J-S66010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

AVIS LEE,

                            Appellant                 No. 1891 WDA 2016


           Appeal from the PCRA Order Entered November 17, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005128-1980


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 29, 2017

        Appellant, Avis Lee, appeals from the order dismissing, as untimely,

her petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.            Appellant received a mandatory life sentence

without the possibility of parole (MLWOP) for a crime she committed when

she was only eighteen years old. In this appeal, Appellant contends that she

is entitled to relief pursuant to the United States Supreme Court’s decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which held that the high

Court’s prior ruling in Miller v. Alabama, 567 U.S. 460 (2012) (banning the

imposition of MLWOP sentences for crimes committed by persons under the

age of eighteen), applies retroactively. Appellant argues that she is similarly

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*   Retired Senior Judge assigned to the Superior Court.
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situated to the beneficiaries of the Miller and Montgomery decisions in all

relevant respects, but for the arbitrariness of the legal age of maturity.

After careful review, we are constrained to affirm.

      During Appellant’s direct appeal, we summarized the pertinent facts

adduced at the trial that led to her conviction for second-degree murder, as

follows:

            The facts of this case, viewed in the light most favorable to
      the Commonwealth, are as follows. At approximately midnight
      on the night in question, Robert Walker was found lying
      unconscious in a parking lot nearby to the Pittsburgh Athletic
      Association (P.A.A.) in Oakland. He died ten hours later of a
      gunshot wound to the head. Sometime later Arthur Jeffries
      approached the police with information linking [Appellant] and
      co-defendant Madden to the crime.           Both [Appellant] and
      Madden were arrested. Jeffries was also charged with complicity
      after the police noted several inconsistencies in the information
      he supplied to them.

            The evidence offered at trial against [Appellant] was in the
      form of her confession to the police, which was redacted by the
      [c]ourt to eliminate any mention by name of her accomplices.
      The confession set forth that on the evening of November 1,
      1979, [Appellant] suggested to her brother, co-defendant
      Madden, that they attempt to obtain some money. Madden
      chose the P.A.A. in Oakland as a desirable site for a robbery
      attempt. Co-defendant Jeffries agreed to accompany them and
      was to share in the fruits of the venture. [Appellant] saw that
      Madden was carrying a loaded gun. They arranged to be driven
      to Oakland by a third party. [Appellant] was designated to serve
      as the look-out. Defendants waited on the porch of the Syria
      Mosque until the victim approached. Madden followed him,
      pointing the gun at his back. When the victim swung around
      and attempted a karate blow at Madden and reached for his
      pocket, Madden shot him.

            [Appellant]'s statement was corroborated in all material
      details by the redacted statements of her co-defendants which
      were also introduced into evidence accompanied by the [c]ourt's


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      cautionary instructions to each individual juror and to the jury as
      a group that each statement could be used as evidence only
      against the maker of the statement.

Commonwealth v. Lee, 838 Pittsburgh 1981, unpublished memorandum at

1-2 (Pa. Super. filed July 16, 1982).         Appellant, tried jointly with co-

defendants Madden and Jeffries in Allegheny County in January of 1981, was

found guilty on January 20, 1981, and sentenced to MLWOP on July 13,

1981. This Court affirmed her sentence on July 16, 1982. Commonwealth

v. Lee, 448 A.2d 1159 (Pa. Super. 1982) (unpublished memorandum).

      Appellant filed her first petition for post-conviction relief on August 20,

1984, which the lower court denied on May 9, 1986.            This Court affirmed

that decision on April 9, 1987. Commonwealth v. Lee, 531 A.2d 527 (Pa.

Super. 1987) (unpublished memorandum). Appellant filed a second petition

for post-conviction relief on May 17, 1989, which was denied on May 25,

1989. This Court affirmed the denial of Appellant’s second post-conviction

petition July 26, 1990. Commonwealth v. Lee, 580 A.2d 1165 (Pa. Super.

1990) (unpublished memorandum). Our Supreme Court denied her petition

for   allowance   of   appeal   from   that   decision   on    April   29,   1991.

Commonwealth v. Lee, 592 A.2d 44 (Pa. 1991). Appellant filed her third

and fourth petitions for post-conviction relief on June 1, 2000 and August

29, 2000, which were denied by the PCRA court, respectively, on October

12, 2000 and June 20, 2000.       Appellant filed a PCRA petition on July 11,

2012, her fifth petition for post-conviction relief, in response to the Miller

decision.   Because Miller was not recognized at that time as applying


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retroactively, Appellant’s PCRA petition was dismissed on February 26,

2013.1

         Appellant filed the instant PCRA petition, her sixth petition for post-

conviction relief in the Pennsylvania court system, on March 24, 2016,

exactly 59 days after the Montgomery decision was issued.             The PCRA

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s

petition on April 25, 2016. Appellant filed a timely response thereto on May

12, 2016, and an additional memorandum in support of granting PCRA relief

on September 15, 2016. The PCRA court ultimately dismissed the petition

on November 17, 2016.             Appellant filed a timely notice of appeal on

December 12, 2016, and a timely, court-ordered Pa.R.A.P. 1925(b)

statement on February 7, 2017.            The PCRA court issued its Rule 1925(a)

opinion on May 23, 2017.

       Appellant now presents the following questions for our review:

         I.   Did the PCRA court err in rejecting Appellant's claim that
              Miller[']s constitutional requirement of consideration of
              age-related factors prior to imposing [MLWOP] applies to
              [Appellant] who possessed those characteristics of youth
              identified as constitutionally significant for sentencing
              purposes by the U.S. Supreme Court?

       II.    Did the PCRA court err in rejecting Appellant's claim that
              the rule of law announced in Miller requires retroactive
              invalidation of a MLWOP sentence imposed on an offender


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1Appellant also unsuccessfully sought habeas relief in the federal courts on
multiple occasions over the course of this timeline.



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            with categorically diminished culpability       because   the
            offender did not kill or intend to kill?

     III.   Did the PCRA court err in rejecting Appellant's claim that
            the combined effect of [her] youth, her experience of
            extreme childhood and adolescent abuse and trauma, and
            her lack of intent to kill render her less culpable under
            Miller and therefore require reversal of her sentence?

      IV.   Did the PCRA court err in rejecting Appellant's claim that
            Pennsylvania law permitting [MLWOP] sentences for crimes
            committed by 18-year-olds lacks a rational basis in light of
            Miller's prohibition against such sentences for offenders
            aged 17 and younger and therefore violates the equal
            protection clauses of the United States and Pennsylvania
            constitutions?

       V.   Did the PCRA court abuse its discretion in failing to hold an
            evidentiary hearing where [Appellant] had raised issues of
            material fact that entitle her to relief?

Appellant’s Brief at 4-5.

     This Court’s standard of review regarding an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.    Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007). However, we must begin by addressing

the timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).      Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

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         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (i) 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;

            (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 or 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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      The trial court imposed Appellant’s judgment of sentence in 1981. The

instant PCRA petition, Appellant’s sixth collateral attack on her judgment of

sentence, was not filed until March 24, 2016. Appellant’s PCRA petition is,

therefore, patently untimely. See 42 Pa.C.S. § 9545(b)(1). Accordingly, we

cannot address the merits of Appellant’s PCRA petition unless she meets one

of the enumerated statutory exceptions to the PCRA’s time bar set forth in

Sections 9545(b)(1)(i)-(iii).

      Appellant expressly avails herself of the retroactive-constitutional-right

exception set forth in Section 9545(b)(1)(iii), in reliance on Miller and



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Montgomery. Because the Montgomery decision established that Miller

applies retroactively, and because Appellant filed her PCRA petition within 60

days   of   the   Montgomery    ruling,   she   has   ostensibly   satisfied   the

requirements of Section 9545(b)(2).        Therefore, the only jurisdictional

question before this panel is whether the right announced in Miller,

although expressly applicable only to minors who were under the age of 18

when they committed their crimes, should also apply to individuals who

sufficiently avail themselves of the rationale of the Miller decision, despite

the express age limitation set forth in that opinion. Miller, 567 U.S. at 465

(“We … hold that mandatory [LWOP] for those under the age of 18 at the

time of their crimes violates the Eighth Amendment’s prohibition on cruel

and unusual punishments.) (quotation marks omitted, emphasis added).

Briefly stated, that rationale concerns whether the commission of a crime

“reflects unfortunate yet transient immaturity” of a young offender rather

than “irreparable corruption[.]” Miller, 567 U.S. at 479-80 (quoting Roper

v. Simmons, 543 U.S. 551, 573 (2005)).

       Appellant acknowledges that this Court has issued two precedential

decisions resolving Appellant’s claims in Commonwealth v. Cintora, 69

A.3d 759 (Pa. Super. 2013), and Commonwealth v. Furgess, 149 A.3d 90

(Pa. Super. 2016).    This Court issued Cintora after Miller, but before

Montgomery. In that case, the petitioners, who were both over the age of

18 at the time they committed their crimes (19 and 22), sought relief in an

untimely PCRA petition under the rationale of Miller, availing themselves,

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inter   alia,   of   the   PCRA    timeliness    exception   set   forth   in   Section

9545(b)(1)(iii). Consistent with a current scientific consensus that a human

brain does not fully mature until a person reaches their mid-twenties, the

petitioners in Cintora argued that they should be entitled to relief under

Miller because they were similarly situated to minors who benefited from

the Miller decision.       We rejected their virtual-minor theory as a basis to

invoke Section 9545(b)(1)(iii), citing Miller’s express age restriction.

Cintora, 69 A.3d at 764. Instantly, although Appellant presents a far more

sophisticated argument, we see no significant conceptual difference in the

claimed basis for relief from that asserted by the petitioners in Cintora.

        In Furgess, an appellant raised a similar argument to that presented

in Cintora, but did so after Montgomery’s ruling rendered retroactive the

right established in Miller.2 Reconsidering Cintora post-Montgomery, the

Furgess Court determined that:

        [N]othing in Montgomery undermines Cintora's holding that
        petitioners who were older than 18 at the time they committed
        murder are not within the ambit of the Miller decision and
        therefore may not rely on that decision to bring themselves
        within the time-bar exception in Section 9545(b)(1)(iii).
        Accordingly, Cintora remains controlling on this issue, and
        Appellant's assertion of the time-bar exception at Section
        9545(B)(1)(iii) must be rejected.

Furgess, 149 A.3d at 94.
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2 The Cintora Court had alternatively rejected the petitioners’ claim on the
basis that the Miller decision did not apply retroactively. Cintora, 69 A.3d
at 764 n.4.



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      Appellant contends that this Court’s decisions in Cintora and Furgess

should be overruled. Appellant’s Brief at 16. She argues that, in following

the Miller precedent under the principle of stare decisis, this Court is

obligated to adhere to the rationale of the United States Supreme Court’s

decisions, rather than to merely obey their specific holdings.        Appellant’s

Brief at 16-17 (citing Seminole Tribe v. Florida, 517 U.S. 44 (1996)).

Appellant continues:

      The right established in Miller and held to apply retroactively in
      Montgomery…, must be construed to include not only the
      narrow holding identified by this Court in Cintora and Furgess,
      but must include the underlying reasoning, scientific principles,
      and "well-established rationale" upon which the Court in Miller
      and Montgomery relied in reaching the results in those cases.
      The right, therefore, must include the Court's analysis under its
      Eighth Amendment sentencing jurisprudence; the Court's
      conclusions that the "characteristics of youth, and the way they
      weaken rationales for punishment, can render a life-without-
      parole sentence disproportionate," Miller, 567 U.S. at 473, and
      that a [MLWOP] sentencing scheme "poses too great a risk of
      disproportionate punishment" by precluding a sentencer from
      considering an offender's age and characteristics of youth prior
      to imposing the harshest punishments, Id. at 479; and the
      Court's adoption of science and social science relating to
      adolescent development.

Appellant’s Brief at 17-18.

      Appellant presents a compelling argument to reconsider this Court’s

decisions in Cintora and Furgess. It is hard to come away from an honest

reading of Miller with the impression that the arbitrary legal age of maturity

is essential to Miller’s rationale, despite its centrality to the specific holding

in that case, and that the matter was neither mentioned nor discussed in



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those cases.    Nevertheless, given Appellant’s concession that he is not

entitled to relief under the precedent set by Cintora and Furgess, we are

compelled to deny relief in this matter, as this “panel is not empowered to

overrule another panel of the Superior Court.”     Commonwealth v. Beck,

78 A.3d 656, 659 (Pa. Super. 2013).

      Appellant argues, alternatively, that she is entitled to relief under the

principles of equal protection, rather than merely as an extension of Miller’s

reliance on Eighth Amendment jurisprudence. Again, without reaching the

merits of such an argument, we are compelled to reject it given the

constraints imposed by the PCRA statute. The timeliness exception set forth

in Section 9545(b)(1)(iii) requires, by its express terms, an existing decision

holding that a specific right applies retroactively.    While the Montgomery

decision is such a ruling with respect to an Eighth-Amendment-based-Miller

right, Appellant has not pointed to any decision of the United States or

Pennsylvania Supreme Courts that has recognized the retroactivity of a

similar right, but grounded in equal protection.       For whatever reason, the

Pennsylvania Legislature has precluded the litigation, in the first instance, of

novel constitutional rights claims in the context of untimely PCRA petitions.

      Accordingly, for all the aforementioned reasons, we are compelled to

affirm the PCRA court’s denial of Appellant’s untimely PCRA petition.

      Order affirmed.

      Judge Dubow joins this memorandum.

      Judge Platt concurs in the result.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2017




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