J. S71004/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     :    IN THE SUPERIOR COURT OF
                                                 :          PENNSYLVANIA
                       v.                        :
                                                 :
KRISTOPHER HEGGINS,                              :        No. 1562 WDA 2014
                                                 :
                             Appellant           :


                   Appeal from the PCRA Order, July 21, 2014,
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos. CP-02-CR-0007504-2000,
                            CP-02-CR-0007508-2000


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED MARCH 15, 2016

        Kristopher Heggins appeals from the July 21, 2014 order dismissing

his third petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, following his convictions of second-degree

murder,     robbery,        and   conspiracy.1       We   reverse   and   remand   for

resentencing.

        The trial court provided the following procedural history:

              [Appellant] was charged with Criminal Homicide,
              Robbery, and Criminal Conspiracy in connection with
              the shooting death of Salvatore Brunsvold. At the
              time of Mr. Brunsvold’s death, [appellant] was
              16 years old. Following a jury trial held before [the
              trial court] in September, 2000, [appellant] was
              convicted of Second-Degree Murder and the
              remaining charges. The judgment of sentence was

1
    18 Pa.C.S.A. §§ 2502(b), 3701, and 903, respectively.
J. S71004/15


          affirmed by the Superior Court on September 18,
          2002 and his Petition for Allowance of Appeal was
          denied by the Pennsylvania [Supreme] Court on
          June 20, 2003.[2]

                On March 17, 2004, [appellant] filed a pro se
          Post Conviction Relief Act Petition. Richard Narvin,
          Esquire, was appointed to represent [appellant,] and
          after several delays, an Amended PCRA Petition was
          filed on July 16, 2007. [The trial court] initially
          dismissed the Amended Petition, but after reviewing
          counsel’s Motion to Reconsider, [the trial court]
          vacated the dismissal and scheduled an evidentiary
          hearing on the Amended Petition. Several changes
          of counsel and corresponding postponements
          ensued, and the evidentiary hearing was eventually
          held on April 21, 2010.

                 Following the evidentiary hearing, [the trial
          court] thoroughly reviewed the record and trial
          transcripts in their entirety.     On September 22,
          2010, [the trial court] convened a second PCRA
          hearing at which time it found that trial counsel was
          ineffective for failing to object to the testimony of
          the    Danville    Correctional   Institute  witnesses
          regarding [appellant’s] supposed gang membership
          and past criminal activity and also for introducing
          [appellant’s]      otherwise     inadmissible     prior
          convictions. Consequently, [the trial court] granted
          collateral relief in the form of a new trial. The
          Commonwealth appealed the award of a new trial
          and the Superior Court reversed [the trial court’s]
          Order on May 9, 2012.[3]             Reargument was
          subsequently denied on August 9, 2012. No further
          action was taken until [appellant] sought, and was
          granted, leave to file a Petition for Allowance of
          Appeal Nunc Pro Tunc. The Petition for Allowance


2
  See Commonwealth v. Heggins, 809 A.2d 908 (Pa.Super. 2002),
appeal denied, 827 A.2d 430 (Pa. 2003).
3
 See Commonwealth v. Heggins, No. 1554 WDA 2010, unpublished
memorandum (Pa.Super. filed May 9, 2012).


                                   -2-
J. S71004/15


            of Appeal was filed and was denied on August 27,
            2013.[4]

                  While the appeal of [the trial court’s] Order for
            a new trial was pending, [appellant] filed a counseled
            Post Conviction Relief Act Petition, his second, on
            July 10, 2012, raising a claim pursuant to Miller v.
            Alabama, 132 S.Ct. 2455 (U.S. 2012). However,
            shortly thereafter, he filed a Petition to Withdraw the
            PCRA Petition, and [the trial court] granted that
            request on July 23, 2012.

                   On October 24, 2013, [appellant] filed a
            pro se        “Post     Conviction      Relief    Act
            Continuance/Extension of Original PCRA Petition,”
            which he attempted to characterize as a second
            amendment to his 2004 PCRA Petition but was, in
            actuality, his third PCRA Petition. J. Richard Narvin,
            Esquire, was appointed to represent [appellant],
            though [appellant] later sought to have Mr. Narvin
            removed from the case due to a “personality”
            difference. That motion was denied. Thereafter,
            Mr. Narvin filed a Turner[5] “No Merit” Letter citing
            the untimeliness of the Petition and sought
            permission to withdraw from the representation,
            which [the trial court] then permitted. After giving
            appropriate notice of its intent to do so and
            reviewing [appellant’s] response thereto, [the trial
            court] dismissed [appellant’s] third PCRA Petition on
            August 18, 2014.

Trial court opinion, 1/9/15 at 1-3 (footnotes omitted).      Appellant filed a

notice of appeal on September 9, 2014. The trial court ordered appellant to

produce a concise statement of errors complained of on appeal pursuant to




4
    Commonwealth v. Heggins, 74 A.3d 125 (Pa. 2013).
5
    Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).


                                     -3-
J. S71004/15


Pa.R.A.P. 1925(b), and appellant complied.     The trial court has issued an

opinion pursuant to Pa.R.A.P. 1925(a).

     Appellant raises the following issues for our review:

           1.    Whether the PCRA court erred when it
                 dismissed [appellant’s] October 24, 2013
                 pro se petition as untimely when the PCRA
                 court failed to address all of [appellant’s]
                 original PCRA issues?

           2.    Whether trial counsel was ineffective in failing
                 to file a post sentence motion to preserve the
                 claim of the verdict being against the weight of
                 the     evidence     under    Strickland      v.
                 Washington?

           3.    Whether     [appellant]   asserts    that   his
                 mandatory sentence of life without parole is
                 unconstitutional under the 8th Amendment to
                 the United States Constitution, as expressed in
                 Miller v. Alabama?

           4.    Whether PCRA counsel was ineffective under
                 Martinez v. Ryan for failing to raise trial
                 counsels [sic] ineffectiveness under Strickland
                 v. Washington for failing to object to the
                 release   and     admission    of   [appellant’s]
                 treatment records and use of such records and
                 information to initiate and substantiate criminal
                 charges under the confidentiality provision of
                 the Pennsylvania Drug and Alcohol Abuse Act?

           5.    Whether PCRA counsel is ineffective under
                 Martinez v. Ryan for failing to raise appellate
                 counsels [sic] ineffectiveness under Strickland
                 v. Maryland [sic] for failing to raise on appeal
                 that there was insufficient evidence to sustain
                 the verdict for second-degree murder, robbery,
                 and conspiracy?

           6.    Whether PCRA counsel was ineffective under
                 Martinez v. Ryan for failing to raise trial


                                    -4-
J. S71004/15


                  counsels [sic] ineffectiveness under Strickland
                  v. Washington for calling Phillip Jackson and
                  eliciting highly prejudicial testimony against
                  [appellant]?

            7.    Whether PCRA counsel was ineffective under
                  Martinez v. Ryan for failing to raise trial
                  counsels [sic] ineffectiveness under Strickland
                  v. Washington for failing to object and
                  request a mistrial to the highly prejudicial
                  testimony from Sherry Brunsvold which had
                  the effect of inspiring sympathy for the victim?

            8.    Whether PCRA counsel is ineffective under
                  Martinez v. Ryan for failing to raise the trial
                  courts [sic] error in not reading the proposed
                  charge that the jury was required to find
                  [appellant’s] confession voluntary before it
                  could be used in judging guilt or innocence?

            9.    Whether the trial court erred in not granting
                  [appellant] a new trial based on the after
                  discovered evidence where George Robinson
                  was convicted of shootings in which he used
                  the same gun that was used in the murder of
                  Salvatore Brunsvold, and for failing to grant
                  petition to approve the hiring of criminalist?

            10.   Whether PCRA counsel was ineffective under
                  Martinez v. Ryan for failing to raise trial
                  counsel ineffectiveness under Strickland v.
                  Washington based on the cumulative effect of
                  counsel’s deficiencies, and the accumulated
                  effect of all the errors?

Appellant’s brief at 2(b) (capitalization omitted).

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that


                                      -5-
J. S71004/15


            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 557 Pa. 135, 141, 732
            A.2d 582, 586 (1999). A prima facie showing of
            entitlement to relief is made only by demonstrating
            either that the proceedings which resulted in
            conviction were so unfair that a miscarriage of
            justice occurred which no civilized society could
            tolerate, or the defendant's innocence of the crimes
            for which he was charged. Allen, at 142, 732 A.2d
            at 586. Our standard of review for an order denying
            post-conviction relief is limited to whether the trial
            court's determination is supported by evidence of
            record and whether it is free of legal error.
            Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d
            849, 856 (1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that judgment of sentence becomes final. 42 Pa.C.S.
            § 9545(b)(1).        A judgment becomes final for
            purposes of the PCRA “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.”            42 Pa.C.S.
            § 9545(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court's very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            558 Pa. 313, 737 A.2d 214 (1999). Accordingly, the
            “period for filing a PCRA petition is not subject to the
            doctrine of equitable tolling,” instead, the time for
            filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of
            one of the statutorily enumerated exceptions to the
            PCRA time-bar. Id. at 329, 737 A.2d at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). Before we can begin to address appellant’s issues on

the merits, we must first determine if we have jurisdiction to do so.




                                     -6-
J. S71004/15


     As noted supra, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

             The plain language of the PCRA provides that a
             judgment of sentence becomes final at the
             conclusion of direct review or when the time for
             seeking direct review expires. See 42 Pa.C.S.A.
             § 9545(b)(3).     In fixing the date upon which a
             judgment of sentence becomes final, the PCRA does
             not refer to the conclusion of collateral review or the
             time for appealing a collateral review determination.
             Thus, the plain language of the PCRA statute shows
             that a judgment of sentence becomes final
             immediately upon expiration of the time for seeking
             direct review, even if other collateral proceedings are
             still ongoing.     As this result is not absurd or
             unreasonable, we may not look for further
             manifestations     of   legislative   intent.      See
             Commonwealth v. Hall, 80 A.3d 1204, 1211
             (2013) (internal quotation marks omitted) (We may
             “look beyond the plain language of the statute only
             when words are unclear or ambiguous, or the plain
             meaning would lead to a result that is absurd,
             impossible of execution or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

Specifically, we have determined that the judgment of sentence becomes

final when the period for [the petitioner] to file a petition for a writ of

certiorari   with   the   Supreme    Court   of   the   United   States   expires.

Commonwealth v. Miller, 102 A.3d 988, 993 (Pa.Super. 2014).                  That

period of time expires 90 days after the Supreme Court of Pennsylvania

enters its judgment or denial of appeal. Sup. Ct. R. 13.




                                      -7-
J. S71004/15


      In the instant case, this court rendered its decision on direct appeal on

September 18, 2002. See Heggins, 809 A.2d at 908. Appellant petitioned

our supreme court for an allowance of appeal, which was denied on June 20,

2003. See Heggins, 827 A.2d at 430. Appellant did not file a petition for

writ of certiorari with the Supreme Court of the United States. Therefore,

his judgment became final on or about September 18, 2003. Appellant filed

the instant petition on October 23, 2013--over ten years after his judgment

became final and over nine years after a PCRA petition could be considered

timely.    See 42 Pa.C.S.A. § 9545(b)(1).          Therefore, we do not have

jurisdiction to review issues 1, 2, 4, 5, 6, 7, 8, or 10 because they are

facially untimely.

      As noted supra, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:

            ....

            (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.



                                        -8-
J. S71004/15


42 Pa.C.S.A. § 9545(b). Any claims made under this exception must be filed

“within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      In his third issue for our review, appellant claims that his sentence

violated a newly recognized constitutional right pursuant to the United

States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455

(2012). In order for appellant’s petition relating to Miller to be timely, he

would ordinarily be required to file it within 60 days of the Supreme Court’s

decision.

      In the instant case, appellant had 60 days from the Pennsylvania

Supreme Court’s denial of appeal of his first PCRA petition to file a Miller

claim because he could not file a subsequent PCRA petition while a petition

was pending. See Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012),

citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“a PCRA

trial court cannot entertain a new PCRA petition when a prior petition is still

under review on appeal”); 42 Pa.C.S.A. § 9545(b)(2). The Supreme Court

announced its Miller decision on June 25, 2012. At that time, appellant’s

first PCRA petition was being considered for reargument by this court, and

our supreme court would ultimately deny a petition for allowance of appeal

on August 27, 2013. Under the PCRA, appellant had until October 27, 2013

to file a Miller claim.   He filed the instant petition on October 23, 2013;




                                     -9-
J. S71004/15


therefore, his petition is timely, and we shall review his Miller claim on its

merits.

      The Miller Court held that mandatory sentences of life imprisonment

without the possibility of parole for juvenile offenders violated the Eighth

Amendment. Miller, 132 S.Ct. at 2469. Miller, however, did not address

whether its newly recognized constitutional right applied retroactively. That

issue was addressed by our supreme court in Commonwealth v.

Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014).

In Cunningham, the court found that Miller protections did not apply

retroactively in Pennsylvania. Id. at 11.

      While this appeal was pending in this court, the United States Supreme

Court announced its decision in Montgomery v. Louisiana, 136 S.Ct. 718

(2016). The Montgomery Court held that its decision in Miller “announced

a substantive rule of constitutional law.” Id. at 734. Specifically, the Court

stated that, “Miller’s conclusion that the sentence of life without parole is

disproportionate for the vast majority of juvenile offenders raises a grave

risk that many are being held in violation of the Constitution.” Id. at 736.

      In order to prevent such harm, the Court found that substantive rules,

much like the rule announced in Miller, must be retroactive, “because

[they] ‘“necessarily carr[y] a significant risk that a defendant”’--here, the

vast majority of juvenile offenders--‘“faces a punishment that the law cannot

impose upon him.”’” Id. at 734, quoting Schriro v. Summerlin, 542 U.S.



                                    - 10 -
J. S71004/15


348, 352 (2004) (citations omitted). Therefore, Cunningham’s tenet that

Miller cannot be applied retroactively is no longer good law in Pennsylvania.

      A recent panel of this court analyzed the further implications of

Montgomery on Pennsylvania case law.

                  We now turn our attention to the implications
            arising from Commonwealth v. Abdul-Salaam,
            812 A.2d 497, 501 (Pa. 2002) (holding: “[T]he
            language     ‘has   been   held’  in  42    Pa.C.S.
            § 9545(b)(1)(iii)    means   that   a  retroactivity
            determination must exist at the time that the
            petition is filed”) (emphasis added).

                   The instant case represents an example of the
            unique situation implicating those PCRA petitions
            seeking Miller relief which were filed in the time gap
            following Miller but before Montgomery. . . . .
            When Appellant filed his petition, the various
            jurisdictions were still trying to decide if Miller was
            available on collateral review but were doing so
            without the benefit of Montgomery. Appellant’s
            petition was ultimately decided under Cunningham,
            supra and denied. We recognize that similar “gap”
            cases are in the appellate system awaiting
            disposition . . .

                   Therefore, we now hold that the best
            resolution of this dilemma is to interpret
            Montgomery as making retroactivity under Miller
            effective as of the date of the Miller decision. In
            this way, we satisfy the “has been held” conditional
            language enunciated in Abdul-Salaam, supra.

Commonwealth v. Secreti, 2016 WL 513341 (Pa.Super. 2016) at *5-6

(citations reformatted).

      As a result, appellant has proven by a preponderance of the evidence

that the right he is asserting is a constitutional right recognized, in this case,



                                     - 11 -
J. S71004/15


by the Supreme Court of the United States to apply retroactively. The trial

court sentenced appellant, who was 16 years old at the time of the offense,

to a mandatory sentence of life imprisonment without the possibility of

parole.   In light of the Supreme Court’s recognition in Miller that such a

sentence violates the Eighth Amendment’s prohibition against cruel and

unusual punishment, and the Court’s recent retroactive application of Miller

in Montgomery, we reverse the trial court’s order with respect to this issue

only, and remand for re-sentencing.

      In appellant’s ninth issue, he raises a claim of after-discovered

evidence.   Specifically, he claims that he should be entitled to a new trial

based on evidence possibly implicating George Robinson in the shooting

death of Mr. Brunsvold, for which appellant was convicted. (See appellant’s

brief at 35-36.)   In order to raise an exception to the time-bar rule, the

exception “must be specifically pleaded or [it] may not be invoked.”

Commonwealth v. Liebensperger, 904 A.2d 40, 46 (Pa.Super. 2006),

citing Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999),

42 Pa.C.S.A. § 9543(a).

      Here, appellant failed to specifically invoke the after-discovered

evidence exception to the PCRA’s time-bar rule in his brief. (See appellant’s

brief at 35-36.)   Even if appellant had invoked the time-bar exception for

after-discovered evidence, the exception would not apply in this case.

Appellant first raised the issue of Mr. Robinson’s potential involvement in a



                                   - 12 -
J. S71004/15

motion for a new trial based on after-discovered evidence that was filed on

August 7, 2001.6    (See Docket #27.)     Due to the fact that appellant had

knowledge of this evidence as early as August 7, 2001, the after-discovered

evidence exception to the time-bar rule does not apply. Therefore, we do

not have jurisdiction to review appellant’s ninth issue.

      Order reversed; case remanded for resentencing. Appellant’s petition

to remand to lower court is denied for mootness. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




6
  We note that this issue was also included in appellant’s first PCRA petition
that was filed on March 17, 2004, and in his amended petition that was filed
on July 16, 2007. (Docket # 33, 48.)


                                     - 13 -
