
Pennsylvania Constitution.” Appellant’s Brief at 3, n.1.




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Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is

without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

      We address Appellant’s first issue, the subject of which Appellant has

also raised in a separately filed motion. According to Appellant:

            This Court should stay these proceedings until the
         United States Supreme Court’s decision in Toca v.
         Louisiana, [135 S.Ct. 781 (2014),] expected no later than
         June 2015. If the Court in Toca rules that Miller v.
         Alabama is retroactive, [Appellant] will be entitled to a
         resentencing hearing. This hearing would need to take
         place before the issues in this appeal are addressed and
         would moot most if not all of the present claims.

Appellant’s Brief at 13.

      In Toca, supra, the United States Supreme Court issued the following

order on December 12, 2014:

         Motion of petitioner for leave to proceed in forma pauperis
         granted. Petition for writ of certiorari to the Supreme
         Court of Louisiana granted limited to the following
         questions:   1) Does the rule announced in Miller v.
         Alabama, 567 U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d
         407 (2012), apply retroactively to this case? 2) Is a
         federal question raised by a claim that a state collateral
         review court erroneously failed to find a Teague exception
         [to the general principles of retroactivity]?

Toca, 135 S.Ct. at 781-82.      On February 3, 2015, however, the United

States Supreme Court ruled:     “The writ of certiorari was dismissed today

pursuant to Rule 46.1 of the Rules of this Court.”     Toca, 135 S.Ct. 1197



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(2015).     Thus, as Toca is no longer pending, Appellant’s first issue is

meritless, and we deny his separate motion to stay his appeal.2

       In his second issue and its subparts, Appellant challenges the PCRA

court’s determination that his second PCRA petition was untimely.                       The

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted).                    Thus, if a

PCRA petition is untimely, neither an appellate court nor the PCRA court has

jurisdiction over the petition.      Id.       “Without jurisdiction, we simply do not

have the legal authority to address the substantive claims” raised in an

untimely petition. Id.

       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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered         facts   or   evidence;   or   (3)   a   new
____________________________________________


2
  We recognize that in Montgomery v. Louisiana, 2015 U.S. LEXIS 1942,
the high court granted the petition for writ of certiorari to address the
following question: “Do we have jurisdiction to decide whether the Supreme
Court of Louisiana correctly refused to give retroactive effect in this case to
our decision in Miller v. Alabama?” Id. (citation omitted).




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constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).         A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.    Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Because Appellant did not file a petition for writ of certiorari with the

United States Supreme Court following our Supreme Court’s denial of his

allocatur petition, for PCRA purposes, Appellant’s judgment of sentence

became final ninety (90) days thereafter, on March 27, 2006. 42 Pa.C.S.A.

§ 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, in order to be timely, Appellant had

to file his PCRA petition by March 27, 2007. Appellant filed the instant PCRA

petition over five years later.   As a result, his PCRA petition is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies.      See Commonwealth v. Beasley,

741 A.2d 1258, 1261 (Pa. 1999).

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Appellant contends that his PCRA falls under

the exception of subsection 9545(b)(1)(iii) because the United States

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Supreme Court recognized a new constitutional right in Miller v. Alabama,

132 S.Ct. 2455 (2012).          In Miller, the high court held that mandatory

sentences of life without parole “for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and

unusual punishment.’” Miller, 132 S.Ct. at 2460. Appellant asserts that the

Miller decision should be applied retroactively to his life sentence.          As

recognized by the PCRA court, Appellant’s claim fails.

       Our Supreme Court has determined that the Miller decision should not

be    applied     retroactively.        See      generally,   Commonwealth      v.

Cunningham, 81 A.3d 1 (Pa. 2013).                 Thus, Appellant cannot avoid the

PCRA’s time bar pursuant to Section 9545(b)(iii).              As an intermediate

appellate court, we are bound by the Cunningham decision. To the extent

Appellant argues that Cunningham was wrongly decided, it is not our

province to address this claim further.3

       With regard to Appellant’s argument seeking habeas corpus relief, we

agree with the following observations of the PCRA court:


____________________________________________


3
  Appellant also cites to the federal court’s decision in Songster v. Beard,
35 F.Supp.3d 657 (E.D.Pa. 2014), in which the district court held that Miller
applied retroactively to cases on collateral review. He also suggests that we
stay consideration of his appeal until the Third Circuit addresses the
decision. Appellant’s Brief at 19. Because federal decisions that construe
Pennsylvania law are not binding precedent, Commonwealth v. Bennett,
57 A.3d 1185, 1203 (Pa. 2012), we decline to do so.




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           Relying on Chief Justice Castille’s concurring opinion in
        Cunningham, [Appellant] argues that to the extent his
        federal or state constitutional claims are not cognizable
        under the PCRA, he has a remedy under Pennsylvania’s
        habeas corpus statute, 42 Pa.C.S. §6501 et seq.
        [Appellant’s] claim is meritless and must fail.

           In his [concurring] opinion in Cunningham, Chief
        Justice Castille offered several “thoughts upon the
        prospects of other methods of remedying the seeming
        inequity    arising  in the    post-Miller  landscape.”
        Cunningham, 81 A.3d at 14. He reflected, inter alia, on a
        possibility of the post-Miller inequity being resolved
        through a petition under Pennsylvania’s habeas corpus
        statute. Id. at 11-14.

           As a preliminary matter, despite [Appellant’s] claim that
        he is entitled to habeas corpus sentencing relief, Chief
        Justice Castille’s concurring statement does not represent
        the view of the majority of the court and is, therefore, not
        precedential. [Moreover, Chief Justice Castille indicated in
        his concurrence that he joined “the well-reasoned Majority
        Opinion in its entirety.” Id. at 11 (emphasis added).]

           Furthermore, pursuant to Pennsylvania law, the PCRA
        subsumes the remedy of habeas corpus unless the claim
        does not fall within the ambit of the PCRA statute.
        [Appellant] cannot avoid the PCRA time-bar by titling his
        petition or motion as a writ of habeas corpus.

           Here, [Appellant’s] claims involving alleged violations of
        his constitutional rights are cognizable under the PCRA.
        [Appellant] must, therefore, comply with the timeliness
        requirements of the PCRA. [Appellant] cannot avoid the
        PCRA timeliness requirements by claiming that he has a
        remedy under the Pennsylvania habeas corpus statute.
        [Appellant’s] habeas corpus petition should, therefore, be
        dismissed as an untimely PCRA claim.

PCRA Court Opinion, 10/31/14, at 13-14 (footnote and citations omitted).

     In his final issue, Appellant asserts that the PCRA court erred in

“completely failing to address [his] claim that based on Miller his conviction

for second degree murder under the felony murder rule is unconstitutional

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as applied to children like him who had no homicidal malice and neither

killed nor intended to kill the victim of the robbery.” Appellant’s Brief at 14.

This   claim   fails,   because   even    if   Miller   established   such   a   “new

constitutional right,” as we stated above, we are bound by our Supreme

Court’s determination that Miller is not retroactive. Cunningham, supra.

       In sum, Appellant’s PCRA petition is facially untimely, and he has failed

to meet his burden of proof with regard to any exception to the timeliness

requirements of the PCRA. We therefore affirm the PCRA court’s denial of

Appellant’s petition for post-conviction relief.

       Application to stay denied. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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