J-S53034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JASON PENDELTON,

                            Appellant                 No. 370 WDA 2014


                    Appeal from the Order January 16, 2014
               in the Court of Common Pleas of Allegheny County
              Criminal Division at Nos.: CP-02-CR-0008053-1997;
                            CP-02-CR-0008064-1997;
                                  GD 13-23240


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 25, 2014

        Appellant, Michael Jason Pendelton, appeals pro se from the order

dismissing his sixth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm the order of the PCRA court

and deny Appellant’s application for relief.1




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  On July 23, 2014, Appellant filed a pro se application for relief with this
Court, titled “Motion For Summary Judgment,” requesting that we grant
summary judgment and order his immediate release from custody. We deny
Appellant’s application, and note that a motion for summary judgment is not
an appropriate filing in a PCRA proceeding. See Pa.R.C.P. 1035.2.
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        The relevant factual and procedural history of this case is as follows.

On March 25, 1999, a jury found Appellant guilty of second-degree murder,

robbery, firearms not to be carried without a license, prohibited offensive

weapon, and criminal conspiracy.2              The conviction stems from Appellant’s

shooting of a jitney driver, Kenneth Wright, in the back of the neck with a

sawed-off shotgun, during the commission of a robbery, when Appellant was

fourteen years old. On May 4, 1999, the trial court sentenced Appellant to a

term of life imprisonment without parole for the homicide conviction, and a

concurrent term of not less than ten nor more than twenty years’

incarceration on the criminal conspiracy conviction. This Court affirmed the

judgment of sentence on April 14, 2000, and our Supreme Court denied

allowance of appeal on August 14, 2000.                   (See Commonwealth v.

Pendelton, 758 A.2d 724 (Pa. Super. 2000) (unpublished memorandum),

appeal denied, 760 A.2d 853 (Pa. 2000)).                Appellant subsequently filed

serial PCRA petitions, all of which were denied.3

        On August 23, 2012, Appellant filed the instant pro se PCRA petition,

styled as a “Petition for Writ of Habeas Corpus and Rule to Show Cause,”

____________________________________________


2
    18 Pa.C.S.A. §§ 2501, 3701, 6106, 908 and 903, respectively.
3
  Because those petitions are not at issue, we refrain from describing the
procedural history of each petition in detail. See Commonwealth v.
Cintora, 69 A.3d 759, 761 (Pa. Super. 2013), appeal denied, 81 A.3d 75
(Pa. 2013).




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J-S53034-14



claiming that his life sentence is illegal based on the United States Supreme

Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).4 The PCRA

court properly treated the filing as a PCRA petition.5   The court appointed

counsel, who subsequently withdrew from representation because Appellant

wished to proceed pro se. Appellant filed several pro se motions, in which

he requested that the court allow him to amend the PCRA petition to add

new claims unrelated to Miller. (See PCRA Court Opinion, 7/17/14, at 1-

2).6   On July 11, 2013, the PCRA court entered an order staying the


____________________________________________


4
  The Miller Court recognized a constitutional right for juveniles under the
age of eighteen, and held that “mandatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’”         Miller,
supra at 2460.
5
   “[This Court] ha[s] repeatedly held that . . . any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012) (citation omitted) (concluding that
appellant’s “motion to correct illegal sentence,” filed after his judgment of
sentence became final, was a PCRA petition). The plain language of the
PCRA states that “[it] provides for an action by which . . . persons serving
illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542.
6
  Among the claims Appellant sought to add was one based on the United
States Supreme Court’s decision in J.D.B. v. North Carolina, 131 S.Ct.
2394 (2011). (See PCRA Ct. Op., at 1). In J.D.B., the Court considered
whether the age of a child subjected to police questioning is relevant to the
custody analysis of Miranda v. Arizona, 384 U.S. 436 (1966). See J.D.B.,
supra, at 2398. The Court held “that so long as the child’s age was known
to the officer at the time of police questioning, or would have been
objectively apparent to a reasonable officer,” the child’s age is relevant and
must be considered. Id. at 2406.



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proceedings     pending     the    Pennsylvania   Supreme   Court’s   decision    in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134

S.Ct. 2724     (2014). On October 30, 2013, our Supreme Court issued the

Cunningham decision, and held that the Miller holding will not be applied

retroactively to cases on collateral review. See Cunningham, supra at 11.

On November 1, 2013, the Commonwealth filed an answer to Appellant’s

PCRA petition, requesting that the court dismiss the petition pursuant to

Cunningham, supra.

       On December 10, 2013, the PCRA court issued notice of its intent to

dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). Appellant

filed several pro se responses, including a request for leave to amend his

petition to include the “previously            undiscoverable” testimony of      co-

conspirator Arthur Dunn.          (Objection to Rule 907 Notice and Motion for

Leave to Amend PCRA Petition, 12/27/13, at 1; see id. at 1-3).7 On January

16, 2014, the court entered its order dismissing the PCRA petition.              The

court also dismissed Appellant’s various other pro se filings in which he



____________________________________________


7
   Specifically, Appellant claims the benefit of the after-discovered facts
exception based on Dunn’s testimony at Dunn’s February 1999 trial. (See
Appellant’s Brief, at 8-9); see also 42 Pa.C.S.A. § 9545(b)(1)(ii). According
to Appellant, Dunn testified in his own defense and admitted to killing the
victim. (See Appellant’s Brief, at 8-9). Appellant contends that he first
learned of Dunn’s testimony on November 21, 2013, when his federal lawyer
forwarded a copy of Dunn’s trial transcripts to him. (See id. at 6, 8).




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J-S53034-14



advanced claims unrelated to Miller.           (See Order, 1/16/14, at 1-3).   This

timely appeal followed.8

       Appellant raises the following issues for our review:

       1.    Can a juvenile be held liable for not discovering the
       previously undiscoverable evidence and bring such to the court’s
       attention and/or place the burden upon him, does this not
       violate his substantive due process and equal protection rights?

       2.    Did the Commonwealth fail to allege every element of
       second degree murder, 18 Pa.C.S. § 2502(B), which has violated
       [Appellant’s] due process rights under the 14th Amendment to
       the United States Constitution when it violated the Apprendi v.
       New Jersey[, 530 U.S. 466 (2000)] rule and compulsory
       joinder rule?

       3.    Was petitioner entitled to relief under the new rule of law
       established by J.D.B. v. North Carolina, 131 S.Ct. 2394
       (2011)?

       4.    Was petitioner’s substantive due process rights [sic]
       violated when he was not given/granted a competency hearing?

       5.    If Miller v. Alabama, 132 S.Ct. 2455 (2012), is not
       retroactive under federal law then is it available under

____________________________________________


8
  The PCRA court did not order Appellant to file a Rule 1925(b) statement of
errors. However, Appellant filed a Rule 1925(b) statement on February 26,
2014. The court filed a Rule 1925(a) opinion on July 17, 2014. See
Pa.R.A.P. 1925.

      We note that the Commonwealth claims that Appellant did not serve
the trial court with the notice of appeal, and that, as a result, the record
does not contain a Rule 1925(a) opinion. (See Commonwealth’s Brief, at 9-
10). However, the PCRA court filed a Rule 1925(a) opinion after the
Commonwealth filed its brief.




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J-S53034-14


       Pennsylvania state constitution and does the state constitution
       provide greater protection?

       6.    When the trial judge fails to enter and docket sentencing
       order and fails to mention a sentencing statu[t]e, does this not
       violate Appellant’s due process rights and voids [sic] his
       sentence?

(Appellant’s Brief, at 4).

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine whether the
       determination of the PCRA court is 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, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).

       Before we may consider the merits of Appellant’s claims, we must

consider whether this appeal is properly before us.

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence became final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by this
       Court or the United States Supreme Court, or at the expiration
       of the time for seeking such review.             42 Pa.C.S.[A.] §
       9545(b)(3).      The   PCRA’s     timeliness    requirements   are
       jurisdictional; therefore, a court may not address the merits of
       the issues raised if the petition was not timely filed. The
       timeliness requirements apply to all PCRA petitions, regardless of
       the nature of the individual claims raised therein. The PCRA
       squarely places upon the petitioner the burden of proving an
       untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).



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      In this case, Appellant’s judgment of sentence became final on

November 13, 2000, when his time to file a petition for writ of certiorari with

the United States Supreme Court expired.         See U.S. Sup. Ct. R. 13; 42

Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a

petition for collateral relief, specifically, until November 13, 2001. See 42

Pa.C.S.A. at § 9545(b)(1).    Because Appellant filed the instant petition on

August 23, 2012, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

      (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.

Id. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.


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J-S53034-14



Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In

addition, a PCRA petition invoking one of these statutory exceptions must

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

42 Pa.C.S.A. at § 9545(b)(2).

       Here, Appellant invokes the benefit of the exception at 42 Pa.C.S.A. §

9545(b)(1)(iii), a newly-recognized, retroactively-applied constitutional right

to relief predicated on the United States Supreme Court’s decision in Miller,

supra. (See PCRA Petition, 8/23/12, at 1; Appellant’s Brief, at 4, 20-21).9

Appellant asserts that, under Pennsylvania law, Miller is retroactive because

our   state    constitution    affords    greater   protection   than   the   federal

constitution. (See Appellant’s Brief, at 4, 20-21). We disagree.

       In Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), a

panel of this Court considered the Miller decision in light of Cunningham in

the context of a facially untimely PCRA petition and explained:

              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 [the
              Supreme Court of Pennsylvania] 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
____________________________________________


9
  The Supreme Court decided Miller on June 25, 2012, and Appellant filed
the instant petition fifty-nine days later, on August 23, 2012. See 42
Pa.C.S.A. § 9545(b)(2).




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               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.

             . . . [I]n Cunningham, our Supreme Court held that the
       constitutional right announced by the United States Supreme
       Court in Miller does not apply retroactively. Consequently,
       [a]ppellant cannot rely upon Miller or subsection 9545(b)(iii) to
       establish jurisdiction over his untimely PCRA petition in any
       Pennsylvania court.

Seskey, supra at 242-43 (some case citations omitted).

       Likewise, here, Appellant “cannot rely upon Miller or subsection

9545(b)(iii) to establish jurisdiction over his untimely PCRA petition in any

Pennsylvania court.” Seskey, supra at 243. Accordingly, Appellant’s Miller

claim fails.

       In addition, Appellant argues the applicability of the after-discovered

facts exception at 42 Pa.C.S.A. § 9545(b)(1)(ii), based on the trial testimony

of Arthur Dunn at Dunn’s 1999 trial.            (See Appellant’s Brief, at 8-9).

Appellant also invokes the United States Supreme Court’s decision in J.D.B.,

supra, decided in June 2011, as a basis for relief. (See Appellant’s Brief, at

16-18). These claims are waived.

        “[The Pennsylvania Supreme] Court has condemned the unauthorized

filing of supplements and amendments to PCRA petitions, and has held that

such   claims     raised   in   such   supplements    are   subject   to   waiver.”

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Commonwealth v. Reid, 2014 WL 4097636, at *4, 32 (Pa. filed Aug. 20,

2014) (citations omitted) (holding claims raised for first time in apparently

unauthorized supplemental PCRA petition waived).         Further, “it [is an

a]ppellant’s duty to identify where in the record the supplemental petitions

were authorized and/or reconstruct the record if such authorization was

provided off the record.” Id. at *4.

            Our criminal procedural rules reflect that the PCRA judge
     “may grant leave to amend . . . a petition for post-conviction
     collateral relief at any time,” and that amendment “shall be
     freely allowed to achieve substantial justice.” Pa.R.Crim.P. 905.
     Nevertheless, it is clear from the rule’s text that leave to amend
     must be sought and obtained, and hence, amendments are not
     “self-authorizing.” Thus, for example, a petitioner may not
     simply ‘amend’ a pending petition with a supplemental pleading.
     Rather, Rule 905 explicitly states that amendment is permitted
     only by direction or leave of the PCRA Court. It follows that
     petitioners may not automatically “amend” their PCRA petitions
     via responsive pleadings.

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (case

citations and some quotation marks omitted).

      Here, Appellant did not include his claim relating to Dunn’s testimony

or his claim based on the J.D.B case in his PCRA petition.        (See PCRA

Petition, 8/23/12, at 1-2).   Instead, a review of the record indicates that

Appellant raised these claims for the first time in subsequent pro se filings.

(See Objection to Rule 907 Notice and Motion for Leave to Amend PCRA

Petition, 12/27/13, at 1-3; PCRA Ct. Op., at 1-2).      The record does not

reflect that the PCRA court granted Appellant leave to amend his PCRA

petition premised on a right to relief under Miller to add unrelated claims.


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Thus, because Appellant “may not simply amend a pending petition with a

supplemental pleading,” his claims based on Dunn’s testimony and the

J.D.B. case are waived.           Baumhammers, supra at 730 (citation and

quotation marks omitted).10

       Accordingly, based on the foregoing, we conclude that Appellant has

not met his burden of proving his untimely petition fits within one of the

three limited exceptions to the PCRA’s time-bar. See Jones, supra at 17.

The PCRA court properly dismissed Appellant’s petition as untimely with no

exception to the time-bar pleaded or proven.

       Order affirmed. Application for relief denied.


____________________________________________


10
   Moreover, although Appellant contends that Dunn’s 1999 trial testimony is
newly-discovered evidence, Dunn’s testimony is a matter of public record,
and not unknown for purposes of invoking an exception to the PCRA’s time
bar. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert.
denied, 134 S.Ct. 2695 (2014) (“matters of public record are not unknown”)
(citations omitted); see also Commonwealth v. Hawkins, 953 A.2d 1248,
1255 (Pa. 2006) (concluding that transcripts of court proceedings are public
records).

       Furthermore, our review of the notes of testimony on which Appellant
relies does not support his assertion that Dunn admitted to killing the victim.
(See Objection to Rule 907 Notice and Motion for Leave to Amend PCRA
Petition, 12/27/13, at 1-3, Exhibit 1; Appellant’s Brief, at 8). Instead, the
notes of testimony show that Dunn admitted only to pointing a gun at the
victim. Thus, Appellant’s claim lacks a factual basis.

     Finally, we note that the United States Supreme Court decided J.D.B.
on June 16, 2011; Appellant filed the instant PCRA petition on August 23,
2012, more than one year later. See 42 Pa.C.S.A. § 9545(b)(2).




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J-S53034-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2014




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